Davidson v Victorian WorkCover Authority
[2015] VCC 1625
•11 November 2015 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03758
| CRAIG DAVIDSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 9, 10 and 11 November 2015 | |
DATE OF JUDGMENT: | 11 November 2015 (Revised) | |
CASE MAY BE CITED AS: | Davidson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1625 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the low back
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454; Smorgon Steel Tube Mills Pty Ltd v Majkic (2008) 21 VR 193; Ansett v Taylor [2006] VSCA 171
Judgment: Leave granted to bring proceedings for the recovery of both pain and suffering damages and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr N Griffin | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr J Gorton QC with Mr A Anderson | Minter Ellison |
HIS HONOUR:
1 I am satisfied on the balance of probabilities that on 31 August 2011, the plaintiff injured his low back lifting a heavy concrete barbecue bench. He was working with Bayport Civil Proprietary Limited as a full-time employee. After conservative approaches, including CT-guided injection treatment and MRI scanning and a number of different painkilling medications, he underwent spinal surgery on 4 February 2012.
2 Mr Myron Rogers, neurosurgeon, performed an L5-S1 decompression involving a laminectomy, spinal rhizolysis and removal of extruded disc material. Norspan patches, Tramal, Mobic, Panadol Osteo and physiotherapy followed.[1] The surgery relieved leg pain but back pain worsened.[2]
[1]Plaintiff’s Court Book (“PCB”) 38
[2]PCB 34
3 WorkCover payments and a s98C payment have been made and hospital, medical and like expenses have also been paid by the defendant insurer. The issues at the outset were said by the defendant to involve causation and whether the plaintiff has suffered a permanent loss of earning capacity of 40 per cent or more. The latter issue was the major focus of this case and I will deal with it first and give my reasons on finding causation proved later.
4 Some factual dispute as to what his gross income at the time of the injury was ventilated. The parties have now agreed that $80,000 per annum gross is a fair reflection of his earning capacity had the injury not occurred and that $48,000 represents the 60 per cent bar for the purposes of the required loss the plaintiff has the onus of proving under the Accident Compensation Act 1985 (“the Act”). This is one of those applications where findings on residual capacity do not have to rely solely on medical opinions in the absence of the worker getting out and trying alternative light work. Here, the plaintiff has, in my opinion, fully tested what he can do and not do workwise over a period now of over three years, and he is still trying. After attempts to return to work on limited hours and limited duties, the plaintiff was terminated by the employer in August 2012.
5 With the help of, and in consultation with, IPAR, the WorkCover rehabilitation provider, he has tried to earn a living from soccer coaching. IPAR placed it number 1 in a list of alternative jobs for him to try.[3] He has a background as player and volunteer coach in that sport, extending back many years. He retired from playing in 2007. Apart from some lower level soccer coaching accreditation, he is a man who turns fifty next year with no real qualifications for alternative work.
[3]Defendant’s Court Book (“DCB”) 74
6 No doctor on either side questions his genuineness or motivation. The work he has been involved in since leaving school is mostly heavy work. Horticulture apprenticeship, landscape gardening, golf course curating and some program maintenance involving horticultural services are his work history. Year 11 was the last completed school year.[4]
[4]PCB 32, Transcript (“T”) 113
7 It is agreed by all doctors, heavy manual labour is now beyond him due to the impairment of the function of the spine. The case involves assessing his capacity for alternative lighter employment. Any evaluation of the capacity to work needs to be considered in the context of the realities of the labour market.[5]
[5]Acir v Frosster Pty Ltd [2009] VSC 454 at paragraphs 186-188; Smorgon Steel Tube Mills Pty Ltd v Majkic (2008) 21 VR 193 at paragraph 11
8 In a period of only thirteen months or so, this worker had been promoted from a casual to a permanent employee and then to supervisory duties involving only a small team of two men. It is informative that in spite of that record, his employment was terminated by that same company. The plaintiff did not agree with the suggestion he was terminated due to a decline in the firm’s work. However, I cannot reach any firm conclusion on the evidence why he was terminated, save to say, nothing could be found for him in the circumstances apparently.
