Dyer v Work Hire Australia Pty Ltd
[2021] VCC 1887
•29 November 2021
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02055
| WAYNE MAXWELL DYER | Plaintiff |
| v | |
| WORK HIRE AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2021 (defendant ordered to serve on those acting for the plaintiff and file in the Court, written submissions by the close of business on 9 July 2021 and thereafter the plaintiff is to serve on the solicitors for the defendant and file in the Court, written submissions by the close of business on 16 July 2021) | |
DATE OF JUDGMENT: | 29 November 2021 | |
CASE MAY BE CITED AS: | Dyer v Work Hire Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1887 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – neck injury – paragraph (a) of the definition of “serious injury” – two compensable injuries on the same day – leave being sought to bring common law claim for “pain and suffering damages” and “pecuniary loss damages” in relation to second incident – issues of whether the plaintiff has a “serious injury”, what are the “without injury earnings” and what are the appropriate “earnings” from suitable employment.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Hunter v Transport Accident Commission [2005] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183; Doolan v Rayners Sawmills Pty Ltd [2008] VSCA 219; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; R J Gilbertsons Pty Ltd v George Skorsis [2000] VSCA 51; Angelatos v Museum of Victoria [1999] 3 VR 157; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916; Roleff v Chubb Insurance Co of Australia Ltd (2011) 31 VR 235; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Richter v Driscoll & Ors (2016) 51 VR 95
Judgment: Judgment for the plaintiff. Leave for the plaintiff to bring common law proceedings for both “pain and suffering” damages and “pecuniary loss” damages in respect of a neck injury suffered by him on 27 March 2014.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer QC with Ms J Frederico | Adviceline Injury Lawyers |
| For the Defendant | Mr P D Elliott QC with Mr S Scully | Russell Kennedy Lawyers |
HIS HONOUR:
1By way of Originating Motion filed on 8 May 2020, Wayne Dyer (“the plaintiff”) seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 as amended (“the Act”) to bring common law proceedings for a neck injury (“the injury”) suffered by the plaintiff during the course of his employment with Work Hire Australia Pty Ltd (“the defendant”) in the late afternoon of 27 March 2014.
2The plaintiff seeks leave to bring proceedings for “pain and suffering” damages and “pecuniary loss” damages within the meaning of s134AB(37) of the Act.
3The plaintiff was the only witness to give evidence and was cross-examined. Each party has forwarded to the Court a document setting out the various documents to which they wish to make reference. Each of these are identified by various page numbers in, respectively, the Plaintiff’s Court Book (“PCB”), the Plaintiff’s Amended Court Book (“PACB”), and in the Defendant’s Court Book (“DCB”), the Defendant’s Amended Court Book (“DACB”), the Defendant’s Supplementary Court Book (“DSCB”), and the Defendant’s Further Supplementary Court Book (“DFSCB”).
Preliminary matters
4This matter originally commenced during the Latrobe Valley Circuit held in May 2021, at which time Mr A Macnab appeared as Leading Counsel with Mr S Scully for the defendant. An Opening was made and very shortly into the evidence of the plaintiff an issue arose as to the sufficiency or otherwise of evidence sought to be relied on by the plaintiff in respect of the amount, if any, which constituted his earnings with the defendant as a result of the personal use of a motor vehicle.
5The matter did not proceed in that circuit and was adjourned to Melbourne on 24 June 2021, at which time Mr Elliott QC sought leave to replace Mr Macnab, who was unavailable to appear. Bearing in mind that both parties had amended their court books with further documentation, it was agreed that the matter be re-opened and effectively commenced as a fresh hearing.
6An issue also arose as to whether the named defendant – “Work Hire Australia Pty Ltd” – was the employer of the plaintiff at the time of the alleged injury. Mr O’Dwyer, Senior Counsel on behalf of the plaintiff, submitted that the documentary evidence, particularly the affidavit of Margaret Ferguson sworn on 15 June 2021, was that the plaintiff was engaged through Work Hire Australia Pty Ltd and was then subsequently contracted to W & A Ferguson Contracting Services Pty Ltd and worked for WK and MA Ferguson, being a partnership. In those circumstances, it was effectively submitted that the relevant entity, W & A Ferguson Contracting Services Pty Ltd, engaged the defendant to supply the services of the plaintiff. Unfortunately, at that stage, there were no group certificates available.
7Senior Counsel for the defendant, Mr Elliott, confirmed he was appearing for Work Hire Australia Pty Ltd and made the sensible suggestion that maybe the title of the defendant should be Victorian WorkCover Authority.
8Ultimately, Senior Counsel for the plaintiff, after perusing the limited documentation, indicated that he was satisfied that the plaintiff was employed by a work-hire company as a permanent employee for the partnership.
9Both parties accepted that nothing during the course of the evidence would impact on the appropriate name of the employer, and it was agreed that the matter would proceed and if difficulties did arise there could be amendment to reflect the proper name of the employer.
Relevant legal principles
10The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]See s134AB(19)(a) of the Act
11Although the plaintiff initially relied on paragraphs (a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act, ultimately reliance was only on paragraph (a) which reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function … .”
12The part of the body said to be impaired for the purposes of paragraph (a) is the neck.
13In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a) the “injury” suffered by the plaintiff arose out of or due to the nature of his employment with the defendant on or after 20 October 1999;[2]
(b) the “injury” and the resulting impairment under paragraph (a) is “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
(c) the “consequences” to the plaintiff of the injury in relation to “pain and suffering” and “pecuniary loss” must be serious – that is –
“… when judged by comparison with other cases in the range of possible impairments … [can be] … fairly described as being more than significant or marked, and as being at least very considerable.”[4]
[2]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[4]See s134AB(38)(b) and (c) of the Act
14In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[5] to establish:
(a) that as at the date of hearing, he or she has a loss of earning capacity of 40 per cent or more, measured, (subject to certain irrelevant exceptions) as set out in subparagraph (f) of s134AB(38) of the Act;[6]
(b) that after the date of hearing, he or she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[7]
[5]See s134AB(38)(e)(i) of the Act
[6]See s134AB(38)(e)(i) of the Act
[7]See s134AB(38)(e)(ii) of the Act
15Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies subparagraph (i) but not subparagraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering” damages only. A worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering” and “pecuniary loss” damages.[8]
[8]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
16In determining the application, the Court:
(a) Must not take into account psychological or psychiatric consequences of “the organic injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be counted for the purposes of any disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”;[9]
(b) Must make the assessment of a “serious injury” at the time that the application is heard;[10] and
(c) Must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[11]
[9]See s134AB(38)(h) of the Act
[10]See s134AB(38)(i) of the Act
[11]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[26]
17It was common ground between the parties that, somewhat remarkably, the plaintiff suffered two incidents during the course of his employment on 27 March 2014. They were:
(a) an incident in the morning that involved the vehicle the plaintiff was driving backing into a former quarry rolling over and causing the plaintiff to have likely suffered a loss of consciousness (“the vehicle incident”); and
(b) later in the day, while manoeuvring and shifting cattle, a cow which was in the yard charged the plaintiff on a number of occasions, butted him and knocked him over (“the cow incident”).
18The injury to the neck of the plaintiff was alleged to have occurred as a result of the cow incident or alternatively, in the event that the plaintiff did suffer some type of neck injury as a result of the vehicle incident, the cow incident aggravated that pre-existing injury within the meaning of the well-known case of Petkovski v Galletti[12] ꟷ that is to say, the extent of the aggravation giving rise to the “serious injury”.
[12][1994] 1 VR 436
19When queried as to what were the issues in the dispute, Senior Counsel for the defendant, in part at the beginning of the trial, but more extensively in written submissions at the end of the trial, submitted the following:
(a) That in what was referred to as a “causation” issue, it was submitted there was insufficient evidence on which to make an assessment of the consequences to the plaintiff of any neck injury following the vehicle incident and the cow incident to form a satisfaction, based on probability, that the cow incident aggravated a pre-existing neck injury caused by the vehicle incident. In this respect, those acting for the defendant ultimately submitted that to the extent the plaintiff had any neck injury, such injury was caused by the vehicle incident;
(b) Furthermore, if the Court was satisfied that the plaintiff had suffered an aggravation of his neck injury by reason of the cow incident, the defendant submitted that the consequences of that injury ought not to be fairly described as “more than significant” or “marked” or “at least very considerable” when compared to the range of possible impairments and losses of bodily function.
In essence, it was submitted, having regard to what the plaintiff has retained, as well as what he claims to have lost by virtue of the cow incident, the Court ought not be satisfied that the injury he suffered as a result of the cow incident satisfies the serious injury threshold for pain and suffering;
(c) Again, if the Court was satisfied that the plaintiff’s current loss of earning capacity is attributable to the cow incident, the defendant submitted that the plaintiff had failed to establish that he had suffered the requisite 40 per cent of loss of earning capacity. In this respect, the defendant submitted that two distinct issues arise:
(i)the calculation of the plaintiff’s “without injury” earning capacity; and
(ii)the calculation of the plaintiff’s “with injury” earning capacity.
In this respect, issues arose as to what were the appropriate “without injury” earnings of the plaintiff and much of this turned on whether or not there was any basis for the plaintiff to claim, as part of his earnings, an amount of money referable to his personal use of a motor vehicle supplied by the defendant (which was denied).
In relation to the issue of “with injury” earning capacity, it was submitted by the defendant that the number of hours that the plaintiff was working at the time of assessment of serious injury did not represent his earning capacity, in that the plaintiff was capable of doing more hours per week.
The evidence of the Plaintiff
20The plaintiff relies on three affidavits ꟷ the first sworn on 3 October 2019;[13] the second on 2 March 2021[14] and the third one sworn on 22 May 2021.[15]
[13]See pages 17-24 PCB
[14]See pages 92-95 PCB
[15]See pages 4-8 of the Plaintiff’s Amended Supplementary Court Book (“PACB”)
21In his evidence-in-chief, the plaintiff gave evidence that the contents of those affidavits were true and correct to “the best of [his] knowledge”, save for one correction. The correction related to paragraph 6 of the first affidavit and the following evidence was given:
Q:“… Now in that paragraph you indicate that contrary to what you said in your first and second affidavits that you thought you saw, didn’t see a medical practitioner, you saw nursing staff?---
A:Yeah to the best of my recollection that’s true. I was very sore and distressed at the time and I really am a bit blurry on things, but my belief it’s true that it was only nursing staff.
Q:To the best of your knowledge did you see a Dr Suul?---
A:I did see him at various times during the course of it, but I don’t recall him being there at the first instance. He may have been but, yeah.”[16]
[16]Transcript (“T”) 25, Line/s (“L”) 30 ꟷ T26, L9
22Also in evidence-in-chief, the Court allowed Senior Counsel for the plaintiff to ask further questions of the plaintiff in respect to an affidavit sworn by Margaret Ann Ferguson on 15 June 2021.[17] The following evidence ensued:
[17]See Defendant’s Further Supplementary Court Book (“DFSCB”) at page 4
Q:“Thank you. Now, recently have you been shown the affidavit of Margaret Anne Ferguson?---
A:Yes, I have, yes.
Q:And do you know Margaret Anne Ferguson?---
A:I have met her once, yes.
Q:Did you ever see her up at the properties?---
A:Uh, just the once.
Q:Yes?---
A:She was up more often than that, but I only saw her once.
