Ewins v Victorian WorkCover Authority
[2013] VCC 525
•26 April 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03829
| CLINTON JOHN EWINS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 17, 18 April 2013 | |
DATE OF JUDGMENT: | 26 April 2013 | |
CASE MAY BE CITED AS: | Ewins v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 525 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – contraction of Q Fever – development of Q Fever Syndrome – pain and suffering application only – nature and extent of disorder – physical and psychological injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas McPherson |
| For the Defendant | Mr A Moulds SC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff contracted Q Fever while working at the Swan Hill Abattoir (“the Abattoir”) in about 2005. He claims that he has suffered the symptoms of that disease, or Q Fever Syndrome, through to the present time. He claims his symptoms have significantly affected his capacity to enjoy a range of recreational, domestic and sporting activities and has required significant treatment over the years since.
2 The application is brought under sub-Sections (a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”) and leave is sought in respect of pain and suffering only. Mr Mighell, for the plaintiff, conceded at the outset that he relied primarily upon physical injury under sub-paragraph (a) of the definition rather than any psychological disorder.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plant manager at the Abattoir and a subsequent employer of the plaintiff, and various medical reports were tendered into evidence. I have read all the tendered material. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
4 The plaintiff is now forty years of age. He left school part way through Year 11 and commenced an apprenticeship as a spray painter, but did not complete it.
5 He moved to Swan Hill to look after a family property and did various other work, including as a kitchen hand and spray painter. He obtained cleaning work including at the Abattoir in 2005. He did contract hay carting.
6 In 2005, he leased the farm from his parents and ran cattle and sheep. He carried out all the physical work necessary to run the farm including marking, drenching, yard work and mustering. A part of the farm was under irrigation, and he planted various crops. He was involved in the harvest of the crops. There were also some sheep on the farm and he was involved in yard work and drenching. Shearing was carried about by a contract shearer, but he was involved in pressing the wool bales. He was also involved in commercial yabbying. In his younger days, he played football in the district and had earlier done hay carting around Victoria, New South Wales and Queensland. He was fit and healthy and worked long hours both in his various jobs, and on the farm.
The contraction of Q Fever and its consequences
7 In May 2005, in the course of his cleaning duties at the Abattoir, the plaintiff started to feel unwell. The symptoms developed and included vomiting and sweating. By June 2005, he was significantly debilitated and was diagnosed at the Swan Hill Hospital as suffering Q Fever. He said he remained in hospital for 18 days on a saline drip. He was certified as being fit to return to light duties, and was assigned to work as a cleaning foreman, avoiding manual labour. The plaintiff said he remained unwell and was prescribed both Tramal and Dolobid by his general practitioner, Dr Booth of the Swan Hill Medical Group. He had to regularly rest at work. He saw a number of doctors at the Group and over this period, suffered headaches, tiredness, body aches, difficulty breathing and sweating. He also lost weight. He became dehydrated and on some occasions returned to the Swan Hill Hospital and was placed upon a drip.
8 According to the plaintiff’s affidavit,[1] over the years from 2005 to 2009, he was unable to work on his farm in the same manner as before. He was unable to cut and load firewood. His capacity to work with the sheep and cattle was reduced. He was tired and exhausted at the end of a day. He was less able to undertake tractor work as before. He could not walk around the farm to check the cattle and had to do this by vehicle. His capacity to perform physical tasks was reduced.
[1]Plaintiff’s Court Book (“PCB”) 17
9 Notwithstanding these matters, the plaintiff remained in full time employment with the Abattoirs until 2009. He worked supervising other cleaners. According to an affidavit of Brad Anderson, the plant manager at the Abattoir, the plaintiff came to work every day and was an average worker. He worked 37 hours per week and was late on occasions, but this was to do with work on his farm. Mr Anderson said the plaintiff’s duties were light in nature and that at no time did the plaintiff complain to him about any difficulties completing those duties. He did not believe the plaintiff struggled with his work, and his employment ended in 2009 as a result of going to gaol for firearms charges. Mr Anderson said the plaintiff resigned.