9 Another matter that needs to be taken into account is that in evaluating capacity for work, I accept this man suffers constant back pain. Activity increases its severity. It has worsened over the last twelve months. At the end of a day’s work, he gets really sore. He needs rest breaks.[6] He sleeps poorly because of the pain.[7] Even sitting and standing for long periods, bending and twisting, aggravate the pain.
[6]T114
[7]PCB 24, 36 and 36c
10 Furthermore, he is on significant daily medication. He takes up to eight Panadol and four Nurofen a day. He still takes Lyrica at times, as recently as the last few weeks.[8] I accept this amount of daily medication is not only indicative of a high level of pain but is also relevant to holding down any type of employment when his capacity is viewed realistically. No real ongoing treatment takes place now, as WorkCover refused to pay for him seeing his family doctor. He cannot afford physiotherapy, which had helped. WorkCover will not pay for it.[9] His father paid for his physiotherapy for a while, but the plaintiff could not keep asking him to do so. Also, it needs to be said there was no real treatment recommended other than staying as fit as he can and sensibly avoiding certain activities. This view is shared by the insurer’s medical experts.[10]
[8]PCB 36d
[9]PCB 36d
[10]DCB 8 and 16
11 Dealing with the treaters, probably the practitioner who knows him best of all is the family doctor, Dr Wales. The notes indicate his practice has treated him since 2003. As to work, Dr Wales stated only twelve months ago, in November 2014, that:
“I would certainly confirm that it is reasonable to conclude he will never return to full time work and certainly not in any type of physical labour. His current coaching requirements involve large distances to travel by car, which in turn, aggravate his lower back pain. I would restate my conclusion that his capacity for work is certainly centred on non-physical labour, probably in the order of twelve hours per week, on a reliable, permanent and consistent basis”.[11]
[11]PCB 38
12 On all the evidence in this case, I accept his opinion as an accurate statement on the plaintiff’s capacity for the foreseeable future. This doctor foresaw such a pessimistic situation in an April 2014 report.[12] Even as early as October 2012, he felt the prognosis was guarded.[13] The advantage of judging his patient’s capacity over years of attendances, as opposed to doctors who only saw the plaintiff once in a medico-legal setting, is obvious.
[12]PCB 39
[13]PCB 40
13 Mr Myron Rogers, the treating surgeon, has not reported since October 2012, following the February 2012 surgery. He thought his patient had to avoid repetitive heavy lifting, weights over 20 kilograms and activities requiring repetitive bending and twisting.[14] Otherwise, Mr Rogers thought appropriate employment was within the plaintiff’s capacity. This report, of course, is out of date, as Mr Rogers last saw the plaintiff nearly three-and-a-half years ago, in July 2012. The surgeon did not have the benefit of considering the results of the extensive efforts put in by the plaintiff to perform other work over those years since.
[14]PCB 47
14 The first of the medico-legal reports the plaintiff relied on is from Dr D Nye, neurosurgeon. He reported to the insurer over three years ago, in October 2012.[15] He thought a generally favourable response to the surgery had occurred following the L5-S1 disc prolapse, but the pain remained. The duties and hours in his former work of “hands-on landscaping” were now beyond him but there was a potential for alternative employment.[16] Such alternative work though carried very real qualifications, in Dr Nye’s view. He said:
“I consider there is potential for alternative duties. Restrictions will be necessary in any employment situation with avoidance of repeated bending or twisting movements of the spine, prolonged unrelieved periods of either standing or sitting, and a lifting limit of 5 kg would be appropriate and such should not be conducted from below waist level.”[17]
[15]PCB 133
[16]PCB 137-140
[17]PCB 139
15 While this opinion is now quite dated, time has proved Mr Nye to be accurate. A realistic appreciation of these limits for an unskilled man almost fifty years of age means, in my opinion, no full-time suitable employment is now within his capacity. The definition of “suitable employment” is expressed in simple terms in s5 of the Act. Having regard to the worker’s age, education, skills and work experience, on the probabilities, he is not fit for any full-time job. Given there is no curative treatment recommended, treatment has all but ended except for sensible self-management, and the plaintiff’s condition will probably remain as it is now for the foreseeable future.
