Cohen v Victorian WorkCover Authority
[2022] VCC 531
•28 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00305
| AMIR COHEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 6, 7 and 8 October 2021 | |
DATE OF JUDGMENT: | 28 April 2022 | |
CASE MAY BE CITED AS: | Cohen v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 531 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE INJURY
Catchwords: Workplace Injury – spine – whether workplace injury overtaken by other non-compensable injury – credit – whether loss of earnings
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013;
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494; Bezzina v Phi and Anor [2012] VSCA 161; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Cardiff Corporation v Hall [1911] 1 KB 1009; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188 Petrovic v VWA [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26]; Meadows v Lichmore [2012] VCC 1290; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Roleff v Chubb Insurance Co of Australia Pty Ltd (2011) 31 VR 235; Weldemichael vID Sales and Repairs Pty Ltd [2019] VSCA 68; Richter v Driscoll (2016) 51 VR 95; Yirga-Denbu v VWA [2018] VSCA 35.
Judgment: Leave Granted for certificate for pain and suffering and loss of earnings
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr RW McGarvie QC with Mr NJ Dunstan | Slater and Gordon Ltd Lawyers |
| For the Defendant | Ms D Manova | Minter Ellison |
HIS HONOUR:
Introduction
1The plaintiff is a 55-year-old former Technical Officer and R&D Electronic Systems Engineer. Born and raised in Israel, he has three siblings. His mother resides in Israel. His father is deceased. He has three adult children from a previous marriage. He lives alone. He seeks a certificate for pain and suffering and loss of earning capacity as a result of injury sustained throughout the course of his employment and as a result of an incident of heavy lifting on a specific date at his former place of work.
The serious injury application
2The plaintiff’s application relied on paragraphs (a) and (c) of the definition of “serious injury” contained in s 5(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRCA’). The part of the body said to be impaired for the purposes of paragraph (a) is the spine, and in particular, the cervical spine. The particulars of injury relied on comprised:
“Aggravation of underlying degenerative changes in cervical spine including disc prolapses causing cord compression from C5-C7 with radiculopathy;
Anxiety and depression”[1]
3The plaintiff has not seen a psychiatrist or psychologist for treatment since his injury. Unsurprisingly, at the commencement of the evidence, Mr McGarvie abandoned reliance on paragraph (c) and pursued the application on paragraph (a) of the definition.
4The defendant opposed the grant of a certificate on either ground. It did so for three principal reasons. First, it launched an assault on the credibility of the plaintiff. Second, it alleged that the plaintiff’s impairment from his accepted work injury is not serious whether by way of pain and suffering and/or loss of earnings. Third, it says that the plaintiff has failed to separate out the consequences of another but non-work unrelated neurological condition and that has overtaken non-serious impairment consequences to him from his work injury.
5In developing the third argument the defendant placed considerable store in the Certificate of Opinion and of the Reasons of a Medical Panel dated 27 August 2020. The defendant relied on the diagnosis expressed by the Panel that the plaintiff was “suffering from a right sided C5- 6 disc prolapse with compression of the right C6 nerve root and some distortion of the adjacent hemicord without cervical radiculopathy, relevant to the accepted physical injury. The Panel considered that Mr Cohen exhibits unrelated neurological signs (impaired joint position sense, depressed left ankle reflex, variable right truncal face and lower limb sensory impairment) suggestive of an intrinsic spinal cord and or brainstem condition and which are not due to any radiculopathy or myelopathy arising from the accepted physical injury.”[2]
6The defendant also relied on the opinion of Dr Anita Vinton, neurologist, who wrote in a report from late 2018 that “most of the symptoms of which he is currently complaining relate to the abnormal signal in the cord rather than his prolapse disc.”[3]
7The defendant, furthermore, placed emphasis on a neurological opinion by
Dr Brazenor.[4]8The defendant argued that there is an absence of expert medical evidence to link the plaintiff’s accepted workplace injury to an abnormal signal in the cord, and Dr Vinton, for example, has been unable to identify “what this region of increased signal at C1 represents.”[5]
9For the reasons I will address in detail, on balance, I prefer the method of reasoning expressed in the plaintiff’s medical opinions from those of the defendant, and I am satisfied that overall they provide a reasoned basis to conclude that the plaintiff’s accepted workplace injury encompasses radiculopathy and, should it prove necessary (and I do not think it does), then I consider that the plaintiff’s spinal impairment may account for the identified abnormal signal in the cord.
10If I am wrong about this, then in my opinion, the defendant’s efforts to identify and rely on a neurological condition of abnormal signal cord as a separate and non-work related impairment resulting from the plaintiff’s work injury distracts focus from a substantial body of opinion that even if the abnormal spinal cord is excluded, and its consequences separated out from those of the accepted injury of the prolapse disc, then nonetheless, the plaintiff has by way of aggravation occasioned by the work injury, a serious injury by way of impairment to the function of the spine.
11My conclusion has not been arrived at without an element of reservation concerning some of the plaintiff’s evidence. On the question of credibility, I am satisfied that the plaintiff failed to give honest evidence on some occasions. His willingness to do so regardless of motivation, naturally enough casts doubt on the extent that I can be satisfied about his evidence of functional limitations and his pain and suffering and a capacity for suitable employment. However, dishonesty need not invariably result in an adverse finding on the ultimate issues in an application for a serious injury certificate. It will depend on the nature and extent of the untruthfulness, and each case must be assessed on its merits and in the context of the whole of the evidence, including objective evidence of diagnostic tests which results are unaffected by a plaintiff’s credit.[6] Also, a diagnosis of an organic condition as opposed to a mental type of condition, is not usually dependent on credibility.
12 After consideration of all of the evidence, and despite the focus on the plaintiff’s credibility and particularly the extent of prescribed medication he takes, a matter I will address in greater detail later in these reasons, on balance, I am satisfied that the plaintiff has suffered injury by way of impairment to his spine and that the same is permanent and the pain and suffering it has brought, and the consequences it has resulted in, satisfy the test for seriousness. I am separately satisfied that by applying that same legal test required in such a matter that the plaintiff has proved himself to lack a capacity for suitable employment. I am satisfied he has proved a 40 per cent loss of earning capacity and the same is permanent and that he is entitled to the grant of a certificate on both grounds.
13Despite a number of issues presenting themselves for determination in this application, it is fair to say, that much of the defendant’s case reduced to whether the effects on the plaintiff of the work injury he suffered have receded and been replaced by a separate and non-compensable neurological condition. It is to this issue that much of these reasons is addressed.
The evidence
14The plaintiff relied on the following evidence:
(i)Affidavits of plaintiff dated 28 December 2020[7] and 17 September 2021[8];
(ii)Workers Injury Claim Form dated 30 October 2018[9] and Employer Injury Claim Report dated 2 November 2018;[10]
(iii)CGU Acceptance of Claim dated 5 September 2018;[11]
(iv)Radiology Report CT of cervical spine dated 3 Sept 2018, MRI Report of cervical spine dated 12 Sept 2018, MRI Brain and Spine 27 Sept 2018;[12]
(v)Medical Practitioner Questionnaire Report dated 10 Nov 2018;[13]
(vi)Letter of Mr Patrick Lo dated 25 April 2020;[14]
(vii)Four letters from Mr Patrick Lo to Dr Linda Head dated 19 June 2019,[15]
23 January 2019,[16] 28 November 2018[17] and 9 November 2018;[18](viii)Letter from CGU to Mr Lo dated 23 January 2019;[19]
(ix)Referral letter from Dr Head to Mr Lo dated 23 October 2018;[20]
(x)Letter from Dr Vinton to Dr Head dated 3 October 2018;[21]
(xi)Letter by Dr Head addressed “To Whom It May Concern” dated 19 December 2018;[22]
(xii)Reports of Dr James Rowe Occupational therapist dated 26 November 2018, 16 January 2019 and 3 August 2021;[23]
(xiii)Reports of Professor Bittar dated 4 August 2021[24] and 4 October 2021;[25]
(xiv)Certificates of Capacity from Dr Head dated 11 June 2021, 12 July 2021 and 9 August 2021;[26]
(xv)Letter from Mr Lo to CGU Workers Compensation dated 9 November 2018.[27]
15The defendant relied on the following evidence:
(i)Reports of Dr Slesenger dated 20 May 2020,[28] and 3 August 2021;[29]
(ii)Report of Mr Armin Drnda dated 27 May 2020;[30]
(iii)Medical Panel Opinion dated 27 August 2020;[31]
(iv)Report of Dr Brazenor dated 11 December 2020;[32]
(v)Workcover Household Help (Occupational Therapy) Assessment Report,[33] and Rehabilitation Services Initial Report dated 1 May 2019;[34]
(vi)CoWork - Vocational Assessment Report dated 12 July 2021;[35]
(vii)Highett Primary Medical and Dental Centre progress notes;[36]
(viii)Malvern Neurology review by Dr Vinton dated 10 Oct 2018;[37]
(ix)Myclinic Elsternwick clinical notes;[38]
(x)Ripponlea Medical Centre progress notes[39] and medication summary;[40]
(xi)Surveillance dated 21 June 2021.[41]
16In determining the application I have read and considered the material relied upon by the parties together with the transcript of the proceeding and the addresses of counsel. Insofar as the medical material is concerned, I intend to refer only to such parts of the records or reports that was relied on by the parties and that has proved necessary to assist me in the resolution of the issues.
The plaintiff
17After completing high school in 1984 in Israel, the plaintiff obtained a degree in Electronics Systems Engineering in Haipha. He worked as an Electronic Military Systems Technician in the Israel Military and subsequently at RAFAEL / OPGAL for about 15 years. He then worked for one year in a self-employed capacity repairing personal computers and electronic products. He migrated to Australia in July 2004.
Employment in Australia
18The plaintiff was employed by Smart Caller in August 2005 in a temporary position as a Technical Officer and R&D Electronic Systems Engineer. His work involved him sitting in front of a computer screen and providing assistance and technical support to customers over the telephone. As part of his job he was also required to assemble metal cabinets from time to time. He ceased work in September 2006 to return to Israel. On his return to Australia and settling of his family in Melbourne, he was offered a permanent position in the same role from April 2007. With a downturn of work, in October 2014 he was made redundant, but was rehired on casual rates of pay and on full-time hours 9.00 am to 5.00 pm, Monday to Friday. He regularly worked overtime of about one and a half hours per week. His duties involved developing new technology and providing technical support to a portfolio of up to 268 clients.
19In about July 2018, a colleague went on holidays for six weeks and the plaintiff took over his duties. He reported he was overworked and stressed. He said he made numerous complaints regarding the set-up of his workstation as it was causing headaches, and pain in his neck, shoulders, hands and back.
20The plaintiff says that on or about 7 August 2018 he was working at his desk in front of his computer screen and providing technical support over the telephone to customers. Over the course of the day he felt worsening pain in his neck, shoulders and hands. He went to move a heavy metal cabinet, which was loaded with computers and other telecommunications equipment and when he tried to lift the cabinet off the floor he felt a sharp pain in his neck, right shoulder and right hand. He then felt numbness on the right side of his body. He reported the incident to his employer. Two weeks later he consulted his general practitioner.
