Critchell v Freshfood Management Services Pty Ltd
[2020] VCC 92
•21 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03598
| TANYA CRITCHELL | Plaintiff |
| v | |
| FRESHFOOD MANAGEMENT SERVICES PTY LTD | First Defendant |
| And | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2020 | |
DATE OF JUDGMENT: | 21 February 2020 | |
CASE MAY BE CITED AS: | Critchell v Freshfood Management Services Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 92 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious injury application – neck injury – causation – whether employment a significant contributing factor to injury - whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985 (Vic), s134AB
Cases Cited:TGT Transport v Zammitt [2000] VSCA 162; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Robinson Gill |
| For the Defendants | Ms S Manova | Hall & Wilcox |
HIS HONOUR:
1 Tanya Critchell “popped” a disc in her cervical spine while driving her work vehicle during a heavy thunderstorm in February 2012.[1] That she suffered this prolapse of the cervical disc is not in issue. Rather, what animates the present dispute is primarily the question of what caused that prolapse: was it her work duties or, rather, a consequence of a natural process?
[1]Transcript (“T”) 38, Line (“L”) 30, plaintiff’s phrasing
2 Assuming that question can be answered, the parties dispute whether the consequences of the injuries can rise to the level which can be considered a serious injury within the meaning of s134AB of the Accident Compensation Act 1985 (Vic) (“the Act”).
3 At the start of the trial, Mr Allan, who appeared for Ms Critchell, abandoned any claim that she had put, to that point, that she had sustained a loss of earning capacity of 40 per cent or more; he abandoned the paragraph (c) claim. He put Ms Critchell’s claim as an aggravation of cervical spine degeneration throughout the course of employment, particularly around 20 December 2011 and 16 February 2012.
4 As the claim was put this way, regard must be had to s 82(2)(c) of the Act, which requires Ms Critchell to prove that her employment was a significant contributing factor to the claimed injury.[2]
[2]Defendants’ closing submissions, 28 January 2020 (“Defendants’ submissions), paragraphs [6]-[9]
5 This is non-contentious.
6 The meaning of “significant contributing factor” has been considered in numerous cases to mean a “strong causal connection”.[3]
[3]See, for example, TGT Transport v Zammitt [2000] VSCA 162, Winneke P at paragraph [30]
7 Here, Ms Critchell sought to establish the strong causal connection between her work and the cervical prolapse by pointing to two different types of work duties. They can be summarised in the following ways:
(a)from June 2007 to about mid-2011, carrying and moving coffee machinery to and from business premises;[4]
(b)from mid-2011 to 16 February 2012, driving long distances in an ergonomically compromised way.[5]
[4]Plaintiff’s affidavit, sworn 14 February 2018 paragraphs [8]-[11] at Plaintiff’s Court Book (“PCB”) 4-5
[5]Plaintiff’s affidavit (supra), paragraph [15] at PCB 5
8 Before turning to analyse the work duties alleged by Ms Critchell, the issue of her credit and the veracity of her evidence must be considered. Ms Manova, who appeared for the defendants, argued that issues of credit informed the way in which Ms Critchell’s evidence as to her work duties should be received. I agree with that submission.
The Plaintiff’s Credit
9 Ms Critchell’s credibility as a witness of truth was attacked on a number of grounds.
10 First, in evidence, Ms Critchell stated that she worked with Etiko, a fair trade clothing company, eight to nine times in the financial year 2016/2017.[6] She was then shown her pay summary for Etiko for that year.[7] That showed income of $14,860. This was wholly inconsistent with her evidence in court and in her affidavit at paragraph [24], where she deposed “I worked there for 1 month, 2 days per week”.[8]
[6]T 44
[7]Defendant’s Court Book (“DCB”) 401, exhibit D2
[8]Plaintiff’s affidavit (supra), paragraph [24] at PCB 7
11 Secondly, at paragraph [26] of her affidavit, Ms Critchell deposed to being unable to work more than sixteen hours per week with her employer, Vegan Shoes. She confirmed this in evidence.[9] She was cross-examined on this. She confirmed her position as in her affidavit.[10] When asked again, she sought to say that the sixteen-hours-per-week figure was meant to represent an average of the hours she worked. She conceded that that is not what her affidavit said. Her payslips were then put to her. They showed that in the 2 weeks prior to signing her affidavit she had worked at least twenty three hours on each of those 2 weeks. In fact, an analysis of the payslips shows that in the preceding seven months she worked, on average, 23.3 hours per week.[11]
[9]T 47, L 6
[10]T 46, L 23-25
[11]DCB 107-136
12 An associated issue arose that Ms Critchell worked for an hourly rate of more than $20.00, as she deposed to in paragraph [26] of her affidavit when, in fact, the pay records show a much higher rate of $26.61 per hour with increased pay on weekends.[12]
[12]See, for example, DCB 135
13 It was put fairly to Ms Critchell that she had deliberately sought to downplay her earnings and earning capacity to fit within the 40 per cent guidelines in the Act.[13] Ms Critchell’s explanation as to the inconsistencies pointed out by the defendants (and set out above) were not convincing. I find her evidence unlikely. I consider that her evidence as to the effect the injury has had on her ability to work and earn is not believable and I do not accept it.
