Brown, Darren v One Force Group Aust Pty Ltd
[2009] VCC 1679
•18 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-01055
| DARREN BROWN | Plaintiff |
| v | |
| ONE FORCE GROUP AUSTRALIA PTY LTD | Defendants |
| & CGU WORKERS COMPENSATION (VIC) LTD |
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| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 & 18 November 2009 |
| DATE OF JUDGMENT: | 18 December 2009 |
| CASE MAY BE CITED AS: | Brown, Darren v One Force Group Aust Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1679 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – section 134AB – injury to cervical spine requiring surgical intervention from which plaintiff makes a good recovery with ongoing residual pain referred from further –degeneration in cervical spine – plaintiff resumes full time employment-stoic plaintiff with objective MRI evidence of ongoing degeneration in cervical spine-leave to commence proceeding under section 134AB(16)(b)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Philbrick SC with | Clark Toop & Taylor |
| Mr G Pierorazo | ||
| For the Defendants | Mr P Jens | Lander & Rogers |
| HIS HONOUR: |
1 This is an application which relies on part (a) of the definition of “serious
injury” in sub-s.(37) of s.134AB of the Accident Compensation Act 1985 (“the
Act”), that is permanent serious impairment or loss of a body function.2 The body function relied upon is the cervical spine.
3 The claim by the plaintiff instituted by Originating Motion dated 18 March 2009 seeks leave from the court pursuant to sub-s.(16)(b) of the Act to commence a proceeding which will claim damages for pain and suffering. The particulars of injury pleaded as at 3 August 2009 are:
(a) injury to the structure to the cervical spine including disc damage at C5/6 and C6/7 nerve root impingement and left arm pain and radiculopathy; and (b) left shoulder injury.
4 Mr Philbrick SC with Mr G Pierorazo of counsel appeared on behalf of the plaintiff. Mr P Jens of counsel appeared on behalf of the defendants.
5 The following evidence was adduced during the hearing:
•
The plaintiff swore two affidavits and gave sworn evidence and was cross examined. The plaintiff’s first affidavit was sworn on 30 April 2007.[1] The second affidavit was sworn on 3 September 2009.[2]
•
The plaintiff tendered the following evidence – the plaintiff’s court book (“PCB”) pages 19-41 inclusive and 46-49 inclusive and 50-71 inclusive and 87-88 inclusive.
•
The defendants tendered the following evidence – the defendants’ court book (“DCB”) pages 1-26 inclusive and 70-74 inclusive and 78-80 inclusive.
•
The plaintiff also tendered pages 35-36 inclusive from the defendants’ court book.
[1] PCB 19
[2] PCB 25
6 In giving consideration to this application I have considered all of the evidence adduced by the respective parties.
7 The plaintiff is 42 years of age. He was born on 5 October 1967. He lives with his brother and has three children who live with his former wife. He had previously attended Altona North Technical School until Year 10 and after he left school he did various labouring jobs. He worked at an abattoir for six to seven years before commencing to work as a truck driver holding a heavy combination type licence.
8 The plaintiff suffered an injury on 25 January 2006 whilst working for the
firstnamed defendant performing emoleum maintenance at the City of Melton. During the course of that work he was required to lift a concrete grinding machine several times and whilst lifting the machine during the course of the day he felt a gripping sensation in his neck and shoulder whilst trying to lift the machine onto a truck. The grinding machine was very heavy and awkward and weighed in the vicinity of 80 kilograms. The size of the machine and its nature meant that the lifting was awkward and so he suffered injury.
9 The plaintiff reported the fact of his injury upon return to the depot controlled by the City of Melton. The following day was the Australia Day holiday and he rested but he experienced pins and needles in the fingers of his left hand and he says in his affidavit that he was in pain.[3] On 27 January the plaintiff returned to work but was restricted. He rested over the following weekend but the pins and needles continued. He worked again on the following Monday but did very little and he says that he was in such pain that he could not continue to work.[4]
[3] PCB 20
[4] PCB 21
10 The plaintiff was referred for physiotherapy and had severe pain in his neck
and left shoulder blade area and inner upper arm and he had paraesthesia in his fingers on the left hand and in the forearm. The physiotherapist treated him with manual and tape tractions and with various mobilisations. He was advised to use a towel collar, heat pads and manual self-traction techniques at home. However, the treatment made no difference to his condition. Eventually he was referred to a neurosurgeon and underwent surgery in August 2006 during which he was hospitalised for a period of one week. Prior to the surgery he had received cortisone injections from a rheumatologist. Following surgery he was home for about a week but because the operative wound became infected he returned to hospital where he remained for a further two weeks whilst that was treated.