Q:And is she - have you looked at the timesheets in this case?---
A:I did, but yeah, they didn’t mean a lot to me.
Q:And did you ever get paid, to the best of your knowledge, for travel time from your farm to the farm at which you had to work, wherever it was?---
A:No.
Q:And your clocking on time, which was unusually (sic) 7 or 7:30, when was that? Was that from your property or was at the farm?---
A:No it was when I started work, yeah, when I got there.
Q:But you were paid for travel time between the various farms?---
A:Yeah, yes.
Q:And your clocking off time, to the best of your knowledge, was where?---
A:Well it was wherever I finished work for the day. You know, could be at any of the places, yeah.
Q:And did you then have to drive home?---
A:Yep.
Q:Now you, in paragraph 9, Margaret Anne Ferguson says that they had a policy that you had to complete a log book. In all your time working for the Fergusons from June 2012 onwards, did you ever complete a log book?---
A:Um, I cannot recall ever seeing a log book, um, in any of the vehicles or the tractors.
Q:Did anyone ask you to complete a log book?---
A:No.
Q:And did - you were responsible for cleaning your vehicle, whichever one it was, the first or the second vehicle, is that correct?---
A:Yeah, and the tractors and - yeah.
Q:Did you ever see, in the course of tour cleaning, did you ever see a log book?---
A:No, I never found one in any of the vehicles.
Q:And Margaret Anne Ferguson talks about a motor vehicle policy of the defendants, and that’s Exhibit MF2. When was the first time you saw that policy?---
A:Um, yesterday when I - when I saw her affidavit.
Q:Okay. And were you aware of that policy prior to yesterday?---
A:No I didn’t realise there was any policies in place.
Q:And did either of the two managers that you had while you were there talk to you about policy? Car policy?---
A:No. I - I - when David first started work there - - -
Q:Is that David Pooley?---
A:Yes. We did have a change of how things were done with the big fuel barrels are there, in that we had to fill in a book denoting how much fuel we put in each vehicle.
Q:Yes?---
A:Yeah, but the book stayed with the tank, yeah.
Q:And did you fill that book in from time to time?---
A:Yeah, every time I filled up or put fuel in the fuel trailer or whatever, I noted it, yeah.”[18]
(sic)
[18]T26, L12 ꟷ T28, L2
23I refer to the salient points of the plaintiff’s first affidavit:
(a) The plaintiff is a sixty-two-year-old man who was born in Omeo in October 1959. He was educated to Year 10 at Bairnsdale Technical School, after which he describes himself as being mostly employed for his adult life. In particular, he qualified as a draftsman and worked in that capacity to the early 1990s and after that worked variously as a farmhand, miner and shearer;
(b) At the time of the two incidents, he was working as a farmhand for Work Hire Australia Pty Ltd, but was placed with a host employer on an 8,000-acre farm at Omeo, which runs stock and has some crops, owned by WK and MA Ferguson Pty Ltd;
(c) Such work involved feeding cattle, crop work, tractor work, fencing and general farm work. The plaintiff commenced in this position in June 2012 and was working full time at the time of the incidents;
(d) At the time of the incidents, he was in a relationship that had broken down by the time of the first affidavit and he now lives alone;
(e) The plaintiff deposes that prior to the incidents, he had good health, although he had suffered a previous right knee injury which required surgery and also had some lower back issues from a prior WorkCover claim in 1985 when working as an SEC contractor, when he fell and injured his back. He had about eighteen months off work at that time and he eventually returned to work with only minimal lower back symptoms;
(f) He describes the “vehicle incident” in the following terms:
“On 27 March 2014, I was driving a company car, a Toyota LandCruiser, registration number TPQ 326, on a stock route.
I was attempting to round up cattle. I was alone. It was around mid to late morning.
Along the stock route, there is a large dug out quarry where I believe road fill had been sourced from many years ago. The quarry is uncovered, unmarked and largely overgrown with vegetation, such that it is very difficult to see.
Unbeknownst to me, whilst reversing the vehicle to attempt to ward off a stray cow, I was very close to the quarry and believe that I accidentally reversed the vehicle into the quarry and the vehicle rolled over.
I lost consciousness in the accident and when I came to, the vehicle was on its side in the quarry. I don’t know how long I was unconscious for.
I extracted myself from the vehicle. My recollection is that when I regained consciousness, all of my body hurt.
I recall that I had very sore shoulders and a headache and later had a large bruise on my hip.
I think it took me a while to locate my mobile phone and when I did, I telephoned my supervisor, David Pooley, to tell him that I had an accident.
I don’t recall much of the rest of the day at all except that I believe I kept the cattle moving on foot. I do recall that I was hurting all over and felt like I was bruised everywhere.”[19]
[19]See first affidavit, paragraphs [10]-[18] at PCB 18-19
(g) The plaintiff goes on to describe what has been referred to as the “cow incident” later that day. He states:
“Towards the end of the day, I was assisting Dave Pooley to move stock in the stockyard.
The stockyard was boggy and I was not moving well.
We were attempting to move a cow, who was known to be aggressive, to send her to the abattoir.
The cow charged at me and from the left side, knocked me to the ground. I think it head-butted me also.
I did not lose consciousness but was a bit stunned by the incident.
I was knocked to the ground and crawled out of the stockyard. My neck felt like it was in an awkward forward tilting position.
I sat outside the stockyard for a period of time, I am not sure how long and eventually managed to stand up and lean on a fence.
About ten minutes later, I went home.
I drove another work vehicle which was available as I had had the accident earlier in the day.
The drive home took a long time, approximately 90 mins, and I drove really slowly to avoid injuring myself further. It normally takes about 30 mins to drive home.
When I got home, I spoke to my partner briefly; not telling her what happened and went straight to bed with no dinner and no shower.
The next morning when I woke, I couldn’t walk and I told my partner what had happened the previous day.”[20]
[20]See first affidavit, paragraphs [19]-[30] at PCB 19-20
(h) The day after the incidents, and after telling his then partner of what had occurred, she drove him to the Omeo Medical Centre and he notes that he continues to consult the Omeo Medical Centre, but sees various doctors there, including locums;
(i) The health worker who he saw at the medical centre determined that he should be transferred to the Bairnsdale Emergency Department, and he was thereafter conveyed by ambulance to the hospital, where he underwent investigations and was released the same day. He had scans done to his head, neck and back;
(j) He subsequently saw a general practitioner a few days later, who arranged for him to undergo an MRI scan of his neck on 7 May 2014 and also arranged for him to be referred to the neurosurgeon, Mr Tiew Han, in about July 2014 because of ongoing complaints of pain. When seen by Mr Han, he recommended conservative treatment for his neck injury;
(k) The plaintiff was also referred to a number of doctors and, in particular, had been referred to the Precision Brain, Spine and Pain Centre by Dr Ian Paterson, where he saw the pain specialist, Dr Richard Sullivan, and the rehabilitation specialist, Dr Ali Kian Mehr. Various treatments have been recommended, including surgery, facet joint injections and shoulder hydrodilatation, but the plaintiff was not keen on that sort of treatment;
(l) The plaintiff has undergone conservative treatment with the physiotherapist, Mr Patel, the osteopath, Marcus Shaffer, and a chiropractor, Dr Gavin James ꟷ in particular, he has seen Dr James many times. His general practitioner also arranged for him to be referred to a psychologist, Ms Alison Crotty, on a mental health plan;
(m) The plaintiff notes that many of these conservative treatments have been self-funded as he has been “simply unable to manage the record and invoice keeping required to claim the treatment costs from the insurer”;[21]
[21]See the plaintiff’s first affidavit at PCB 21
(n) The plaintiff notes that it has been recommended he undergo a pain management program which he is to self-fund and seek reimbursement, but he notes he cannot afford to outlay prior to reimbursement;
(o) The plaintiff lodged a WorkCover claim on 9 April 2014 for “upper back and neck injuries” resulting from two work-related incidents on 27 March 2014. That claim was accepted, and he has been paid benefits pursuant to that claim under the provisions of that Act;
(p) The plaintiff lodged a further claim on 20 July 2017 in relation to additional injuries relating to the same date of injury on 27 March 2014. Such claim was initially rejected, but following a Medical Panel decision on 15 May 2018, liability was accepted by the WorkCover insurer for injuries to his neck, left shoulder and mild brain injury (including Post-Concussion Syndrome);
(q) The plaintiff stated that he has never been able to return to work as a farmhand due to the physical nature of that work. At the time of swearing his first affidavit he was working a minimum of two days per week at the local tip shop as a casual, earning $25 per hour. He has attempted to do some further training courses, such as a Level IV certificate course to teach trades at TAFE, but was simply unable to keep up with the demands of such a course;
(r) The plaintiff sets out various consequences in relation to his pain and suffering and states:
“I suffer from constant headache, which is sometimes mild, and sometimes more severe.
I have constant neck pain which is bearable if not aggravated. It can be aggravated by a jolt, looking too far left, or tilting the neck.
The pain is so bad that I take a nap most days for a couple of hours after lunch to alleviate it.
I have a constant burning pain in my shoulders.
I take over the counter medications such as Nurofen and Panadol to ease the pain. I have also tried a Norspan patch in the past, however I did not like how this made me feel.
I find my shoulders and arms weaker than they were before the accidents, the left worse than the right, and the movements feel somehow slow and awkward. The weakness is noticeable with tasks such as collecting firewood for heating, which I now use a trolley for.
I feel like mentally I also am not the same as before the accidents. I recall an incident where I couldn’t remember how to write. My memory is worse since the accidents and I feel like I am not processing things accurately.
I also suffer from general anxiety and depression although the psychologist visits are helping with that. I have also joined a mental health support group.
In terms of activities, I used to go fishing, both riverbank and trout fishing, before the accidents but am unable to do so. I cannot play golf since the accidents either or go motorbike riding.
One of my hobbies used to be working with timer and aluminium casting in my shed but I can no longer do either of those activities either.
Before the accidents, I lived on a property of 80 acres. I have had to sell it since the accidents because I cannot keep up with the upkeep of the livestock I used to have on the property - around 100-120 sheep (for meat and wool) and around 25 cows.
I now live on a much smaller 5 acre property at Flaggy Creek which I can manage better and also enables me to be much closer to the medical treatments I require.
In terms of home activities, I can tend to most personal care matters; they just take longer to get done.
Hanging out the washing is an activity I have had to devise a system to complete as I find it very difficult.
I feel like my life has been transformed by the accidents. My relationship has broken down, I am no longer doing the work I loved, I have had to move properties and drastically scale back my plans for my retirement. I am also more socially reclusive.
I planned to otherwise work until I was aged 67 years and then travel with my partner. I am no longer sure I will be able to travel and am effectively now retired except for part-time work.
