Brown v Victorian WorkCover Authority
[2023] VCC 2231
•6 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-01728
| ALAN BROWN | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2023 | |
DATE OF JUDGMENT: | 6 December 2023 | |
CASE MAY BE CITED AS: | Brown v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2231 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the cervical spine – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Petkovski v Galletti (1994) 1 VR 436; Acir v Frosster Pty Ltd [2009] VSC 454; Cuturic v Spotless Facility Services Pty Ltd [2018] VCC 889; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Moulds KC with Mr R Lewis | Gordon Legal |
| For the Defendant | Ms L Glass | TG Legal + Technology |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an injury by the plaintiff suffered during the course of his employment with Engineering & Maintenance Solutions Pty Ltd (“the employer”) from December 2014 to March 2020 (“the said period”).
2The application is brought pursuant to subsection (a). The plaintiff did not proceed with his application under subsection (c).[1]
[1]Transcript “T”14
3The relevant body function is the cervical spine.
4The plaintiff seeks leave in relation to both pain and suffering and loss of earning capacity.
5The plaintiff bears an overall burden of proof upon the balance of probabilities.
6By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
7I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
9In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2], Haden Engineering Pty Ltd v McKinnon[3] and Ellis Management Services Pty Ltd v Taylor[4] in reaching my conclusions.
[2] (2005) 14 VR 622
[3] (2010) 31 VR 1
[4] [2013] VSCA 326
13The plaintiff swore two affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all the tendered material.
14The defendant’s case was that the plaintiff had significant health issues before the said period and that any work contribution had ceased and his present cervical condition was degenerative.[5] Range was also in issue.[6]
[5]T2; Dr Menz
[6]T76
The Plaintiff’s evidence
15The plaintiff is aged seventy, having been born in September 1953. He is married and in receipt of an aged pension.
16He ceased work with the employer on 2 March 2020, aged sixty-six. He received weekly payments until August 2022.
Pre incident health
17The plaintiff suffered previous injury to his upper and lower limbs, lower back and hip. The conditions were treated conservatively. In 2010, he suffered a work-related left knee injury requiring arthroscope. In July 2019, he had a total knee replacement. More recently, nerve conduction studies revealed bilateral carpal tunnel condition. He has not undergone a release. He also has high cholesterol and gout.
18Any neck pain he experienced prior to working with the employer was temporary. On 26 September 2014, he saw the employer’s preferred doctor, Dr Lipp, at Bridge Street Clinic, who certified him fit for full time, unrestricted work duties. There was no deficit in function of his knee at that stage.[7]
[7]T66
19The plaintiff was not sure, “maybe”, he had a longstanding history of neck symptoms. He agreed, in the 10 years before starting with the employer, he had neck symptoms treated from time to time with osteopathy.[8]
[8]T4
20As the Point Cook Medical Centre notes in December 2005 set out, he was involved in a car accident around that time. He could not remember then developing headaches, right shoulder and neck pain. He could also not recall in January 2006 having upper back and neck pain or a tingling in his right arm or then having a CT scan.[9]
[9]T7
21He agreed he was probably treated for a neck condition by an osteopath at Altona Meadows Clinic in 2010. He had a recollection of some problems with breathing late that year. He basically agreed with the content of any clinical notes that were put to him, “if it’s on there, it’s probably right.”[10]
[10]T9
22He could not remember attending an osteopath in 2015 but had been a few times. He went there from time to time if he was a bit sore and something was wrong.[11] “Probably,” he also had headaches prior to commencing work with the employer when taken to a Point Cook note in December 2005 and in May 2014. He agreed he would have been prescribed a wafer and Temax sleeping tablet on that later date.[12]
[11]T9
[12] T14
23“Probably,” he had headaches in August 2014, a couple of months before he started with the employer “but he did not know”. He agreed headaches were bothering him and he had broken sleep that month.[13]
[13]T14
24He agreed he had gout before starting with the employer and was prescribed Progout for his knee, ankle and toe conditions. “Probably,” he was prescribed nonsteroidal anti-inflammatory medication, but he could not remember.[14]
[14]T15
25In the decade before he started with the employer, he had flare ups of osteoarthritis from time to time affecting his knees, ankles, hips and back, “probably yes,” although his hip was okay. He was treated, at times, with medication.[15]
[15]T15
26In that period, he had also suffered some breathing issues which might possibly have had some effect on his sleep.[16]
[16]T15
Work with the employer
27He commenced employment with the employer on 4 October 2014 in Yarraville as a maintenance electrician. He had worked at the Yarraville premises from about 1982 for other employers. His duties involved difficult, awkward and heavy work, working in tight spaces for lengthy periods and carrying heavy weights which placed strain on his neck (“the work duties”).
28He was required to wear a helmet, which despite being upgraded in 2015, was not functional and he regularly struck the top and back of his head while climbing over ducts and platforms. The helmet blocked his rear vision and there was often not enough clearance to get past various components without striking his head.
29He was constantly climbing in and out of machines, pulling on cables and climbing up and down steps and ladders and ducking under beams. His neck was constantly in motion and often in hyperextension.
30He suffered from neck pain as far back as December 2017 when he was still working. He suffered injury to his neck with consequential headaches and referred arm pain radiating into his right thumb and forefinger and tingling.