11 Following surgery, gradually the pins and needles in his left hand and forearm
disappeared and he felt what he describes in his affidavit as “significant relief”.[5] However, he has suffered with ongoing symptoms and restrictions. He has an unsightly scar measuring about six inches in length from the bottom of his scalp in his neck. He complains that he suffers from ongoing headaches at the rear of his head especially when tired. For relief of this pain he takes over the counter medication in the form of Panadol and has preferred to avoid where possible taking prescription medication such as Panadeine Forte. He suffers from limitation of movement in his neck particularly to the left. He says: “If I twist my neck I suffer pain. I have ongoing neck pain.”[6]
[5] PCB 3
[6] PCB 22
12 The plaintiff continued to suffer from symptoms and pain from his neck injury.
In about February 2007 he had two cortisone injections into the cervical area. At that time he said that he was suffering from a sharp knife-like pain and the cortisone injections assisted.[7] He describes ongoing pain in his neck which is worse with activity and is invariably worse at night to the extent that sometimes he has difficulty holding his head up. He says that during the day he rests when possible and lays down to take the weight off his neck. As at the time of swearing his first affidavit he was having ongoing physiotherapy with prescribed exercise at home which he performs on a daily basis.
[7] PCB 22
13 The plaintiff has limited skills and education and is not really a candidate for
retraining. The secondnamed defendant at some point envisaged retraining him for forklift driving work but such work requires constant turning of the head which may exacerbate the symptoms the plaintiff suffers from. Doctors have imposed a 10 kilogram maximum lifting capacity upon the plaintiff.
14 During the course of the hearing the plaintiff was cross examined at length by
Mr Jens about the following paragraph which appears in the plaintiff’s first affidavit as paragraph 9.[8] It is relevant, I think, that I set out that paragraph in full because it formed the basis of an attack on credit against the plaintiff:
[8] PCB 23
“9.
Pre-injury I was earning $580 net per week. I used to enjoy motorbike riding for sport and, in fact, I raced competitively for 12 years. My doctor and neurosurgeon have both told me I am not (sic) continue any longer with motorbike riding. I used to race motorbikes regularly at Laverton and I have won a lot of trophies which I have at home. I also used to enjoy kick to kick footy on a social basis. I am limited in my ability to drive for lengthy periods and, in fact, I ride a pushbike in preference. I am limited in playing with my children and lifting them up and I am very careful about what activity I perform in case I set my injury back again and I do not want to endure what I have so far endured in terms of the surgery and its aftermath. Although I am limited in gardening, as I have referred to, I do attend to the lawn mowing. I also used to play ten pin bowling in a competition but I have had to cease that. Since suffering the injury I have had difficulty sleeping and I constantly wake during the night and I have difficulty in obtaining a comfortable position. I will be requesting a prescription for sleeping pills when I next attend my general practitioner. I also had a drag car, but I have had to sell that because it put too much pressure on my neck.”
15 During the course of cross examination it became apparent that in fact the
plaintiff has never held a motorbike riding licence apart from a learners permit which was obtained in the last 18 months or thereabouts. When he refers in his first affidavit to ceasing motorbike riding he in fact admitted that he ceased motorbike riding when he was about 18 years of age, more than 20 years ago. Similarly, the plaintiff has not engaged in drag car racing for a very long period of time.
16 The defence attacked the plaintiff on the basis that his first affidavit overstated
his case and gave the impression (falsely) that the plaintiff had had to give up
these activities solely on account of the injuries sustained by him in the accident.
17 The criticism is, I think, well made of the plaintiff especially when regard is had
to the fact that the complaints of giving up these activities was repeated in the plaintiff’s second affidavit sworn as recently as 3 September 2009. At paragraph 5 of the second affidavit the plaintiff said as follows:
“5.