Overall, my life has become drastically different since 27 March 2014.”[22]
[22]See the plaintiff’s first affidavit, paragraphs [48]-[64] at PCB 24-24
24I refer to the salient points of the plaintiff’s second affidavit:
(a) That he had been attending chiropractic treatment since 2020 about once a fortnight and takes over-the-counter medication such as Nurofen and Panadol. He also does some homebased exercises for his neck and uses a massage cream. He continues to attend his general practitioner, Dr Joshua Hurn, as needed;
(b) The plaintiff continues to work with Bairnsdale Recycling Enterprises in the tip shop. He has gradually increased his hours up to forty-two hours per fortnight, but is concerned about his job as he is struggling to perform those increased hours. He comments that he manages better when he is working three days one week and two days the next, otherwise, physically, it takes too much out of him and he suffers increased neck pain;
(c) The plaintiff notes that he has been looking for something easier, but is very concerned about the availability of work in the Bairnsdale area;
(d) Although he believes that he will not be able to continue to work forty-two hours per fortnight, he is concerned that if he asks for reduced hours he would lose his job;
(e) His duties involve sorting rubbish which can be used, such as mattresses, which are manoeuvred onto trolleys, polystyrene recycling and fixing motors for chainsaws, motor mowers and the like. He describes it as not being heavy work;
(f) He described himself as feeling “shattered” at the end of each day and when he comes home from work he needs to lie down in a chair for quite some time to recover. After working a three-day week he feels he is not able to do anything and it takes him days to recover;
(g) He described his main problem as being his neck and, in particular, suffers from referred pain into his back, together with constant headaches, which he believes is related to his neck pain. In particular, he notes that he is never without a headache, although the level of pain varies in intensity;
(h) He suffers from a burning sensation which runs across the back of his shoulders, and the referred symptoms from his neck go from the top of his head to the outside of each of his shoulders and into his upper back;
(i) He suffers from pain which radiates from the left side of his neck down into his left shoulder;
(j) At times, he wakes with pain in his neck. When he is not working he lies down each day to manage his pain and this is one of the reasons he believes he finds it difficult and is exhausted by the end of the day’s work;
(k) He has restricted neck movement and, in particular, is barely able to turn to the left side and movement is also restricted in looking up and down, tilting his neck forward and looking to the right. He finds it difficult to reach down with his left arm due to pain and, for example, he is unable to lift supermarket bags.
(l) He finds driving difficult and does not enjoy it because of the difficulty he has in performing head checks. He has devised a route to work where he avoids Give-Way signs and where he has to do full head checks – rather, he uses roundabouts, which he finds easier to drive through;
(m) He is able to manage his smaller 5-acre property – when the grass gets really long he asks his neighbours to put their cows on his grass to eat it. He is able to do some mowing closer to the house, but is unable to do it in one go and has to pace himself;
(n) He has not been able to go fishing. Prior to his work injury, he used to love fly fishing, but can no longer do the casting. He describes fishing as being his “passion” and at one stage, was the president of the Benambra Fishing Club;
(o) He no longer plays golf and has given his golf clubs to someone else. He has sold his two motorbikes, and has been unable to return to motorbike riding since his work injury;
(p) His mood remains low, noting that his relationship broke up subsequent to the work accident and also he is frustrated by his limitations;
(q) He refers to his earlier affidavit and notes that when the vehicle he was driving fell down the crater, he felt pain all over, but was able to push the car back onto its wheels, get out of the crater and walk behind the cattle to where they were going;
(r) There was another old Land Rover in the sheds, so he went to that and went around to another part of the farm where he intended to go. The property is about 8,000 acres and he did a little bit of cattle work on the motorbike. He ended up in the yards trying to draft out a few cattle that were going to meatworks;
(s) The plaintiff also notes that when struck by the cow, his head was on his chest, and he remembered clasping his head in both hands and sort of straightening it up. He considered that he had been hurt very seriously and although he stayed until the cows were sorted by “Dave”,[23] he was not able to assist in any way;
(t) He drove home the day he suffered his injuries, but the trip, which normally takes about thirty minutes, took over an hour.
[23]A reference to David Pooley
25I refer to the salient points of the plaintiff’s third affidavit:
(a) He refers to paragraph 2 of his second affidavit and states he has seen Dr Hurn, a general practitioner at Bairnsdale, for his heart. The plaintiff states that Dr Hurn has not treated him for his neck, but for his general medical health, including a cardiac condition. He commenced seeing Dr Hurn after he left Benambra and moved to Flaggy Creek in the Bairnsdale area;
(b) He is self-managing his neck problem and has commenced to see the chiropractor, Mr Long, from 9 September 2020, once a fortnight, for which he pays himself. Initially, he went to the chiropractor, both for his neck injury and back. He had trouble with his back at work and had a week off work due to back pain. The chiropractor treated both the neck and the back, and the back pain has eased with the chiropractic treatment;
(c) He takes Nurofen and Panadol, approximately six of each per week for his neck pain, and now has been taking these tablets constantly for some years. He tries to avoid medication, but takes the tablets when rest does not ease his neck pain;
(d) He continues to work twenty-one hours per week or forty-two hours per fortnight, having increased from fourteen hours per week to twenty-one hours per week about six months ago – about late November 2020. He was working two days, but was not keeping up with the work as the workload increased, and the employer wanted him to work for another day, which he ultimately agreed to, not wanting to lose his job;
(e) He generally works Monday, Tuesday and Wednesday, and on Thursday and Friday, he tends to lie down a lot to rest his neck, which is very sore after working three days straight;
(f) He notes he has managed to continue working, but what it has meant is that on his days off he spends a lot of time resting and recovering so he can return to work the next week;
(g) He continues to have great difficulty continuing with this work and is actively looking for a job with shorter hours. He notes that a friend is also looking for other work, wanting more hours – that friend works at the Metung Tip seven-and-a-half days a fortnight and the plaintiff thinks he could cope better with those hours;
(h) He refers to his second affidavit where he sets out his various neck symptoms and asserts that he continues to experience the same symptoms and restrictions as set out in that affidavit;
(i) When he commenced at the Ferguson Farms in the Benambra/Omeo district in approximately mid-2012, he was provided an old LandCruiser and this was for the purpose of both working on the farm and getting to and from work, and also for personal use;
(j) In approximately mid-2013, when the old manager left, he obtained the use of a more modern Toyota LandCruiser, being the vehicle formerly used by the manager. He notes that this is a vehicle depicted on the photograph on page 211 of the Defendant’s Further Supplementary Amended Court Book. The pattern of use did not change when he became a permanent employee on 13 March 2013;
(k) The plaintiff notes that there are approximately at least six different properties operated by the Ferguson enterprise in the Benambra/Omeo area. The nearest property is located in Limestone Road, Benambra and is approximately 25 kilometres from his home in Benambra and the further property is approximately 55 kilometres away in Omeo, on the Omeo Valley Road;
(l) The plaintiff asserts that generally he drove to the manager’s property, which was about 50 kilometres from his home and sometimes during the day he would drive to other properties and sometimes he would drive directly to another property;
(m) If he had to get something in Benambra he usually stopped on the way to or from work and about once or twice a month he would make a special trip into Benambra from his home, when he would use either his own car, a Nissan Navara four-wheel drive, or the Toyota LandCruiser. He estimates he would use the Toyota LandCruiser (the defendant’s vehicle) about 50 per cent of the time. This is approximately a 46-kilometre round trip and very occasionally his partner and the plaintiff would go to Benambra, but would usually get in her car, a more up-to-date Subaru, and occasionally he would drive into Omeo using the Nissan Navara;
(n) While the plaintiff was working on the Ferguson farms, he occasionally used the Nissan Navara (his vehicle) to go to the farms when the Toyota LandCruiser was being repaired or serviced. In those circumstances, he filled up the Nissan Navara with fuel at the manager’s place and always filled up the Toyota LandCruiser at the farm manager’s place;
(o) Prior to being employed by the defendant, the plaintiff was employed at the Mount Delusion Gold Mine, where he worked for about six months, from late 2011 to mid-2012. At that time, he worked five days a week and used about 14 litres a day. He believes he used to spend $20 a day on fuel. The plaintiff considers he was driving similar or slightly less distances to get to work when he was working for the defendant.
Reports of injury/claim forms
26I refer to two documents headed “WK & MA Ferguson – Incident hazard report” in respect of:
(a) the vehicle incident on 27 March 2014;[24] and
(b) the cow incident on the same day.[25]
Both those documents are signed by David Pooley, identified as the “supervisor”.
[24]See page 172 of the Defendant’s Amended Court Book (“DACB”)
[25]See page 173 of DACB
27The plaintiff also lodged the following injury Claim Forms under the provisions of the Act:
(a) Worker’s Injury Claim Form dated 14 April 2014.[26] In that Claim Form, the plaintiff claimed injuries to his “upper back and neck damage, upper back and neck” injuries resulting from two incidents on 27 March 2014. Such claim was accepted.
(b) a further work claim dated 20 July 2017 in relation to additional injuries relating to the same date of injury on 27 March 2014.[27] This claim was rejected.
[26]See pages 14-15 DACB
[27]See pages 16-17 DACB
28Various questions were referred to the Medical Panel on 18 January 2018 from a magistrate, and ultimately a Certificate of Opinion was issued on 15 May 2018.[28] In particular, the following answers were given to certain questions:
“Question 1. What is the nature of the Plaintiff’s medical condition relevant to the injuries set out in paragraph 9 of the Amended Statement of Claim (‘alleged injuries’)
Answer:The Panel is of the opinion that the Plaintiff is suffering from an aggravation of cervical spondylosis with referred symptoms to the upper extremities but without clinical evidence of radiculopathy, and a soft tissue injury of the left acromioclavicular joint, relevant to the alleged injuries.
The Panel is also of the opinion that the Plaintiff suffered a trivial closed head injury, but that this has now resolved and he is not suffering from any psychiatric or psychological condition.”
[28]See Medical Panel Opinion and Reasons dated 15 May 2018 at pages 55-64 DACB
29In response to Questions 2, 3, 4, 5 and 6, the Medical Panel expressed the opinion that the plaintiff had a current work capacity within the meaning of the legislation.
The radiology in relation to the Plaintiff
30On 28 March 2014 (one day after the work incidents), the plaintiff underwent a CT scan of his brain, cervical spine and lumbar spine. At that time, the radiologist, Dr R Wijeratne, concluded:
“No acute fracture of the lower thoracic, lumbar and sacral spine.
Degenerative changes with minor central canal narrowing at L3-4.
Impingement of the exiting L4 and bilateral L5 nerve roots.”[29]
[29]See CT scan dated 28 March 2014 at PCB 26
31I again refer to the Reasons for Opinion given by the Medical Panel on 15 May 2018 wherein the Panel notes that it examined available medical imaging and reports, and in relation to the CT scan of the cervical spine dated 28 March 2014, the Panel concluded that there was significant cervical spondylosis with retrolisthesis of C3 on C4 and C4 on C5, multi-level facet joint degenerative changes and moderate narrowing of the left C5 and right C6 foramina.[30]
[30]See Medical Panel Opinion and Reasons at page 59 DACB
32The plaintiff also underwent an MRI scan of the cervical spine on 7 May 2014. At that time, it was noted that the plaintiff had suffered an injury three weeks ago and had suffered persisting severe pain and stiffness, together with an episode of numbness of both hands. The radiologist, Dr M Percy, concluded:
“There are degenerative changes in the cervical spine, as described.
Acquired foraminal stenosis is present bilaterally, which may account for radicular compression, particularly on the right-hand side.
No spinal cord impingement is seen.”[31]
[31]See MRI scan of the cervical spine dated 7 May 2014 at PCB 27
33I again refer to the Medical Panel Opinion and Reasons, and note that the Panel had available the imaging and reports of the MRI scan of the cervical spine dated 7 May 2014, and concluded that there were significant degenerative changes in the cervical spine.