31He completed a Worker’s Injury Claim Form on 7 May 2020. The injury/ condition listed was neck (C3/4, C4/5, C5/6, C6/7). The injury was described as having occurred over a period of time as a result of repetitive head movement, awkward positions and head knocks.[17]
[17] On 12 June 2020, EML accepted the claim for cervical injury. EML confirmed weekly payments on 16
July 2020
Other health issues while working for the employer
32He agreed, in December 2014, he was referred for treatment at a breathing and sleep clinic. He did an overnight test, and was diagnosed with very mild sleep apnoea.[18]
[18]T16
33While working for the employer until March 2020, he “probably” had various periods of time off work for injuries and medical conditions.[19]
[19]T17
34In about December 2014, he had some problems with his right knee and had some time off work until March 2015, although he could not remember exactly.[20] He was prescribed analgesics and later, prescription nonsteroidal anti-inflammatories for his knee. He had a right meniscal tear. He was referred to an orthopaedic surgeon and had an arthroscope in December 2014.[21]
[20]T17
[21]T18
35He took time off work at that time because there were no light duties available with the employer. As of February 2015, he was not quite ready to go back to work.[22]
[22]T20
36He agreed he returned to work in about March 2015. He then had a reasonable period doing normal duties until December 2016. During that time, he was attending his general practitioner (“GP”) for treatment of osteoarthritis and gout from time to time, and was being prescribed medication.[23]
[23] T21
37In January 2017, he had a left elbow bursa removed and was off work for some time, maybe to March, as the records showed. He was probably back, then, for only a couple of months,[24] because in June 2017 he suffered knee problems and was certified for restricted duties and was off for a period of time. He ended up having a left knee replacement.[25]
[24]T21
[25]T22
38About that time, he signed a transition to retirement agreement with the employer, working a capped number of hours a year. Sugar Australia had then decided there were too many people on maintenance and they wanted to retrench some workers.[26]
[26]T22
39The plaintiff and a co-worker, Wayne, were concerned they were going to be retrenched, so the plaintiff suggested job sharing with Wayne who agreed with that proposal. If this plan was put down to “transition to retirement,” the employer would be okay about it, because it did not believe in job sharing. He and Wayne went along with this plan to maintain their employment.[27]
[27]T23
40Under the agreement, the number of hours they were working were reduced. They worked one week off and one week on, or if someone was on annual leave or sick, they covered for them. They worked 35 or 36 weeks a year. The plaintiff’s income dropped significantly, but it meant he kept his job. He and Wayne had both been in the job a long time. He had a pretty good arrangement with everyone, because he was president of the social club for probably 10 years or more, and they organised a lot of things, like a golf competition.[28]
[28]T24
41He did not agree he was really winding down his work activities from that time. He would have liked to be working full time, but it was either going to be Wayne or himself who was going to get “the chop”, so they formulated this agreement. He disagreed the time off helped his knee problems. Although this agreement was signed during a period he was off work because of his left knee, it was not a consideration the agreement would have been of some help in lightening the load on his knees.[29]
[29]T24
42This agreement was not something he wanted to do:
“It was because the company had decided to retrench someone and it was either gonna be Wayne, ah, or myself and we had a chat and we discussed it and we decided if we put up the share job principle. So we offered the company the – the job share and they rejected it, but when they reworded it to a, um, transition to retirement, then they say, ‘Yeah, well look, that – that fits our criteria, that would be- that would be fine,’, so they accepted that.”[30]
[30]T70-71
43In mid-July 2017, the plaintiff returned to work and worked through until approximately July 2019, when he had his left total knee replacement and was off work until February 2020. He then returned after rehabilitation for a brief period of probably weeks, from February to sometime in March, when he experienced issues with his neck.
44In early 2020, he was going to the beach, trying to walk into the salt water, and his left knee had improved considerably, and he was passed fit to work in January 2020 and return to full duties.[31]
[31] Clinical note of 7 January 2020 - plaintiff returned to work that day after his knee replacement
45On 29 January 2020, Altona Superclinic notes set out the plaintiff attended for neck pain - “[h]as pain in the neck and right hand for a few days”.[32]
[32]T26
46What stopped him working after that was when he hurt his neck and he had to stop work in about March – “It was hurting me neck and had pain in the arm… the back of me neck and the bottom part of me skull… right shoulder … and I was in pain down the arm.[33]
[33]T68
47Dr Harris at Bridge Street Clinic saw the plaintiff on 24 March 2020 certifying he was fit for minimal duties involving head movement and a suggestion for an MRI scan. The plaintiff did go back to work with those sort of restrictions – “It was pretty hard and no good in the end. It lasted, probably weeks, doing normal duties.”[34]
[34]T65
48He agreed he attended the doctor in mid-February 2020 with shortness of breath. After finishing with the employer, he saw his doctor in April 2020, wanting a referral, having chronic shortness of breath. He disagreed that was something that condition would put him off work at the time.[35]
[35]T27
49He could not recall as was noted on 21 April 2020, that he was then suffering from chronic lower back pain. He agreed he was being prescribed Mersyndol Forte, probably for his back pain.[36]
[36]T27
50While an entry of 30 April 2020 read “partial lung collapse six to seven weeks, seeing specialist. Been finding it difficult to breath and has been getting headaches, tired, lethargic,”[37] he really could not remember having a partial lung collapse. He knows, at the moment he has been going to a specialist and his breathing has “improved heaps.”[38] He could not honestly remember a collapsed lung, but he would accept a May 2020 note to this effect.[39]
[37]T27
[38] T28
[39]T30
51He disagreed he had anxiety about remaining at work in early 2020, when COVID was an issue. There was no shutdown, as his work was an essential service.[40]
[40]T28
52Since he has finished with the employer, he has had ongoing difficulty with his knees from time to time, he gets a bit of soreness every now and again, but nothing significant. He agreed he has discomfort from time to time.[41]
[41] T30
53His gout has been “real good”.[42] “It’s been a long time since [he] can remember having gout”.[43] He does not think it is anywhere near as bad as it was and he hardly gets any issues with it, for how long he cannot remember.[44]
[42]T30
[43]T31
[44]T31
54He agreed, from the time he finished with the employer until the end of last year, he was having intermittent flare-ups of gout and osteoarthritis. There would have been a number of attendances at his GP, probably six, for the arthritis maybe, but not the gout. He thought the gout had been pretty good.[45]
[45] T31
55While he has been told about Carpal Tunnel Syndrome, he does not really have an issue with it at the moment, “so it is alright”.[46] When he first saw Dr Prentice, the doctor was just mainly concerned with the nerve pain down his arm and sort of fixated on that.[47]
[46]T68
[47] T68
Post-incident treatment
56The plaintiff had multiple forms of treatment including a course of Prednisolone, physiotherapy, osteopathy and CT guided nerve root injection. He was prescribed amitriptyline but ceased soon after as a result of side effects.
57As at December 2022,[48] he received osteopathic treatment and attended the gymnasium and hydrotherapy. He commenced chiropractic treatment and was referred to a neurologist whom he saw every three months. He took Nurofen, Panadol on a regular basis and Mersyndol and Panadol Osteo at night. He took a mix of the four tablets per day.
[48] First affidavit sworn 5 December 2022
58He continued to suffer from chronic neck pain. Sleep was affected and he had great difficulty finding a comfortable position. Neck pain woke him up and he could not easily get back to sleep. Sometimes, he watched television before returning to bed. He experienced headaches at the top and rear of his head and reduced neck movement. He had trouble driving, particularly reversing and looking up. Pain was constant and exacerbated by the cold. Headaches were reasonably constant and sometimes severe.
59He intended to continue working until he was seventy-two because he loved his work and had been working at the premises in Yarraville since 1982. Had he continued working full-time, he would have earned $2,500 gross per week. He was now totally incapacitated for work and there was no prospect of returning to any form of employment.
60At home, he was unable to paint or work above head height. He was restricted in maintenance activities such as gardening.
61His driving was also restricted because of neck pain and lack of concentration. He and his wife attended a wedding in Queensland and she drove there and back.
62He had difficulty playing with and carrying his grandchildren.
63He had undergone numerous radiological scans including MRI scans in December 2017, March 2020, January/ early February 2022, a bone scan and SPECT and CT scan in May 2020. He also underwent a nerve conduction study. Despite extensive conservative treatment, he remained symptomatic and restricted in his activities and movement.
64As at September 2023,[49] he continues to experience similar pain, effects and restrictions as previously deposed.
[49] Plaintiff’s second affidavit sworn 14 September 2023
65He sees his GP Dr De Alwis at Altona Super Clinic for his neck pain. He attends Symmetry Physiotherapy in Altona Meadows and The Physiotherapy at Sports Injury Clinic Point Cook. Osteopathy has been at Altona Meadows Osteopathy and chiropractic treatment at Werribee Chiropractic Centre. He sees neurologist, Dr David Prentice. In May 2020, he saw Mr G Nair, neurosurgeon, via telehealth.