16 Mr David Brownbill, neurosurgeon, saw the plaintiff in August 2015 and he thought 12 to 15 hours was the residual work capacity, “in an ongoing or reliable fashion”.[18] Any evaluation of residual capacity must necessarily take into account that a capacity needs to be an ongoing and reliable one if the realities of the open employment market are considered, as they must be. Even with such restricted hours per week, Mr Brownbill thought the worker needed to avoid heavy lifting, forced spinal mobility, repeated bending and prolonged standing or sitting.[19] Such limits, in my opinion, mean the plaintiff has no capacity for anything other than very limited part-time work. Mr Brownbill was sent a list of job options set out in an IPAR report of 22 July 2013. He thought none were within the plaintiff’s capacity in an ongoing or reliable fashion.[20]
[18]PCB 56
[19]PCB 56
[20]PCB 49
17 Dr Joseph Slesenger, specialist occupational physician, also examined the plaintiff in August 2015. He noted a poor response to treatment and a guarded prognosis.[21] He thought:
“With regard to employment I am of the opinion that he will not be able to continue his current level of activity (up to 20 hours per week). I am of the opinion that he will only be able to work for alternative days.”[22]
[21]PCB 65
[22]PCB 65
18 He was also sent the IPAR job suggestions and noted how the soccer coaching job and its demands had not been specifically detailed. As to coaching, he thought the plaintiff had been over-optimistic. I agree the IPAR suggestions the doctor considered are beyond the plaintiff’s capacity in accordance with the opinion of Dr Slesenger.[23]
[23]PCB 68
19 For the defendant, Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in December 2014. He thought the plaintiff could work as a soccer coach.[24] He also gave an opinion that jobs set out in the vocational report were within his capacity but a 10-kilogram lift and carry of weights was his limit.[25] In a short letter of 21 October 2015, Mr Simm adopted a number of jobs as being suitable.[26] He did put qualifications in that opinion, for example a 10-kilogram limit in regard to sales. He also said, if the condition has deteriorated since December 2014, the current work capacity could be different.[27] In the end, he said:
“Providing this man was given light work with flexibility, sitting and standing, he should be able to work full time. This man would need to be motivated to extend his work commitments as he suffers from chronic pain and it is understood that he will experience some degree of pain whilst undertaking his work.”[28]
[24]DCB 20
[25]DCB 21
[26]DCB 12-13
[27]DCB 13
[28]DCB 13
20 I accept the evidence of the plaintiff that, in fact, the pain has increased over the last twelve months. Mr Simm, of course, did not have that information when he reported almost a year ago, and I am required to judge the matter now.
21 Mr Michael Polke, orthopaedic surgeon, saw the plaintiff in August 2015. He accepted that his pre-injury work was now beyond him.[29] As to residual capacity, he said:
“He is fit to undertake alternative employment with the main restrictions of repeated bending, heavy lifting and twisting his lumber spine, pushing and pulling heavy loads with minimal restrictions of sitting and standing”.[30]
[29]DCB 8
[30]DCB 9
22 As with Mr Simm, he said a number of suggested jobs were appropriate. However, he did not go into sufficient detail about the level of pain and the large amounts of daily painkillers required in relation to carrying out the duties involved in these positions he adopted. In my view, the report is deficient in that regard. Also, Ms Simm did not take sufficient regard to the worsening of pain that has occurred over the last twelve months in dealing with the question of capacity.[31]
[31]T45
23 There are other earlier reports obtained at the request of the defendant, but they are over two years old and do not assist in judging work capacity to a great extent now. One was in October 2013, when Mr B Reid, general surgeon, reviewed some jobs IPAR suggested, but emphasised the plaintiff had to take a sensible approach to them. These included not demonstrating quick movements or twisting when coaching, not demonstrating back exercises and not carrying heavy equipment.[32] Mr Reid also said he should not pull or push forcibly, should have breaks of about five minutes each hour, and put a 5-kilogram lift limit. These restrictions all but bar a worker from any type of physical work, even light work, when looked at against the realities of the labour market where one is required to work five days a week in the usual circumstances on regular hours.