21An MRI of the cervical spine on 12 September 2018[42] noted bone and disc degenerative change at the C5/C6 and C6/C7 levels with definite right anterior cord and C6 nerve root compression at the C5/C6 level and bilateral cord and nerve root encroachment at the C6/C7 level compressing C7 nerve roots, large focal left-sided disc protrusion at the C2/C3 level, causing left cord and C3 nerve root impingement, and a focus of abnormal T2 signal in the upper cervical cord at the level of the C1 vertebral body.
22The plaintiff submitted a Workcover claim for the injury to his spine said to have been sustained at work on or about 7 August 2018 “and throughout the course of his employment”.[43] The Claim was accepted. The plaintiff remained at work on light duties including computer/telephone support work, 6 hours per day, 5 days per week. He ceased employment on 5 November 2018 due to a shortage of work, and in July 2020, he was advised that there were no suitable duties available. At the date of hearing, he remained in receipt of weekly payments of compensation.
Foundational principles
23The relevant definition of “serious injury” contained in s 5 (1) of the WIRCA reads:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function ….
(b) …
(c) …
(d) …”
24The Court must not give leave for the grant of a certificate unless it is satisfied on the balance of probabilities that the “injury” a plaintiff has suffered is a “serious injury” within the meaning of the definition of “serious injury”.[44] To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 1 July 2014;[45]
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[46]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[47]
25I refer to s325(2) of the WIRCA and, in particular, paragraph (b) which states:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, … as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, … respectively;”
26In determining the “consequences” of injury, I am required to consider the consequences to this plaintiff, viewed objectively, arising from the injury and:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[48]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[49]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[50]
27Under the WIRCA, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described (at the date of the hearing) as being “more than significant or marked” and as being “at least very considerable”. The requirement to satisfy these elements is sometimes referred to as the “narrative test”. Whether an injury satisfies the narrative test is largely a question of impression or value judgment.[51]
28In this application, where there is also 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.
The plaintiff’s evidence in chief
29The plaintiff’s evidence in chief consisted of his two affidavits made 28 December 2020[52] and 17 September 2021[53] the truth of which he swore to and adopted and upon which he was cross-examined.
30The plaintiff deposed that initially he hoped that his symptoms would dissipate but because they persisted he attended his GP Dr Linda Head,[54] who at the time, appears to have been conducting her practice from Highett. It was she who referred the plaintiff for a CT scan of his cervical spine in September 2018. He was also sent for an MRI scan of his cervical spine. Next he was referred to a neurologist Dr Anita Vinton and then for an MRI scan of his brain and spine.[55] He saw on referral Mr Patrick Lo, neurosurgeon, who recommended surgery on the neck.[56] The plaintiff told Mr Lo that he did not want to undergo surgery because of the risks involved. The plaintiff remains adamant he does not want surgery. The defendant accepted that in light of the dramatic information the plaintiff had been provided about the risks of surgery by Mr Lo, that his decision to decline surgery was entirely reasonable.[57] There is, however, a note of entry by Dr Head from 2021 that suggested that the plaintiff had changed his mind and would pursue surgery.[58] The plaintiff denied he had changed his mind and he surmised that the determinative tone of the note reflected Dr Head’s opinion but not his.[59] I accept this as the more likely explanation.
31The plaintiff continues to see Dr Head, who is now conducting her practice at the Elsternwick Family Clinic. She provides the plaintiff with certificates of capacity. The most recent certification is that the plaintiff has a nil capacity for employment.[60]
32The plaintiff remains formally under the care of Mr Lo, although, he has not seen the plaintiff for a long while.
33The plaintiff said he was referred for pain management, but this had not proceeded due to Coronavirus restrictions. The defendant suggested that if the plaintiff suffers pain to the extent claimed, it is odd that he has not at the very least tried to schedule a telephone or Zoom appointment. We have been living in uncharted territory these last two years or thereabouts and I encounter anecdotal accounts of the way in which various health and allied professionals are scheduling or conducting themselves and how they have been willing to do so during the ongoing health emergency. In the circumstances, I do not draw any adverse inference by the plaintiff’s failure to have progressed pain management.
Medication
34The plaintiff said he takes Nurofen, (4-5 per day) and Advil at night and that he applies both Voltaren gel and Feldene gel to his neck area. He takes thyroxine for a thyroid condition. The plaintiff exhibited on screen during the Zoom hearing various pain relief and gels. I accept his account that he takes Nurofen and Advil and topical gels for pain relief.[61]
35The plaintiff says he remains unable to work because of the effects on him of his neck injury.[62]
36The plaintiff says he continues to suffer from constant neck pain, predominantly at the back of his neck but also an altered sensation affecting the right side of his neck, the right side of his face and ear, the right side of his body including his leg. He says that pain in his neck and on the right side of his body is worse in cold weather and made worse when he moves his neck, with sudden neck movements often causing a sharp or clicking pain. He said that pain interrupts his sleep and that he experiences great difficulties with sleeping because of his injury. When pain is particularly bad the plaintiff complains he suffers from headaches.[63]
37The plaintiff is right hand dominant.
38The plaintiff says he suffers from tingling sensations in all the fingers of his right hand, but particularly the first three digits of his right hand. He complains of the pain and numbness in his right side affecting all of his right upper limb including his arm, forearm and hand. The plaintiff’s right arm often feels as if it is “wet”, even when it is not.[64]
39As a consequence of the pain and symptoms in his right hand the plaintiff says he often drops items such as coffee cups, his mobile phone and keys. He complains of difficulty with finer movements with his right hand such as doing up the buttons on his shirt and typing on a keyboard.[65] He said he has been temporarily locked out of his mobile phone because his fingers have failed to manage navigating the keyboard.[66] He said his balance is affected. He feels unsteady on his feet at times and sometimes he will deliberately walk closer to a wall or something that he can hold onto in case he loses his balance.[67]
40The plaintiff says he experiences a feeling of weakness in his left arm and that it can lock at the elbow. He says he is more reliant on using his left hand because of the problems he has with his right hand. He said he experiences numbness and weakness in the entire right side of his body, including his right leg and, if he has been sitting for very long or walking for a while, he starts to experience numbness and loss of feeling in his right leg. As a result he avoids sitting for very long or walking very far.[68]
41The plaintiff complains that coughing and sneezing aggravates the pain in his neck and right side of his body. If he is on the toilet and he has to strain, this too, aggravates his neck pain and right sided symptoms.
42The plaintiff says that his adult children come to his house to help with the housework and gardening. He says he couldn’t look after his house and garden without their assistance. Prior to his injury he says he was completely independent.[69]
43The plaintiff says he avoids driving as much as possible because of his injury. He does not feel safe driving.[70] The question of the plaintiff’s veracity regarding the status of his driving was a matter upon which he was tested by Ms Manova in cross-examination.
44The plaintiff says he has difficulties with cooking. Prior to injury he enjoyed cooking and he used to have his children over regularly for the Shabbat meal on a Friday night whereas he now struggles and his daughter often cooks meals for him, failing which, he cooks something very simple or relies on take away meals.[71]
45Prior to his injury the plaintiff said he used to enjoy going to the gym for exercise at least twice a week but he can no longer do so because of his injury. Prior to his injury he also enjoyed walking to Brighton beach and back every day, a distance of about 4 to 5 kms. He says he can no longer do this.[72]
46The plaintiff says he enjoyed going bushwalking regularly with a group of friends over the summer months when the weather was warmer. Over the summer this would average about every three weeks.[73]
47Prior to his injury the plaintiff says he used to enjoy racing remote control cars with his son and some friends but no longer does so.[74]
48The plaintiff submitted a claim for permanent impairment of his cervical spine sustained throughout the course of his employment up to and including 7 August 2018, which was accepted. He was assessed by a Medical Panel in August 2020 and as having a 5% whole person impairment of his cervical spine.[75]
The further affidavit
49The plaintiff deposes in his further affidavit dated 17 September 2021 that he continues to suffer from the same symptoms in his right hand and arm as set out in his initial affidavit.[76] He deposes that he has not worked at all. He deposes that he continues to take medication for his neck injury.[77]
50The plaintiff says he continues to experience problems with his balance as set out in paragraph 27 of his initial affidavit. He continues to experience problems with his left arm as set out in paragraph 28 of his initial affidavit. He continues to experience symptoms in the right-hand side of his body including his right leg as set out in paragraph 29 of his initial affidavit. He continues to experience problems when he sneezes, or coughs as set out in paragraph 30 of his initial affidavit. He continues to experience problems with toileting as set out in paragraph 31 of his initial affidavit. He continues to experience problems with prolonged standing because of his balance as set out in paragraph 32 of his initial affidavit. He continues to get help from his children from time to time as set out in paragraph 33 of his initial affidavit.[78]
51He deposes that he continues to experience difficulties with prolonged driving as set out in paragraph 34 of his initial affidavit but, that nonetheless, he is able to drive for short distances.[79]
52The contents of the plaintiff’s affidavit of 28 December 2020 that he still drives may be compared with observations made by some who have seen him for medico-legal purposes. For instance, Dr Rowe recorded on 26 November 2018 that the plaintiff was not driving “as he does not feel capable”. [80] In a later report dated
3 August 2021, Dr Rowe wrote that the plaintiff cannot drive “reliably”.[81]
Dr Slesenger wrote on 3 August 2021 that “Mr Cohen advised that he no longer drives. He purchased a car with full controls, including 360-degree cameras and front radar; however, he is reluctant to drive as he remains fearful”.[82] However, in an earlier passage in the same report Dr Slesenger wrote that the plaintiff could drive for “up to 10 minutes”.[83] Dr Head in her report dated 19 December 2018 wrote that the plaintiff “is unable to drive because of his restricted range of neck motion and limb weakness”.[84]53Plainly enough the plaintiff does drive. In the surveillance footage the plaintiff is observed sitting in a parked car, then alighting from the driver’s side. The surveillance footage, however, does not refute that the plaintiff only drives short distances.
54The plaintiff deposes that he continues to experience problems with dressing himself as set out in paragraph 35 of his initial affidavit. He continues to have difficulties with cooking as set out in paragraph 36 of his initial affidavit. He no longer enjoys going to the gym or going for long 5 km walks along Brighton Beach, or enjoy going swimming at the Brighton pool, or going bushwalking with friends or enjoys racing remote control cars with his son and friends because of his neck injury.[85]
55The plaintiff says that he does not believe that he would be able to turn up on a reliable and consistent basis to the suggested suitable employment identified by the defendant because of his neck injury.[86]
56The plaintiff complains of difficulties sleeping at night because of his neck injury.[87]
57He says he has difficulties with sitting for prolonged periods of time because of his neck injury. He says he has difficulties standing for prolonged periods of time because of his neck injury.
58The plaintiff says he has difficulties with his concentration for prolonged periods of time because of his neck pain.[88]
Cross-Examination
59The plaintiff was vigorously cross-examined by Ms Manova. She tested his veracity on a number of matters.
60The plaintiff said he had been taking Endep 25 mg at night for sleep but this dosage had been increased to 50mg. Initially there was some doubt about the veracity of this evidence of an increased dosage. However, further clinical notes produced in response to a call made by the defendant, revealed that Dr Head had recently increased the plaintiff’s dosage of Endep to 50mg.[89] A contest arose between counsel as to the pharmacological purposes of Endep and that its use to assist with pain was a contraindication to its principal benefit. I was not addressed on the pharmacological efficacy of Endep and I simply am unable to exclude the validity of the plaintiff’s account of its use and benefits for neuropathic pain even if another or primary use is to treat depression.