66He consults his treaters for his neck pain as well as his other issues.
67Current treatment involves attending Dr De Alwis every three weeks as needed.[50] He has osteopathic and chiropractic treatment every two to three weeks. He also performs home exercises for his neck and continues to undertake hydrotherapy on a regular basis. The chiropractor, who he was seeing for his back, said he might be able to help do something about the neck and the headaches, and he had been seeing whether he would help. The osteopath, recently, has only been for the neck, but the chiropractor treats both.[51]
[50]T69
[51]T62
68He takes Panadol Osteo most days and Nurofen a couple of times per week. He applies heat cream on his neck several times a week and a heat bag most days, especially in colder weather.
69The only medication currently prescribed is Mersyndol Forte, which he takes weekly. He tried a painkiller, but he had heart palpitations and he was breaking out in a sweat, and had a terrible reaction to it. In re-examination, counsel clarified that it was Endep.[52]
[52]T63
70The intensity of his neck pain varies depending on activity and weather. He experiences daily headaches and a throbbing sensation, particularly at the rear of his head. The headaches can be severe, debilitating and quite devastating and are one of the biggest consequences of his neck injury.
71He also has intermittent pain and tingling, including in his forearms and fingers. Some of his symptoms may relate to carpal tunnel syndrome, however, he still has referred pain down from his neck into the shoulders.
72Sleep continues to be affected by his neck injury both because of pain and difficulty getting into a comfortable position.
73Sexual relations with his wife are affected by neck pain. He used to need Viagra but, nowadays, his neck injury has pretty much ended sexual relations.
74He has not returned to work. On 19 August 2022, he tendered his resignation due to retirement. If he did not have his neck injury, he would still be working now, and doing the same work hours.[53]
[53]T73
Golf
75He used to play golf two or three times per week. Prior to injury, his handicap was 16 and was now 24. He played golf once a week for fitness in walking around the golf course.[54]
[54] Plaintiff’s first affidavit sworn 5 December 2022
76He continues to try to play golf at least weekly, aiming for two games per week. He uses a golf cart and wears a special scarf to keep his neck warm and free. His neck is sore after a game of golf but he continues to play to keep up exercise and mental health benefits.[55]
[55] Plaintiff’s second affidavit sworn 14 September 2023
77He agreed that he had had some restriction in his range of neck motion as a result of his injury.[56] He agreed, as of February this year when seen by Dr Boucher, he was restricted moving his neck from side to side mostly, and also restricted in looking down and back up again. That had been the case consistently since the injury.[57]
[56]T32
[57]T34
78Sometimes he might play two rounds of 18 holes of golf in a week. He does not go to a driving range, because there is not one at his golf club, but he occasionally goes and has a hit in the nets at Corimon Golf Course, where he is a member.[58]
[58]T35
79He does not play with a cart all the time. He sometimes gets a push buggy to wheel around.[59] The buggy may weigh a couple of kilograms. He guesses his clubs weigh about 10 kilograms. He has to get them in and out of the car. When it was suggested he was able to move his clubs in and out of the car “with comfort,” he said, usually most of the time he has got a headache or does not feel well, “but it is better than sitting on the couch doing nothing”.[60]
[59]T35
[60]T36
80Sometimes, maybe once or twice a week, depending on how he feels and whether he is up to it, he will hit in the nets for up to three quarters of an hour, but generally not in addition to playing 18 holes. His pain and reduced movement does impact on his golf. He is not quite as free, “[y]ou don’t quite hit the ball as hard or as often. Well, you hit it more often actually … You can’t put everything into it.” It has affected his swing and his driving is restricted in terms of the amount of rotation.[61]
[61]T37
81He attempted to demonstrate his golf swing in the witness box. He would not say it is a full back swing, but he tries. Sometimes, he cannot help himself and he swings a bit harder than he should. He would say he demonstrated how he would hit the golf ball. He has a “sort of a retarded forward swing”. Going back with his head, he has trouble focusing on the ball, which causes him to mishit.[62] His ability to get his head back fully is restricted. It was fair to say he had difficulty looking at the ball, then following through to the flight of the ball. He had lost some of the fluid movement.[63]
[62]T38
[63]T39
82He was then shown about seven minutes of film of him at the golf club taken on 27 January 2023.
83He agreed he was shown practising with an iron in the nets. He agreed, for about seven or eight minutes, he hit approximately 28 shots with a driver and then changed to an iron, and then he did some chipping at the end.[64] “They weren’t full swings. And that was pretty ordinary”.[65] He is not able to hit the ball always comfortably: “Well, it's either that or you're sitting home staring at the walls, so you need to do something”.[66]
[64]T42
[65]T43
[66]T43
84When it was suggested he had freer movement on the film than demonstrated in the witness box, he said:
“Well, I'm sort of restricted here but you haven't got a club in your hand or – the movement wasn't very good if you had a look at it.”[67]
[67]T43
85On 28 March 2023, he was shown lifting a full set of golf clubs into the back of the car using both hands. It was done in a reasonably fluid movement, not 100 per cent fluid.[68]
[68]T48
86He is sure he told doctors that he played golf. The exercise physiotherapist had shown him how to move so he does not put pressure on his neck and the osteopath had shown him the best thing to do was to move his shoulders. Everyone he has told has been advising him to play golf to help him recover and do things:
“So I – I've – sometimes I don't feel like playing, but I'd rather be out there than inside bloody suffering, but sometimes it's not as bad as others.”[69]
[69]T49
87When it was suggested he was shown warming up in a very fluid motion, he said every day is a bit different, but on that day it was pretty fluid, but still restricted. It was fair. He would not have said “good”.[70]
[70]T49
88He would describe his swing as pretty restricted, it is not very free, it is not a very loose swing.[71]
[71]T50
89He then explained he was restricted in the witness box and how could he move around in there.[72]
[72]T50
90When it was suggested there was significantly greater neck movement in the film than demonstrated in court, he answered:
“Well, the neck range of motions change from day to day, and sometimes it's worse than others. Today, in here, you asked me to do it – I haven't got a club in me hand, I'm restricted with all this stuff, so it's not exactly the swing that I would have been able to do, but I tried to demonstrate.”[73]
[73]T50
91Eighteen holes usually takes about four hours. He would agree that the 28 March film showed a very active day, and that was something he would be able to do probably once a week, sometimes twice.[74]
[74]T51
92In re-examination, he was taken to film on 28 March, at 23:11 and 25:50.[75] He agreed he hesitated a bit at the end of a swing and his balance seemed to be a bit off at the end. He supposed his neck was playing up a little bit and he tried to compensate a little bit.[76] He was not shown doing a proper swing. You should stay down over the ball, but he does not, because he has trouble doing it because of his neck and shoulders.[77]
[75]T71
[76]T72
[77]T73
93Prior to his injury, he went on caravan trips on a regular basis. He goes far less now and his wife does the driving. He tried driving once, but the neck pain became severe and his wife took over.