34I also refer to the medico-legal report from the consultant orthopaedic surgeon, Associate Professor Bruce Love, who examined the plaintiff on 28 August 2017 at the behest of the insurer of the employer.[32] In that report, Associate Professor Love states:
“An MRI of the cervical spine performed in September 2016 reveals a reverse kyphosis with a significant change of C4 vertebral body with what I believe to be an ankylosis of the C3/4 interspace and adjacent changes at the C4/5 disc.”[33]
[32]See report dated 31 August 2017 at pages 47-54 DACB
[33]Report of Associate Professor Bruce Love dated 31 August 2017 at page 51 DACB
35In one of the reports from Dr Mehr (a treating doctor to which reference is made in this Judgment), there is reference to the plaintiff undergoing an MRI scan on 8 September 2016 and that the MRI scan demonstrated degenerative changes in the mid-cervical spine, with severe bilateral foraminal stenosis at C4-5 and C5-6 nerve root irritation and also quite significant right-sided foraminal stenosis at C5‑6, causing impingement of the C6 nerve root. Mild posterior disc osteophyte formation was noted in segments C3-4. Also a SPECT CT scan demonstrating increased metabolic uptake in the region of the intravertebral disc at C3-4 and C4‑5, with some increased uptake also in the facet joints, predominantly on the right-hand side.
36It is likely that this MRI scan referred to above was the one which Professor Love makes reference. Also, Dr Mehr reports that the plaintiff was seen by a neurosurgeon, Dr Ales Aliashkevich, who suggested anterior cervical discectomy and fusion involving segment C4-5 and C5-6. Although not certain, it would appear that that neurosurgeon saw the plaintiff at and around the time of the MRI scan.
The Medical and other treatment of the Plaintiff
37The plaintiff attended the Omeo Medical Centre on 28 March 2014 (the day after the two incidents), and on the same day, was transferred from the Omeo Medical Centre to the Bairnsdale Regional Hospital Emergency Department. I refer to a note from a locum GP at the Omeo Medical Centre, Dr M Sewell, dated 28 March 2014,[34] wherein Dr Sewell states:
[34]See page 2, DSCB
“This 54 yr old presented this morning c/o posterior neck pain, following a rollover MVA yesterday 10.30 am:
-nearly stationary in his 4WD in the paddock
-car rolled over down very steep (?near vertical) embankment – 5−6m height : 1¼ turns, landing on wheels
-unrestrained / P not belted
-airbags not deployed
-self extricated / no LOC / noticed low neck pain −> getting worse overnight
-later, knocked over by cow
-O/E Tender T1, T2. ... Rt upper + lower back
-Dx ?? T−spine / Low C spine # RX collar [etc] ... .”
38The plaintiff was transferred from the Omeo Medical Centre to the Bairnsdale Regional Hospital by way of ambulance, and I refer to the ambulance note[35] wherein, under the heading “Cause”, it is recorded:
“Yesterday 1030hrs was in a 4WD that was almost completely stopped when it went over a 6 metre near vertical embankment, vehicle rolled ? 2 times coming to rest on its wheels. No LOC. Seat belt not worn, no airbag deployment. Patient experienced some neck and upper back discomfort but decided not to seek medical advice/assistance. Later that day he was managing stock when a cow head butted him multiple times resulting in right hip di[s]comfort. This morning patient woke with high thoracic back pain and neck stiffness. Was seen at Omeo Hospital and also Omeo MICA Paramedic. Was managed with C-collar, Vaccum Mattress, IV access 18G, Maxolon 10mg IV and Morphine 2.5mg IV as per drug chart with patient. Patient has had no motor weakness or altered sensation at any stage.”
(sic)
[35]See page 3, DSCB
39I refer to the note from the Bairnsdale Regional Health Service,[36] which states:
“Presenting Complaint:
54 y.o man who presented 1/7 after a car accident and neck injury. Yesterday patient working on his farm, car rolled down an embankment 1.5 times. Did not get crushed. Walked out and continued working. Later in the evening he sustained an injury from a cow to the back of his neck and since has had neck pain and stiffness.
Management and Investigations:
Patient had a CT brain, cervical spine and lumbar spine. No acute fractures were identified. Old degenerative changes found at L3‑4 and impingement of L4 and L5 nerve roots. Patient was discharged home with valium and pain relief.
Other Conditions:
Complications:
Final Diagnoses:
Motor vehicle accident, ?whiplash.”
[36]See Bairnsdale Regional Health Service Emergency Department discharge summary dated 28 March 2014 at page 30, PACB
40The plaintiff was discharged from the Bairnsdale Regional Hospital on 28 March 2014. After his discharge from the Bairnsdale Hospital, the plaintiff continued to attend the Omeo Medical Centre, and in this respect, I refer to the clinical notes of the Omeo Medical Centre[37] running from 21 July 2000 through to 28 February 2020, although the last attendance for a consultation was on Wednesday, 3 January 2018 when the plaintiff was complaining of chronic neck pain and needing a Centrelink certificate.
[37]See clinical records of Omeo Medical Centre at pages 178-208 of the DACB
41The plaintiff’s first attendance at the clinic after the initial attendance on 28 March 2014 was 30 March 2014 when he consulted Dr Jennifer Schlager and confirmed his history that he had rolled his ute, and then “cow and calf ‘got him’ knocked over in hip then folder (sic) him – (R) hip and upper back and neck”. At that time, he was prescribed Panadeine Forte and Endone, together with Voltaren.
42The plaintiff continued to attend throughout 2014, and for example on 9 July 2014, he again gave a history of rolling his ute and getting stomped on by a cow in March, and since then he has had a stiff sore neck with limited range of movement. It was noted by the then doctor, Dr Diana Jefferies, that he had analgesia, physiotherapy, and chiropracty, and was due to see a neurosurgeon in the near future. At that time, the doctor also recorded that he occasionally had pain in the arms and odd numbness and weakness. He complained of on occasion not being able to grasp the top of a steering wheel and drive for any length of time.
43One of the doctors at the Omeo Medical Clinic, Dr Timothy Watford, referred the plaintiff to the neurosurgeon, Mr Tiew Han, for him to investigate ongoing neck pain suffered by the plaintiff. I refer to the report of Mr Tiew Han dated 24 July 2014.[38] Mr Han initially examined the plaintiff on 23 July 2014 and obtained the following history:
“Mr Dyer was involved in a motor vehicle accident whilst at work in March 2014.
He works in the farming industry and describes herding cattle from a ute. He describes one cow as going slightly off course and reversed his truck to correct the course of the herd. He reversed into a ditch and rolled his truck. He self extricated from the vehicle and continued to move the cattle on foot. He describes feeling pain in his neck and across his shoulders, but continued to work. He feels he may have lost consciousness for a brief period, as he cannot recall getting out of the truck.
Later that day he was working in the cattle holding area and a rogue cow charged him knocking him over. He reports additional pain in his chest and head from this episode. He went home after this and reported the events to his partner Sue. He did not attend the GP (50 minutes away) at the time, but when he woke the next day and the pain continued, he was taken to the GP and subsequently to Bairnsdale hospital by ambulance for assessment of imaging.”[39]
[38]Pages 32-34 PACB
[39]Page 32 PACB
44On examination, Mr Han found the plaintiff to have limited cervical movement, and the plaintiff found looking up and side to side particularly difficult. Mr Han noted that the plaintiff tended to hold his head still and avoided any unnecessary movement.
45The plaintiff described the pain as travelling down in a diamond shape to his upper thoracic region. At that time, the plaintiff was taking Voltaren and was able to undertake his personal grooming with limited assistance. He slept fitfully, finding it difficult to find a position of comfort, and tended to fatigue easily. He had not been able to work since the incidents.
46Examination revealed a very stiff neck. Mr Han had available the recent MRI scan undertaken on 7 May 2014 which he considered showed degenerative changes at C4‑5 and C5‑6, but with no evidence of spinal cord compression.
47Ultimately, Mr Han was of the opinion that:
“His pain is likely to be related to disc degenerative changes aggravated by the accident. I would not recommend surgery, but I asked him to see a local physiotherapist for muscle strengthening exercises. He should avoid returning to manual type work. He should probably have the next month off work.”
48I also refer to a report from one of the doctors at the Omeo Medical Clinic, Dr Jennifer Schlager, dated 11 August 2016.[40] Dr Schlager recorded a history, and noted that the neurosurgeon had recommended that the plaintiff should not return to manual-type work.
[40]See report of Dr Jennifer Schlager dated 11 August 2016 at pages 37-38 PACB
49Dr Schlager also noted that the plaintiff was not keen on opioid analgesics and was managed with Panadol Osteo and Voltaren, attended physiotherapy frequently, but made little progress with improving his pain, range of movement, or functionality.
50In particular, she stated:
“He continued to experience pain in the neck and shoulders with any movement and use of arms. He was afraid and difficult to convince that pain did not mean doing damage.
20/11/2014 He was declared fit for restricted duties: no manual work, no bending, lifting, operating machinery, no sitting >20 minutes. Flexible work rest breaks.
Nothing changed in the following year.
Physiotherapy sessions became fortnightly.He also saw an osteopath for pain relief.
In October 2015 Dr David Jones reported Mr Dyer was suffering clinical depression compounding his chronic pain. He had low mood and motivation, poor sleep, poor ability to concentrate and fatigued very easily. He commenced him on Amitryptalline (sic) and Norspan patches and was of the opinion that although they might improve his quality of life, he did not expect them to enable him to return to work. Mr Dyer had unacceptable adverse reaction to the medication and they were quickly ceased.
In January 2016 Mr Dyer had Vocational Assessment. In this interview he reported pain with reaching or pulling, pain worsened by sitting >30 min, standing >15 minutes, to drive vehicle > 1 hour. If he had any activity Pain was worse the next few days.
He has been assessed as unfit to work since earlier this year.
He remains on Panadol Osteo and intermittent Voltaren.
He has an appointment at a Pain Management Clinic in Brighton next month.
2. Its relationship to his employment
The accident was the cause of his problems. Mr Dyer rarely attended the doctor prior to this and had no record of complaint about neck or shoulder pain.
The accident occur[r]ed while working under the employment of Work Hire Australia.
3. Current ability to work
He remains unfit to work.
4. Anticipated duration of Incapacity
The condition is unlikely to improve and he is likely to remain unfit to work again.”[41]
(sic)
[41]Ibid
51I also refer to a handwritten letter from Dr Ian Paterson, dated 11 October 2016.[42] In that letter, Dr Paterson noted that his medical practice did not officially extend to Benambra where the plaintiff was then living, but he was a frequent visitor to the area and had known the plaintiff for some forty years and had treated him for emergencies on a number of occasions. He noted that he had not seen the plaintiff for many years but did hear of his “injury” in 2014. About six months prior to his letter, Dr Paterson notes that he casually suggested to the plaintiff that some improvement to his neck symptoms may be found by attending the Precision Brain, Spine & Pain Centre.
