Cachia v Victorian WorkCover Authority
[2013] VCC 519
•10 May 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04492
| PAUL CACHIA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 24 April 2013 | |
DATE OF JUDGMENT: | 10 May 2013 | |
CASE MAY BE CITED AS: | Cachia v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 519 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to spine – pain and suffering and economic loss – capacity for employment – causation – whether physical injury productive of serious injury consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas McPherson |
| For the Defendant | Mr A Moulds SC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff suffered an electric shock in the course of his employment as a contract truck driver on 21 November 2006. As a result, he claims he was thrown to the ground suffering an injury to his lower spine. He claims a range of domestic and recreational activities have been significantly affected. While he has returned to employment as a truck driver, his capacity to work in that field has been significantly compromised. He has a long history of alcoholism.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 21 November 2006.
3 The body function said to be lost or impaired is the lower spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, medical and radiological reports, claim forms and vocational documents were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff but to those parts of his evidence which I have relied upon in coming to the conclusions that are referred to later in this judgment. The statutory scheme set forth in the Act, which prescribes and regulates applications of this nature, is well-known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
5 The plaintiff was born in 1965 and is now forty-seven years of age. He was previously married and has one son. He was educated to Year 10 and has no particular trade nor other employment qualification.
6 Essentially, the plaintiff has spent all of his working life as a truck driver. He drove for a number of employers both in Victoria and interstate. He spent a number of years in Perth and in Sydney. In 2006, he returned to Victoria and commenced work for an employment agency, Logical Industrial Pty Ltd. He was assigned work with Patricks driving trucks as a “side load operator”. He was undertaking this work when he suffered the injury in an incident on 21 November 2006. Prior to that incident, he was generally in good health and, in particular, had no significant problems with his middle nor lower back.
7 The plaintiff has a long history of alcohol abuse. In addition, he, in the past, has used significant quantities of cannabis. He has a long criminal history which was explored in the course of cross-examination.[1] He was imprisoned in 2009 for driving-related offences. According to his affidavit[2], he was abstinent from alcohol for approximately eight years before the workplace incident.
[1]Transcript (“T”) 9-12
[2]Plaintiff’s Court Book (“PCB”) 32
The injury and its consequences
8 On 21 November 2006, he drove to premises in Laverton North to collect a container. He parked his trailer, and proceeded to use a control box at the rear of the vehicle. He apparently stepped into an electric fence and, according to the histories provided to various doctors, suffered an electric shock with an 8000 volt current. He claims to have been thrown into the air and landed upon his heels and buttocks. He was able to return the truck to Patricks’ depot that day and then went home. He claims that when he woke in the morning, he was in a great deal of pain in his upper and lower back and went to see Dr Lipp in Port Melbourne.
9 According to Dr Lipp’s report,[3] the plaintiff complained of pain in his thoracic spine, and an x-ray of that area was taken. Dr Lipp considered the plaintiff had suffered inflamed ligaments in the thoracic spine. He provided anti-inflammatory medication and referred the plaintiff for physiotherapy. He certified the plaintiff as fit to return to work, providing he handled weights of less than five kilograms and avoided persistent bending, pushing, pulling and lifting.
[3]PCB 54
10 The plaintiff’s pain persisted and in December 2006, he was referred for an MRI scan. In April 2007, he was referred by Dr Lipp to Dr Engel, rheumatologist. Dr Engel noted complaints of low-back pain radiating into the left hip and leg. He arranged a CT scan which showed an L5-S1 central/left paracentral disc protrusion with contact to the left S1 nerve root. Dr Engel then arranged an epidural injection of steroids and anaesthetic which was performed on 21 May 2007. The procedure did not give any effective relief. The plaintiff remained under the treatment of Dr Lipp until 12 September 2007.
11 In approximately September 2007, the plaintiff participated in a return-to-work program. It was proposed that he would drive a bus, at his own pace, and in cross-examination, he accepted that he would have been able to perform that work. However, a part of the program was that he undertake office work. This required him to climb stairs to get to an office. He told the return-to-work supervisor that he was unable to do so and, in evidence, contended that he was told that unless he was prepared to go up stairs, there would be no work available to him and he would not get paid. A short time thereafter, he moved to Maroopna to live with his sister and immediately obtained employment with a truck driving company in Kyabram. It was put to the plaintiff in cross-examination that in fact he had planned this employment before the return-to-work in Melbourne and that in fact he was not required to ascend stairs.