[32]PCB 22
24 Vocational assessment reports were tendered by both sides. I do not give the same weight to these as to medical opinions about a capacity which I have to judge medically. These vocational job suggestions are, in my opinion, largely academic job descriptions found on websites of some description or other. What is really involved in these jobs can only be partly understood by reference to some written description of a job. I do not need evidence to conclude the day-to-day duties required can vary greatly, for example from salesman to salesman. Even in the lightest of sales jobs, there can be a requirement to move goods, display goods, unload delivery vehicles, perform stocktakes, physically demonstrate products to customers, just to take a few examples.
25 The vocational assessment reports do not involve onsite inspections of real workplaces to see what is involved and I find them largely unhelpful in this case. The Healthe.work vocational assessment report that Mr Simm and Mr Polke commented on in regard to suggested jobs runs to some 33 pages. It is deficient in my view. The vocational assessor did not even meet and interview the plaintiff.[33] I do not consider making assessments of a person’s suitability for a job can be sufficiently based on medical reports without an interview to assess, at least in some detail, a man’s communication skills, his ability to comprehend questions and the sorts of things that are involved in a number of occupations, including sales jobs. The Healthe.work report does not take any real account of a worker suffering constant pain and on large amounts of painkillers, when giving opinions about suitable jobs. It also takes no proper account of a man whose back symptoms have worsened over the last twelve months, which I accept.
[33]DCB 42
26 In my opinion, a worker suffering constant pain and needing the painkillers, as I find is the case here, is not realistically capable of holding down any of the full-time jobs spoken of by IPAR or Healthe.work. This is especially so in light of a back condition that is worsening in terms of pain.
27 It is no surprise that the plaintiff has not been successful in obtaining any ongoing work as a coach in sport on a regular basis. Unfortunately, in spite of his best efforts, his attempt to go down the soccer coaching path in terms of trying to earn a living has, in time, been shown to have been an over-optimistic attempt. I accept he has no capacity to coach beyond some very limited sessional commitments on a couple of days a week. I also accept, as I have said, that this is against the background of increasing back pain over the last twelve months. The pain is more constant, and while it varies from day to day, I accept even his limited coaching increases the back pain.
28 In my view, the plaintiff has tried very hard to pursue rehabilitating himself back into the workforce in a field he knows, and that attempt has made the limitations on his earning capacity very clear. He has played and coached in his sport over decades. He knows the demands, as well as the shortcuts, as any experienced sportsman does who has spent years in his chosen sport. In spite of that, he cannot cope beyond about 12 hours or two days per week because of back pain.
29 It was very informative to not only hear but observe the plaintiff giving evidence over two days. He was an extremely nervous and compliant witness to the point where, at times, he agreed with almost anything suggested to him. I found him at all times to be an honest man and the defendant did not suggest otherwise.
30 Questions were often accompanied by a hesitant shrug of the shoulders, together with such a length of time before answering that it was patently obvious he did not understand what he was being asked.[34] It was so obvious he did not comprehend many quite straightforward questions that, on a number of occasions, he had to be reminded to only answer questions he understood.[35]
[34]T101-102 and 106
[35]T69, 101-102 and 109
31 Having observed him, including his demeanour and something of his personality for just on a day in the witness box, I do not accept this man is a candidate for any sales, supervisory or management-type employment. He has tried extremely hard to rehabilitate himself back into the workforce and, in my opinion, he has limited communication and comprehension skills. In addition, his memory is not good.[36] He has some limitations in regard to paperwork tasks.[37] At one stage, he had difficulty performing a simple mental arithmetic task.
[36]T39, 44, 46 and 55
[37]T75-76
32 Regarding rehabilitation attempts, since about mid 2012, the plaintiff has made very extensive efforts to earn a living from soccer coaching. This has involved self-employment in the purchase of a franchise. It was not successful. He was “too sore to keep it going”.[38] He has explored coaching in several Victorian provincial towns, as well as suburban Melbourne. This has involved schools, at least two soccer clubs and another group in Melbourne that coaches and takes juniors on overseas tours. He has used his extensive playing and volunteer coaching experience to gain some work in this field. Unfortunately, his optimism has not been matched with reality. In spite of over three years attempting to work in this field, his earnings demonstrate only very part-time seasonal positions have been within his capacity. In spite of his best endeavours, only modest returns have eventuated.