94On 23 March 2023, he was filmed with his wife out the front of the car. There was a caravan to the side of the car. They had gone on a caravan holiday in March and his wife drove. She drove in South Australia, where they stayed for five days.[78]
[78]T46
95Heather drove to Robe because he had trouble concentrating and turning his neck around, and doing those sorts of things. He did not have any problems with knees driving, or gout getting in the way of doing that, or his lower back.[79]
[79]T71
96Prior to the injury, he enjoyed regular fishing out on Port Phillip Bay. He has not enjoyed fishing for some time now. He is no longer able to go fishing as a result of his neck pain, it is the bobbing up and down on the boat. He would be able to fish from the land, but that is not the same.[80] He last went fishing in a boat “years ago.”[81]
[80]T53
[81]T73
97He used to regularly attend Collingwood football matches, mainly at the MCG. He has not attended any matches for some time because of his headaches, making it difficult to concentrate and watch a game for two and half hours straight.
98He remains restricted and frustrated that he cannot play and pick up his children.
99His mood has deteriorated as a result of neck pain and restrictions. He tries to stay positive, but many activities are frequently undertaken in the face of pain.
Progress
100He agreed, with some treatment, his neck pain and symptoms have improved. The injection into his neck improved it a bit and he had a good response to that.[82] While Dr Prentice noted his good response to the October 2020 injection, with only minimal pain in the right arm, the plaintiff thought he had a bit more than minimal pain but it had improved a lot, and he was continuing to experience some localised neck pain.
[82]T54
101He agreed, as the treating osteopath reported in November 2020, that his condition had stabilised since first seen and the hand pain was starting to ease since the injection into this neck.[83]
[83]T55
102When told Dr Prentice wrote to the GP in September 2021, advising the plaintiff has really only minimal weakness of finger extension of the right now, and still gets some neck pain, and pain in the right arm at times, but overall, he felt it was going fairly well, the plaintiff said at that time, he was still experiencing some neck pain and pain in his right arm at times.[84] He would not agree that he was doing fairly well, but he would concede he had improved.[85]
[84]T56
[85]T57
103The plaintiff agreed as Dr Fiamengo reported in September 2021 that neck pain was starting to stabilise, but the plaintiff was still experiencing motor and sensory changes in his right arm, but not as constant as initially. He agreed that the right arm symptoms were intermittent, and the frequency of consultations were reduced to once a month.[86]
[86]T57
104Having been told Dr Prentice reported in January 2022 that there had been a deterioration and slight numbness in the right arm around that time, the plaintiff said it was nerve pain, not numbness. He could remember the doctor saying he was concerned about the carpal tunnel and he wanted him to wear a brace, but it was really of no assistance. He was “still getting stuff” generating from his shoulder into his arm and he did not believe it was carpal tunnel.[87]
[87] T58
105He agreed with what was reported by Dr Prentice in April 2022. In February 2023, the pain and numbness were not just in the hands, as Dr Prentice reported, it was right down the arm to the hand.[88]
[88]T59
106He would not say that in February this year Dr Prentice recommended carpal tunnel surgery. He said if the plaintiff had the release, it would definitely show whether it was his neck or the carpal tunnel. That was as far as it went.[89]
[89]T61
107When he last saw Dr Prentice in August 2023, he said to him, “[l]ook, you’re worried about this nerve pain down the arm… the issues are the headaches and the neck pain.” Dr Prentice did not tell him he thought those things had resolved.[90]
[90]T60
108Dr Prentice gave him an injection in the neck, cortisone, one on either side, which tended to help a bit and enabled him to have a bit more neck movement. That was at some point this year.[91] That injection improved a little bit more, “but it still, just sitting still like this aggravates it”.[92]
[91]T61
[92]T54
109He agreed his neck and right arm symptoms of pain had gradually improved since he ceased work and the pain has probably gone from constant to intermittent.[93]
[93]T61
110He has been told about Carpal Tunnel Syndrome, but he does not really have an issue with it at the moment, “so it is alright”.[94]
[94]T68
Plaintiff’s medical evidence
Treaters
Ms Nicola Andreacchio, Physiotherapist
111The plaintiff first presented to Ms Andreacchio on 7 February 2020 for assessment and management of his neck pain.
112He had recently returned to work following a left total knee replacement and found that a combination of wearing his helmet and awkward neck positions increased his neck pain.
113The plaintiff had a CT scan many years ago showing disc degeneration, disc compression and arthritis in the neck. He also described experiencing pins and needles in the right arm and side of the face.
114On assessment, the plaintiff’s cervical rotation and flexion was significantly restricted. He was stiff through several upper cervical vertebral segments and tense through muscles of upper shoulder girdle and neck.
115Treatment involved soft tissue massage and joint mobilisation which improved his range and provided home exercises. She encouraged him to speak to his GP if his symptoms worsened.
Dr Girish Nair, neurosurgeon
116The plaintiff attended Dr Nair on 6 May 2020 via telehealth.
117He described issues of neck pain and tingling and numbness in his right arm which had settled. At time of the assessment, he had a flare-up of pain in his neck and tingles and numbness down his right arm.
118The flare-up in his neck occurred when he returned to work following his total knee replacement. The plaintiff attributed his flare-up of pain to heavy work as an electrician and to the helmet he had to wear.
119The plaintiff described weakness in his right hand.
120While Dr Nair reviewed the MRI scans, he was unable to make a clear assessment on the information available and requested a face to face appointment.
Dr David Prentice, neurologist
121Following referral from his GP at Altona, Dr Prentice first saw the plaintiff in July 2020 via telehealth due to COVID-19 restraints.
122The plaintiff described severe pain shooting down the right arm associated with numbness of the right thumb and fore finger and some weakness of the hand as well. There were no lower limb symptoms.
123An MRI of his cervical spine showed extensive disc disease, with canal narrowing at multiple levels. It was relatively unchanged compared to previous scan in 2017, but the degree of foraminal stenosis was quite marked, particularly at C5/6 and C6/7. He thought the plaintiff most likely had compression of right C6 nerve root causing most of his symptoms. A bone scan showed some facet joint arthropathy at other levels.
124He then suggested a course of Prednisolone and that the plaintiff may need a right transforaminal nerve root sheath injection at C6.
125In a further letter to the GP on 24 February 2023, having seen the plaintiff that day, he advised that the plaintiff was continuing to get problems with pain and numbness with his hands at night. He had moderately severe carpal tunnel syndrome shown on testing. He thought that was the cause of most of his symptoms although he certainly has had significant neck problems in the past as well. He advised the plaintiff try wrist splinting to see if that alleviated his symptoms and if not, he thought the plaintiff would need to have surgery on the more symptomatic right side initially.
126Dr Prentice provided a report for the plaintiff’s solicitors on 1 September 2023, dealing treatment of the plaintiff from July 2020.
127Following the transforaminal nerve root sheath injection at C6, the plaintiff started on Endep for neuropathic pain. On 14 October 2020, he described a good response to the injection with only minimal pain in the right arm now, but he was still getting localised pain in the neck which Dr Prentice suspected was related to his facet joint disease.