[42]See report of Dr Ian Paterson dated 11 October 2016, pages 58-59 PACB
52Dr Paterson referred the plaintiff to Dr Richard Sullivan, an interventional pain specialist and specialist anaesthetist. Dr Sullivan saw the plaintiff in late August 2016. Dr Sullivan obtained the following history:
“On 27 March 2014 he was involved in two separate incidents. In the first he was an unrestrained driver when the ute he was driving on the farm rolled into a ditch or hole. It is likely that during this incident he sustained a closed head injury, however, he continued working and was assisting with the management of some cattle in a yard when he was knocked over by one of the cows and injured again. Again in this incident he sustained a brief loss of consciousness and was significantly disoriented afterwards. Following this he had crescendo posterior cervical pain and in fact pain extending from the crown of his head, including the occiput down through the entire posterior cervical region out to the bilateral shoulders and down into the mid back. He also has bilateral hip pain. The most prevalent pains are the left-sided neck pain and left-sided shoulder pain.”[43]
[43]See report of Dr Richard Sullivan dated 29 August 2016 at page 40 PACB
53Examination at that time revealed significant aggravation of pain on external rotation and abduction of the left shoulder girdle and limitations in his neck movement, especially lateral flexion. Dr Sullivan recommended that the plaintiff have a flexion/extension MRI scan of the cervical spine and a bone scan with SPECT CT overlay of the cervical region that would also demonstrate inflammatory change in the shoulder should it exist, and also an ultrasound of the left shoulder.
54Dr Sullivan noted that he would be referring the plaintiff to his colleague in rehabilitation medicine, Dr Kian Mehr, noting that Dr Mehr consults in Traralgon on a monthly basis.
55The plaintiff was referred to Dr Mehr, who consulted with the plaintiff in early October 2016. At that time, Dr Mehr had available the bone scan of the cervical spine SPECT showing C3‑4 and C4‑5 facet arthropathy plus AC joint and SC joint inflammation in left shoulder. As I have already reported, the flexion-extension MRI scan showed severe bilateral neural foraminal stenosis in C4‑5 compressing bilateral C5 nerve roots and foraminal stenosis compressing the right C6 as well, multiple level foraminal stenosis. In the MRI scan there was also evidence of supraspinatus tendinitis, bicipital tendinitis and subacromial bursitis.
56Clinical examination at that time revealed a cervical spine that was tender, with significant reduction of range and motion, and the left shoulder was tender as well, with significant restriction of range of movement in the shoulder. Neurological examination of the upper limbs was normal.
57In his report dated 5 October 2016, Dr Mehr states:
“I think this condition is chronic cervical spine pain, possibly discogenic, muscular, facetogenic. There is radiation of the pain to the right and left upper limbs which can be radicular or referred pain. He also has features of adhesive capsulitis of the right and left shoulders but more in the left.
I started him on Cymbalta 30 mg. ...
I would appreciate it if you could refer him to a local physiotherapist ... and local psychologist to manage his depressive features.”
58In a later report, dated 30 November 2016,[44] Dr Mehr – as I have already reported ꟷ noted that the plaintiff saw the neurosurgeon, Dr Ales Aliashkevich, who recommended anterior cervical fusion. Dr Mehr noted that the plaintiff was not keen to undergo that procedure at that stage.
[44]See report of Dr Ali Kian Mehr dated 30 November 2016 at page 47 PACB
59I also refer to the clinical records of Advantage HealthPoint situated at 46‑56 Nicholson Street, Bairnsdale, and covering the period from seemingly 5 February 2019 to 19 May 2021.[45] A perusal of those records suggests that seemingly all attendances were in relation to a coronary condition treated by way of coronary stents.
[45]See clinical records of Advantage HealthPoint at pages 28-36 DSCB
60I refer to the McMillan Chiropractic records in respect to attendances by the plaintiff for chiropractic treatment.[46] Such records indicate that the plaintiff attended the chiropractor on 9 September 2020, 15 September 2020, 24 September 2020, 5 October 2020 and 22 October 2020, 12 November 2020, 10 December 2020, 24 December 2020, 7 January 2021, 27 January 2021, 24 February 2021, 18 February 2021, 4 March 2021, 18 March 2021, 1 April 2021, 15 April 2021, 29 April 2021 and 13 May 2021. Seemingly such treatment was for a sore neck and some pain in his lower back. The plaintiff also gave evidence that he has continued to attend the chiropractor in relation to his neck condition and such treatment continues to be paid for by the plaintiff.[47]
[46]See McMillan Chiropractic records at pages 22-29 PASCB and pages 48-55 DSCB
[47]See generally T115, L31 – T116, L24
The medico-legal reports relied on by the Plaintiff
61The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the neurosurgeon, Mr Paul D’Urso, on 5 October 2017[48] and on 25 January 2021.[49]
[48]See report of Mr Paul D’Urso dated 11 October 2017 at pages 82-86 PCB
[49]See report of Mr Paul D’Urso dated 27 January 2021 at pages 87-90 PCB
62At the time of the initial examination, Mr D’Urso had available the CT scan of the brain, cervical spine and lumbar spine, dated 28 March 2014, and the MRI scan of the cervical spine, dated 7 May 2014. Furthermore, he seemingly had most of the other reports from treating doctors and also had several medical reports from doctors retained by the defendant.
63The plaintiff gave a history that on 27 March 2014, he was working in his duties as a farmhand, and when driving a utility vehicle on the property, he reversed into a hole that was concealed by long grass. The plaintiff stated that the vehicle rolled and he suffered injuries as a result, and may have lost consciousness in the motor vehicle accident.
64On the same day, the plaintiff gave a history he was working in the stockyard, feeling unwell as a result of the first accident, and while standing in the stockyard, he stated he was struck by a cow and knocked to the ground, causing him to suffer further injury. In particular, the plaintiff gave a history to Mr D’Urso that he felt his neck had been forced and flexed forward. At the time of that first examination, the plaintiff reported that his memory and concentration had been affected by the “injury”. He was also suffering from chronic headaches and neck pain, with pain radiating into his shoulders, which he rated as 4.5 out of 10.
65At the time of the first examination, the plaintiff was not working, but was able to go shopping and perform light cleaning, light gardening and washing. He did not perform any cooking. He informed Mr D’Urso that prior to the “injury”, he was able to go fishing, operate machinery and ride a motorbike, all of which cannot be done now.
66At the time of the first consultation, he was taking Voltaren, Nurofen and Panadol, and also was attending a chiropractor. Prior to his “injury”, he had been in good health and had worked as a farmhand for approximately two years with that employer, with a previous history of working in mines and as a shearer.
67Examination revealed that he was a left-handed male who exhibited global weakness in his upper limbs and restricted movement in his left shoulder. He could only abduct to 80 degrees and it sat several centimetres higher than the right. The plaintiff’s biceps reflexes were inverted and the triceps reflexes were absent. Other reflexes were diminished, yet symmetrical. Plantar responses were down-going. Hoffmann’s reflex was mildly positive. Sensation appeared to be satisfactory. And the plaintiff’s cervical range of movement appeared to be 70 per cent of normal in flexion, extension and rotation.
68After reviewing the various radiology, Mr D’Urso responded to various questions posed by the solicitors for the plaintiff. I refer to some of those questions and answers:
“2. Your diagnosis of our client’s injury and/or condition.
It would appear that … [the plaintiff] sustained a concussion as a result of a motor vehicle accident. He possibly also injuried (sic) his cervical spine. A second injury in the stockyards appears to have occurred. This would appear to have aggravated the initial injury quite significantly.
3. Your prognosis including whether you believe that our client’s injury is progressive and likely to deteriorate in the future.
The main disability appears to be related to quite severe spondylosis at the C3-4 and C4-5 motion segments, where there is evidence of foraminal nerve root compression. This condition is likely to continue such that degenerative fusion may eventually occur. There could well be a degree of deterioration in the future, related to nerve root compression and ongoing chronic pain.
4. Whether any further treatment is required and, if so, what further treatment is required.
Consideration should be given to the option of a cervical discectomy and fusion procedure at both C3-4 and C4-5 and possibly at C5-6. The prescription of anti-inflammatory and analgesic medication under the supervision of a general practitioner would be recommended. A neuropsychological assessment would be appropriate. An assessment by a multidisciplinary rehabilitation team would also be appropriate.
5. Your opinion as to whether any injury or condition from which our client suffers is work related in the sense that work was a significant contributing factor to the influencing the particular injury or condition.
It would appear likely that a workplace injury sustained on 27th March, 2014, have (sic) precipitated the onset of symptoms. This has contributed to a concussive episode and contributed to the C3-4 and C4-5 motion segments, resulting in an accelerated degeneration and spondylosis and nerve root compression.
6. Your views as to our client’s current capacity for work.
It would appear that … [the plaintiff] does not have capacity for pre-injury employment at this time. He would appear to have limited capacity for employment in general. There may be some capacity for part-time light employment within restrictions. I recommend that Wayne not be required to lift weight above the level of his shoulders. He should not be required to maintain prolonged sitting or standing postures, climb at height on ladders or steps. He should have the ability to ambulate freely in the workplace and avoid repetitive awkward back movement. I suspect these restrictions would make it very difficult for any type of employment activity, given … [the plaintiff’s] education skills and work experience.
7. Please comment on the restrictions the injuries place on our client’s ability to undertake domestic, social and recreational pursuits.
Wayne does not have capacity for more arduous domestic cleaning or gardening activity. He does not have capacity beyond restrictions mentioned in the text above. He does not have capacity for any type of vigorous sporting or recreational activity. Such restrictions are likely to be of a permanent nature into the foreseeable future.
SUMMARY
… [The plaintiff] presents with a history of chronic neck pain, headache and shoulder symptoms. It would appear that as a result of workplace accident, he sustained a concussive episode and injury to his cervical spine. A further injury occurred on the same day which appears to have aggravated the initial injury. … [The plaintiff] has no capacity for pre-injury employment and would appear to have limited capacity for employment in general. Surgical intervention by way of a cervical discectomy and fusion procedure may well be of benefit to … [the plaintiff]. The condition appears to have had a moderate effect on social, domestic and recreational spheres.”[50]
[50]See report of Mr Paul D’Urso dated 11 October 2017 at pages 84-86 PCB
69When examined on the second occasion – on 25 January 2021 – the plaintiff reported that his condition was stable. The plaintiff continued to experience headaches, anything from a 1 out of 10 to 10 out of 10 on a daily basis. Furthermore, the plaintiff described a clumsy sensation affecting his hands and he had a burning sensation across his shoulders, with his left arm feeling weak.
70In particular, the plaintiff reported that at that time he was working three days a week as an assistant at a tip shop. He can perform repairs on his lawnmower, able to go shopping, perform cooking, cleaning and washing, but does not perform garden work.
71On examination, the plaint revealed he can only abduct his left arm to 90 degrees and his biceps reflexes were inverted. Sensation was intact and his cervical range of movement was restricted to less than 50 per cent of normal inflexion, extension and rotation.
72Again, Mr D’Urso responded to various questions posed by the solicitors for the plaintiff. I refer to some of those questions and answers.
“…
2. Your diagnosis of any injury to our client’s neck.
It would appear that … [the plaintiff] sustained a neck injury, as a result of a motor vehicle accident in which he was involved on 27th March 2014. … [The plaintiff] reports a second injury occurred on the same day, whilst working in a stock yard. He was struck by a cow and knocked to the ground. It would appear that as a result of both accidents, Wayne has sustained an injury to his head and neck. Investigations revealed severe spondylosis at the C3-4 and C4-5 motion segments, where there was evidence of foraminal nerve root compression and severe degenerative change was noted at the C5-6 level.
3. Your opinion as to whether the second incident [w]as a material cause of our client’s neck injury or a significant contributing factor to the aggravation, acceleration or deterioration of any prior injury to our client’s neck.
The second incident when … [the plaintiff] was charged by a cow appeared to have aggravated an underlying degenerative condition of the cervical spine. I consider the second incident has been a materially contributing factor to subsequent disability and incapacity.