61The plaintiff was challenged by the defendant on the number of tablets he takes in a typical 24 hour period. Ms Manova pointed to an absence of evidence to support the plaintiff’s account of the amount and frequency of his consumption of Endep.
I earlier referred to the plaintiff’s testimony that he may take up to 7 Endep during a given 24 hour period. However, the evidence only supports a limited prescribing of Endep, and certainly insufficient to account for such a large consumption. The plaintiff gave evidence about another doctor he saw but could only speculate whether he had received any prescriptions for Endep from that medical practitioner. No notes were produced in response to the defendant’s call.62On balance I do not accept the plaintiff’s evidence of the amount of Endep taken on a normal or typical day. I think his evidence of the amount he regularly consumes was exaggerated and, thus, untrue. However, his evidence of exaggeration and untruthfulness does not preclude as a relevant consideration that he requires ongoing use of prescribed medication that is, Endep or, to give it its generic as opposed to brand name, Amitriptyline.
The use of a neck brace
63The plaintiff was recorded by certain IME reporters who conducted examinations of him as wearing a neck brace. Of its utility, the plaintiff for example, told Joanne McLeod, Occupational therapist that it was recommended to him by Mr Lo.[90] The plaintiff wore it to a number of examinations and not just to those to whom he was sent by the defendant for examination. For example, he was recorded wearing the brace:
(a) In December 2020 for the assessment with Dr Brazenor (undertaken by video/phone link);[91]
(b) In July 2021 when undertaking a Co-Work assessment by video;[92]
(c) In August 2021 when assessed by Associate Professor Bittar;[93]
(d) In May 2021 when seen by Dr Head.[94]
64The plaintiff explained that the collar helps his neck pain and he has been told it will keep his neck muscles warm on a cold day much as a scarf would, and that it will also stop the spasms he experiences.[95] It was put to the plaintiff by Ms Manova that he also wore it inside his residence such as when he participated in a video assessment conducted by Dr Brazenor. The plaintiff said the assessment occurred on a cold day which was why he wore it, but when he was told by Ms Manova that the examination occurred in December, the plaintiff said it was cold in his house because of his use of air-conditioning.[96]
65The plaintiff did not wear a neck brace during the hearing.
66Arguably the more telling consideration is that the plaintiff was not wearing the neck brace during a period of the surveillance, which was filmed in the winter of June 2021, despite his evidence that it was an aid he found of benefit in cold weather. Notably the surveillance recorded the plaintiff outdoors both ordering food and consuming a lunch.
67Ms Manova submitted that the collar is a “prop”. I think it is odd given his evidence that the plaintiff was not wearing the collar outside in winter during the period of surveillance. On the other hand, the fact that he was not wearing it in the course of the Zoom hearing, in my assessment, militates against it being used as a device of attempted influence as to his condition. On balance, I am unwilling to adopt the characterisation for which Ms Manova contended. However, what is evident is that the plaintiff’s condition was not such as to have warranted its use on the winter’s day in June 2021 in the course of the period of surveillance shown in court and neither was it needed during his attendance in this hearing.
68I do think one should be wary of reading too much from limited surveillance. It was accepted that the defendant had obtained sixteen and a half hours of surveillance over two days of which 37 minutes in total from 21 June 2021 was shown in segments in Court. Nonetheless, in the course of the surveillance taken outside at lunch the plaintiff is observed moving his head freely and his explanation under cross-examination that he was engaged in neck exercises struck me as fanciful. I said as much to his counsel in the course of final address. It was an instance in which I choose not to accept the truth of the plaintiff’s account. The surveillance also depicted the plaintiff perusing stock at Jaycar Electronics.[97] He was seen crouching down to look at items displayed. I accept as Mr McGarvie observed that it is not an aspect of the functional impairment relied upon that the plaintiff cannot bend. I do not draw any adverse conclusion about the state of the plaintiff’s alleged level of impairment from the surveillance taken in the electronics store.
Tracing the course of medical and radiological investigation and treatment
69Dr Head, in correspondence dated 2 May 2020 addressed to Slater & Gordon, solicitors recounted the plaintiff’s course of treatment since his first attendance on her on 21 August 2018.[98] The history of treatment included a referral for a CT scan of his cervical spine that identified significant multiple level spondylosis and degenerative cervical spine changes with nerve root impingements and spinal canal stenosis.
70Dr Head also reported that the plaintiff had been referred for an MRI scan. It showed critical stenosis at the C3/6 and C6/7 levels causing cord compression and right greater than left neural exit foraminal stenosis. There was an incidental finding of altered signal intensity at the craniocervical junction/medulla.
71Dr Head recorded the plaintiff’s referral to Dr Anita Vinton to investigate the area of altered signal in his cervical cord and to exclude demyelinating disease.[99] Dr Vinton sent the plaintiff for an MRI scan of his brain and spine. The MRI dated 27 September 2018[100] demonstrated:
· No intracranial demyelination.
· Stable region of increased T2 signal at the C1 cord level.
72Dr Head said that Dr Vinton wrote to her on 10 October 2018.[101] She said of the MRI that:
“Pleasingly there is no evidence of abnormal signal in the brain and no changes consistent with demyelination. The slightly increased region of signal in the cord is still evident at C1 but remains stable. No other spinal cord signal abnormality is identified.” [102]
73Dr Vinton recommended that the plaintiff have imaging of his brain and spinal cord performed again in April 2019 and to return for review after that. He did not return for review.
74Dr Vinton’s letter to Dr Head also proposed a possible prescription of Lyrica should the plaintiff’s level of pain warrant it. The plaintiff was asked by Ms Manova to explain why, if surgery was the only option offered to him, but it was not a road he chose to travel, that he did not follow up on Dr Vinton’s recommendations for Lyrica. The plaintiff said he was unaware of Dr Vinton’s recommendation but that he had not been prescribed Lyrica. The plaintiff said that he was guided by his GP’s recommendations and he relied on Dr Head for receiving any reports from
Dr Vinton or referral for treatment.[103]75There is no evidence that Lyrica was prescribed by Dr Head. Why it was not prescribed by Dr Head is unknown. However, the absence of explanation is not without more, affirmative evidence that the plaintiff’s pain may not have warranted it.
76Dr Head recounted that the plaintiff was referred to Mr Lo who recommended urgent multi-level anterior cervical discectomy and spinal fusion from C5 down to C7.[104] The defendant’s insurer provided approval for such a procedure on
23 January 2019.[105] As I already have said the plaintiff declined the surgical route.77Dr Head has diagnosed the plaintiff with a critical cervical canal stenosis with cord damage and right C6 and C7 radiculopathy. Her prognosis is that he will experience further deterioration with worsening permanent limb weakness, numbness and pain. Dr Head does not believe that the plaintiff’s numbness and weakness can be reversed but that further progression of his spine condition could be prevented if he was to undergo the surgery Mr Lo recommended.
Mr Lo
78Mr Lo wrote in his report dated 25 April 2020 that:
“Since suffering the stated injury, he has complained of neck spasm, right hand weakness and right arm weakness with difficulty holding his pen. He is right-handed and this has become difficult for him in terms of his daily activities, according to the patient. He also stated that he has had difficulty walking and some altered sensation and function in his right leg.
On initial assessment, he had undergone an MRI scan that revealed C5/6 and C6/7 severe cord compression and canal stenosis as well as foraminal stenosis. There was evidence of some minor degenerative changes but it was thought that his condition was an exacerbation of the underlying condition, resulting in a rapid aggravation following the event previously stated. It was then recommended, owing to the severity of the compression, that Amir Cohen underwent a multi-level anterior cervical discectomy and fusion from C5-C7. The purpose of this operation was stated to him as a preventative measure in order to ensure his spinal cord was protected.
On 19 June 2019, Amir Cohen came back for a review. He was ambivalent about surgery but after explaining to him about the nature of his pathology and the risk that it poses to his neurological function, it was agreed that he should undergo spinal surgery as outlined. He was placed on the operating list for surgery in July 2019. However, we received notification that he had, subsequently, declined surgery. My practice has not received any correspondence from him, nor have we been able to contact him regarding his progress. I remain concerned about how serious his spinal condition is but have made all attempts to contact him and liaise with him regarding such severity. He has yet to make any appointment to see me and I have since re-directed his care back to his family doctor…
…The history is as outlined previously. In my clinical opinion and on balance, Amir Cohen had a minor underlying degenerative cervical spinal disease, but this was exacerbated in the course of his work as outlined. He suffered disc prolapses causing cord compression from C5-C7. He has features suggestive of a radiculopathy and possible early cord changes with resultant lower limb symptoms.
I had recommended spinal decompressive surgery and fusion, but the patient has declined the procedure. He has not made any appointments again to see me and as of his last appointment, he was in a precarious condition with his cervical spine, in my opinion.”[106]
79Mr Lo wrote to Dr Head on 16 June 2020[107] and relevantly stated:
“He has a lot of questions about the recent IME report. I was able to read the report and to me, it appears to be a reasonable summation of his issues. He has cervical spinal problems with a chance of these resulting in cord injuries. However, he does not have any current cord injuries.
Nevertheless, any intervention would be aimed at preventing cord injury and also attempting to protect his future. As such, I am still of the opinion that surgical intervention would be beneficial, mainly to prevent any progression. I have not scheduled another appointment to see him as it appears that we are going around in circles discussing the condition. As you know, he has decided not to undergo this operation as he is fearful of it. I am more than happy for one of my colleagues in the future to deal with his condition”.
Dr Rowe
80The plaintiff was seen by Dr Rowe, Occupational Physician, on behalf of the defendant. His reports, however, were tendered by the plaintiff. The defendant placed no reliance on them. Ms Manova said no reliance was placed on them “because a view has been taken that Dr Rowe's reporting and examination of the plaintiff were inadequate for the purpose of providing an opinion.”[108] Why such an opinion was formed was not better explained. I found Dr Rowe’s reports of assistance.
81In his most recent report dated 3 August 2021,[109] Dr Rowe listed the substantial documentation he had been provided as part of the request for a report:
• Affidavit of Amir Cohen affirmed 28 November 2020; and
• Medical Panel Opinion dated 27 August 2020.
Radiological Reports consisting of:
• CT cervical spine report dated 3 September 2018;
• MR cervical spine report dated 12 September 2018; and
• MR brain and spine report dated 27 September 2018.
Plaintiff’s Medical Reports comprising:
• Medical Practitioner Questionnaire dated 10 December 2018;
• Dr Anita Vinton letter to Dr Head dated 3 October 2018;
• Dr Anita Vinton letter to Dr Head dated 10 October 2018;
• Mr Patrick Lo dated 25 April 2020;
• Mr Patrick Lo report to Dr Head dated 16 June 2020;
• Dr Linda Head dated 2 May 2020; and
• Dr Nathan Serry dated 15 February 2021.
Insurer Material comprising:
• OES Return to Work dated 1 May 2019
• Dr Joseph Slesenger dated 20 May 2020
• Mr Armin Drnda dated 27 May 2020
• Dr Graeme Brazenor dated 11 December 2020
Clinical Records comprising:
• Mr Patrick Lo
• Anita Vinton
• Primary Medical and Dental Centre Highett[110]
82Dr Rowe recorded the findings of the CT scan and MRI of the plaintiff’s cervical spine demonstrated:
• Multilevel significant cervical spondylosis and significant C2/3 facet osteoarthritis.