128The plaintiff did not respond well to Endep, which caused side effects, but was pursuing osteopathy and also using analgesics and anti-inflammatories, which Dr Prentice advised he continue.
129On upper limb examination, the plaintiff had no significant sensory loss, but the right biceps and supinator jerks were slightly diminished compared to the left and power seemed normal.
130Dr Prentice continued to see the plaintiff throughout 2021-2023. He continued to have some neck pain and less severe radicular-type pain down the right arm, with some paraesthesia in the C6 distribution.
131They decided to continue conservative treatment as he seemed to be gradually improving.
132Dr Prentice also did nerve conduction studies which showed some mild carpal tunnel syndrome on the right and suggested use of a splint at night.
133The plaintiff showed some deterioration around December 2021, so a repeat MRI was organised which showed no significant changes compared to the early one, and the plaintiff continued to have some paraesthesia in the right arm.
134In April 2022, the plaintiff told Dr Prentice he had pretty much stopped working because of ongoing arm symptoms.
135When seen in February 2023, the plaintiff was complaining of neck pain, headaches and also some paraesthesia in the left hand as well as the right, so further nerve conduction studies were arranged.
136The plaintiff was also describing some right shoulder pain and Dr Prentice suggested an ultrasound.
137Follow-up nerve conduction studies did show moderately severe bilateral carpal tunnel syndrome which Dr Prentice felt was the cause of most of his symptoms then, although the plaintiff certainly had significant neck problems in the past as well. He again suggested wrist splinting to see if that would alleviate his symptoms.
138On the last visit on 17 August 2023, the plaintiff had had some improvement with wrist splinting, but was more concerned about his ongoing headaches which emanated from the neck and spread occipitally on both sides.
139He decided to try some occipital nerve blocks and administered Depo-Medrol on either side and arranged to review the plaintiff in two to three months. He thought the plaintiff being referred to a pain specialist was a good idea.
140He thought the plaintiff had evidence of quite significant and established cervical degenerative disease when first seen, and at least initially, a right C6 radiculopathy was his main symptom, but since then, other factors such as carpal tunnel syndrome and facet arthropathy in the neck had probably been more likely culprits for his ongoing symptoms.
141He expected the plaintiff would need ongoing treatment, which may include tunnel release surgery, and a neurosurgical opinion on his cervical spine may need to be considered if symptoms deteriorate. However, so far, they were in agreement that cervical surgery would not be in his best interests.
142He regarded the injury as having stabilised. He did not specifically imply how it affected the plaintiff’s work, but the plaintiff had told him he had had to cease work, which would not surprise him given the manual nature of work as an electrician and the aggravating effect this would have had on his pain, not to mention possible loss of dexterity from the sensory component of carpal tunnel syndrome and cervical radiculopathy.
Dr Lishan De Alwis, GP at Altona Superclinic
143Dr De Alwis took over the plaintiff’s care on 24 May 2022 when his regular GP left the practice.
144In January 2023, Dr De Alwis diagnosed severe osteoarthritis of cervical spine, active facet arthropathy with multilevel disc bulge and canal stenosis giving rise to neck pain with numbness in right arm/ wrist.
145He thought the plaintiff required further review from Dr Prentice for future management plan.
146The plaintiff’s symptoms were stable.
147The plaintiff’s capacity to work had been impacted by the injury. He suggested a review by Anisha Vayla, rehabilitation consultant, for his work capacity and general employment with assessment of his future employability.
148In his recent report of 13 August 2023, he thought the plaintiff is unlikely to return to pre-injury employment as an electrician.
Altona Meadows Osteopathy & Healthcare Clinic
149The plaintiff first attended Dr Fiamengo at the clinic in July 2020 complaining of chronic cervical pain.
150From the plaintiff’s history and examination, Dr Fiamengo diagnosed chronic lower cervical degenerative joint/ disc disease, causing radicular referral to his right arm.
151Treatment involved manual therapy and exercise/ strength and conditioning programs.
152In December 2021, while the plaintiff attended weekly treatment, Dr Fiamengo thought the plaintiff’s pain was starting to stabilise. The plaintiff was still experiencing some motor and sensory changes in his right arm, but not as constant as commencement of treatment.
153Given the plaintiff’s improvement, Dr Fiamengo reduced treatment frequency in February/ March 2022 to fortnightly sessions for three months with the aim to further reduce treatment to once per month.
154The plaintiff was also treated by Dr Emily Chew and more recently by Dr Krystyn Raymundo at this clinic.
155Dr Raymundo provided a report in August 2023. She confirmed a diagnoses of C3-7 degenerative disc and joint disease following an MRI in mid-2018 with reports of constant pins and needles on right side. She thought that given his presentation and symptoms, it would be challenging for the plaintiff to return to full pre-injury duties due to his limited functional capacity.
156She was unable to determine whether the plaintiff’s employment materially contributed to his injury and suggested that he should continue to see his neurologist and osteopath monthly to manage his symptoms, improve his quality of life and reduce risk of deterioration. She also thought he would benefit from seeing a chronic pain specialist and exercise physiologist.
Dr Bruce Boucher at Werribee Chiropractic Centre
157The plaintiff first presented on 12 May 2022 complaining of a 10 year history of low back pain that had flared up that month. He was then suffering from a more acute neck injury that occurred at work on 2 March 2020. Treatment was only for the thoracic and lumbar spine as the cervical spine problem was treated elsewhere.
158Mr Boucher commenced treating the plaintiff’s chronic degenerative neck condition in February 2023. Over the period of treatment, the plaintiff felt that the constant pain had somewhat diminished and that his range of neck motion had improved.
Medico-legal
Dr Debo Gorai, Neurologist
159Dr Gorai assessed the plaintiff on 2 June 2020 at the request of the employer’s insurer.
160His presenting symptoms were neck pain, stiffness, restriction of neck movements and right upper limb cervical radiculopathic type of symptoms of pins and needles and pain.
161The diagnosis was cervical spondylosis and possible cervical associated radiculopathy.
162The plaintiff was very symptomatic and would not be in a position to be working in his pre-injury role or modified alternate work.
163He was uncertain as to the expected duration of the incapacity as the plaintiff required further specialist review from neurosurgeons, rheumatology, rehabilitation physicians, physiotherapy and occupational therapists.
Associate Professor Evange Romas, Rheumatologist
164Associate Professor (“A/P”) Romas examined the plaintiff in November 2020 at the request of the employer’s insurer.
165The plaintiff then had chronic headaches with characteristics of true cervicogenic headaches. He also had constant neck pain, which spread to the right side and sometimes the left and sometimes was out of control. The pain had radiated into the right thumb and forefinger with associated tingles. He had had a CT-guided C6 nerve root injection a month earlier. He would not have it again as it made him jump. It did not eliminate the pain in his right arm, but perhaps improved this by about 50 per cent, and the effects began to wear off after two or three weeks.
166The plaintiff also described a loss of dexterity in his hands, the worst being the right.