[13]T 49, L 7-14
14 This finding influences my view of Ms Critchell’s credit. That is a matter which must be balanced with other factors. I will return to that task later in this judgment.
Causation
15 I turn, now, to consider Ms Critchell’s arguments that her work duties had a strong causal connection to her injuries. The starting point for that is the point of agreement by the parties as to the injury itself. The defendants framed it in this way: “In the present case there is consensus in the medical evidence that the plaintiff suffered an ‘aggravation’ of pre-existing degeneration”.[14] Ms Critchell did not demur from that submission.
[14]Defendants’ submissions at paragraph [10]
16 The question then becomes “What caused the aggravation of pre-existing degeneration?”
17 Ms Critchell first argued that her lifting and carrying of heavy and awkward café machinery from 2007 to mid-2011 was to blame. There is no extraneous corroborative material to support her on this point. She was seeing her regular treating doctor during this period, but the clinic’s records have only two notes as to neck pain in the relevant period. The first, on 1 March 2010, clearly relates to a cold and is of no relevance.[15] The second note is dated 3 September 2008. It notes a stiff neck and that Ms Critchell was given time off, prescribed medications and referred for physiotherapy.[16] There is no corresponding physiotherapy note or the unfit-for-work certificate. By itself this note is of no real substance in determining the impact of the work duties in this period on her cervical disc prolapse. It is also noteworthy that Dr Jones, who first saw Ms Critchell on 22 March 2012 and took a history of her injury, did not take any history of the carrying duties from 2007 to mid-2011.[17] It was put that the history of carrying duties should also have been put in the Claim Form filed in 2012 and the omission to do so should tell against Ms Critchell. I think there is little to this point, given the specific way the question is framed: it tends to point attention to the last presentation in time.
[15]DCB 380, exhibit D1
[16]DCB 389-390, exhibit D1
[17]DCB 19, exhibit D3
18 Overall, the evidence leads me to find that Ms Critchell engaged in the carrying duties she described in her affidavit. I take support for this finding from the fact her affidavit clearly identifies numerous managers she told of her complaints.[18] Otherwise, she clearly identified those duties and properly conceded that she made no mention of these duties to her treating doctor. She explained adequately why she did not detail these duties on her claim form.[19] Chronologically, it also makes sense that her more acute neck problems came on while driving (in December 2011 and February 2012) and as a layperson, she would link those later duties to her injury, rather than the carrying duties which had not required any substantial medical treatment at that time.
[18]Plaintiff’s affidavit (supra), paragraphs [13]-[14] at PCB 5
[19]T 32 L 8-16; T 35-36
19 In turn, this leads to a consideration of the medical evidence. Overall, I prefer the evidence of Mr Paul D’Urso and Mr Roy Carey, to the opinions of Mr Clive Jones and Dr David Barton. This is for a number of reasons. First, Mr D’Urso and Mr Carey provided detailed reasoning for their opinions. This is very significant. It aids my assessment of their final opinions. When the chain of reasoning that they set out is held to scrutiny, it holds up. Dr Barton, in contrast, provides simple conclusions with little reasoning.
20 Secondly, Dr Barton is an occupational physician, and his speciality is not as suited to opinions on causation relating to the cervical spine as that of Mr D’Urso or of Mr Carey.
21 Third, Mr Jones is a hip and knee orthopaedic specialist. Mr Carey is a spinal orthopaedic specialist. In sum, Mr D’Urso and Mr Carey are most experienced and qualified in the diagnosis of Ms Critchell’s condition.
22 Fourthly, having found the carrying duties did occur and that Ms Critchell complained of them, it is clear that Mr Jones did not consider them in his assessment. This may well have affected his opinion and leads me to treat it with some caution. Mr Carey had a past history of Ms Critchell’s neck problems from 2007 to 2012, but not specifically of the carrying duties. However, I consider his consideration of the longevity of the persistence of the neck problems to assist his ultimate findings in a way that Mr Jones does not consider.