4. Your prognosis with respect to our client’s neck injury.
It would appear … [the plaintiff] has developed chronic disability and incapacity in regard to his cervical spine. He suffers from chronic headache and upper limb symptoms. Wayne will be prone to degenerative progression in the cervical spine and the risk of neurological deterioration. Contemporary imaging of the cervical spine and the left shoulder would be recommended to assess his current status and determine to what extent his condition may have deteriorated with time. Wayne is likely to have a permanent disability and incapacity with regard to his cervical spine and left upper limb.
5. Whether any further treatment is required and, if so, what further treatment is required.
I would recommend MRI imaging of the cervical spine and left shoulder be performed to assess … [the plaintiff’s] current status. It is likely Wayne will require the prescription of anti-inflammatory and analgesic medication under the supervision of a general practitioner. Physical therapy exercise under the supervision of a physiotherapist would be recommended. The opinion of a suitably qualified orthopaedic surgeon in regard to the significance of a left shoulder dysfunction would be recommended once contemporary imaging has been obtained of the left shoulder. The opinion of a suitably qualified spinal surgeon would also be recommended in regard to the cervical spine once suitable imaging has been obtained.
6. Your views as to our client’s maximum capacity for work.
… [The plaintiff] would appear to have capacity for part-time light employment at the present time. I would, however, place permanent restrictions on his capacity. … [The plaintiff] will not have capacity for full-time employment activity and he will not have capacity for unrestricted or manual employment activity. I would recommend that … [the plaintiff] avoid lifting weight above the level of his shoulder. He should avoid prolonged sitting, standing or walking postures. He should not be required to climb at height on steps or ladders or work in confined spaces. … [The plaintiff] would require the ability to ambulate freely in the workplace and avoid repetitive or awkward neck movements. These restrictions would be of a permanent nature into the foreseeable future. I would be surprised if Wayne’s capacity would extend past 20 hours per week in light employment within these restrictions.
7. Please comment on restrictions our client’s neck injury place upon his ability to undertake domestic, social and recreational pursuits.
… [The plaintiff] will have a partial incapacity with regard to his social, domestic and recreational pursuits. He will not be able to perform more arduous domestic cleaning or gardening activity. He does not have capacity to perform activities beyond restrictions mentioned in the text above. … [The plaintiff] will not have capacity for any type of vigorous recreational sporting activity. These restrictions will be of a permanent nature.
SUMMARY
… [The plaintiff] presents with a history of chronic pain, headache and left upper limb dysfunction. It would appear that as result of a motor vehicle accident and a subsequent workplace accident, … [the plaintiff] sustained an injury to his head and neck. Investigation revealed significant cervical spondylosis at multiple levels. … [The plaintiff] would also appear to have significant dysfunction of his left shoulder. … [The plaintiff’s] condition would appear to have stabilised at this time. Wayne would not have capacity for pre-injury employment and would appear to have limited capacity for employment in general. I recommend at this time an opinion from a suitably qualified spinal surgeon and orthopaedic surgeon regarding his upper limb condition. Wayne’s condition would appear to have stabilised at this time, although I suspect he will be prone to a degree of degenerative progression of the condition which can be difficult to determine and predict. … [The plaintiff’s] condition would appear to have had a moderate effect on his social, domestic and recreational spheres.”[51]
[51]See report of Mr Paul D’Urso dated 27 January 2021, at pages 88-90 PCB
The medico-legal reports relied on by the Defendant
73Those acting for the defendant arranged for the plaintiff to be medico-legally examined by the following:
(a) The occupational physician, Dr Umberto Boffa, on 19 January 2015;[52]
(b) The orthopaedic surgeon, Mr Michael Shannon, on 29 February 2016;[53]
(c) The consultant neurologist, Professor Jacques Joubert, on 24 August 2014;[54]
(d) The consultant orthopaedic surgeon, Associate Professor Bruce Love, on 28 August 2017;[55]
(e) The occupational physician, Dr David Elder, on 14 November 2018;[56]
(f) The occupational physician, Dr Michael Baynes, on 30 July 2020.[57] Dr Baynes also supplied supplementary reports, dated 4 February 2021[58] and 25 May 2021.[59]
[52]See report of Dr Umberto Boffa, dated 19 January 2015, at pages 18-23 DCB
[53]See report of Mr Michael Shannon, dated 1 March 2016, at pages 24-30 PCB
[54]See report of Professor Jacques Joubert, dated 30 August 2017, at pages 36-46 DCB
[55]See report of Associate Professor Love, dated 31 August 2017, at pages 47-54 DCB
[56]See report of Dr David Elder, dated 14 November 2018, at pages 93-97 DCB
[57]See report of Dr Michael Baynes, dated 30 July 2020, at pages 98-103 DCB
[58]See such report, at pages 104-106 DCB
[59]See such report, at pages 46-47 FSCB
74When seen by Dr Boffa on 10 January 2015, the plaintiff gave a history of while droving cattle in a utility vehicle, not wearing a seatbelt, he reversed into a ditch, causing the vehicle to roll over and for him to strike his head, causing a jarring to his neck. The plaintiff asserted he remembered thinking he better pull his arm and elbow back through the window as the vehicle rolled, his next memory being of standing by the overturned vehicle and not knowing how he got out.
75Furthermore, the plaintiff informed Dr Boffa that he continued to herd until later that day, when he was attacked by a rogue cow and again dazed. In particular, he informed Dr Boffa of not being able to lift his head off his chest afterwards and having to support his chin with his hands.
76In particular, the plaintiff complained of constant neck pain associated with frequent occipital headaches and “uselessness” in his upper limbs.
77Examination of the neck revealed normal contours with no tenderness or trigger points and some restriction of movement in his neck. Examination of the upper limbs revealed normal tone, sensation, dexterity and reflexes.
78Dr Boffa concluded the plaintiff suffered post-concussion syndrome and aggravated cervical spondylosis with left C5 radiculopathy. Dr Boffa was of the opinion the plaintiff could not return to his pre-injury duties and hours, but did have a current work capacity to perform suitable employment, which would involve no repetitive lifting or carrying above chest height, pushing or pulling, or lifting more than 10 kilograms from floor to waist level.
79When seen by Mr Shannon on 29 February 2016, the plaintiff gave a history that he was moving “cars” – I think this is meant to be “cows” – and was driving his ute along the verge of the road, when the ute went into a hole and rolled a full 360 degrees, landing on its wheels. The plaintiff was not wearing a seatbelt and does not think that he lost consciousness.
80After that incident, the plaintiff was feeling generally sore, but could still walk behind the cows, shepherding for another couple of kilometres to the property and continued working moving other cows, but by late evening he was sorting cows and feeling very stiff and sore, when a cow ran at him, and he fended it off with his left hand. He was struck on his side and knocked to the ground and the cow apparently head-butted him while lying on the ground.
81At the time, the plaintiff informed Mr Shannon that he had consulted with osteopaths and physiotherapists for treatment to his neck, which is the main ongoing problem. He has ongoing pain in the neck, and although applying for various jobs, he is limited in what he can do, and cannot last all day at work. In particular, he finds holding his head up is a problem as time goes by. Examination reveals significant and apparently asymmetrical restriction of cervical movement, with particular restriction of extension and left lateral flexion and rotation. There was no objective neural abnormality in the upper limbs, noting that he is left handed.
82Ultimately, Mr Shannon opined:
“[The plaintiff] … describes two separate injuries occurring on the same day.
The first was a roll over accident which could certainly have resulted in some bruising and jarring of his neck and trunk.
Following this incident however, he was able to extricate the vehicle and then shepherd some cattle for several kilometers (sic) back to the property and indeed work for the rest of the day until he was attacked by a cow and he believes that the butting of the cow was the main cause of his neck injury.
It is consistent that either or both of these incidents could have aggravated pre-existing degenerative change in the cervical spine.
Although he has had some vague upper limb symptoms, there is certainly no objective evidence of radiculopathy and according to the reports, there is no definite evidence of nerve root compression and this was the opinion of the treating neurosurgeon who saw his MRI Scans.
Essentially therefore, he is suffering from mechanical neck pain associated with aggravation of pre-existing degenerative change.
I do not think that he is fit for work as a farm labourer, although on the other hand I do not think that he is totally incapacitated.”[60]
(sic)
[60]See report of Mr Michael Shannon (op cit) at page 28 DCB
83Mr Shannon did comment that the plaintiff would need to find employment that does not involve heavy lifting or overhead activities, and which permits him to vary his posture, noting that he may find it difficult to obtain suitable employment in a country town. Mr Shannon also noted that a vocational assessor has suggested employment options, including sales assistant, sales representative, test and weed control and draughtsman, all of which Mr Shannon considered to be within his physical capacity, assuming he has the appropriate qualifications and the restrictions which he had outlined are incorporated.
“Prior to being employed by the Defendant, I was working at the Mount Delusion Gold Mine where I worked for about 6 months, from late 2011 to mid-2012. I worked 5 days per week and used about 14 litres of fuel a day. I believe that used to spend about $20 per day on fuel. I was driving similar or slightly less distances to get to work when I was working for the Defendant.”[189]
[188]See report of Vincents at page 9 of the PSCB
[189]See further affidavit of plaintiff, sworn 22 May 2021, at page 7 of the PACB
227Those acting for the defendant submit that the plaintiff has not discharged his onus of establishing with any precision the monetary “benefits” that ought to be included in his “without injury” earnings. In particular, it was submitted that the report from Mr Rossetto, the accountant, was flawed because the figure of $24.80 per week was based on the assessment of “fixed” costs associated with the vehicle, namely the depreciation and interest on the purchase of the vehicle and “variable” costs (running costs per kilometre), and on the basis that the plaintiff would have used the vehicle for around 20,000 kilometres per annum.
228Furthermore, those acting for the defendant submitted in the tax return for the year ending 30 June 2014, the plaintiff claimed a deduction for work-related car expenses amounting to $3,850, calculated on the “cents per kilometre” method. The plaintiff also claimed a deduction for work-related car expenses of $3,750 gross in the 2013 financial year. When the plaintiff was cross-examined about this, he indicated that this deduction was made by his accountant for the use of his personal motor vehicle for other businesses – his own farming and weed spraying,[190] although it would appear that no income was declared for either of those businesses in his tax return.
[190]T101, L-13
229In his response to the last issue, it was submitted on behalf of the plaintiff that the deduction for his own car in the taxation return for weed spraying has no relevance to the benefit obtained from the use of the company car. To the extent the point was raised by the defendant that the plaintiff seemingly received no income from his weed spraying activities, was not an issue relevant to the case and was not explored by the defendant. It does not reflect on the plaintiff’s credit and there is no reason to suggest anything other than he was only taking his accountant’s advice, who “may well be right”.
230I do consider that the plaintiff is entitled to take account of the benefit of receiving a petrol-filled car owned by the farm owners to drive to and from work, and on some occasions to be used for large shopping purposes. Although it is unlikely the plaintiff was working fifty-two weeks of the year at the farming property, there is no direct evidence as to whether he was permitted to use the car during holiday periods. However, I consider, on the basis that he would have driven to or from work over forty-eight weeks – allowing for annual holidays – this will give rise to a $4,800 benefit, to which I would allow another $200 to represent the intermittent shopping expedition when the company vehicle was used. Accordingly, I do find that the benefit of obtaining a petrol-filled vehicle over any one particular year would amount to $5,000. Bearing in mind that the actual earnings of the plaintiff over that financial year were agreed to be $49,346, the total “without injury” earnings would amount to $54,346, 60 per cent of which is $32,607.60.