I continue to pay rent where I reside and I continue to pay maintenance for my three children who I see on a regular basis both socially and by way of having custody. I am limited in the activities I can perform with the children because of my neck injury, including for example, kicking a football. I used to race drag cars and motorbikes, which I did for 12 years. I am unable to do so and I used to enjoy riding horses. I no longer do so. I have been told to avoid any activity which will result in the risk of further injury to my neck. I still enjoy fishing from time to time. My ability to lift weights is reduced and I have been advised that I should not perform heaving lifting. At home I perform the domestic activities, but at my own pace and without exerting myself. I also perform the lawn mowing, but again I do so with as little effort as possible so as not to strain my neck.”
18 I think the correct approach to this part of the evidence is to conclude that the
plaintiff has overstated his case in this regard. Both the first and second affidavit create the clear impression that the plaintiff has had to give up activities such as riding motorbikes and racing drag cars because of the injuries sustained in the accident. However, whilst the affidavits are not happily worded, I think the correct interpretation is really to conclude that whilst the plaintiff may have enjoyed these activities in the past, should he chose to do so because of the neck injuries he has sustained, he would be unable to return to these activities in the future when time and money permit him to do so. I do not place it any higher than that.
19 Further, I had the opportunity to observe the plaintiff as a witness during a
lengthy period of close cross examination by Mr Jens. I concluded that he is a stoic person given to understating the injuries he sustained and the effects of them. He has, I think, done his best to get on with his life as well as he can without complaint. This is evidenced by the fact that he has returned to full-time employment as a truck driver driving locally and interstate and sometimes working in excess of 40 hours per week including overtime when that is available. All that is to his credit and is frankly conceded in the evidence put before the court especially in cross examination. I found the plaintiff to be an honest witness ready to concede matters against his interest not only when necessary but at the outset on occasions as soon as a particular issue against interest was raised. Although the attack against the plaintiff on a credit basis was made because of what he has put in his affidavit, as will be seen from what follows, I have concluded on the basis of all the evidence before the court that the plaintiff must succeed in his application.
20 In his second affidavit the plaintiff at paragraph 6 says that his neck and
scapula pain remains very much as it has been for a number of months. He claims, and I accept, that his neck and scapula pain is neither improving or deteriorating. He says the same of his limitation of movement in his neck which he claims is constant. The plaintiff has been told that there is no further treatment available for him and that he must put up with this neck pain and shoulder scapula pain for the remainder of his life.
The Statutory Scheme
22. The application is brought pursuant to section 134AB(16)(b) of the Act and relies upon the definition of “serious injury” contained in subsection (37)(a) of section 134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
23. 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 the course of his employment on or after 20 October 1999.[9]
(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”.[10]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a) and subsection (19)(b), subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (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)
Subsection (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)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(h)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately.
(i)
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 subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(j)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[11]
(k)
I am required by section 134AE 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.
[9] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11[10] Barwon Spinners, at paragraph 33[11] (1994) 1 VR 43624. That brings me to the medical evidence which needs some explanation.
History of Medical Treatment
25. Following the accident which led to his injury on 25 January 2006, the plaintiff attended upon his general practitioner, Dr Leon Stesin, at Blackshaws Road Medical Centre in Altona North on 30 January 2006. Dr Stesin provided a report.[12]. The plaintiff told Dr Stesin that while lifting heavy machinery at work on 25 January 2006 he felt a cracking noise coming out from the left side of his neck and developed pain in the left side of the neck and pins and needles in the left arm up to his fingers. On examination Dr Stesin found some loss of sensation over the left arm, normal power and normal reflexes. Dr Stesin arranged for an x- ray and CT scan of the cervical spine and later there was an MRI carried out of his cervical spine.
[12] PCB 36
26. Those investigations confirmed degenerative changes of the cervical spine with reduction of intervertebral height at C5/6 and C6/7 and exit foramina stenosis at C5/6 and C6/7. Dr Stesin assessed the plaintiff as suffering from degenerative spine disease with pressure on the left side cervical nerve roots. The plaintiff was treated with anti-inflammatory medications, painkillers and physiotherapy with minimal improvement. Dr Stesin referred the plaintiff to Mr Jithoo, a neurosurgeon.