167On examination, there was no crepitus or muscle spasm. His upper limb reflexes could not be elicited, even with reinforcement. It was hard to know whether he had any carpal tunnel syndrome or if this related to radiculopathy, probably the latter. There could be little doubt that his right upper extremity symptoms were caused by C6 radiculopathy.
168He noted the findings on the 2017 and 2020 cervical MRIs.
169He thought the plaintiff had symptomatic cervical spondylosis. He had cervicogenic headaches and neck pain. He had bilateral cervical radiculopathy and recently had an injection for C6 nerve root symptoms. He did not have clinical symptoms or signs of cervical myelopathy.
170Given his age and the totality of his situation, A/P Romas concluded the plaintiff had an incapacity for his pre-injury work and actually had no current work capacity.
171He diagnosed an aggravation of cervical spondylosis with cervicogenic headache and cervical radiculopathy. There were no current clinical signs of C6 radiculopathy or cervical myelopathy.
172The plaintiff did not have capacity to undertake pre-injury duties and hours, which resulted from and was materially contributed to by his current cervical spine condition.
173The plaintiff did not have a capacity to perform work consistently, safely and reliably as a member of the wage-earning workforce. He took into account the plaintiff’s age, functional limitations resulting from his cervical spine, limited education, transferable skills, place of residence and current treatment and occupational rehabilitation services. He did not analyse specific suitable employment options.
174A/P Romas was provided with a vocational assessment report. He did not agree with the recommendations. He was critical of the report and thought it lacked a proper understanding of the persisting nature of the plaintiff’s medical condition and effect on his functioning.
175The suggested employment duties of workshop role, bench work and paperwork were either not suitable when considered against the plaintiff’s neck condition or did not read as authentic jobs.
176Pain management would not improve the plaintiff’s function because it cannot reverse or change the underlying condition. The workplace and pre-injury duties and barriers identified in the vocational report did not accord with what the plaintiff told him during assessment.
177The plaintiff did not have any motivational or psychiatric issues preventing his recovery or redeployment.
Mr Garry Grossbard, orthopaedic surgeon
178When the plaintiff was seen in June 2023, he complained of pain at the back of his neck, more so on the left side than the right, radiating up to the occipital area and down to the right shoulder. It was constant, although the intensity varied. He described it as an aching pain with occasional throbbing sensation up to the skull. He described a headache most of the time. He also described arm pain three to four times a week that could last for about half an hour at a time.
179The plaintiff had told Mr Grossbard of a history of gout, chronic obstructive pulmonary disease and knee injuries.
180He said he first noticed neck pain from about 2017, having been working overhead for some time. He felt things became worse after he bumped his head on several occasions and there was also the extra weight of the helmet which caused him further discomfort.
181On 2 March 2020, the plaintiff suffered a further bump on the head, and because of increased pain, attended the Bridge Street Clinic.
182Prior to the onset of severe pain, he undertook activities such as caravanning and fishing, and played golf regularly. He had not returned to those activities other than an occasional attempt at golf.
183Mr Grossbard thought the plaintiff was suffering from cervical spondylosis with associated C6 nerve root compression from the enclosed material. His examination and conclusion were somewhat different.
184He believed the plaintiff does have cervical spondylitis with significant discomfort and limitation of motion. He may have some referred pain into the right upper limb, but many of the signs are those consistent with carpal tunnel disease. He has tenderness on the volar aspect of the wrist, with positive Tinel and Hoffman’s signs and also a positive Phalen’s test. The altered sensation affecting the radial three digits could represent either C6 radiculopathy or median nerve compression due to the carpal tunnel disease.
185He did not believe there was significant cervical myelopathy. He thought conservative treatment was appropriate and he would only consider surgery if the symptoms became intolerable to suggest the development of cervical myelopathy.
186He believed at least some of the plaintiff’s right upper limb and hand symptoms could be explained by carpal tunnel disease.
187The plaintiff’s work over a period of time, in particular the episodes of injury through his helmet, had been a contributing factor to the onset of his cervical spondylitis.
188Now sixty-nine years old, the plaintiff is unlikely to return to active work, particularly where bending, lifting or getting into awkward positions would be required. The situation is stable and unlikely to change significantly in the foreseeable future.
Mr Roy Carey, Orthopaedic Surgeon
189Mr Carey carried out an impairment benefit assessment on 11 July 2022, allowing a 5 per cent whole person impairment for the cervical spine.
190He noted that the plaintiff obviously had longstanding constitutional cervical spondylosis and the workplace contribution must have been accepted. He agreed with A/P Romas given the cervical spondylosis present on imaging.
191The presentation was consistent with the workplace injury as described and subsequent treatment.
192He did not comment on the plaintiff’s work capacity.
Employment Documents
Dr Jack Lipp, Bridge Street Clinic
193The plaintiff presented to Dr Lipp at Bridge Street Clinic on 26 September 2014 at the request of the employer for a second opinion as to the plaintiff’s fitness to undertake employment with EMS.
194He noted the plaintiff’s colour blindness and noted that he has had 40 years of electrical experience without a single incident pertaining to colour discrepancy. The plaintiff underwent ischiahara colour testing and found the test to indicate minimal red, green colour blindness.
195The plaintiff had also sustained a meniscectomy operation for his left knee and made an uncomplicated full recover with no deficit in function.
196Following the examination and detailed discussion of the proposed activities of the role with the plaintiff, Dr Lipp found him fit for the position.
Dr Milton Harris
197On 24 March 2020, Dr Milton Harris provided a list of medical constraints as part of the plaintiff’s return to work plan.
198Medical constraints listed included not to wear helmet, minimal duties involving head movement and no lifting more than 2 kilograms.
199He suggested the plaintiff consult a local doctor to organise an MRI scan of his neck to determine disc prolapse and nerve compression.
Defendant Medical Evidence
Treaters
Dr David Prentice, Neurologist
200When seen on 9 September 2021, the plaintiff had really only minimal weakness of finger extension on the right now and still got some neck pain and pain in the right arm at times. He thought the plaintiff was doing fairly well overall.
201Having seen the plaintiff on 13 January 2022, he thought the plaintiff had been doing well with physical treatment with respect to his right arm radicular symptoms There had been a bit of a deterioration over the holidays without treatment with some slight numbness in the right arm although not specific to the C6 distribution. He decided to arrange another MRI to see if there had been any obvious change compared to the 2020 MRI.
202The further MRI showed no significant changes. The plaintiff was continuing to experience some right hand numbness and also now in the left. That may be just related to the mild carpal tunnel syndrome previously detected on the right.
Medico-legal
Dr Anthony Menz, Orthopaedic Surgeon
203Dr Menz examined the plaintiff in May 2023.
204The plaintiff then rated his neck pain as 8 out of 10 and his right arm pain as 3 to 4 out of 10.
205On examination of the cervical spine, there was very little range of movement. There was no tenderness along the length of the cervical spine and neurological examination of the upper limbs was normal.
206He did not believe the plaintiff’s severe cervical spondylosis was work-related and was purely constitutional.