• Signification bilateral C5, C6 and C7 nerve root impingements in the exit foramina.
• Mild spinal canal stenosis at C5/6 and C6/7 levels.[111]
83Dr Rowe noted that the MRI scan of the cervical spine dated 12 September 2018 demonstrated:
• Bone and disc degenerative change at the C5/6 and C6/7 levels with definite right anterior cord and C6 nerve root compression at the C5/6 level and bilateral cord and nerve root encroachment at the C6/7 level compressing C7 nerve roots.
• Large focal left-sided disc protrusion at the C2/3 level, it causes left cord and C3 nerve root encroachment.[112]
84Dr Rowe referred to Dr O'Donnell, radiologist who recorded of the MRI:
“More worrying is this focus of abnormal T2 signal in the upper cervical cord at the level of the C1 vertebral body to the right of the midline. Appearances are very suggestive of demyelination. It appears to be an isolated phenomenon without involvement of the remaining cord and no obvious intracranial periventricular T2 brightening.”[113]
85Dr Rowe noted that Mr Lo on 25 April 2020 reported that:
“It was then recommended, owing to the severity of the compression, that Amir Cohen underwent a multi-level anterior cervical discectomy and fusion from C5-C7. The purpose of this operation was stated to him as a preventative measure in order to ensure his spinal cord was protected.
On 19 June 2019, Amir Cohen came back for a review. He was ambivalent about surgery but after explaining to him about the nature of his pathology and the risk that it poses to his neurological function, it was agreed that he should undergo spinal surgery as outlined. He was placed on the operating list for surgery in July 2019. However, we received notification that he had, subsequently, declined surgery. My practice has not received any correspondence from him, nor have we been able to contact him regarding his progress.”[114]
86Dr Rowe wrote that the plaintiff continues to suffer from a very stiff neck, particularly lateral rotational movements to the right. His neck makes noises when he bends it. He tends to drop things. Dr Rowe did not think that the condition of the plaintiff’s neck had changed since he saw him approximately 2 years earlier.
87Dr Rowe recorded the plaintiff’s account as one that involved an inability to lift anything and an inability to use his arms above shoulder height. He cannot stand or walk for long periods. He cannot rotate his neck. He cannot drive a car reliably. He is restricted in his capacity to perform household chores including gardening and cooking. He has trouble with his personal care including dressing. He is reliant on his children to help with the housework and gardening.
88Dr Rowe commented that the plaintiff no longer participates in a number of activities of life that he had previously enjoyed including attending the gym for exercise at least twice a week and walking to Brighton beach and back every day, a distance of approximately 4-5 kms.[115] He recounted that the plaintiff explained that he is only very rarely able to enjoy himself given the persistence of pain. His concentration and memory have been affected. He said he is distracted by pain and he described feeling less well-organised in his thinking, and that this was most unlike how he used to be.
89Dr Rowe said the plaintiff told him that his sleep was very disturbed. He wakes every couple of hours and in the mornings tends to feel unrefreshed and that pain is the main disturbing factor to his sleep.
90Dr Rowe diagnosed the plaintiff with a cervical disc derangement at several levels with signs of radiculopathy in the right arm and hand along with symptoms of neck pain and stiffness and numbness and tingling about the right arm.[116]
91Dr Rowe wrote that in consequence of the physical injury and impairment of the plaintiff’s cervical spine he is likely to be precluded and restricted in relation any employment, full or part-time, identified as “suitable” or otherwise involving:
a. bending, lifting, twisting or stooping
b. pushing, pulling or lifting
c. repetitive pushing, pulling or lifting
d. overhead activities.[117]
92He assessed the plaintiff’s restrictions as permanent and likely to continue for the foreseeable future. He wrote that the plaintiff does not have the capacity to perform his pre-injury duties and the incapacity was permanent and would continue for the foreseeable future.[118] He considered that the plaintiff represents too great a risk to himself, his fellow employees and any prospective employer, in order to be a serious candidate in an open employment market.[119]
93Dr Rowe regarded the plaintiff’s prognosis as poor and unlikely to change in the future and for him to be at an increased risk of developing arthritis in the neck and possibly in the right shoulder.[120]
94Dr Rowe identified that an Occupational Rehabilitation return to work service report dated 1 May 2019 concluded:
“Rehabilitation Services is of the opinion that given Mr Amir Cohen’s current presentation and his medical and functional restrictions, he is not currently suitable for Occupational Rehabilitation...” and that, “Mr Cohen currently has no capacity for any type of employment.”[121]
95Dr Rowe referred to the opinion of Mr Lo who on 19 June 2019 said:
“I concur that surgery is required in the form of a C5/6 and C6/7 anterior cervical discectomy and fusion, but he remains ambivalent to this surgery! After explaining that his spinal cord is at risk of permanent damage and quadriplegia is a real possibility without surgery, I have decided to put him on the surgery list for the next 4 weeks to have a multi-level anterior cervical discectomy and fusion at Linacre Private Hospital.”[122]
96Dr Rowe also wrote that on 25 April 2020 Mr Lo reported that:
“In my clinical opinion and on balance, Amir Cohen had a minor underlying degenerative cervical spinal disease, but this was exacerbated in the course of his work as outlined. He suffered disc prolapses causing cord compression from C5-C7. He has features suggestive of a radiculopathy and possible early cord changes with resultant lower limb symptoms.”[123]
97On its face, Dr Rowe’s reporting attributes impairment of considerable significance to the plaintiff from his work injury of disc prolapse and cord compression, indications of radiculopathy and early cord changes.
Professor Bittar
98In a report dated 4 August 2021, Professor Bittar wrote of the plaintiff that:[124]
“He reports constant neck pain which is worse on the right-hand side. His neck pain varies in character between sharp, dull, burning and throbbing. It radiates into his right shoulder and arm as well as into his right shoulder blade. His neck pain has an average severity of 7/10 and a maximum severity of 9.5/10. It is exacerbated by repetitive or sudden neck movements, maintaining his neck in a fixed position for prolonged periods, pushing or pulling, coughing, sneezing or straining, repetitive arm movements, using his arms above shoulder height, as well as sitting, using a computer or driving for more than around 10 minutes on average. His neck pain improves with frequent postural changes, heat packs and medications”.
99Professor Bittar went on to say:[125]
“Bilateral brachialgia (arm pain). He reports pain radiating through both arms, worse on the right. This pain radiates from his shoulders into his biceps and triceps, forearms and hands. He experiences numbness and tingling throughout the entirety of both hands. His arm pain varies in character between sharp, dull, burning, throbbing and gnawing. It has an average severity of 5/10 and a maximum severity of 9/10. It has the same exacerbating and relieving factors as his neck pain”.
100The plaintiff told Professor Bittar that his recreational activities are severely impacted. Whereas he previously enjoyed running and long walks, he cannot participate in these activities any longer due to his condition. He also previously enjoyed swimming and going to the gym, as well as bushwalking. He enjoyed racing remote control cars.
101The plaintiff told Professor Bittar that his sleep is severely impacted and he frequently experiences daytime tiredness.
102Professor Bittar related that the plaintiff’s account of his domestic activities is that they are severely impacted and he relies heavily on his daughter for assistance with cleaning and cooking, and his son usually helps with shopping. He has a gardener.[126]
103Professor Bittar diagnosed aggravation of cervical spondylosis with right-sided radiculopathy from which the plaintiff would most likely benefit from surgery by way of a C5/6 and C6/7 anterior cervical decompression and fusion.
104Professor Bittar assessed the plaintiff’s prognosis as guarded given his diagnosis of a serious injury to the cervical spine and of the development of a very significant chronic pain condition. He thought that if surgery was technically successful, the plaintiff would nonetheless almost certainly continue to experience significant pain and disability into the foreseeable future.[127]
105Professor Bittar does not believe the plaintiff possesses a realistic capacity to return to his pre-injury work taking into account his age, education, training, skills and work experience, as well as the nature and severity of his work-related cervical spine condition, and neither does he think he possesses a realistic capacity for suitable employment and that the incapacity for work is both total and permanent.[128]
106As a consequence of the physical injury and impairment to the plaintiff’s cervical spine Professor Bittar believes the plaintiff is likely to be precluded in relation to employment or activities involving the following exertions into the foreseeable future:
a. lifting more than very light objects
b. repetitive, sustained or forceful pushing, pulling or lifting
c. overhead activities.[129]
107As a consequence of the physical injury and impairment of the plaintiff’s cervical spine, and excluding any psychological or psychiatric condition, Professor Bittar does not believe the plaintiff has the capacity to perform his pre-injury duties and he has assessed the incapacity as permanent.[130] This was also his opinion of the plaintiff’s capacity to perform suitable employment.[131]
108Professor Bittar did not however believe the plaintiff to be at increased risk of developing arthritis as he already had arthritis.[132]
Professor Bittar Supplementary report dated 4 October 2021
109In a supplementary report dated 4 October 2021[133] Professor Bittar wrote that he had reviewed a Co Work report dated 12 July 2021 but did not think the plaintiff “has the realistic capacity to undertake any of these roles on a reliable and consistent manner.”[134] Professor Bittar said that he also reviewed a report of Dr Slesenger dated 3 August 2021, and whilst in theory he agreed with him that the plaintiff could return to work in the positions commented on, “In practice however, I do not believe that Mr Cohen would be able to work in any of these roles reliably and consistently, as his pain levels would prevent him from being able to do so. In addition, his pain levels also affect his concentration and would be expected to significantly diminish the quality of his work.”[135] In other words, when forming and expressing his opinion about the plaintiff’s employment suitability, Professor Bittar properly took into account a broader analysis than just the plaintiff’s functional capacity.
Dr Brazenor
110Dr Brazenor’s report dated 11 December 2020[136] relied on by the defendant was unsatisfactory. It was expressed in a partisan and adversarial manner. In going about his task Dr Brazenor failed to produce a report that meets the standards expected of an expert independent medical examination. I expressed my dissatisfaction about it to Ms Manova. It contains opinions outside what is warranted for such a report including questioning the plaintiff’s motivation for lifting a cabinet in the first place and commenting on the absence of any witness to the claimed injury.
111Dr Brazenor wrote that although he would need to sight the images of the plaintiff’s cervical spine scans in order to verify Mr Lo’s analysis of worsening neurological findings, he determined that “considering all the information from documents and radiological investigations that I have at my disposal at this time, the only explanations that fit the alleged clinical course of progressive and (so far) inexplicable physical disability are:
a. That Mr Cohen has a progressive neurological disease, or
b. That Mr Cohen is now perpetrating a ruse as to his disability”.
112Despite the unsatisfactory manner of commentary included in Dr Brazenor’s report that implied, if not explicitly advocated for the defendant, Ms Manova relied on the medicine and expertise that could be gleaned from it.