27. The medical evidence of radiological imaging of the plaintiff is at PCB 29 to 35 inclusive. X-rays carried out on 30 January 2006 record:
“There is slight narrowing of the disc spaces at C5/6 and C6/7 with associated osteophytic lipping especially at C6/7. There is osteophytic encroachment on the foramina at C6/7 from lipping at the neurocentral joints. There are minor degenerative changes in other areas.”
28. A CT scan carried out on 3 February 2006 records inter alia:
“There is no evidence of significant disc bulging at C3/4 and C4/5. At C5/6 there appears to be some bilateral posterolateral disc prominence projecting to the neural exit foramina but there is no thecal compression. At C6/7 there is some left posterolateral disc prominence adjacent to the left C6/7 neural exit foramina. No definite thecal compression is evident at this level.”[13]
[13] PCB 30
29. The plaintiff was referred by Dr Stesin to Mr Jithoo, a neurosurgeon, who saw the plaintiff initially on 20 March 2006.[14] An examination by Mr Jithoo revealed the following:
“Clinical examination revealed no wasting or fasciculations in the upper limbs. Tone was normal in both upper limbs with power grade 5/4 at the shoulders, elbows and wrists in both arms. Reflexes were symmetrically depressed at the biceps and triceps with brisk supinator jerks. There was a loss of sensation to pin prick in a patchy distribution over the acromioclavicular joint and proximal deltoid muscles over the left arm.”[15]
[14] PCB 47
[15] PCB 48
30. Mr Jithoo referred the plaintiff for an MRI scan which was carried out on 26 April 2006. The MRI scan is found at PCB 31. It revealed degenerative changes at C5/6 and C6/7 being most pronounced at C6/7. Exit foraminal stenosis was demonstrated at C5/6 and C6/7.
31. Mr Jithoo saw the plaintiff again after the MRI scan was carried out on 26 April 2006. Mr Jithoo said that the MRI scan revealed a left sided C6/7 disc bulge with no cord compromise. This was classified as moderate in nature and the plaintiff was commenced on physiotherapy and anti-inflammatories. A further review on 7 July 2006 revealed that the plaintiff had not improved after conservative treatment. Mr Jithoo recommended a C5/6 and C6/7 cervical foraminotomy for relief of the radicular pain. The plaintiff underwent surgery on 25 August 2006. The C5/6 and C6/7 foraminotomies were performed using the left sided approach. The nerve roots were verified to be free and the plaintiff was “discharged well”.[16] Mr Jithoo’s report records:
“He had made good improvement regarding his left arm pain but did require an inpatient stay for intravenous antibiotics for superficial wound infection. Darren had some residual shoulder symptoms, especially over the medial border of the left scapula over the rhomboid muscle group. An ultrasound of the left shoulder was arranged, which was normal. Darren was recommended to be referred to an orthopaedic surgeon for assessment of his shoulder joint and was referred back to Dr Stesin for this.” [17]
[16] PCB 49
[17] PCB 49
32. In this proceeding before the court the plaintiff quite frankly acknowledges that the foraminotomy carried out by Mr Jithoo did provide much relief of his symptoms. This proceeding is essentially about what Mr Jithoo described as the “residual shoulder symptoms” from which the plaintiff continues to suffer and whether or not those symptoms are a “serious injury” within the meaning of that term in the legislation.