10 As stated, according to the plaintiff’s affidavit he spent 18 days in hospital. However, according to the report of Dr Booth,[2] he was in hospital for six days. Dr Booth said that when discharged, the plaintiff was reviewed in June 2005 and on one occasion in August 2006, although the latter was related to neck pain from falling down stairs at work. According to Dr Booth, by 2006 “it appeared that Clinton was completely over his Q Fever.”[3]
[2]PCB 50
[3]PCB 51
11 The plaintiff spent three months in prison from February 2009 and accepted in cross-examination that if he had not been in gaol, he would have remained working at the Abattoir. Over the period from 2006 until 2009, he had no treatment from any practitioner in relation to the symptoms he alleges he suffered as a result of the Q Fever. He said he was reluctant to go to doctors, and took aspirin instead.
12 His work at the Abattoir over the period from 2005 and 2009 was full time. On occasions he worked more than 50 hours per week. In 2006, he was regularly paid for working up to 55 hours per week. On occasions there was less work, because there was a shorter “kill”. In the course of cross-examination, the plaintiff said that he was given the keys to the first aid room by Mr Anderson to enable him to lie down. However, he accepted that he was given the keys because he was in charge of managing the cleaning staff.
13 Over the period from October to December 2009, the plaintiff worked driving a front-end loader for Mr Evan Walker on a rural property. According to his affidavit,[4] he was exhausted at the end of the day and he gave up the work after a month, although the season lasted for three months. He said he could not concentrate and was lethargic. However, according to the affidavit of Mr Walker,[5] the plaintiff worked over 24 days without any difficulty. The work ceased on 11 December 2009 because that was the end of the season. In cross-examination the plaintiff claimed that such was his level of concentration, that the vehicle he was driving struck a tree. However, I am not persuaded that this was related to his Q Fever symptoms.
[4]PCB 19
[5]Defendant’s Court Book (“DCB”) 18
14 He has not worked for any other employer from 2009 to the present time.
15 According to his affidavit and evidence, he says that at the present time, he suffers debilitating symptoms including diarrhoea. His capacity to concentrate and focus is limited. He is exhausted and regularly goes to bed at eight o’clock. He feels hungry, but is unable to eat. He has lost his sense of taste and appetite. According to the report of Associate Professor Eisen, the plaintiff complained he had lost 18 kilograms over six years. Yet according to the clinical records of the Swan Hill Hospital, in May 2001 he weighed 75 to 80 kilograms. When he attended that hospital on 18 June 2005, he weighed 82.6 kilograms. Again, according to the Swan Hill Hospital records, when weighed in March 2010, he weighed 80 kilograms.
16 He said he suffers from sweats, and when he is fatigued, his muscles are weak and exhausted. He has headaches two to three times a week and has to lie down. He has abdominal pain and joint aches.
17 In 2010, he returned for treatment to the Swan Hill Medical Group, and saw Dr Awal with an upper respiratory tract infection. He complained of persistent diarrhoea and abdominal pain.[6] Dr Awal referred the plaintiff to Mr Khan, surgeon, who arranged a gastroscopy and colonoscopy in March 2010. The investigations showed reflux oesophagitis. Mr Khan thought this was related to the plaintiff’s heavy drinking. There is nothing in Mr Khan’s report to link the diarrhoea with Q Fever. According to Dr Awal, “Mr Khan believes his antral gastritis and duodenitis could be related to his heavy drinking.” Dr Awal thought the symptoms of lethargy, headache and weight loss could be related to Q Fever but that his diarrhoea was unlikely to be related.
[6]PCB 22
18 In September 2011, the plaintiff was referred by his general practitioner to Dr Andrew Fuller, an infectious disease physician, at The Alfred Hospital. However, it is clear from the referring letter,[7] that the referral was “for legal reasons” at the recommendation of the plaintiff’s solicitor. I am thus not satisfied the purpose of the referral was because of the persistence of the symptoms or the need for their treatment. According to that practitioner, the plaintiff was unwell and had clinical features of chronic Q Fever. He said blood tests taken showed the organism was still present. Dr Fuller said Q Fever could cause a multitude of symptoms, and the complaints of the plaintiff, including coughing, vomiting, fever, generalised aches and pains, sweats, chest pains, weight loss, diarrhoea, reduced energy levels, poor memory, vagueness and joint pains, were related to Q Fever. He said despite the prior investigations, the plaintiff’s gastritis, duodenitis and oesophagitis could be related to alcohol or could in part be related to Q Fever. Dr Fuller treated the plaintiff with medication including Doxycycline, Plaquenil and Endep. The prescriptions were to last a month but the plaintiff did not return for a follow up appointment in April 2012. The plaintiff could not be contacted by telephone until February 2013, when he said that he had lost the prescriptions for the medications. The medications were started again in February 2013.