113Regarding the MRI finding of the plaintiff’s cervical spine of 12 September 2018, Dr Brazenor reported that, “the right-sided area (likely to be demyelination) at the C1/2 level in upper cervical spine on Mr Cohen’s magnetic resonance scans could cause subjective sensory symptoms down the left side of the body, but not the right.”[137] Dr Brazenor wrote that “the “mounds” intruding into the left lateral recess of the spinal canal at C2/3, on the right side at C5/6 and bilaterally at C6/7, all have the MRI appearance of osteophytes redolent of disc protrusions in the past […] and not recent disc protrusions”, and “these right sided mounds at C5/6 and C6/7 could cause pain and disability in right shoulder, arm and hand, but these symptoms, if they occurred at all, would likely have been chronic/recurrent pain”.[138]
114Dr Brazenor discounted the opinion of Dr Rowe.
115Dr Brazenor thought the plaintiff’s account was of progressive inexplicable symptoms and physical disability and he recommended the plaintiff “for his own safety, undergo exhaustive magnetic resonance rescanning of his brain and whole spine, CT scanning of his cervical spine, and Nerve Conduction and EMG studies to exclude neurodegenerative disease.”[139]
Dr Slesenger
116Dr Slesenger produced two reports. In his second report dated 3 August 2021[140] he wrote that the plaintiff was suffering from severe neck pain with associated right upper limb symptoms, including numbness, sensory loss, weakness and tingling in the right hand. He was experiencing residual restriction to his neck and shoulder movements. He was avoiding lifting on the right side, over shoulder reaching and forward reaching and he was toileting himself using his left hand. He could dress, wash and shower. His children assisted him with domestic tasks. He had residual moderate to severe lower back pain with right leg symptoms, including numbness and tingling. He expressed a capacity to drive for up to 10 minutes. He said he could stand and walk for 10 minutes and sit for 20 minutes. He could use a computer for no more than 20 minutes.[141]
117Dr Slesenger said he thought the onset of the plaintiff’s symptoms was likely to have been less precipitous than by way of an index accident but instead to have occurred over a longer period than he had originally assessed and that his concerns with regard to the cause of the plaintiff’s impairment stem from the fact that “the GP records failed to support such an incident.”[142] He wrote that having taken into account evidence of a demyelinating process and having noted evidence of myelopathy on clinical evaluation, he thought that the significant component of the plaintiff’s presentation was attributable to an underlying constitutional disorder, but he accepted he should defer to a neurological opinion.[143] However, Dr Slesenger said that:
“Nevertheless, I remain of the opinion that the manual handling tasks and the postural demands associated with his pre-injury role are a plausible cause on an aggravation of degenerative disease of the cervical and lumbar spine and his cervical spinal and lumbar spinal musculoskeletal impairment is a partial factor with regard to his overall disability.”[144]
118Dr Slesenger added that:
“However, I also note that the post-injury GP records do not support a lumbar spinal impairment when attending in late 2018 and accordingly, I am of the opinion that the lumbar spinal impairment is only partially related to the manual handling tasks associated with his pre-injury role.”[145]
119Dr Slesenger considered that the plaintiff had sustained the following injuries:
· Cervical spine:
§Mechanical injury to the cervical spine.
§Aggravation degenerative disease of the cervical spine and to a certain extent to his lumbar spine both of which had been asymptomatic prior to the injury.
§Chronic neck pain with right upper limb radiating features without evidence of radiculopathy.
· Lumbar spine:
§Soft tissue injury.
§Chronic lower back pain with right lower limb radiating features but without evidence of radiculopathy.[146]
120Dr Slesenger thought there was a possibility that the plaintiff had a right shoulder impairment but a proper determination required a face-to-face evaluation.[147]
121I noted earlier that Professor Bittar responded to Dr Slesenger’s opinion on the matter of suitable employment. It was provided because Dr Slesenger had been asked to provide his view of whether the plaintiff had the capacity to perform the duties of:
i. ICT Customer Support Officer;
ii. ICT Sales Representative;
iii. ICT Business Analyst;
iv. ICT Trainer;
v. Technical Writer.[148]
122Dr Slesenger considered that the plaintiff was able to return to work in each of the roles with the following restrictions:
● No push, pull, carry or lift over 3 kg.
● No repetitive neck or shoulder tasks.
● No repetitive bending or twisting.
● No prolonged static postures.
● No exposure to whole body vibration.
● Adjust posture as required.[149]
Medical Panel Opinion
123The defendant relied on the Certificate of Opinion and Reasons of the Medical Panel dated 27 August 2020.[150] The opinion of the Medical Panel was expressed in the form of the answer to two questions, namely:
Question i) What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with Section 54 and is the impairment permanent?
Answer: In the Panel’s opinion Mr Cohen has a 5% whole person impairment resulting from the accepted Cervical Spine injury when assessed in accordance with Section 54 of the Act. The degree of impairment is permanent.
The degree of impairment includes a 5% whole person impairment assessed in accordance with Chapter Three of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition).
Question ii) Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table Section 221?
Answer: No.[151]
124The Medical Panel reasons included a diagnosis of “C5/C6 disc prolapse without cervical radiculopathy.”[152] The Panel noted that the plaintiff was exhibiting unrelated neurological signs including impaired joint position sense, depressed left ankle reflex and variable truncal and face and lower limb sensory impairment, suggestive of an intrinsic spinal cord or brainstem condition, which were not due to radiculopathy or myelopathy related to the accepted physical injury. The Panel concluded that:
“Mr Cohen is suffering from a right C5-6 disc prolapse with compression of the right C6 nerve root and some distortion of the adjacent hemicord without cervical radiculopathy, relevant to the accepted physical injury. The Panel considered that Mr Cohen exhibits unrelated neurological signs (impaired joint position sense, depressed left ankle reflex, variable right truncal face and lower limb sensory impairment) suggestive of an intrinsic spinal cord and or brainstem condition and which are not due to any radiculopathy or myelopathy arising from the accepted physical injury.”[153]
Mr Armin Drnda
125The defendant relied on the opinion of Mr Drnda,[154] neurosurgeon, who conducted an impairment benefit assessment. Whilst Mr Drnda’s diagnosis is consistent with the Panel, his findings on examination differed somewhat. On clinical examination he made the following findings and observations:
i. Normal gait and posture
ii. No muscle wasting or guarding or muscle spasm;
iii. Illness behaviour with huffing and puffing;
iv. Limited movements in all directions;
v. No guarding or muscle spasm observed;
vi. Tenderness and increased pain in posterior neck on axial loading and light touch;
vii. Wadell’s sign appeared positive;
viii. No signs of muscle wasting in the shoulders;
ix. Equal muscle bulk in right and left arm;
x. Normal and symmetrical reflexes;
xi. Reported decreased sensation over the whole side of the head, face, neck, whole of right arm and right side of body down right leg.[155]
126Mr Drnda wrote that 2018 radiological investigations showed the following:
i. Signal cord change behind the C1
ii. Fresh disc prolapse distorting the C3 nerve root but the cord was not compressed (with CSF between the disc protrusion and the cord
iii. Disc osteophyte complex causing complete obliteration of the right C5‑6 foramen
iv. The spinal cord was distorted and contacted but not compressed and there was no cord signal change;
v. Moderate to severe cervical foraminal stenosis but the central canal was of normal calibre.[156]
127Mr Drnda diagnosed the plaintiff with chronic neck pain with some evidence of central sensitization without clinical evidence of radiculopathy or myelopathy with significant psychological reaction.[157]
Dr Anita Vinton
128Dr Vinton saw the plaintiff in October 2018.[158] She made a number of recommendations for treatment which have not been followed up by the plaintiff. These included:
a. OCT;
b. Repeat imaging of brain and spinal cord to be done in April 2019 and to return for review after that;
c. If symptoms worsen, that he should return for review earlier;
d. Trial of Lyrica if pain symptoms “become problematic”.[159]
129Ms Manova relied on the observation of Dr Vinton in her subsequent report dated 10 October 2018, that “most of the symptoms of which he is currently complaining relate to the abnormal signal in the cord rather than his prolapse disc.”[160]
130Ms Manova relied on an absence of expert medical evidence linking the plaintiff’s accepted workplace injury to the abnormal signal in the cord, and noted that Dr Vinton had been unable to come up with an explanation for “what the region of increased signal at C1 represents.”[161] Dr Vinton, however, did exclude a demyelinating disease when she wrote to Dr Head on 10 October 2018 following the plaintiff’s MRI of brain and entire spine.
Clinical records
131Dr Head’s clinical records identify that on 10 September 2018, the plaintiff confirmed a history of neck pain radiating into his right upper limb and associated with right upper limb and lower limb numbness, impacting his ability to write.
A note from the attendance read: “Symptoms started four weeks ago after working in roof of his house” The plaintiff denied having given such an account of mechanism of injury to Dr Head. Rather the plaintiff explained that he had related to Dr Head a rumour which had started in the workplace that this was the mechanism of his injury. The records produced contained another note made by Dr Head and also dated10 September 2018[162] that reads that “Symptoms started four weeks ago”[163] but makes no mention of “working in roof of his house”. It is evident that Dr Head has at some unknown point in time altered one of the two notes for this attendance. I was urged by Mr McGarvie to conclude that the note excluding reference to the roof reflects Dr Head’s subsequent and true understanding of the mechanism of injury. He submitted that such an inference is reinforced from an entry dated 23 October 2018,[164] that includes, “Becoming frustrated as symptoms persist….and no cause found for cord signal change. Symptoms started two months ago while lifting a 35 kilogram box”.[165]132Overall, I prefer the accuracy of the note of entry that excludes reference to the roof of the plaintiff’s house as opposed to an alternative explanation that Dr Head altered her note impermissibly or wrongly. My assessment is consistent with the narrative account of injury that has elsewhere been relied upon by the plaintiff. My preferring the version of the note that excludes mention of working in the roof of the plaintiff’s house also conforms to the worker's claim form which was completed on 30 October 2018 in which two causes of injury are identified namely, working in an unsuitable ergonomic set-up desk and lifting heavy cabinet. As well, the employer injury claim report signed by the general manager of the employer asked, “What happened and how was the worker injured? to which the response read, “Amir claims he injured himself when he bent down to pick up a box”.[166] Lastly, in a Medical Practitioner Questionnaire report completed by Dr Head dated
12 November 2018[167] she sets out the mechanism of injury in this way: “In early August 2018 Amir reached to move a 30 to 35 kilogram cabinet at work and felt a sudden severe pain in the right side of his neck. The pain radiated down his right upper limb. Amir has been complaining of his ergonomic work area for several years”.[168]133A clinical note dated 21 August 2018 included a reference to “Right arm and hand numb with electric sensation in fingers and wet sensation on forearm, right ear also numb. No trauma or neck pain. Hand pale and cold compared to left hand.”[169] For the examination it states: “Normal power. Reduced sensation to touch right upper limb compared to left. Hand pale compared to left and colder to touch.”[170] The next note of consultation with Dr Head dated 10 September 2018 included, “Neck pain radiating to right upper limb and now right upper and lower limb numbness causing difficulty holding a pen to write. No trauma. No headaches or vomiting. Symptoms started four weeks ago. Plan: MRI and then review”.[171] CT scan findings were described in the records of clinical attendance and the plaintiff was recommended to undergo an MRI scan. Also in September 2018, it was noted that there was a concern with regard to possible contribution of the plaintiff’s workplace desk set up and long hours in front of a computer worsening disc/osteoarthritis and nerve root impingement. On 15 September 2018, it was noted that the MRI scan showed “possible demyelination at C1 level, multiple degenerative changes in cervical spine and disc disease causing nerve root impingement numbness and reduced fine moto skills right hand stated 4 weeks ago and worsening.”[172]
134A note of attendance in November 2018 mentioned cervical disc and spinal disease, causing neck pain associated with upper limb numbness and weakness and reduced coordination after lifting a heavy cabinet/box at work. Also recorded was that the plaintiff had been sitting at a desk with poor ergonomic set up.[173]
The Defendant’s Submissions
135Ms Manova’s submissions on behalf of the defendant were succinct and may be encapsulated as follows:
First, it accepted that the plaintiff suffered a compensable work injury;
Second, the compensable work injury has not been proved by the plaintiff to have serious consequences to him in terms of pain and suffering;
Third, the Court must consider how the cervical spine consequences of the workplace accident would have been absent the subsequent or contemporaneous (non-work related) neurological injury and this includes looking at and considering the effect and likely effect in the future of those neurological injuries[174]. The responsibility or the onus for establishing this to the requisite standard lies with the plaintiff. The absence of material to address this requirement presents an insurmountable obstacle to the plaintiff on making out his case for serious injury in respect of the cervical spine.