33. After the surgery carried out by Mr Jithoo, Dr Stesin referred the plaintiff for treatment by Dr Jeff Markov, a rheumatologist,. The referral was for treatment of the residual left shoulder problem. Dr Markov first saw the plaintiff on 9 January 2007.[18] Mr Markov’s report records:
“On examination he looked well, was moderately overweight and blood pressure was 140/80. There was marked tenderness on palpating the muscles of the posterior cervical spine, the upper thoracic spine and also the muscles just medial to the medial order of the left scapula (between the scapula and the midline). There was no muscle wasting or muscle weakness in this area however. All the joints of the upper limbs were normal, including the left shoulder. General examination was otherwise unremarkable.”[19]
[18] PCB 45
[19] PCB 45
34. Dr Markov thought that the plaintiff had a strain of the muscles between the thoracic spine and the medial order of the left scapula and he injected steroid and local anaesthetic into the muscle belly at the most tender location. In his report Dr Markov said, inter alia:
“When I reviewed him on the 10th April 2007 he described the pain having virtually resolved following the steroid injection, and the benefit apparently lasted more than two months. There had been some recrudescence of his symptoms however. However, the response to the steroid injection confirmed my diagnosis and I was satisfied that no problem existed with the ribs, lungs or pleura, and also that the pain did not relate to the cervical spine or nerves exiting from the spine. I noted that he had been off work for some 14 months and given that he had recovered from his neck surgery by now I could see no particular reason why a soft tissue strain of the muscles as described above should lead to any kind of serious disability or incapacity. He seemed to be much more disabled than I would have expected from the minor muscle strain.”[20]
[20] PCB 46
35. The plaintiff continued to be treated conservatively throughout 2007. Part of his treatment was physiotherapy. A report from Matthew Brewer, physiotherapist, deals with some of this treatment. In a report[21] by Mr Brewer reports:
“Darren was seen on 5.02.07, 8.02.07 and finally 23.02.07. Darren reported that he had a C5/6 and C6/7 foraminotomies in August 2006. Following this surgery, he reported that his neural symptoms (pain and pins and needles) had settled. He sought treatment to strengthen the muscles across his neck and shoulders. He was given a comprehensive strengthening program. He was last seen on 23 February 2007, and in this session, it was recorded that he was progressing well. All the exercises were reported as easy and pain free. The plan was made to progress his exercises as per the plan given to Darren.”
[21] PCB 44
36. Prior to the hearing an up-to-date report was obtained from the general practitioner, Dr Stesin.[22] In his report Dr Stesin records, inter alia:
“The surgery eliminated some of the symptoms particularly pain and sensation of pins and needles over his left arm and neck and reduced sensation over the left arm. However, he still has some pain over the medial aspect of the left scapula. The pain is worse when he attempts to abduct (lift sideways) his left arm. There is some tenderness over the medial aspect of his left scapula.
The pain came at the time of this original injury in 2006. The anatomical origin of this pain and exact diagnosis of this pain is not certain. He is not being treated for this pain. The pain doesn’t seem to be causing any significant disability. From the point of view of his 2006 injury he is fit to work as a truck driver. The pain over the medial aspect of his left scapula has not changed since 2006.”
[22] PCB 40
37. The plaintiff has been putting up with the ongoing residual pain in his left shoulder area after surgery. The cause of that ongoing pain became the central issue in the trial before me.
38. The plaintiff’s solicitors referred the plaintiff for medico-legal opinion to Mr S F Schofield, who saw the plaintiff on 8 May 2007. Mr Schofield’s report indicates that on examination “neurological examination revealed normal power and normal sensation. He did have an aspect of left triceps jerk. Examination of the left shoulder was normal.”[23] Mr Schofield opined as follows:
“This patient has suffered an acute cervical disc prolapse as a result of a lifting strain, which occurred on 25 January 2006. The diagnosis was confirmed by an MRI scan and surgery has been successful in relieving the compression affecting the left arm. The function of that arm has improved as a result of the surgery but he continues to have significant pain in the region of the left scapula. The examination and ultrasound of the left shoulder is normal, thus, confirming on clinical grounds that the pain is referred from the neck. Further investigations are required in order to establish a firm diagnosis. If the proposed investigation of MRI scan of the thoracolumbar spine does not produce a satisfactory explanation for these symptoms I would then request a further MRI scan of the cervical spine which in my view, is more likely to be the cause of his referred left scapula pain, but probably at the level above the C6/7 level. I am therefore not, in a position to provide you with an opinion whether or not he needs further surgery until these investigations are done. In addition I cannot say whether there was any separate damage done to a thoracic disc until the results of the MRI scan are to hand.”[24]
[23] PCB 52
[24] PCB 52-53
39. At the request of Mr Schofield a further MRI scan was carried out on the plaintiff on 19 March 2008. A copy of the report from the MRI scan carried out at that time is contained in the plaintiff’s court book.[25] That report recorded, inter alia:
“At C6/7, there is also a prominent broad based posterior disc bulge, which flattens the ventral aspect of the thecal sac, and this is associated with bilateral posterolateral extension of disc material into the foraminae and some minor osteophyte formation. This does contribute to narrowing of the C7 foramen and some possible irritation to the exist nerve.”