207He noted the plaintiff had worked as an electrician for nearly 40 years and had had a long history of neck pain and right arm pain going back to 2011.
208There was a gradual onset of neck and right upper pain again in March 2020 and the plaintiff responded well to a nerve root injection, which gave good relief to his right arm and the pins and needles, but did not benefit his neck at all.
209The plaintiff subsequently retired and continued to have neck pain, and to a much lesser degree, pins and needles into his right arm.
210The short and long-term prognosis is the condition would gradually get worse with time, which was the natural history of cervical spondylosis.
211The plaintiff should be encouraged and educated in self-management.
212The plaintiff had a long history of cervical symptoms dating back to 2011, and in November 2017, attended his GP with pain and tingling in his right arm, which was an indication he had nerve root irritation at the time associated with cervical spondylosis.
213All the plaintiff’s symptoms were purely constitutional and age-related, and were not related to his work. His ongoing neck pain and right arm symptoms were solely related to nerve root aggravation from the spondylosis in the cervical spine.
214The plaintiff played golf on a regular basis and he seemed to cope well with that.
215He did not consider there was much in the way of work-related contribution at all and the cervical spondylosis was purely age-related.
216The plaintiff retired in August 2022 and he did not consider any future work capacity.
217In his view, the plaintiff did not present with any signs of abnormal illness behaviour or conscious or unconscious signs of exaggeration.
Transition to Retirement Agreement June 2017
218The Agreement signed by the plaintiff on 7 July 2017 was to “allow a smooth Transition to Retirement for EMS Electrical trade at the Sugar Australia site”.
219The Agreement provided that an electrical position was to be shared between two people based on both Transitioning to Retirement. The allocation of ordinary hours was 36 weeks x 36 hours a year worked on a one week on one week off roster. Hours may also extend to provide coverage for shift work.
Overview
220There is no dispute that the plaintiff suffered injury to his cervical spine as a result of his work duties with the employer.[95]
[95]T80
221The plaintiff’s statutory benefits claim was accepted, and payments were made for “neck, (C3/4, C4/5, C6/7)” which happened over a period of time with repetitive and awkward head positions and head knocks.
222The consensus of medical opinion is that the plaintiff suffers from cervical spondylosis. However, in issue is whether this condition is still related to the plaintiff’s work duties or degeneration and what is the role if any played by carpal tunnel syndrome in his current presentation.
223Having resolved those issues, the Court is required to determine whether the consequences of any cervical impairment are serious and whether they result in a permanent loss of earning capacity of 40 per cent or more.
Credit
224As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[96]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[96](2010) 31 VR 1 at paragraph [12]
225Counsel for the defendant submitted the plaintiff’s evidence as to his level of neck pain was tied up with credit given what was shown on the surveillance film. The plaintiff was described as “less than frank”, when one compared the limited range of neck movement he demonstrated in the witness box to how he was shown on the film moving with some “ease” on the golf course.[97] It was also submitted, the plaintiff’s limited movement on formal clinical examination[98] was directly at odds with what is seen, particularly in the March film.[99]
[97]T85
[98]T77; Dr Menz’s examination on 10 May 2023
[99]T83
226It was submitted the good day/bad day explanation raised credit issues, and that it was unusual that the bad days happened on formal clinical examination where severe loss of range of motion was noted by a number of examiners.[100]
[100]T84
227Also, it was a credit point that the plaintiff was not prepared to accept a collapsed lung, which was mentioned by a number of examiners.[101]
[101]T86
228Counsel for the plaintiff submitted that the plaintiff presented genuinely without embellishment. Not knowing he was being filmed, there was no limp or problem with his right knee, consistent with his evidence of the recovery of that condition.[102]
[102]T91
229As I indicated during the hearing, I did not have any issue with the plaintiff’s credit.[103] I thought any difference in his golf swing in the witness box to what was shown on film could be explained by the physical constraints of the witness box, which was not the best place to demonstrate a full golf swing. Further, I did not think the film showed the plaintiff playing freely or with any ease.[104]
[103]T91
[104]T83
230In my view, what was shown on the film was not inconsistent with the plaintiff’s description of his neck problems playing golf. Further, before any film was shown, he was candid about the amount of golf he played.[105]
[105]T83
231No doctor thought the plaintiff was exaggerating or embellishing his symptoms with Dr Menz commenting that he did not have any concern about a functional component.[106]
[106]T83
232I thought the plaintiff was a credible witness who gave a frank account of a range of health issues over many years, being prepared to accept the accuracy of clinical notes of which he had no memory. He did concede he must have had a collapsed lung. He did not embellish or exaggerate any of his neck problems, subject of this application.
Pre-existing spinal/ headaches and other conditions
233Counsel for the defendant submitted it was an aggravation case and a Petkovski[107] analysis was required. In that regard, it was submitted in very broad terms the medication is the same, with Mersyndol Forte before and afterwards; before for other conditions.[108] It was prescribed earlier for headaches, and has also been prescribed for back pain. The symptoms are the same, with some histories of intermittent pain and tingling in the right arm before the period of work.
[107]Petkovski v Galletti [1994] 1 VR 436
[108]T80
234The plaintiff also suffered from headaches before the period of work, particularly as noted from May to August 2014, when he commenced with the defendant in October of that year. There were also earlier sleep problems, mentioned in the clinical notes.[109]
[109]T82
235As I commented during the hearing, I do not accept Dr Menz’s comment that the plaintiff had a significant long history of neck symptoms dating back to 2011. Headaches before his injury at work were more in the nature of migraines rather than cervicogenic headaches of which he later complained.
236In my view, this was not an accurate description from the clinical notes which had only sparse, scattered references to neck problems during a time the plaintiff was performing heavy work with the employer in confined spaces.[110]
[110]T76
237Significantly, in 2014, the plaintiff was certified fully fit to commence work with the employer by the employer’s preferred doctor, Dr Lipp. From 2017, the plaintiff had increasing difficulty with his neck as a result of his heavy and awkward work duties with the employer.
Causation
238Counsel for the defendant relied on Dr Menz’s view that the plaintiff’s severe cervical spondylosis was not work-related and was purely constitutional.[111]
[111]T77
239Further, it was submitted while Mr Carey’s view formed the basis for the payment of an impairment benefit, he did opine the plaintiff has obviously longstanding constitutional cervical spondylosis, consistent with Dr Menz to that point, and seemed to be constrained by the acceptance of the claim.[112]
[112]T88
240Counsel for the plaintiff submitted the only use that can be made by the defendant of Dr Menz’s opinion is his view that severe spondylosis is not related to work – “Everything else is in favour of the plaintiff.”[113]
[113]T92
241The two examiners engaged by the insurer in 2020, A/P Romas and Dr Gorai thought there was a permanent aggravation at the time they offered their opinion. Neither suggested there was going to be some cut-off time where the plaintiff’s work with the employer would not contribute.[114]
[114]T92
242It was submitted the defendant obviously accepted Mr Carey’s opinion and allowed an impairment benefit on that basis.[115] Mr Carey did not say that the accepted injury should not be aggravation of constitutional cervical spondylosis. He went on further to say that he agreed with A/P Romas.[116]
[115]T92
[116]T93
243Mr Grossbard in June this year noted the consensus of medical opinion was that the plaintiff was suffering from cervical spondylosis with associated C6 nerve root compression, distinguishing between the right upper limb and cervical spondylosis.[117]
[117]T94
244Further, it was submitted Dr Menz did not display a path of reasoning, but just said the plaintiff’s neck condition was constitutional and “that is all there is to it”. He did not say there has never been a work contribution and did not explain why that stopped.[118]
[118]T95
245Taking into account all the evidence, I accept the consensus of medical opinion that the plaintiff’s work with the employer continues to contribute to the aggravation of cervical spondylosis. I reject the opinion of Dr Menz who is an outlier in this regard and who provides no explanation why work ceased to contribute and when.