Fourth, the plaintiff has failed to disentangle the consequences of another injury or condition from which he suffers that has been identified by Dr Brazenor and raised by Dr Vinton and Mr Slesenger and alluded to by a Medical Panel.
Fifth, the compensable work injury (that is, excluding the asserted no work related neurological condition) has not been proved by the plaintiff to have serious consequences in terms of a loss of earning capacity;
Sixth, the plaintiff has fabricated evidence or exaggerated much of it, and
I ought not accept the claimed pain and suffering consequences whether they are work-related cervically or if neurologically.136Against the backdrop of these submissions Ms Manova accepted that the plaintiff had symptoms that were attributable to the compensable workplace incident in 2018 and perhaps for quite some time thereafter, but argued, “whatever he's complaining of now is not attributable to the workplace incident.”[175]
137In furtherance of this contention, Ms Manova submitted that with the passage of time the plaintiff’s symptoms have somewhat improved and have been overtaken by the neurological symptomatology and that such a conclusion is consistent with the opinion of Dr Vinton and of the Medical Panel.
138Ms Manova argued that “the plaintiff really relies on the disc prolapses causing cord compression with radiculopathy, that's what's provided in the plaintiff's particulars of injury. From the defendant's perspective the question of whether radiculopathy exists on the investigations and the clinical findings, that is a matter in dispute.”[176]
139Ms Manova relied on the Medical Panel having diagnosed the plaintiff as suffering from a right-sided C5 to C6 disc prolapse with compression of the nerve root but without cervical radiculopathy. The Panel considered that the plaintiff exhibited unrelated neurological signs, impaired joint position sense, depressed left ankle reflex, variable right truncal face and lower limb sensory impairments suggestive of an intrinsic spinal cord and brain stem condition which are not due to any radiculopathy or myelopathy arising from the accepted physical injury.
140Ms Manova described Professor Bittar who identified cervical radiculopathy as an outlier. Although Dr Slesenger also referred to evidence of radiculopathy, Ms Manova submitted that his account should be excluded, and furthermore, that I should be cautious in accepting his opinion as an occupational physician on the very complex situation that affects the plaintiff's spine and spinal cord.
141Of course, Dr Rowe also reported radiculopathy. However, as I mentioned earlier, the defendant was not too keen on Dr Rowe’s opinion either.
142Mr Drnda, neurosurgeon, found no muscle wasting, guarding or muscle spasm on the day of the plaintiff’s examination, and he identified characteristics of illness behaviour with huffing and puffing. Ms Manova submitted that such affect or “illness behaviour” was also exhibited by the plaintiff in the course of his giving evidence.
143Of the plaintiff’s claim for a certificate for serious injury that encompasses a loss of earning capacity Ms Manova relied on three jobs and the findings of
Dr Slesenger that the plaintiff has a capacity to undertake each of ICT support officer, sales officer and business analyst.144Ms Manova relied on the sedentary nature of the jobs as described by Ms O'Brien from CoWork together with the fact that none involve lifting or the like, and no push/pull, carry or lift over 3 kilograms and, therefore, could be performed within Dr Slesenger’s recommended restrictions.
145Ms Manova pointed out that if the plaintiff was assessed as able to perform any of the jobs then his claim for a loss of earning capacity of 40% or more would be extinguished.
Plaintiff’s submissions
146Mr McGarvie submitted that if I am satisfied that the plaintiff presents with a neurological condition then it is open for me to find on the evidence that it is not a separate and distinct impairment arising from some other and separate cause than the mechanism of injury relied upon for the accepted work injury, but is a manifestation of the impairment to the whole of spine caused by the work injury. Mr McGarvie reinforced this submission when he identified that the plaintiff not only relied on an incident on 7 August 2018, but a course of employment, and a lack of proper ergonomic workplace extending back many years.
147Mr McGarvie referred to Meadows v Lichmore[177] in order to address the references in the medical evidence that the plaintiff had developed a chronic pain syndrome secondary to his organic condition. Mr McGarvie submitted that the first step required in such a situation is to ask whether there is a substantial organic basis for the pain and suffering consequences relied upon by a plaintiff. If the answer to that question is in the affirmative, and of course if the pain and suffering consequences satisfy the statutory criterion, then the applicant will succeed without the need for disentangling the physical contribution to the pain and suffering from any psychological contributions.
148Mr McGarvie also submitted that if I am satisfied that the plaintiff developed a non-work caused impairment in the form of the onset of a neurological condition then nonetheless such of the symptoms associated with it had not overtaken the existing and continuing prevailing symptoms of the accepted work related impairment that had been caused to the plaintiff’s spine. That is, the plaintiff had separated out the consequences of the original injury, and they are more than significant or marked and at least very considerable. Mr McGarvie argued that the plaintiff’s evidence of their impact on him had not been challenged and that the attack on the plaintiff’s credit should not be assessed as sufficient to diminish the truth of his evidence about them and their interference to his activities of daily living.
149Mr McGarvie further submitted that if I accept that the plaintiff has the impositions to his sleep, the lack of concentration, the severity of pain deposed to and reported on and that operates so as to preclude him pursuing and engaging in and deriving enjoyment from the suite of activities he deposed to having participated in before his injury, then I could be satisfied the plaintiff has suffered a serious injury by way of an aggravation to his pre-existing spine. Mr McGarvie similarly submitted that, if I accepted that the plaintiff has the impositions to his sleep, the lack of concentration, the level of severity of pain deposed to and reported on, and that after taking into account Dr Head’s nil capacity certificates, as well as the expert opinions relied on by the plaintiff, I could readily be satisfied that the plaintiff lacks a capacity for suitable employment including in the three positions relied on by the defendant.
Analysis and findings
150In the course of both counsel’s final addresses, I raised a concern that the aetiology of the other condition and the alleged separateness of it and whether it had overtaken the plaintiff’s spinal symptomology had possibly resulted in a loss of recognition by the defendant of the evidence regarding the aggravating effects on the plaintiff of the spine injury. Indeed one of the difficulties I have encountered in adopting the defendant’s submissions that the “other condition” has overtaken the accepted injury is that the plaintiff has at no point in time ceased complaining about the effects on him of pain and limitations directly attributable to the workplace injury and the extent to which his life had altered for the worse because of their consequences.
McKenzie v Peak Engineering[178]
151In 2004, Mr McKenzie suffered injury to his left hand in the course of his employment with Peak Engineering Pty Ltd. In 2008, he suffered injury to his left knee working for a subsequent employer. In 2012 he applied to this Court for a serious injury certificate based on the pain and suffering consequences flowing from his left hand injury. At first instance, he was successful. The trial judge did not accept the defendant’s submission that the real pain and suffering consequences experienced by Mr McKenzie were produced by his left knee injury. The trial judge stated at [34]:
“I do not accept that I am required to look at the pain and suffering consequences produced by the plaintiff’s left knee. The pain and suffering consequences produced by the plaintiff’s left upper limb and his left knee are very different. There are very few consequences contended for by the plaintiff which are contributed to by both the injury to the left upper limb and the left knee, save, for example, the interference with the plaintiff’s sleep”.[179]
152The defendant appealed. It was submitted that the trial judge was bound to identify, and exclude, the continuing consequences for Mr McKenzie of the knee injury; and when the consequences properly referable to the 2004 hand injury were identified, they could not reasonably be viewed as satisfying the statutory test.
153The Court of Appeal upheld both grounds, setting aside the judgment and ordering that the serious injury application be refused. In relation to the exercise to be undertaken, President Maxwell stated at [24]:
“In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”
154The learned President added that it is possible to imagine a case where the consequences of the compensable injury and the separate injury are so clearly distinct that no “disentanglement” is necessary. However, this was not such a case, as there was evidence that some of the relevant pain and suffering consequences were attributable to both the knee injury as well as the hand injury.
155In an appropriate case, it is therefore necessary to not only consider the extent to which the compensable injury causes a given consequence but a separate analysis is required whether a separate injury is a cause of that consequence. If the latter is the case, the claimant’s reliance on that consequence as a basis for his or her serious injury application may be negated.
156Upon a consideration of all of the evidence, I am not satisfied that it is necessary to undertake a Peak Engineering analysis in the circumstances of this case as was submitted on behalf of the defendant. Consequences from which the plaintiff suffered, and according to his further affidavit, he continues to suffer, commenced after his work injury. These consequences are capable of explanation by reliance on the impairment to the plaintiff’s spine including his inability to perform his pre-injury duties. It may be that one or other of the symptoms, as for instance, the Panel surmised, relate to some other cause, but the plaintiff was relevantly asymptomatic before the workplace lifting incident at work. I am certainly satisfied and find that there was no impairment from which the plaintiff suffered that manifested itself in disabling or limiting consequences beforehand.
157I am satisfied on the balance of the evidence that the prolapsed disc with compression on the nerve root which the plaintiff suffered as a result of the workplace injury is a serious aggravation to the function of the spine and provides a sufficient explanation for the neck pain and symptoms in the right hand, and the consequence to the many activities of everyday life and of pain that is relied upon in the plaintiff's affidavits. There is scope for some reservation concerning the sensation of wetness in the hand. Nonetheless, I am satisfied that Dr Head, Mr Lo, Professor Bittar, Dr Rowe and Dr Slesenger provide a more than respectable basis that the neck injury is the cause of the neck pain and the problems with the plaintiff’s right hand, with both Professor Bittar and Dr Rowe testing and finding a significantly weekend grip strength on the right. It is from this that I am satisfied may be attributed significant adverse effects.
158If I am wrong and there is a disentangling exercise required to be undertaken in accordance with the principles in Peak Engineering, then I am satisfied that sufficient evidence exists that what has been identified as the effects from the work accepted injury carry with it consequences that themselves are serious. If some other condition is inflicting consequences on the plaintiff, be that as it may, those that have been sufficiently disentangled and remain attached as having been caused from the work injury remain operative on the plaintiff and are by objective measure serious for him. They were expressly identified by the plaintiff in his affidavit evidence. That evidence was not displaced. Those consequences are not to be set at nought if, for example, the plaintiff has experienced another injury that is not work related even if it may be serious on its own terms so long as those other consequences can be separated and the new or other condition is not the disabling cause. I am satisfied that they can and have been.