[25] PCB 35
40. Following the obtaining of this MRI scan Mr Schofield further reported that the MRI scan changes clearly identify the cause of the plaintiff’s continuing neck and left arm pain. He said:
“The major contribution continues to arise from the C6/7 but there is also some contribution from C5/6. It is unlikely that further conservative treatment will be of much benefit. Your client should, therefore, be referred to a spinal surgeon for consideration of further surgery. It is my opinion that surgery would involve two level anterior decompression with stabilisation either with a total disc replacement or with bone grafts in cages (fusion). The principle of the operation is that there should be excision at the disc at each level and some form of stabilisation procedure depending on the experience and the advice of the treating surgeon. In the meantime, I did not believe that your client is fit for any work.”
41. Mr Jens, who appeared for the defendant, was highly critical of this report. He argues it must be in error because the plaintiff has been able to get on with his life relatively unaffected and the opinion is obviously flawed where Mr Schofield contends that the plaintiff is unfit for any type of work, the plaintiff having returned to truck driving.
42. The plaintiff was referred to Mr Schofield for an up-to-date medico-legal report. Mr Schofield saw him again on 9 October 2009. At that time the plaintiff continued to complain of headaches, neck pain and sharp pains into his left scapula. He was unable to move his neck quickly and had a limited range of movement especially when turning his head to the right. At that time he was unemployed as a result of a fall where he fractured his hip and apart from historical significance that matter is not relevant to this proceeding. Examination of the plaintiff revealed a limited range of movement especially rotation and lateral flexion to the left. There was local tenderness; he had a two centimetre wasting of the left upper arm and left forearm. Mr Schofield also noted some weakness of dorsi flexion of the left wrist and a reduced strength of the left triceps jerk which fatigued easily compared with the right and did not fatigue with recurrent tapping. Sensation appeared normal. In his opinion, in his report of 15 October 2009, Mr Schofield said:
“This patient is continuing to work despite persistent symptoms of stiffness and pain in the neck and referred left scapula pain and weakness. Although Mr Hawe did not agree with my triceps jerk changes, on this occasion, I did note that he did have a triceps jerk, but after two taps it became negative indicating radiculopathy. My opinion has not altered from that given in my report of 22 March 2008. It is unlikely that any further conservative treatment will be effective. He may also have increasing difficulty in coping with his work as a truck driver. It would be preferable if the C5/6 pathology is not severe enough to warrant surgery as a two level fusion will increase his permanent stiffness. Even with successful surgery he would be left with a permanent disability.”[26]
[26] PCB 58
43. The plaintiff was also referred to Mr Chris Haw, an orthopaedic surgeon, for medico-legal purposes. Mr Haw saw the plaintiff for assessment on 11 September 2009. Regarding the ongoing pain Mr Haw opined, inter alia:
“I believe that the ongoing pain in the scapula is related to his original disc injury at C6/7 and I agree that Mr Schofield’s hypothesis that a cervical fusion may be a possibility at some future time is reasonable, however whilst it may address his persistent scapula pain, it unfortunately does not guarantee and it would need to be a two level instrumented fusion at C5/6 and C6/7. It is my opinion that the impact of the injury has had an effect on Darren’s quality of life. It has necessitated a change in his work. It has contributed to fatigue due to a problem of difficulty in sleeping and he would no longer be able to drive long distances which he formerly did in his custom built car.”[27]
[27] PCB 61-62
44. Dr Stesin also referred the plaintiff to Mr Patrick Chan, a neurosurgeon, in May 2008. Mr Chan reported to Dr Stesin as follows:
“The patient no longer has neck pain or brachalgia. His main problem now is pain over the left inner shoulder blade. This would not respond to anterior cervical discectomy and fusion. I thought this is most likely related to local muscular or ligamentous strain. The patient claimed to have significant pain as a result of this. He is keen for further management plan. I understand he has tried opiates and physiotherapy without benefit. I have taken the liberty to refer him to see a pain specialist Dr Vallipuram for further assessment and management.”[28]
[28] PCB 71A-71B
45. A report was also obtained from Dr Vallipuram. He saw the client on referral from Dr Chan in September 2008. Dr Vallipuram reported, inter alia:
“On examination, Darren has been tender over the left parascapula region at T5/6 level and there is distinctive trigger points involving the muscles. At present he has no pins and needles or pain down the left arm. When he gets worse he leans over and massages his back. At present he is coping and therefore I have recommended he continues as he is and see if he could have trigger point manipulations in the parascapular region only. I have told him that I will review him as and when necessary.”[29]
[29] PCB 71C-71D
Other evidence
46. In evidence the plaintiff said that he had been back in work for the last three weeks following surgery for a fractured hip and also surgery to his left knee unrelated to this matter. He is now truck driving with Joe Cahill’s Transport Pty Ltd working 38-45 hours per week driving heavy vehicles.