The “with injury” earnings of the Plaintiff
231There is no issue that the plaintiff is presently employed at the tip shop working twenty-one hours per week and being paid on the basis of working forty-two hours per fortnight. His present rate of pay is $27.22 per hour, and if one multiplies that by twenty-one hours per week for fifty-two weeks of the year, his “without injury” earnings are $29,724. Those acting for the plaintiff submit that such a sum reflects the realistic capacity of the plaintiff to perform work after the advent of his injury. Those acting for the defendant do not quibble with the arithmetic in coming to the sum of $29,724, but submit that the plaintiff has a far greater capacity to perform work and, indeed, submits that he is capable of working full time in his current job and in other suitable employment.
232I refer to the relevant medical evidence:
(a) When seen by the occupational physician, Dr Umberto Boffa, on 19 January 2015, Dr Boffa was of the opinion that the plaintiff was suffering aggravated cervical spondylosis, with left C5 radiculopathy. Dr Boffa was of the opinion that the worker could not return to his pre-injury duties and hours, but did have a current work capacity to perform suitable employment which would involve no repetitive lifting or carrying above chest height or pushing, pulling or lifting more than 10 kilograms from floor to waist level;
(b) When seen by the orthopaedic surgeon, Mr Michael Shannon, on 29 February 2016, he was of the opinion that the plaintiff had aggravated pre-existing degenerative change in the cervical spine and considered there was no objective evidence of radiculopathy. He opined that essentially, the plaintiff was suffering from mechanical neck pain associated with aggravation of pre-existing degenerative change. Although he did not think he was fit to return to work as a farm labourer, he did not think he was “totally incapacitated”;
(c) When seen by the neurologist, Professor Jacques Joubert, on 24 August 2017, he was essentially involved as to whether or not the plaintiff had suffered any traumatic brain injury as a result of the vehicle incident. In this respect, Professor Joubert thought there was complete resolution of that issue, with no evidence of neurological dysfunction.
Professor Joubert did consider that the plaintiff had suffered a musculoskeletal injury to his neck and shoulders and considered that the plaintiff had no capacity for his pre-injury duties at that time. He ultimately expressed the opinion, consistent with Dr Boffa, the plaintiff was able to return to a graded return to alternative slow-paced duties with no repetitive lifting or carrying above the chest, pushing or pulling, or lifting more than 10 kilograms from floor to waist level;
(d) When examined by consultant, orthopaedic surgeon, Associate Professor Bruce Love, on 28 August 2017, Associate Professor Love formed the opinion that the plaintiff had suffered “principally an aggravation of a cervical spine condition”.[191] Furthermore, Associate Professor Love was of the view that the plaintiff did not have any capacity for his pre-injury duties or alternative employment, and he was of the view that it was unlikely that the plaintiff would return to the workforce in the foreseeable future, and such incapacity would be permanent;
(e) When seen by the occupational physician, Dr David Elder, on 14 November 2018, such examination was essentially for the purpose of making an impairment assessment pursuant to the Guides to the Evaluation of Permanent Impairment. Dr Elder did note the plaintiff had been referred to a Medical Panel, and they concluded that he:
“… is suffering from an aggravation of cervical spondylosis with referred symptoms to the upper extremities but without clinical evidence of radiculopathy, and a soft tissue injury of the left AC joint.”[192]
[191]See report of Associate Professor Bruce Love, dated 28 August 2017, at page 51 of the DCB
[192]See report of Dr David Elder, dated 14 November 2018, at page 93 of the DCB
Dr Elder offered no opinion as to the capacity for the plaintiff to perform any work.
233Finally, when seen by the occupational physician, Dr Michael Baynes, on 30 July 2020, such examination was undertaken by Telehealth over Zoom due to the COVID-19 restrictions. A physical examination was not undertaken, but a range of movement on examination was taken over video. At the time of the examination, the plaintiff gave a history that he continues to suffer occipital headaches, as well as neck pain, and pain into his left ear. He also complained of pain radiating to his left shoulder and occasionally to his right, together with pain in the arm and the left thumb, with occasional pins and needles. Furthermore, he told Dr Baynes that he has stiffness in the neck, particularly turning to the left, and the pain can range from 1 out of 10 to 8 out of 10 if he has a flare up.
234At the time of examination, treatment included regular chiropractic treatment with advice, and the plaintiff continued with a home-exercise program. He continued to take Panadeine and ibuprofen on an occasional basis and that he has difficulty hanging out washing. According to Dr Baynes, the Zoom camera revealed a decrease in flexion and discomfort over the occipital region by 30 per cent, extension was decreased by 40 per cent, lateral flexion decreased by 50 per cent and right lateral flexion decreased by 30 per cent. Left rotation was decreased by 40 per cent, with right rotation decreased by 20 per cent, with pain on the left side of the neck.
235Dr Baynes had access to the MRI scan of 7 May 2014 and the further MRI scan of the cervical spine performed in September 2016. Ultimately, Dr Baynes was of the opinion that the plaintiff was suffering from a Chronic Pain Syndrome associated with chronic occipital headaches and left-sided neck pain associated with pre-existing degenerative changes in the cervical spine, and was also suffering from a soft-tissue injury to the left shoulder.
236In various answers given to questions posted by solicitors for the defendant, Dr Baynes expressed the opinion that although examination was limited due to the type of Zoom examination, there did not appear to be any inconsistencies in terms of examination or exaggeration of symptoms. Later, in answer to a further question, Dr Baynes stated:
“Whilst there is evidence of a chronic pain syndrome, there did not appear to be any obvious functional overlay signs or symptom exaggeration. I believe that there is a degree of centralisation of pain given the duration of the pain and noting the psychological aspects in terms of depression. However, I do not believe there is any significant symptom exaggeration.”[193]
[193]See report of Dr Michael Baynes, dated 30 July 2020, at page 102 of the DCB
237Dr Baynes was of the opinion that the plaintiff was unfit for his pre-injury duties and that was likely to continue in the future. He was, further, of the opinion that the plaintiff could undertake the duties in the local tip shop on a full-time basis, noting that it is relatively self-paced and there is a combination of activity. Dr Baynes was of the opinion the plaintiff was fit to continue on modified or alternative duties where there was no lifting greater than 5 kilograms, and where there was no repetitive forceful pushing or pulling, or jarring across the upper trunk. In particular, he should not work with his arms above shoulder height or away from his trunk, and tasks should be rotated.
238In particular, Dr Baynes also noted there did not appear to be any lifestyle or other factors impacting upon his motivation.
239Subsequent to that one Zoom examination, Dr Baynes responded to enquiries by the solicitor for the defendant in relation to the various jobs suggested by Recovre in the Vocational Assessment Report dated 27 August 2020. Dr Baynes expressed the view that the plaintiff had the capacity to perform the “packer” role and the “asset protection officer” role. Later, in a further enquiry from the solicitors for the defendant, Dr Baynes was also of the opinion that the plaintiff would be fit to undertake the role of a data-entry clerk role on a full-time basis.
240I also make reference to the Medical Panel Opinion and Reasons, dated 15 May 2015, wherein the Panel was of the opinion that the plaintiff was capable of working as a tourist information officer and/or sales assistant/representative and, therefore, the plaintiff had a current work capacity. The Panel made no comment whether the plaintiff would be limited to part-time work or was capable of doing full-time work in these jobs.
241When one peruses all of the medical evidence relied on, and leaving aside issues of causation, the overwhelming consensus of medical opinion is that the plaintiff has suffered an aggravation of significant pre-existing degenerative changes, which have given rise to pain symptoms in the neck and referred pain, together with restrictions of movement of the neck. Although Dr Boffa thought there was evidence of C5 radiculopathy, the consensus of medical opinion was that the pain emanates from the aggravation of the underlying degeneration, with referred pain to the upper limbs and shoulders.
242No doctor considers the plaintiff capable of performing his pre-injury duties, but there is a range of opinions as to what his residual capacity for work is. Such opinions range from that of Associate Professor Love, an orthopaedic surgeon, who saw him on 28 August 2017, and was of the opinion that the plaintiff was totally incapacitated then and into the foreseeable future. Of course, when the neurosurgeon, Dr Ales Aliashkevich, examined the plaintiff in 2016, he recommended that the plaintiff should undergo an anterior cervical fusion to remedy his ongoing pain.
243Most doctors considered that the plaintiff has a residual capacity for work and, in particular, Dr Bayes considers the plaintiff not only has a capacity to do full-time work with his present employer but is capable of performing most of the jobs identified to be “suitable employment” on a full-time basis.
244In general terms, the plaintiff has tried a variety of remedies involving physiotherapy, hydrotherapy and osteopathy, all of which have given little relief. The plaintiff continues to attend a chiropractor for his neck, initially for both his neck and back, but continuing on for his neck on a roughly two-weekly basis for which he pays for. He also takes pain relief when required, but finds that if he rests when his neck is hurting, that does help ease the pain.
245I again refer to reports of the neurosurgeon, Mr Paul D’Urso, dated 11 October 2017 and 27 January 2021 – the latter in respect of an examination on 25 January 2021. In his report pertaining to that examination, Mr D’Urso states:
“… [The plaintiff] would appear to have capacity for part-time light employment at the present time. I would, however, place permanent restrictions on his capacity. … [The plaintiff] will not have capacity for full-time employment activity and he will not have capacity for unrestricted or manual employment activity. I would recommend that … [the plaintiff] avoid lifting weight above the level of his shoulder. He should avoid prolonged sitting, standing and walking postures. He should not be required to climb at height on steps or ladders or work in confined spaces. Wayne would require the ability to ambulate freely in the workplace and avoid repetitive or awkward neck movements. These restrictions would be of a permanent nature into the foreseeable future. I will be surprised if Wayne’s capacity would extend past 20 hours per week in light employment within these restrictions.”[194]
[194]See report of Mr Paul D’Urso, dated 27 January 2021 at page 89 of the PCB
246After a consideration of all of the evidence, I have come to the view that the plaintiff is working at his maximum capacity at the present time and is unlikely to increase that in the foreseeable future. Accordingly, I have come to the view that his “with injury” earnings are $29,724 per annum, being $27.22 by twenty-one hours a week over fifty-two weeks.
247When the required comparison is made, I am satisfied that the plaintiff has discharged his onus in establishing that:
(a) his loss of earning capacity, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as “more than significant or marked” and as being “at least very considerable”;
(b) pursuant to s134(38)(e), I am satisfied that the plaintiff has suffered a loss of earning capacity of 40 per cent or more, measured pursuant to ss(38)(i) of the Act; and
(c) I am satisfied that the plaintiff will continue to permanently have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
248I have come to this conclusion for the following reasons:
(a) The plaintiff presents to Court with a good work history, and although he did qualify as a draftsman, he only did this for about three years, and thereafter worked as a farmhand for about two years; a miner for about four years – and a shearer/overseer shedhand for about eleven years before commencing employment with the subject employer;
(b) I have already expressed the opinion that I have formed a favourable view of his credibility and, indeed, Dr Baynes, although believing the plaintiff was capable of full-time work, was also of the opinion that there was no exaggeration of symptoms or functional elements about his presentation when examined;
(c) The plaintiff obtained his current employment at the tip shop, seemingly in about early 2018, following his move from Benambra, leaving a large property which had been in the family for some period of time, to alternative premises at Flaggy Creek, consisting of 5 acres. He left such property because he could no longer cope with the maintenance required on that property. He obtained such employment essentially through his own efforts after weekly payments stopped. I formed the view that this man was not shy of work;
(d) He is working forty-two hours per fortnight, this having been increased from fourteen hours per week to twenty-one hours per week in about late November 2020. At that time, he was working two days, but was not keeping up with the work, and his current employer wanted him to work another day, which he ultimately agreed to, not wanting to lose his job. He generally works Monday, Tuesday and Wednesday, and on Thursday and Friday he tends to lie down a lot to rest his neck, which is very sore after working three days straight. He notes he has managed to continue working, but what it has meant is that, on his days off, he has to spend a lot of time resting and recovering so that he can work the next week.