[38]T68
33 By way of example, his evidence about the 2015 season was that he earned $1,250 per month for a season with Box Hill from March to October 2015. He also coached at a school during the school seasons that ran for about six months, and he earned $1,814. He has a sessional job with the Melbourne Football Stars, earning $75 for a Monday night session, although he has not been actually paid, as yet. Next year, he will leave Box Hill Soccer Club and work at Bulleen Soccer Club, where he expects to earn $12,000 for the season. He will also receive $75 for a weekly night session over 30 weeks or so. He did one other session for $30. The efforts to get more work in coaching have seen his family even pay $9,000 to $10,000 for him to go overseas in order to improve his coaching credentials.
34 It would be fair to say the plaintiff has left no stone unturned in his efforts to work in the field he knew. I accept his evidence that he would like to work longer hours if he could, but he cannot do so because of back symptoms.[39] In my view, it is no more than speculation to consider a full-time senior coaching capacity in view of his efforts at a junior level. He may aspire to it, but on all the evidence, that capacity is probably beyond him.
[39]T124
35 The defendant submitted there was a causation issue for the Court to determine. This is in spite of the insurer paying WorkCover compensation and hospital, medical and like expenses. I regard that as an admission as to causation, and in the absence of evidence from the defendant, this is significant.[40] This is evidence that supports the plaintiff’s case on causation.
[40]See Ansett v Taylor [2006] VSCA 171
36 I agree with the submission that the plaintiff’s memory is poor. Partly, this is explained by his conscious efforts where he understandably tries to blank out his injuries from his mind.[41] However, I find his poor memory goes beyond that exercise and generally is not good. While there have been differing accounts as to whether it was sweeping duties at work or lifting a 400-kilogram barbecue stone, or both, I am satisfied his low back was injured in the course of his employment.
[41]T36
37 The employer’s own Injury Claim Form recorded that the worker reported the back injury on 31 August 2011 to two of its employees.[42] There could hardly be a more contemporaneous report. The plaintiff’s own Worker’s Claim Form, dated 23 September 2011, described the injury at work on 31 August 2011. This followed his relating the work injury to his general practitioner on 14 September 2011. On that day, he spoke of low back pain and sciatica over the last two weeks, which places the injury on or about 31 August.
[42]PCB 15
38 In clinical notes, there is a reference to back symptoms in June 2011 from throwing a soccer ball. The plaintiff had no recall of this. This is no surprise, as there were no follow-up treatments, no radiology ordered, nor any evidence at all with difficulties at work or elsewhere until the subject period of 31 August 2011 and the weeks following that.
39 I do not accept the plaintiff suffered any ongoing symptoms from the June 2011 attendance regarding throwing a soccer ball. There was no evidence from the defendant where the plaintiff was working full time as to back symptoms or problems in June, July and August up to the 31st. While the onus is always on the plaintiff, I would expect affidavit evidence from the defendant if there were any back problems of any moment over those few months. Of course, I cannot speculate, but working as he was, daily, in a small team of men, it is noteworthy there is no such evidence.
40 In any event, if I am wrong to draw an adverse inference, I am satisfied on all the evidence, including the evidence of payment of compensation and the WorkCover Claim Forms, that the low back injury was suffered in the course of his employment.
41 The defendant sensibly conceded that the plaintiff has suffered a serious injury in terms of pain and suffering if the onus as to causation has been discharged, as it has.
42 On all the evidence, I am satisfied at most that the plaintiff could do a couple of days of self-paced light work providing he sensibly observes the very real limits on activities. I find this situation is permanent. In my view, he can work about 12, perhaps up to 15 hours a week and just in very light work, carefully avoiding stress on his back, taking breaks, taking a lot of painkillers and putting up with constant pain.
43 A report was tendered from a psychologist which is not necessary for me to deal with as there is no real issue, it seems to me, that warrants my discussing that report in view of the overwhelming evidence that all the symptomology is organically based. As I understand it, that is not a matter of contest.
44 On the balance of probabilities, I am satisfied the plaintiff has proved a permanent loss of earning capacity of 40 per cent or more. For the reasons articulated, I grant leave to bring proceedings for both pain and suffering damages and pecuniary loss damages.
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