12 Whatever happened in the return-to-work plan, the plaintiff commenced work shortly afterwards driving trucks for a company, JFB, from Kyabram and continued working for about four months. He drove interstate to Sydney and Adelaide, although said he had a great deal of difficulty remaining in the truck because of his back pain and had to have regular breaks. He then moved to live in Kyabram, and commenced to see Dr Tisdall, general practitioner, in May 2008. He acknowledged that up until that time, and since leaving Dr Lipp in September 2007, he did not consult other doctors, nor take anything other than over-the-counter medication. He ceased work with JFB in February 2008 and has not resumed any employment since. According to Dr Tisdall, the plaintiff continued to complain of lower back pain with pain radiating into his right leg and groin. Dr Tisdall considered the plaintiff had suffered a disc protrusion at L5-S1 possibly contacting the left L5 and S1 nerve roots. Dr Tisdall considered the plaintiff was unable to work.
13 In October 2008, the plaintiff was referred by Dr Tisdall to Mr Nicholas Maartens, neurosurgeon. He presented to Mr Maartens with complaints of posterior right leg pain radiating into the lower calf with numbness, lower back pain, left groin pain and left knee pain. The plaintiff said that pain in these areas started after the incident in November 2006. At that time, the plaintiff was taking MS Contin and Valium. Mr Maartens arranged an MRI scan which was undertaken on 17 October 2008.[4] This scan showed:
“Broad-based disc displacement posteriorly causes borderline central canal stenosis at L4/5. There is close approximation of the disc and the proximal L5 nerve roots. At L5-S1 level there is central disc protrusion posteriorly which contacts the S1 nerve root.”
[4]PCB 71
14 The plaintiff remained under Mr Maartens’ care until 2010. A “trial” epidural nerve block was carried out in July 2010 which gave pain relief over a number of months. A further MRI scan was performed in August 2010 which, according to Mr Maartens, “demonstrated normal upper lumbar discs but degenerative lower lumbar discs at L4-5 and L5-S1 where there are disc bulges centrally at both levels and either compression or contact with the right-sided transiting and exiting nerve roots”.[5]
[5]PCB 62
15 Mr Maartens offered the plaintiff surgery at L4-5 and L5-S1 and indicated there would be a 75 per cent chance of reduction in his leg pain, but was less optimistic about the prospect of reducing the lower back pain. Application was made to the relevant insurer for permission to carry out the procedure but, apparently upon the opinion of Dr Tony Kostos, permission was refused.
16 In March 2009, the plaintiff moved to Melbourne and came under the care of Dr Diner. He has remained with that doctor to the present time. Dr Diner prescribed Tramal and Tramadol for pain. He referred the plaintiff to a psychologist for treatment of depression. He arranged for the plaintiff to participate in a swimming program with home exercises. Dr Diner said the plaintiff suffered ongoing back pain despite conservative treatment which limited him in his ability to carry out his daily activities. He said that the prognosis for a return to employment was guarded and that it was unlikely that he would be able to return to truck driving.
17 At the present time, the plaintiff is taking two 200-milligram tablets of Tramal per day and 150-milligrams of Dothep for depression and to assist with sleep. He continues to suffer pain in his lower back with referred pain into the left groin and down the back of the left leg. He also has pain in the right leg from time to time. He says he is never free of pain and needs to lie down once or twice a day. He says he has no present capacity for employment. He has no training in office work and cannot use a computer. He has difficulties with literacy and numeracy. He claims that despite being abstinent from alcohol for eight years prior to the incident, he commenced drinking again afterwards. The drinking increased, and he would binge drink as self-medication. He would drink large quantities of port, and spent a considerable period at Ozanam House, and homeless without accommodation. He has undertaken a number of alcohol-related programs, in particular with the St Vincent de Paul Society. He found secure accommodation living by himself in Carlton in late 2012. He has been abstinent from alcohol since that time.
18 In 2009, he was jailed for two months for traffic offences. His licence was cancelled for four years, and he has not attempted to obtain it again. He undertakes most of his domestic duties, although receives assistance regularly from a friend who does heavier tasks such as vacuuming and mopping.
Medical opinions
19 The plaintiff was examined in 2012 and 2013 by Mr Thomas Kossmann, orthopaedic surgeon. He diagnosed the plaintiff as suffering discogenic back pain with radiculopathy on the basis of a disc protrusion at L5-S1 with right-sided L5 and S1 nerve root impingement. He said the symptoms had limited the plaintiff’s ability to work as a truck driver and compromised his activities of daily living. He noted the plaintiff’s employment prospects were further limited by poor literary skills. Realistically, he considered the plaintiff had no prospect of returning to work.