23 Fifthly, I do also find support from the fact that Mr Jones and Mr Carey consider Ms Critchell a genuine person who gave her history honestly.[20] Mr D’Urso makes no comment doubting Ms Critchell’s veracity.
[20]DCB 20, 30
24 Sixthly, the opinions of Mr D’Urso and Mr Carey concur. Mr Carey’s opinion was the subject of a debate between the parties: Each calling him in aid of their proposition. I prefer Ms Critchell’s interpretation as put by Mr Allan. To understand Mr Carey’s opinion, I have set out below the question and answers in his report.[21]
[21]DCB 34
“9 Do you consider the worker’s employment is a significant contributing factor to the worker’s injury? In determining whether employment is a significant contributing factor the Accident Compensation Act 1985 requires you to take the following into account:
(a)The duration of the worker’s current employment; and
(b)The nature of the work performed; and
(c)The particular tasks of employment; and
(d)The probable development of the injury occurring if that employment had not taken place; and
(e)The existence of any hereditary risk; and
(f)The lifestyle of the worker; and
(g)The activities of the worker outside the workplace.”
Cervical spondylosis/disc degeneration is common across the community. Spontaneous onset of brachialgia is a relatively common event, and is not necessarily associated with any specific incident.
I could define not “hereditary risk” nor anything in her lifestyle or activities which would have increased her risk of developing this condition, save for the fact that she had minimally bothersome cervical discomfort before the onset of the brachialgia.
10 Does employment continue to materially contribute to the injury?
The condition occurred during her period of work. Her current employment is not materially contributing in any way.
… .”
25 It can be seen by the way Mr Carey answers question 9, by excluding (e), (f) and (g), as the extant causes, that he focuses attention on factors (a)-(d), all of which implicate work duties.
Then, by his answer at question 10, he squarely states that the condition occurred during her period of work.[22] Together, the specific manner in which he has answered questions 9 and 10 support the conclusion that her work duties (encompassing the carrying duties and the driving duties), were strongly causally connected to her work. This is in keeping with Mr D’Urso’s opinion.[23]
[22]DCB 35
[23]Exhibit P2, answers of Mr D’Urso to questions 1 and 2 at PCB 11-12
26 Ms Crtichell also puts her case that from mid-2011 to 16 February 2012, her driving duties as a sales representative were a significant contributing factor to her cervical disc prolapse. She called in aid the medical material just traversed, as well as her affidavit evidence detailing the poor ergonomic situation and complaints made to her treating doctor and osteopath in December 2011.[24]
[24]Exhibit D1, note to her treating doctor, Dr Ngo, 21 February 2011 at DCB 370-371 and note of her osteopath, 23 February 2012 at PCB 47.
27 I find the driving duties from mid-2011 to 16 February 2012 are strongly causally connected to Ms Critchell’s cervical disc injury. I find this for the following reasons. First, the medico-legal evidence traversed above. Secondly, the contemporaneous notes of her treating doctor and her treating osteopath strongly supports the allegation that work was causing a degree of cervical disc irritation. Thirdly, her evidence as to the driving duties and the effect they had on her, were essentially uncontradicted. The defendants in this case tendered no affidavit material. In making this finding I am mindful that Ms Critchell’s credibility has been put in issue. Given my finding that she has not been candid as to the way she has given evidence as to her loss of earnings capacity I have treated her evidence with real caution and relied on it only where it is independently supported. This comes from the 2011 medical notes and the medico legal opinion.
28 Having found Ms Critchell sustained a cervical disc injury and associated left arm brachialgia strongly connected to her work duties, I turn to consider the consequences of that injury.
Consequences
29 Most relevantly, those consequences are said to be:
(a)An operation to fuse the C5-6 discs on 6 March 2012. I note that the surgical hardware remains in situ and that by itself this is a substantial operation.
(b)She was noted by Mr Carey to be a genuine person and as at the date of his report of 17 May 2018, she was noted to have neck pain, restricted range of motion and discomfort into the left arm.[25] The notes of her treating doctor broadly support the notion that she has had, over the last 8 years, ongoing problems with neck pain. She gave evidence that these symptoms continued.[26] Ms Critchell properly conceded the surgery had helped her condition, but had not alleviated her problems with pain and limitation of movement in both the neck and left arm entirely.[27]
[25]PCB 33
[26]PCB 71 at para [8]
[27]T 69 L 18-30, PCB 71
(c)She ceased work from 2012 to at least 2015. This is a period of three years. I consider this a significant consequence of the injury.