He continues to have great difficulty continuing with this work and is actively looking for a job with shorter hours. In this respect, he notes that a friend is also looking for other work, wanting more hours, and that friend works at the Metung tip seven-and-a-half days a fortnight and the plaintiff thinks he could cope better with those hours;
(e) The plaintiff only attends his general practitioner as required now, but is getting some relief from fortnightly visits to a chiropractor and also takes medication on an as-needs basis;
(f) Although at first flush, the work at the tip shop appeared “heavy”, the plaintiff described in some detail how things were manoeuvred and how he attempted to avoid any particular stress to his neck;
(g) I accept the evidence of the plaintiff that his limit is what he is performing now on an hourly basis.
249Beyond submitting that the plaintiff was capable of full-time work with this present employer, the defendant also relies on what is said to be “suitable employment” for the plaintiff to perform, and to perform on a full-time basis. I again refer to the NES 130 Week Vocational Report dated 21 January 2016[195] and the Recovre Vocational Assessment Report dated 27 August 2020.[196]
[195]Such report found at pages 107-123 of the DCB
[196]Such report found at page 128-152 of the DCB
250The authors of the NES 130 Week Vocational Report identified the following jobs as “suitable employment” for the plaintiff:
(a) sales assistant, earning $800 gross per week full time;
(b) sales representative, earning $1,175 gross per week full time;
(c) youth worker, earning $1,150 gross per week full time; and
(d) tourist information officer, earning $961 gross per week.
251The authors of the Recovre report identified the jobs said to be “suitable employment”:
(a) packer, earning $879 gross per week;
(b) data entry operator, earning $1,256 gross per week;
(c) asset protection officer. There were no wage details provided by Recovre.
252I note that the plaintiff is presently sixty-two years old and although a qualified draftsman, has not worked in that capacity since the early 1990s, and thereafter has worked variously as a farmhand, miner and shearer. I have also described his presentation earlier in this judgment as being an “unsophisticated” witness. This description was in no way meant to be pejorative but, rather, reflected that he enjoyed working in the high country and enjoying the more simple matters in life. I bear those matters in mind in coming to a view as to his suitability for any of the jobs described in the vocational reports.
253I refer to the Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[197] which was an appeal by a worker following the dismissal by the trial judge of his application for leave to commence proceedings and recover pecuniary loss damages. Factual issues raised at the first instance involved the concept of “suitable employment” as defined under the Accident Compensation Act 1985 and permanency of loss of earning capacity. The worker was successful in the appeal and the matter was ultimately remitted to the County Court for rehearing.
[197][2016] VSCA 188
254In discussing the concept of “suitable employment”, the Court of Appeal stated:
“… Rather, in the particular circumstances of this case, it was incumbent on the judge to demonstrate by his statement of reasons that he had considered in detail what, if any, specific job or jobs Mr Harris might, in the foreseeable future, be able to do on a regular and consistent basis,[198] allowing for such improvement as might be thought likely or possible after a pain management program and/or a drug treatment program and/or the undertaking of vocational education … .”[199]
(My emphasis.)
[198]“We have used the expression ‘be able to do’ (as distinct from, say, ‘be able to get’) advisedly. During the oral hearing, the Court raised with senior counsel for the respondent (at Transcript 52-53) whether ‘employability’ was relevant, having regard to what was said in Barwon Spinners, especially at (2005) 14 VR 622, 652 [74]. Senior counsel’s response, in substance, was that the test was one of physical capacity, not employability: Transcript 53. In his reply, senior counsel for the applicant mentioned ‘employability’ in passing (Transcript 59), but did not develop an argument against, or otherwise take issue with, the respondent’s position in that respect. Since the hearing, this Court (Ashley and Kaye JJA, Osborn JA agreeing) has decided Richter v Driscoll [2016] VSCA 142. That case related to a claim for statutory benefits under the Act in respect of a worker said to have ‘no current work capacity’ (as defined), a statutory concept that involved the same definition of ‘suitable employment’ as applied in the present case. In Richter v Driscoll, at [106], their Honours held that the definition of ‘suitable employment’ was such that the medical panel dealing with the matter in that case was ‘required to consider whether the entirety of the applicant’s relevant personal circumstances — that is, her injury caused incapacity and other relevant personal circumstances which we have discussed — meant that she would likely be unsuccessful in obtaining employment because she had nothing ‘merchantable’ to sell’. Further, there are indications in Richter v Driscoll, especially at [80], that their Honours did not consider that Barwon Spinners required that a different approach be taken to the question of ‘suitable employment’ in serious injury applications. However, for the avoidance of doubt, we confirm that, in the present case, in fairness to the respondent, we have assumed the correctness of the position advanced by the respondent (and not squarely contradicted by the applicant), namely that the test is one of physical capacity, not employability, in serious injury applications. However, the outcome would be the same in the matter before us regardless of the proper approach to be taken to the questions of statutory construction involved. Accordingly, it has not been necessary for us to form any view for ourselves on those questions, and we have not done so.”
[199]Harris v DJD Earthmoving Pty Ltd (op cit) at paragraph [49]
255Obviously enough, the concept of employability or “merchantability” broadens the concept of what is “suitable employment”. Although the decision of Richter v Driscoll[200] dealt with statutory benefits, whereas Harris[201] was dealing with “suitable employment” as used in serious injury applications, there would appear to be no good reason why the same words constituting “‘suitable employment” should be interpreted in different ways. However, the definition of “suitable employment” makes clear that it refers to employment in work in which the worker is “currently suited”, having regard to a number of matters, and in particular, the worker’s education, skills and work experience.
[200] Op cit
[201] Op cit
256Employing the decision of Harris,[202] the Court of Appeal stated that the concept of “suitable employment” encompasses the concept that the particular worker must be “suited” to the job nominated and, more particularly, able to do the job on a “regular and consistent basis”. After a consideration of all of the evidence, I have come to the view that none of the jobs identified in the vocational reports are “suitable employment” in the circumstances of this matter, and certainly not “suitable employment” on a full-time basis.
[202]Op cit
257I have made such finding for the following reasons:
(a) Again, referring to the opinion of Mr D’Urso, I consider the plaintiff will not have capacity for full-time employment activities, as he needs to rest to recuperate the neck symptoms that he suffers, even in the employment he undertakes now, for twenty-one hours per week.
Furthermore, the plaintiff made clear in his affidavit evidence that although he is able to drive, he chooses routes that do not require him to be constantly rotating his neck, and says he prefers roundabout crossings. To this end, although driving can be done, he is limited in this respect;[203]
[203]See second affidavit of the plaintiff, sworn 2 March 2021 at pages 92-95 PCB
(b) Turning to the job of sales assistant and sales representative, in answer to a question in cross-examination that it did not involve heavy lifting, the plaintiff responded:
“… it’s more about time spent upright. Um, I’ve got to be moving around and flexible, but yeah, I probably could work in a shop. I don’t think I could do it full time, but I think I could do that.”[204]
[204]T84, L29 ꟷ L85, L2
In particular, the plaintiff pointed out that he goes into spasm if he works long hours and it just gets too hard, and he has got to be able to walk away from it for a while to stretch and rest as much as he can, like laying down is the only real way to make it go away.[205]
[205]T85, L3-7
In respect to the sales representative work, the plaintiff considered this would be inappropriate as it involves a lot of travelling, which would involve driving, to which I have already made reference;[206]
[206]T93, L23-23
(c) In relation to the job of youth worker, the plaintiff gave evidence that:
“… it would be outside my comfort zone a bit. A bit outside my – any experience I’ve got.”[207]
[207]T93, L13-14
When asked whether he would be willing to do some training for that job, the plaintiff responded:
“I don’t think it’s really my thing to be honest.”[208]
[208]T93, L16-7
I doubt very much that the plaintiff would be suited for such work given his industrial background, his age and lack of experience in that type of work. Furthermore, he would have to undergo some training which may well be difficult for him given his difficulties with courses that he attempted to do earlier but was unsuccessful;
(d) When asked whether he could do the tourist information officer job, the plaintiff said:
“Yea, I’d be fine with that, I think.”[209]
[209]T93, L18
Notwithstanding that evidence, again, I believe the plaintiff would not be suited for this type of work given his background and the lack of sophistication to which I have referred.
In this respect, the requirements of such a job involved (as set out in the description) a person enjoying working with people, good interpersonal communication and customer service skills, good organisational skills, comfortable working with computers and good geographical knowledge. At the very least, the plaintiff has no realistic computer skills and has had no real experience in developing customer service skills and good organisational skills. It must be remembered, the plaintiff has made plain that he has difficulty organising the various costs that he has incurred for treatment for the purpose of sending it to the insurer. I just think it is unrealistic to expect a man of this background to be able to do that type of work at the age of sixty-two;
(e) the job of packer, I think, is inappropriate, give the description of the duties involved, which may involve him in lifting heavy objects and being on his feet all the time. Again, I just think this is not a realistic position for a man of sixty-two, with his background;
(f) The job of data-entry operator. When questioned about that job, the plaintiff initially stated, after hearing the description involved:
“… that amount of sitting I think I would struggle with.”[210]
Under re-examination, the plaintiff was queried as to his ability to type, to which he answered:
“I don’t - I can’t really type. I sort of just one finger-type … .”[211]
[210]T91, L14-15
[211]T115, L5-6
He further stated he has never worked in a workplace using a computer, save for a very small amount in the mining area, where sampling had to be written into a computer. More generally, when asked if he had ever worked in an office job, he confirmed that he did work in a drawing office back in the 1980s which he noted was pre-computers, and that was the last time he ever worked in an office. The plaintiff also gave evidence that he had undertaken some basic courses in computers over the years, but he was not adept at using a computer. I think such job as a data-entry operator is unsuitable in all of the circumstances;
(g) In relation to the job of asset protection officer, there was not much detail about that job or, indeed, the salary to be paid for such work. However, it was clear that such job would involve him driving around and inspecting various assets owned by the council, which most probably would cover a large area in the high country. Such job lacks details of what it would involve on a day-to-day basis, but it would at least seemingly involve significant driving which would be inappropriate. I consider such job unsuitable.
258Accordingly, I am satisfied the plaintiff has discharged his onus in establishing an entitlement to claim common law damages for pecuniary loss in respect to the neck injury arising out of the so-called cow incident in the late afternoon of 27 March 2014.
259Of course, as I have already stated earlier in this judgment, given such finding, the worker is entitled, as “matter of statutory construction”, to also have leave to bring common law proceedings for “pain and suffering” for that injury.
260I will hear the parties on the question of costs.
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