159In light of my reasons it is unnecessary for me to accept or reject
Dr Brazenor’s neurological opinion. However, I do not accept his alternative opinion that the plaintiff may be engaged in a ruse.160I have considered that Dr Slesenger’s altered opinion expressed in his second report took into account evidence of a demyelinating process and of myelopathy on clinical evaluation in order to surmise that a significant component of the plaintiff’s presentation is attributable to an underlying constitutional disorder, although he deferred to the expertise of a neurologist. Of course, Dr Slesenger was not called on to address the possible effect on the plaintiff’s presentation as a result of trauma, congenital stenosis, degenerative disease or disc herniation. Also Dr Slesenger of course did not need to grapple with the legal principle that in an application such as this, it is not a bar to success if a plaintiff’s presentation includes a different or separate injury or illness if a component of presentation that is work related carries with it consequences that are serious and the impairment is permanent and has not been replaced by a new injury or condition. In any event, the reliance by Dr Slesenger on evidence of a demyelinating process is equivocal, and myelopathy is as consistent as not, with a progressive development of work related spinal cord disease or trauma.
161Mr Lo’s correspondence of 9 November 2018 supported the existence of radiculopathy and wasting. In similar vein, Professor Bittar reported that on examination the plaintiff’s grip strength was only 8 kgs in the right hand compared to 17 kg in the left and of impaired sensation in the right hand. Moreover, Professor Bittar wrote that diagnosis is “multilevel disc derangement particularly in the lower levels causing radiculopathy in the right arm and hand.”[180] In my judgment, reasonably and fairly understood, the diagnosis of disc derangement in the lower levels encompasses C6 and C7, but a diagnosis of multi-level derangement encompasses the whole of the plaintiff’s cervical spine and as causing radiculopathy.
162I have also taken into account in my analysis that Dr Rowe wrote:
“The cause of the condition is the incident which happened at work and his prior duties but mainly the incident which occurred in August 2018 when he was lifting something heavy at his workplace.”[181]
163I have not overlooked that Mr Lo in his correspondence with the defendant insurer when seeking approval for surgery, (an approval that was forthcoming), pointed to objective evidence of organic injury and, in mentioning its effects on the plaintiff, wrote that:
“He has critical stenosis on MRI and evidence of cord damage as well as clear right C6 and C7 radiculopathy. He is dropping items held in his right hand and he has wasting in the thenar eminence.”[182]
164Ultimately, I have not assessed the plaintiff’s impugned credibility in the aspects I have related as of the high order level of significance that Ms Manova would have it, and I prefer and adopt the submissions on the issue of the plaintiff’s credibility advanced on his behalf by Mr McGarvie.
165Although the admissibility of the reasons of a Medical Panel is now settled as a matter of law, the fact of their admissibility does not elevate them to binding application in this proceeding. Indeed, I am inclined to the view that to place much reliance on them may result in an incorrect approach to the determination of the plaintiff’s serious injury application. As the Court of Appeal stated in Yirga-Denbu v VWA[183], “…the necessity for the judge …to admit the Panel Reasons, to give context to the certificates of opinion, may be doubted”[184]. Of considerable pertinence, their Honours went on to say this at [58]:
“The admission of the Panel Reasons on the basis of a need for the provision of context has the capacity to give rise to a risk of a court determining that an issue dealt with in the reasons, but not as part of an answer to a medical question in the certificate of opinion, might be held to be final and conclusive within the meaning of s 313(4) of the WIRC Act, in circumstances where such a result could not be justified by the terms of the statute”.
166In any event, and for example, although the Panel reasons support the proposition that the plaintiff has cervical myelopathy which is work-related, it also found that some other intrinsic condition of the brainstem is not work related. However, I consider that it would be problematic that where, as in this application, there is identifiable cervical myelopathy (that is, compression of the spinal cord) that I should be confident to exclude consequences occasioned by the brainstem condition. But regardless of that, and moreover, the Panel reasons cannot answer the question posed by this application, which is whether, even in light of some other (non-work) condition, the work related impairment is an aggravation that has wrought consequences for the plaintiff that are serious. In my judgment, for the reasons I have expressed, I find that it has.
Analysing loss of earning capacity claim
167The plaintiff must show, and it is he who bears the onus in this regard, that he has suffered a permanent loss of earning capacity of at least 40 per cent after any reasonable rehabilitation and retraining.
168In Weldemichael v ID Sales and Repairs Pty Ltd,[185] the Court of Appeal said:
“… The proper consideration of the applicant’s capacity to perform light assembly work did not require some minute consideration of every aspect of a particular position that might or might not have been suitable for the applicant”.[186]
169The Court of Appeal added that the “proper analysis, and one which was carried out by the judge, involved a broader consideration of all of the evidence.”[187] I have endeavoured to adopt this approach.
170Consistent with the dicta in Weldemichael, I have had regard to “suitable employment”, which is defined to mean:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii)the nature of the worker's pre-injury employment;
(iii) the worker's age, education, skills and work experience;
(iv) the worker's place of residence;
(v)any plan or document prepared as part of the return to work planning process;
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i) the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education.”[188]
‘no current work capacity’ and ‘suitable employment’
171In Richter v Driscoll[189] the Court of Appeal, held that “the construction which the judge placed upon the definition of ‘no current work capacity” was unduly narrow’[190]. Ashley and Kaye JJA reasoned that ‘the [Medical] Panel’s consideration of the “light process worker” option incorrectly focused entirely upon the applicant’s physical capacity [emphasis added] to undertake the duties described in the Assessment’.[191]
172Ashley and Kaye JJA reasoned that ‘return to work in employment … requires more than a physical capacity to engage in a task or tasks.’[192] The employment must be, as specified in the definition of ‘no current work capacity’, ‘suitable employment’. For their Honours, the ‘definition of ‘suitable employment’ … plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment.’[193] ‘If it were otherwise’, their Honours warned, ‘paragraphs (a)(ii), (iii) and (iv) would have no work to do’[194]. If the question whether a worker has an inability to perform
pre-injury employment is confined to an examination of the worker’s physical capacity to perform a particular task or tasks in that employment, one would never reach the question whether a worker can perform ‘suitable employment.’[195] The question whether a worker is able to return to work in ‘suitable employment’, according to Ashley and Kaye JJA, ‘specifically requires consideration of matters travelling beyond physical capacity to perform a task.’[196]173Furthermore, the Court of Appeal clarified that the question whether a worker has an ‘inability to return to work in pre-injury employment must encompass consideration of circumstances akin to, but not necessarily limited to, the matters set out in paragraphs (a)(ii), (iii) and (iv) of the definition of ‘suitable employment.’’[197]
174The construction which Ashley and Kaye JJA placed on the definitions of ‘no current work capacity’ and ‘suitable employment’[198] can be expressed as follows:
… whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment [emphasis added] having regard to the entirety of the worker’s personal circumstances—these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.’[199]
…
The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009] …, where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.[200]
175These approaches ‘focus upon an assessment of the inhibitions which exist upon the worker’s ability to work in employment’. Ashley and Kaye JJA said at [97]:
‘Employment’ is a relationship in which a prospective employee must have something—a capacity to work in employment—to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker [emphasis added], as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell.
176Osborn JA agreed with Ashley and Kaye JJA that the appeal should be allowed. Osborn JA agreed that the ability of a person to return to work in employment does not simply depend on the capacity of that person to ‘physically undertake particular tasks’. At [143]-[145] His Honour said:
… The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated…
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically [emphasis added].
177Ashley and Kaye JJA also clarified that ‘Barwon Spinners did not decide that the definition of “suitable employment” focuses solely upon a workers physical capacity to undertake a task.’[201] The substance of what the Court in Barwon Spinners said about the definition of ‘suitable employment’ was that ‘suitable employment’:
… looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as also are the nature and no doubt extent of the worker’s incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as suitable if situated too far from the worker’s place of residence’.[202]
178I am satisfied that it is largely an unproductive exercise to engage in a piece by piece skills set analysis of the proposed suitable employment identified and relied on by the defendant. There is really no dispute by the plaintiff and I am positively satisfied that he possesses the qualifications to acquit himself in each role relied on by the defendant of:
ICT Customer Support Officer;
ICT Sales Representative; and
ICT Business Analyst
179If I am satisfied of the plaintiff’s capacity for employment in any of these jobs then the defendant’s evidence of the gross annual remuneration for each of them would defeat a claim for a loss of earning capacity of 40 percent or more.
180I am satisfied that the plaintiff’s age is not a barrier to employment. His capacity to travel from Brighton to the places of work identified may prove difficult.
181I take into account that the CoWork report’s author observed that the physical demands of the three jobs relied on by the defendant had been assessed as sedentary in the Job Markets database.
182The roles have been assessed as likely to be within the plaintiff’s residual physical capacity “when he is medically cleared to return to work.” However, the plaintiff has not been medically cleared to return to work. Although his treating doctor gave him a certificate for a work capacity of two hours a day some time ago, the plaintiff’s evidence was that he feels worse now than then. In addition, Dr Head currently certifies the plaintiff with a nil capacity. There is no evidence to suggest this will change.
183The plaintiff’s experience of pain in consequence of an injury is a factor that is also relevant as part of the overall assessment of his capacity to undertake suitable employment.
184I have considered the performance of the unpaid call work the plaintiff gave evidence about that he proved able to undertake from his home, but I have also had regard to the fact that this work was able to be performed at his discretion and was essentially performed on an ad hoc basis. That is very different to the requirement of the roles relied on by the defendant that require ongoing and consistent full time attendance. None of the jobs advertised suggested the employment could be performed remotely as opposed to office based. I am conscious that whilst this might have been so during the Covid imposed restrictions that should not be assumed to be a permanent or permissible feature of the proposed suitable employment.
185Each job advertisement attached to the CoWork report in one form or another requires a candidate for employment to present with a suite of skills that are underpinned by a reliably consistent capacity for work. This is something I am satisfied the plaintiff does not possess. I was also struck by the plaintiff’s lack of felicity with spoken English and a resultant marked convolutedness in answering many questions put to him in the course of cross-examination that I think may adversely affect his suitability in any sales representative role or one requiring team work.
186Ms Manova urged me to accept that the plaintiff’s hesitancy in embracing suitable employment was because he said that he did not have the patience for the jobs identified and also that his account of problems with fine finger skills such as would be needed for remote computer access work should be viewed with scepticism.
I did not assess the plaintiff’s answer regarding his capacity to summons up patience as the refrain of a person unwilling to work. Indeed, in response to questions from Ms Manova, the plaintiff volunteered a preparedness to have a go at work, including aspects of the duties connected with the jobs relied on by the defendant. Rather, I have judged the plaintiff’s recourse to a concern about a lack of patience not as an exercise in self-indulgence or a lack of desire on his part, but instead as an expression of the frustration accompanying his inability to work in a real world environment because of the limitations accompanying his impairment.
I do accept though that the plaintiff’s evidence of a deficit in fine finger skills is not relevant to the work relied on by the defendant.187I do not believe that any of the suggested jobs are suitable for the plaintiff given his ongoing significant pain, restriction and need for painkilling medication. These factors would impact significantly on his ability to attend work on a reliable and consistent basis.