47. Following the initial incident causing the injury to his cervical spine the plaintiff was off work into 2007. He resumed work in 2007 and was working for Intercoast Transport for three months in 2007. Again he was working 8-10 hours per day in that job driving heavy trucks. In total he has been working at Carl’s Transport for about 18 months. That work involves heavy transport driving, both around the city and to the country. One such country trip which the plaintiff gave evidence about, was a four and a half hour drive to Tumut followed by a delay for offloading the load and then a return drive to Melbourne empty of another four and a half hours. He said that he was able to cope with this work. He agreed in cross examination that the truck driving work around the city requires him to turn his head more often because of heavier traffic and he quite freely admitted in cross examination that he could do this work. But the plaintiff, in my view, tended to understate his symptoms.
48. It was apparent to me in the course of his evidence that he does have ongoing substantial pain in his left shoulder region which he is treating conservatively with floor exercises and taking Panadol. He also suffers from severe headaches and he has difficulty with his sleeping. He agreed in cross examination that he has had infrequent treatment from his general practitioner in 2008 and 2009 because he had been told by his general practitioner, Dr Stesin, that little if anything could be done for him save for having further surgery. The plaintiff said that he had formed a new relationship with another woman whom he met in 2007 after the accident and that the relationship was close so that he agreed that the consequences of the injuries he sustained has not affected his ability to form lasting relationships.
49. The plaintiff, I think, was stoic in the extreme and, as he put it, he needs to work to be able to afford to live. He agreed in cross examination that he has been able to partake in his favourite pastime of fishing. He said, however, that whilst he is working and working overtime when available, driving a truck does cause him ongoing pain in the neck and tension. He said that once the pain starts in his neck and left shoulder area it tends to get more severe. He takes up to four Panadol per day and as he said in his evidence quite frankly, at the end of the day he feels “rat shit, tired and with pain in the neck”. He said he sleeps badly a number of times per week and in the morning he wakes up tired affecting his ability to do his work. He said that he has tried a number of different forms of pillows without relief.
50. Although the defendants tendered a number of medical reports from Dr Susan Homolker and Dr David Barton and Dr David Fish, Mr Jens did not take me to any specific parts of those reports. I conclude that those reports add very little to the defendants’ case. I invited Mr Jens to take me to those specific parts of the reports upon which he relies. He did not do so.
51. In final submissions Mr Jens referred me to the decision of the Court of Appeal in Stijepic v One Force Group Australia Ltd (2009) VSCA 181, a joint Judgment of Ashley and Beach JJ. At paragraph 44 of the Judgment Their Honours said:
“We do not doubt that the evidence to which we have referred discloses pain and suffering consequences which are both marked and significant. But we are not persuaded that those consequences can be fairly described as being more than significant or marked or as being at least very considerable. It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent by what is retained’. We consider it a fair summary of the position that while the appellant has suffered from (and would likely continue to suffer from) inhibitions on his ability to engage in unrestricted physical activity, by and large his ability to engage in the activities that are important to him (and will be important to him in the future) is not affected to any great degree. In particular it does not appear to us that the appellant’s enjoyment of life (comprising his social life, his ability to travel and his ability to engage in guitar playing and social sports) has been affected in a way which could be described as more than marked or more than significant and certainly not at least very considerable.”