[7]DCB 19
19 In the course of cross-examination, the plaintiff accepted that over the years 2002 to 2005, his income was modest, and from time to time he received social security payments.
Consultant medical opinions
20 The plaintiff was examined by Associate Professor Damon Eisen, infectious diseases physician, in May 2011.[8] He said the plaintiff complained of symptoms suggestive of post Q Fever fatigue syndrome. These included night sweats, lethargy, myalgias, arthralgias, poor concentration and exertional dyspnoea. The plaintiff said he could walk 2 kilometres but required a rest along the way. He claimed to have lost 18 kilograms over six years and had poor concentration and memory. He noted the plaintiff had been active before contracting Q Fever, including playing football and going kayaking. Professor Eisen diagnosed relatively mild post Q Fever fatigue syndrome, which was related to the Q Fever contracted at the Abattoir. Professor Eisen said the plaintiff was not severely incapacitated and required an exercise program with cognitive behavioural therapy. He thought the overall prognosis was good. He thought the plaintiff would be able to return to work in his previous role as a cleaning supervisor.
[8]PCB 23
21 The plaintiff was examined by Dr Michael Epstein, psychiatrist, in February 2012, and again in February 2013. He noted the plaintiff had been diagnosed as suffering Q Fever fatigue syndrome, which he said was chronic and disabling. He said there was no primary psychiatric impairment, but a modest secondary impairment.
22 The plaintiff was examined by Dr Andrew Jakobovits, physician, in December 2012. He complained of symptoms including lethargy, inability to eat, weight loss of over 20 kilograms, intermittent bowel problems which were aggravated by alcohol, night sweats and fever. Dr Jakobovits agreed the plaintiff had developed post Q Fever chronic fatigue condition. He said it was impossible to provide a definitive diagnosis in relation to the plaintiff’s gastrointestinal symptoms, weight loss and diarrhoea. He thought the bowel symptoms were likely to be related to an irritable bowel syndrome. He said that may be related to the Q Fever condition or stress related to it. He said the weight loss and diarrhoea may be related to Q Fever but he could not be definitive without appropriate investigations.
23 The plaintiff was examined by Dr David Murphy, rehabilitation physician, in March 2013. His report is of little assistance as he is not an expert in the field of infectious diseases.
24 On behalf of the defendant, the plaintiff was examined by Dr Peter Stanley, infectious diseases physician, in February 2013. He accepted in 2005 the plaintiff contracted Q Fever relating to his work at the Abattoir. He said in March 2012, testing for Q Fever was negative and that his examination did not support a diagnosis of true persistent Q Fever infection. He said the symptoms from which the plaintiff suffered, including marked fatigue, was characteristic of a chronic fatigue type syndrome following Q Fever and it was frequently associated with symptoms including low grade fever, sweats, headaches, abdominal discomfort, together with symptoms of anxiety, depression and “fuzzy thinking”. He concluded the plaintiff was suffering post Q Fever syndrome. He said that the plaintiff’s ongoing diarrhoea was not related to the syndrome, nor was the gastritis, nor duodenitis. He thought those related to the plaintiff’s alcohol consumption.
25 Dr Stanley said between ten and twenty per cent of patients who developed Q Fever, then developed a post Q Fever fatigue syndrome. In the majority, those symptoms resolved within 12 months, but in some patients the symptoms persist over many years. He said that it was probable the plaintiff would continue to suffer symptoms into the foreseeable future. He said there was no particular treatment which could be offered. He said the plaintiff was working 15 to 20 hours a week over a seven day period and said that he thought those hours represent the limit of the plaintiff’s physical capacity. He said the symptoms of fatigue can vary markedly. It was not possible to be employed in most occupations.
Credibility and reliability of the plaintiff
26 Mr Moulds, for the defendant, submitted there were a number of bases upon which the plaintiff’s evidence ought be regarded as exaggerated and misleading. These included:
·The plaintiff claimed that he was initially in hospital for 18 days, but the records indicated it was only six.
·The plaintiff claimed a weight loss of 18 to 20 kilograms in the histories to a number of doctors, but in fact his weight had been stable, even increasing slightly, both before and after the contraction of Q Fever.
·The referral to Dr Fuller was not because of his Q Fever symptoms, but was for legal purposes.
·When the plaintiff first attended Dr Fuller, and was prescribed a range of medication including antibiotics, he did not re-attend for further appointments, nor make any attempt to replace the lost prescriptions. Mr Moulds submitted this reflected a paucity of symptoms from which the plaintiff was suffering.