Loss of earning capacity
188I am satisfied that the plaintiff has suffered a serious injury by way of an aggravation to the function of the spine and by reference to his ongoing pain and restrictions. Significantly, he has lost the capacity for unrestricted physical work. Having 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, and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently.
189The measurement of loss of earning capacity requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
190“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred. It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
191The 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) therein.
192I am therefore required to determine a “without injury” earnings figure. The parties agreed annual pre injury earnings of $104,000[203].
193I am satisfied the plaintiff has proved, on the balance of probabilities, that his loss of earning capacity is 40 percent or more. I am satisfied the same is permanent, and is not remediated by, or in consequence of, any reasonable retraining, as I am satisfied, by the evidence, that the limitations applicable to the plaintiff’s capacity to earn a sum sufficient to eliminate the loss of earning capacity is due to the functional and organic consequences of his compensable injury which is permanent.
194Taking into account all the evidence, I am satisfied the plaintiff has suffered the requisite loss of 40 per cent on a permanent basis.
195I am also required to consider issues of retraining and rehabilitation pursuant to ss325(2)(g). I was not specifically addressed on the matter.
196In applying this section, the court must take into account practical considerations such as the worker’s previous level of education, age and capacity for retraining.[204]
197In determining whether loss of earning capacity is permanent, the Court must assess the evidence realistically, by reference to the applicant’s physical and mental limitations and by reference to what might or might not be suitable employment for the applicant in the foreseeable future.[205]
198In 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.
199As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s 325(2)(g) of the WIRCA.
200I will grant the plaintiff the relief sought in his Originating Motion and grant leave to the plaintiff for a serious injury certificate for pain and suffering and loss of earnings.
[1] Particulars of Injury dated 23 April 2021, Plaintiff’s Court Book (‘PCB’) 10.
[2] Exhibit D3, Defendant’s Court Book (‘DCB’) 49.
[3] Exhibit D9, Defendant’s Supplementary Court Book (‘DSCB’) 3.
[4] Exhibit D4, Report of Dr Brazenor dated 11 Dec 2020 DCB 54.
[5] Exhibit D9, DSCB 3.
[6] Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104, [49]; Petrovic v VWA [2018] VSCA 243, [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248, [51].
[7] Exhibit P1, PCB 23-32.
[8]Exhibit P2, PCB 33-42.
[9] Exhibit P3, PCB 43-44.
[10] Exhibit P3, PCB 45-46.
[11] Exhibit P4, PCB 47-52.
[12] Exhibit P5, PCB 74-78.
[13] Exhibit P6, PCB 79.
[14] Exhibit P7, PCB 82-84.
[15] Exhibit P8, PCB 99.
[16] Exhibit P9, PCB 110.
[17] Exhibit P11, PCB 120.
[18] Exhibit P12, PCB 122-123.
[19] Exhibit P10, PCB 111-113.
[20] Exhibit P13, PCB 129.
[21] Exhibit P14, PCB 132.
[22] Exhibit P15, PCB 163.
[23] Exhibit P16, PCB 165-182.
[24] Exhibit P17, PCB 193-200.
[25] Exhibit P17, PCB 342-344.
[26] Exhibit P18.
[27] Exhibit P19, PCB 119.
[28] Exhibit D1, DCB 26-35.
[29] Exhibit D5, DCB 89-107.
[30] Exhibit D2, DCB 36-43
[31] Exhibit D3, DCB 44-53.
[32] Exhibit D4, DCB 54-86.
[33] Exhibit D6, DCB 108-119.
[34] Exhibit D6, DCB 120-124.
[35] Exhibit D7, DCB 173-232.
[36] Exhibit D8, DCB 236 - 242
[37] Exhibit D9, DSCB 3.
[38] Exhibit D10, DSCB 4 – 21.
[39] Exhibit D11, Defendant Further Supplementary Court Book (‘DFSCB’) 3.
[40] Exhibit D12, DFSCB 6.
[41] Exhibit D13.
[42] Exhibit P5, PCB 74-78.
[43] Exhibit P1, PCB 26.
[44] Section 335(5)(a) of the WIRCA.
[45] Section 5(1) of the WIRCA.
[46] Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622, [33] (‘Barwon Spinners’).
[47] Section 325(2) (b) and (c) of the WIRCA.
[48] Section 325(2)(h) of the WIRCA.
[49] Section 325(2)(j) of the WIRCA.
[50] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
[51]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
[52] Exhibit P1, PCB 23-32.
[53] Exhibit P2, PCB 33-42.
[54] Exhibit P1, PCB 26.
[55] Exhibit P5, PCB 74-78.
[56] Exhibit P7, PCB 82-84.
[57] Transcript (‘T’) 226, Line (‘L’) 8.
[58] Exhibit D10, DSCB 15.
[59] T68-69, 14-31, 1-4.
[60] Exhibit P18.
[61] Exhibit P1, PCB 27.
[62] Exhibit P1, PCB 27.
[63] Exhibit P1, PCB 28.
[64] Exhibit P1, PCB 28.
[65] Exhibit P1, PCB 28.
[66] T136, L4-9.
[67] Exhibit P1, PCB 28.
[68] Exhibit P1, PCB 29.
[69] Exhibit P1, PCB 29.
[70] Exhibit P1, PCB 30.
[71] Exhibit P1, PCB 30.
[72] Exhibit P1, PCB 30.
[73] Exhibit P1, PCB 31.
[74] Exhibit P1, PCB 31.
[75] Exhibit P1, PCB 31.
[76] Exhibit P2, PCB 34.
[77] Exhibit P2, PCB 33.
[78] Exhibit P2, PCB 35.
[79] Exhibit P2, PCB 35.
[80] Exhibit P16, PCB 167.
[81] Exhibit P16, PCB 177.
[82] Exhibit D5, DCB 96.
[83] Exhibit D5, DCB 93.
[84] Exhibit P15, PCB 163.
[85] Exhibit P2, PCB 36.
[86] Exhibit P2, PCB 36.
[87] Exhibit P2, PCB 36.
[88] Exhibit P2, PCB 36.
[89] Exhibit D12, DFSCB 6.
[90] Exhibit D7, DCB 182.
[91] Exhibit D4, DCB 69.
[92] Exhibit D7, DCB 182.
[93] Exhibit P17, PCB 195.
[94] Exhibit D10, DSCB 13.
[95] T103-104.
[96] T104-105.
[97]T117-118.
[98] As referenced in Exhibit P16, PCB 174, 175.
[99] A demyelinating disease is any condition that results in damage to the protective covering (myelin sheath) that surrounds nerve fibres such as in the spinal cord. When the myelin sheath is damaged, nerve impulses slow or even stop, resulting in neurological problems.
[100] Exhibit P5, PCB 74-78.
[101] Exhibit D9, DSCB 3.
[102] PCB 131.
[103] T59-61.
[104] Exhibit P12, PCB 122.
[105] Exhibit P10, PCB 111.
[106] Exhibit P7, 82-83.
[107] PCB 145.
[108] T195, L 23-26.
[109] Exhibit P16, PCB 174 - 182.
[110] Exhibit P16, PCB 174 - 175.
[111]Exhibit P16, PCB 175.
[112] Exhibit P16, PCB 175.
[113] Exhibit P16, PCB 175.
[114] Exhibit P16, PCB 176.
[115] Exhibit P16, PCB 176-177.
[116] Exhibit P16, PCB 178.
[117]Exhibit P16, PCB 179.
[118] Exhibit P16, PCB 179.
[119] Exhibit P16, PCB 179-180.
[120] Exhibit P16, PCB 181.
[121] Exhibit P16, PCB 181.
[122] Exhibit P16, PCB 182.
[123] Exhibit P16, PCB 182.
[124] Exhibit P17, PCB 194.
[125] Exhibit P17, PCB 194.
[126] Exhibit P17, PCB 195.
[127] Exhibit P17, PCB 196-197.
[128] Exhibit P17, PCB 197.
[129]Exhibit P27, PCB 198.
[130] Exhibit P27, PCB 198.
[131] Exhibit P27, PCB 199.
[132] Exhibit P17, PCB 199.
[133] Exhibit P17, PCB 342-344.
[134] Exhibit P17, PCB 342.
[135] Exhibit P17, PCB 343.
[136] Exhibit D4, DCB 54.
[137] Exhibit D4, DCB 72.
[138] Exhibit D4, DCB 72.
[139] Exhibit D4, DCB 73.
[140] Exhibit D5, DCB 89.
[141] Exhibit D5, DCB 95.
[142] Exhibit D5, DCB 104
[143] Exhibit D5, DCB 104.
[144]Exhibit D5, DCB 104.
[145]Exhibit D5, DCB 104.
[146] Exhibit D5, DCB 93.
[147] Exhibit D5, DCB 93.
[148] Exhibit D5, DCB 105-106.
[149] Exhibit D5, DCB 106.
[150] Exhibit D3, PCB 44-53.
[151]Exhibit D3, DCB 44.
[152]Exhibit D3, PCB 49.
[153]Exhibit D3, DCB 49.
[154] Exhibit D2, DCB 36-43.
[155]Exhibit D2, DCB 38.
[156] Exhibit D2, DCB 39.
[157] Exhibit D2, DCB 39.
[158] Exhibit D9, DSCB 3.
[159]Exhibit D9, DSCB 3.
[160] Exhibit D9, DSCB 3.
[161] Exhibit D9, DSCB 3.
[162] Exhibit D8, DCB 236.
[163] Exhibit D8, DCB 236.
[164] Exhibit D8, DCB 239.
[165] Exhibit D8, DCB 239.
[166] Exhibit P3, PCB 46.
[167] Exhibit P6.
[168] Exhibit P6, PCB 79.
[169] Exhibit D8, DCB 236.
[170] Exhibit D8, DCB 236.
[171] Exhibit D8, DCB 236.
[172] Exhibit D8, DCB 240.
[173] Exhibit D8, DCB 238.
[174] Bezzina v Phi and Anor [2012] VSCA 161.
[175] T194, L6-7.
[176] T197, L11-16.
[177] [2012] VCC 1290.
[178] [2014] VSCA 67 (“Peak Engineering”).
[179] Peak Engineering [2014] VSCA 67, [20] (citations omitted).
[180]Exhibit P17, PCB 188.
[181] Exhibit P16, PCB 204.
[182] Exhibit P19, PCB 119.
[183] [2018] VSCA 35.
[184]Ibid [58].
[185] [2019] VSCA 68 (‘Weldemichael’).
[186]Ibid [93].
[187]Ibid [94].
[188]The definition of ‘suitable employment’ in s 3 of the WIRCA.
[189] Richter v Driscoll (2016) 51 VR 95 (‘Richter’).
[190] Ibid [98].
[191] Ibid [103].
[192] Ibid [76].
[193] Ibid.
[194] Ibid.
[195]Ibid [77].
[196] Ibid.
[197] Ibid.
[198] Ibid [95].
[199] Ibid. See further: Richter (2016) 51 VR 95, [74], [75], [81]. Also see: Cardiff Corporation v Hall [1911] 1 KB 1009, 1027, which includes observations which Ashley and Kaye JJA said were in point.
[200]Ibid [96] citing Cardiff Corporation v Hall [1911] 1 KB 1009, 1020.
[201]Ibid [78].
[202]Barwon Spinners (2005) 14 VR 622, [25].
[203] T181.
[204] See: Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494.
[205]Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188, [48].
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