52. Mr Jens submitted that this case was similar to Stijepic. He submitted that the consequences for the plaintiff are not significant or marked or not very considerable. He said the plaintiff was able to return to work as a truck driver driving semi trailers around Melbourne which was harder work than long haul trips and he was also able to drive longer distances to places like Tumut. In referring to Stijepic he also referred to paragraphs 45-47 of the Judgment where there is discussion of the Court of Appeal decision in Sumbul. That has relevance from the fact that the plaintiff has been able to return to full-time employment, often doing overtime. Mr Jens also pointed to the fact that the plaintiff’s earnings had increased.
53. Mr Jens submitted that I should conclude that the plaintiff has made a good recovery from the surgery and this is consistent with the way he has gone about his life from 2007 onwards. As I said earlier, whilst I agree with the submission that the plaintiff appears to have overstated his case in the reference in his affidavit material to motorcycle riding and drag car racing, I did form the very clear impression when the plaintiff gave his evidence that he was a genuine type of person who tended to understate the nature of his injury and get on with his life where necessary. I have no doubt that when the plaintiff says that he is suffering from ongoing headaches and shoulder pain that that is the case notwithstanding the fact that he has returned to work. As the Court of Appeal pointed out in Stijepic at paragraph 47, the fact that the plaintiff has returned to work full-time is but one factor or one part of the evidence to be taken into account which needs to be viewed with all of the other evidence. Here there is clear objective evidence in the form of MRI imaging to account for the significant ongoing pain from which the plaintiff complains.
54. Mr Jens invited me to disregard the opinion of Mr Schofield. I decline to do so. I accept the submissions made by Mr Philbrick that the examination of Mr Schofield was both thorough and comprehensive and revealed a triceps jerk which subsequent MRI has revealed to be associated with further degeneration located in the cervical spine. I accept the submissions made by Mr Philbrick that the plaintiff suffers from ongoing pain and symptoms caused by a major injury to the cervical spine at C5/6 and C6/7 levels. I accept that after surgery the plaintiff received some relief but there are continuing and ongoing headaches primarily due to damage at the C5 level. The plaintiff, I think, does suffer real risk that he will have to undergo further surgery and I am of the opinion that I should not hold the fact that he is stoic in his approach against him. My clear impression was that he is putting up with significant left shoulder scapular pain which is worsening due to ongoing work and difficulty with sleeping. He is also suffering from on going headaches. In my judgment the on going impairment being suffered by the plaintiff can properly be described as very considerable and more than significant and marked.
55. I accept Mr Philbrick’s submissions that Ms Homolker, who assessed the plaintiff for the defendants, found the plaintiff to be a straightforward person who did not exaggerate his symptoms and this has been demonstrated by his high motivation in that after a number of injuries the plaintiff has returned to work on all occasions.
56. Mr Philbrick traced through all of the medical evidence and demonstrated properly, in my view, that the plaintiff’s ongoing symptoms are likely to be caused by ongoing degeneration in the cervical spine as opined by Mr Schofield and confirmed, to some extent, by the medical report from Mr Haw. I accept that evidence and act upon it.
Conclusion
57. I conclude that the plaintiff is left with ongoing pain in the left shoulder and scapula region of the left shoulder which is knife-like in intensity. He suffers from a persistent stiff neck on the left side and ongoing headaches. Whilst he is not having ongoing medical treatment on a regular basis, I am of the view that the plaintiff’s ongoing pain and difficulties associated with the injury to his cervical spine can be regarded as both marked and very considerable. I am therefore of the opinion that the plaintiff has made out his case and that he suffers from a “serious injury” within the meaning of the Act.
58. Accordingly, the formal order of the court will be that the plaintiff have leave pursuant to s.134AB(16)(b) of the Act to commence a proceeding claiming damages for pain and suffering.
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