(d)During her recovery period immediately following the surgery, she was prescribed and then, on her evidence, addicted to opioid pain medication. She then began using methamphetamine (“Ice”) illicitly during this period, which was a recurrence of a past drug habit she had aged 19. She alleges that she was sent by her parents to a rehabilitation centre in Bali for some three months to deal with the opioid pain medication addiction and the Ice addiction.[28] Since then, she deposes that she has not resumed prescription medication or Ice use.
[28]Plaintiff’s affidavit (supra), paragraph [31] at PCB 7; T 60, L 16-22
The defendants argued that there was no medical evidence to suggest Ms Critchell had developed an addiction to prescription pain medications or that such an addiction related to the alleged injury. The defendants submitted further that such a consequence was only relevant to a mental or behavioural disturbance and could not assist Ms Critchell under sub-paragraph (a), which is what this case was about.[29]
I agree with the defendants’ submission that there is little supportive medical evidence as to Ms Critchell’s addiction to pain medication during this period. The issue of the co-addiction to Ice is also not adequately explained in the medical material. No authority however was provided to support the defendants’ contention that an addiction to pain medication could not be utilised as a consequence of Ms Critchell’s application under a paragraph (a) claim.
Accepting Ms Critchell as I do, I consider that she was prescribed opioid pain medication consistently and for several years after her surgery. I do not need to go beyond that, as I consider this fact alone was a notable consequence of her injury. While I do not need to decide formally the defendant’s submission that an addiction to pain medication cannot be used in support of a paragraph (a) claim, my tentative view is that I would not accept that argument.
The facts of the ongoing medication prescription strike me as a very significant consequence for Ms Critchell. Prior to the injury, Ms Critchell had an unblemished and very successful work record for over five years. Prior to that, she was also employed. Her records reveal no significant medication of an opioid type in that period. In a very serious way, the injury derailed her life, leading to the loss of her job. Her records show that she has clawed her way back from that situation. It is a testament to her that she has made a recovery where she now works consistently.
(e)Her pain levels vary on a daily basis. In the last two years she has taken Endone, Tramadol and Panadol.[30] She takes pain relieving medication regularly and also has acupuncture weekly to assist her with her pain. This is a significant level of medication and treatment for ongoing problems with her neck injury given that it has been occurring since 2012. This is a highly relevant factor to be weighed.
(f)Her neck pain regularly interrupts her sleep. By itself, this is a notable factor.[31] Ms Critchell also pointed to the impact her injury has had on her domestically in performing duties such as vacuuming, sweeping and carrying heavy items. She was supported in this by the affidavit of Mr Mead.[32] That supportive evidence of her employer and friend is very useful and aids me in my finding that the above listed matters are the most relevant consequences of Ms Critchell’s injury.
Against this must be set the fact that Ms Critchell has retained abilities to work, maintain a home, socialise and engage in a variety of pursuits.[33] There is no doubt she has tried abseiling (but on one occasion only), works between twenty and thirty hours per week and actively promotes the business she works for. This, however, is not inconsistent with her injury being a serious one. She has been on a road trip of four or five days with her partner, but she explained how she modified her sitting to accommodate this.[34] She gave evidence, and Mr Mead supported, the difficulties she has at work, at home and with her pain.
Further, contrary to the defendants’ submission at [23], Mr Timms continues to monitor Ms Critchell’s neck condition, because of flare-ups such as that in mid-2018, which took her to the emergency department for an acute presentation.[35]
What is also significant in my calculation is the fact that her symptoms have continued from 2012 for almost 8 years. In the midst of this, Ms Critchell has stoically gone on working. She ought be given credit for this. I note the short video excerpt shown does display her actively jumping (but again it was 1 jump only). Against this is the admission that 10 hours of footage surveillance of Ms Critchell was taken, and not 1 minute of it was shown.
[29]Defendants’ submissions at [26]
[30]DCB 40, plaintiff’s affidavit 28 January 2020 at [12] and DCB 25
[31]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, Maxwell P at [45]
[32]Affidavit of Mr Mead sworn 20 January 2020, PCB 66-69
[33]Defendants’ submissions at [22]
[34]T 76-77
[35]PCB 70 at [5] of the plaintiff’s first affidavit sworn 28 January 2018
30 Synthesising the above factors, I find the consequences for Ms Critchell do rise to the level of being serious.
31 In those circumstances, I will grant leave to Ms Critchell to bring a claim for injuries arising out of her employment with the defendant in the period 2007 to 16 February 2012.
32 I will hear the parties as to costs.
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