20 Mr Maartens, the treating neurosurgeon, provided a number of reports. As stated, he was of the view, based upon examination and radiology, that the plaintiff had prolapses at the L4-5 and L5-S1 discs which were compromising both L5 nerve roots. He considered that the condition was amenable for surgery with good prospects of relief of leg pain. He responded to various comments made by Dr Kostos.[6] There is clear disagreement between the practitioners as to the plaintiff’s condition.
[6]PCB 61
21 The plaintiff was examined by Mr David Brownbill, neurosurgeon, in September 2011, for the purposes of an AMA assessment. He found no objective neurological abnormality but noted the radiology demonstrated a two-level lumbar intervertebral disc derangement and protrusion.
22 The plaintiff was finally examined at the request of his solicitors by Dr David Murphy, rehabilitation physician, in February 2013. In the history obtained, he noted:
“Mr Cachia said that the next day [that is the day after the incident] he woke in severe pain. He indicated the pain has been maximal in the lower thoracic region … over time, Mr Cachia’s pain localised into the lower lumbar spine and he developed leg pains which were generally worse on the right than the left side … .”
23 After examining the plaintiff and considering the radiology, Dr Murphy agreed the plaintiff had suffered L4-5 and L5-S1 disc prolapses with right S1 radiculopathy and that these were consistent with the workplace incident on 21 November 2006. He noted the plaintiff suffered persistent lower back pain with leg pain, particularly to the right side. He thought the prognosis was reasonable providing the plaintiff avoided occupations or activities which might aggravate his lower back pain. He said he should not undertake employment which involved lifting more than five kilograms or repeated bending or twisting. He noted the plaintiff should not sit or stand in the one position for more than half an hour. He did not think the plaintiff was capable of returning to work as a truck driver.
24 On behalf of the defendant, the plaintiff was examined on a number of occasions between 2010 and 2013 by Dr Tony Kostos, rheumatologist. In the course of all his examinations, he said that there were a range of inconsistencies upon physical examination, which included remarkably restricted lower back movement, an inability to lie prone on the examination couch, marked exaggerated tenderness over the entire lumbar region and inconsistent straight leg raising tests. He concluded that the plaintiff had an exaggerated pain response and that he was suffering a Chronic Pain Syndrome with significant non-organic signs. He disagreed that the plaintiff’s claimed pain was related to his employment. He said that the plaintiff’s employment prospects were affected by his alcohol addiction and disagreed that surgery was indicated, or likely to be successful.
Conclusions
25 Generally, I found the plaintiff to be a satisfactory witness. He has had a difficult, fractured life with significant periods of alcoholism and a long history of criminal offending. However, in the course of his evidence, I found him answering questions in a satisfactory manner and doing his best to be responsive. There were no major credit issues put to him, save that it was suggested that initially, the pain had been in his thoracic and not lower lumbar spine, where the radiology subsequently showed disc derangement. Generally, I found the plaintiff and honest and reliable witness, making appropriate concessions in cross-examination as necessary.
26 Much depends upon whether I accept the medical opinions on the one hand of Messrs Kossmann, Maartens and Dr Murphy, or on the other hand, Dr Kostos for the defendant. It is somewhat unusual that Dr Kostos made the physical findings on examination as noted in his reports. No other doctor, neither treating nor consultant, has made such findings, and come to the conclusions as has Dr Kostos. I am unable to explain those findings, but prefer the opinions of the other practitioners and their conclusions as to the nature and extent of the plaintiff’s injury. I accept the views of Mr Maartens in his report of 10 December 2010, where he comments critically upon the observations of Dr Kostos.[7]
[7]PCB 61
27 I accept that the plaintiff did suffer pain in his thoracic spine in accordance with the report of Dr Lipp at the time of the incident, but further accept the evidence of the plaintiff, and the observations of Dr Murphy, that that pain “settled” into pain predominantly emanating in the lumbar spine. I accept the opinions of most doctors that the radiology shows disc prolapses at L4-5 and L5-S1 sufficiently significant, when matched with physical examinations, for Mr Maartens to suggest surgery at those levels.
28 I accept the complaints of significant pain made by the plaintiff emanating from his lumbar spine, with referred pain to the legs, in particular to the right side. This has required treatment over a considerable period, largely conservative, and with significant pain relieving medication. I accept the evidence of the plaintiff that many of his social and domestic activities are compromised.
29 In relation to the plaintiff’s work capacity, the plaintiff is a person of limited education and little training. He has only ever really worked as a truck driver. I accept the opinion of most doctors that his capacity to return to truck driving is significantly limited and it is unlikely he will be able to resume that work. I accept that given his limited education and training, there are only very modest prospects for him to resume work in any other field. Realistically, he has little if any work capacity.
30 In all these circumstances, the plaintiff’s application, both as to pain and suffering and economic loss succeeds. I shall make consequent orders.
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