·The plaintiff’s claim that his capacity to undertake farm work was significantly reduced. However, over the years from 2005 to 2009, the plaintiff worked full time, often long hours, at the Abattoir on night duty. He would have, in any event, limited time and ability to work on the farm over those years.
·His evidence about being fatigued and requiring constant rest while working at the Abattoirs was in direct contrast to the affidavit of Mr Anderson. Likewise, his evidence that he was provided with the key to the first aid room so he could lie down stood in contrast to his acceptance that he was given the key because he was in charge of the cleaning staff.
·His evidence about his work with Mr Walker, in particular he was only able to work one of a three month contract, was again in contrast to the affidavit of Mr Walker.
27 Generally, I found the plaintiff an unreliable witness. He did not make the concessions I would expect of an honest witness, rather generally attempted to answer questions in a way which assisted his claim. I accept the submissions of Mr Moulds about the plaintiff’s credibility. I accept that the issues he has raised do reflect upon the credit of the plaintiff. While no one matter was of particular significance, when taken together, I am of the view that the plaintiff was significantly exaggerating the effect upon him of the symptoms of Q Fever, or Q Fever syndrome. Accordingly, I should take care in accepting the claims by the plaintiff, and the histories he provided to the various practitioners.
Conclusions
28 There is some division amongst the medical experts as to whether the plaintiff is currently still suffering from Q Fever, or the related Q Fever syndrome. In any event, it is not a matter of significance as to the label to be attached to his condition, but rather the consequences which flow from it and in particular the effect upon the plaintiff’s recreational, domestic and social activities, and work capacity.
29 I prefer the opinion of Dr Stanley who, in a comprehensive report, suggested that the diarrhoea suffered by the plaintiff, and the abdominal complaints, including gastritis and duodenitis are not related to the Q Fever. This was also the view of Mr Khan, who investigated the plaintiff in 2010, and Dr Awal, his then treating general practitioner.
30 The remaining complaints of the plaintiff of the effect upon him of Q Fever, or Q Fever syndrome, includes sweats, general fatigue, joint aches and pains, headaches, difficulties with concentration and general exhaustion. According to his affidavit, he claims this has led to an inability to work on his farm in the same manner as before and effect upon his relationship with his partner, anxiety, distress and lack of tolerance.
31 The plaintiff received no medical treatment over the period from 2006 until 2009. Even then, he saw Dr Awal, and was referred to Dr Fuller, not because of any incapacity as a result of the symptoms he was suffering, but rather for forensic reasons. A measure of the lack of symptoms at the time was that he did not return for review by Dr Fuller, nor follow up his rooms to obtain a replacement prescription. Over the years until 2009, he worked in full time employment at the Abattoir as a cleaning supervisor, often working long hours. I reject his evidence that he required rest breaks from time to time, and prefer the evidence of Mr Anderson that he displayed no incapacity. The only reason his employment was terminated was because he was sentenced to a period in gaol.
32 Further, I prefer the evidence of Mr Walker that when he worked driving a front-end loader in 2010, he left that work not because of any disability related to Q Fever, but because it was the end of the season.
33 I have distinct reservations about the evidence of the plaintiff that he has been unable to work on his farm in the manner he would wish, or take up other rural contracting work. The opinion of Dr Stanley is that he would be capable of working little more than his present 15 to 20 hours per week, but Dr Stanley was reliant upon the accuracy of the symptoms which the plaintiff described. I formed the conclusion that the plaintiff was exaggerating his symptoms for the purposes of this application. I accept the opinion of Professor Eisen that the plaintiff was suffering relatively mild symptoms, which were not particularly debilitating.
34 The onus is upon the plaintiff to satisfy me that the consequences to him of the condition are “very considerable” and more than significant or marked. Given the reservations I have about the complaints of the plaintiff, and the other matters to which I have referred, I am not satisfied the plaintiff has met that onus. While I accept that the plaintiff does suffer some of the symptoms which he describes, I am not satisfied that they are as significant and as debilitating as he would have it. I am not satisfied they significantly affect his capacity to work on his farm, nor am I satisfied the symptoms affect his enjoyment of and ability to participate in recreational, social and domestic activities.
35 While the application also was put on the basis of a severe psychological disorder, it was not pursued by Mr Mighell. I am not satisfied the psychological symptoms achieve the “severe” level.
36 In all these circumstances, the plaintiff’s application fails.
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