Carpal tunnel
246As counsel for the plaintiff submitted, the recent debate whether it is C6 radiculopathy in the hand, or whether carpal tunnel, probably has not yet been resolved.[119] There were findings of C6 radiculopathy at the outset when the plaintiff was examined by A/P Romas in November 2020.
[119] T94
247While Dr Prentice has in recent times attributed the plaintiff’s right arm issues increasingly to carpal tunnel,[120] he gave the plaintiff a cortisone injection in his neck earlier this year which gave him some relief. As Dr Prentice noted when he last saw the plaintiff in August this year, the plaintiff’s main concern was ongoing headaches which emanated from the head and spread occipitally on both sides.
[120]T178
248On examination in June 2023, Mr Grossbard thought the plaintiff had cervical spondylitis with significant discomfort and limitation of movement. While he thought many of the signs were consistent with carpal tunnel, in this regard he was dealing separately with the right upper limb. In any event, he thought that carpal tunnel could be pretty easily treated if necessary.[121]
[121]T94
249The plaintiff does not really have an issue with carpal tunnel at the moment, “so it is alright”.[122]
[122]T68
Pain
250In Haden Engineering,[123] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia what the plaintiff says about the pain (both in Court and to doctors).
[123] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [11]
251The plaintiff continues to suffer from chronic neck pain, affecting his sleep. Pain is constant and exacerbated by the cold. He experiences daily headaches which can be severe and a throbbing sensation, particularly at the rear of his head. This is one of the biggest consequences of his neck injury. While some intermittent pain and tingling in his forearms and fingers may relate to carpal tunnel syndrome, he still has referred pain from his neck into his shoulders and beyond.
252When seen by Dr Menz in May 2023, the plaintiff rated his neck pain as 8 out of 10 and his right arm pain as 3 to 4 out of 10.
Treatment
253The plaintiff has had multiple forms of treatment including a course of Prednisolone, physiotherapy, osteopathy, chiropractic treatment and CT guided nerve root injection and recently, cortisone injections into his neck.
254There has been some improvement with injections in 2020 and this year but he still requires ongoing painkilling medication, taking Panadol Osteo most days and Nurofen a couple of times per week. He is prescribed Mersyndol which he takes weekly. He was prescribed amitriptyline and Endep, but ceased soon after because had a terrible reaction to it.
255As Dodds-Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd,[124] :
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[124](2007) 17 VR 592 at para 199
Work
256The main consequence relied on by the plaintiff was having to cease work in 2020 because of his neck injury.[125]
[125] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
257Counsel for the defendant submitted the work related consequences simply do not rise to the standard of the narrative test. While he was working at the time of the injury, he was at the end of his working life. He had had ongoing health issues, periods of time off work in relation to bilateral knees, and now has bilateral carpal tunnel, according to Dr Prentice.[126] These other health conditions would have ended his work life in any event.[127]
[126]T89
[127]T86
258It was submitted the plaintiff was not someone who would have been able to continue working, particularly in the nature and extent of the work he was undertaking, the number of stairs, work on ladders and in confined spaces, with his other problems, including his respiratory condition, gout, and osteoarthritis. He would not have been able to consistently maintain that work.[128]
[128]T89
259It was submitted those circumstances must be understood in the context of the transition to retirement agreement where the plaintiff reduced his hours significantly in 2017.
260Reliance was placed on the case of Cuturic,[129] where the plaintiff, aged seventy at the time of the hearing, failed to satisfy the Court that she would have continued to work after seventy and leave to bring proceedings for economic loss was refused.
[129]Cuturic v Spotless Facility Services [2018] VCC 889 at paragraph [33]
261In response, counsel for the plaintiff submitted the Court could be well satisfied that the plaintiff stopped work as a result of his neck injury. That is consistent both with the contemporaneous notes and also the report of the two WorkCover specialists.[130]
[130]T91
262Neither A/P Romas or Dr Gorai had any trouble with the fact that the plaintiff could no longer work as an electrician as a result of his neck condition. A/P Romas went into great detail explaining that the plaintiff’s work life was over because of his neck – “Even Dr Menz, who diagnosed severe cervical spondylosis which will gradually get worse, would have to agree.”[131]
[131]T92
263It was submitted there was no reason to say that A/P Romas and Dr Gorai would not regard there being a permanent aggravation at the time they offered those opinions. There was no suggestion by them that this work contribution was likely to decrease as time went on.
264I accept that the plaintiff stopped work in March 2020 because of neck pain – pain at the back of his neck and the bottom of his skull, in his right shoulder and down his arm.[132] He had been cleared to return to work earlier that year after knee surgery.[133]
[132]T68
[133] T64
265I am satisfied the plaintiff would have continued to work until seventy-two - some five years after he had to stop. His evidence in that regard was unchallenged.
266The transition agreement was to enable him to continue working as long as possible – when he faced possible retrenchment in 2017. [134] It was not an attempt to reduce his hours because of knee problems to enable him to keep working. He had worked at the Yarraville premises for many years and loved his job and was actively involved in the social life at the workplace.
[134]T97
267While he had other health issues while working for the employer, he always came back to work after various absences. After his neck injury, this was not possible. He was no longer able to do work where bending, lifting or getting into awkward position would be required.
268There is no medical opinion that the plaintiff was fit for work in 2020 when he ceased or at the present time. There has been no recent vocational evidence to this effect.[135]
[135]T96
269The only evidence is that the plaintiff stopped work because of his neck. He was doing rigorous work when he was working, and I accept he would have kept working but for his neck injury.[136]
[136]T98
270This loss of the ability to engage in work due to neck pain is a relevant pain and suffering consideration and satisfies the narrative test in this case.[137]
[137] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]; Peak Engineering &
Anor v McKenzie [2014] VSCA 67 at paragraph [38]
271Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(e)(ii).
272The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g).[138]
[138] Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 at paragraph [70]
273As the plaintiff has no capacity for employment, and being satisfied he intended to work to seventy-two, he will continue permanently to have a loss of earning capacity that will be productive of a financial loss of 40 per cent or more.
274I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
275In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s325(2)(g).
276Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
277As the plaintiff has satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, i.e., both for pain and suffering and loss of earning capacity.[139]
[139] Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph 147 per Forrest J; Advanced Wire & Cable Pty
Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
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