Farley v The Endless Swimming Spa Company (Vic) Pty Ltd
[2014] VCC 240
•12 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-02200
| MARK FARLEY | Plaintiff |
| v | |
| THE ENDLESS SWIMMING SPA COMPANY (VIC) PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 February 2014 | |
DATE OF JUDGMENT: | 12 March 2014 | |
CASE MAY BE CITED AS: | Farley v The Endless Swimming Spa Company (Vic) Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 240 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the cervical spine – organic brain injury - psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment:Leave granted to bring proceedings for damages for pain and suffering. Loss of earnings application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Malpas with Mr P Montgomery | Victorian Compensation Lawyers |
| For the Defendants | Mr J O’Brien | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 24 January 2005 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body functions relied upon in this application are the cervical spine, organic brain injury and psychiatric impairment.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff also relied upon an affidavit sworn by his wife, Lisa, in June 2013. The defendants relied upon an affidavit of the first defendant’s general manager, Mr Peter Sanderson, sworn in May 2011. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
10 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe” in terms of an application pursuant to clause (c). Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
11 Winneke P, in Mobilio,[3] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss (17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[3]Mobilio v Balliotis (supra)
12 A Chronic Pain Syndrome (“CPS”) can result in an impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[4]
[4][2005] VSCA 227
13 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
14 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
15 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
16 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
17 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
18 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions.
[5](2005) 14 VR 622
[6](2006) 14 VR 602
The Plaintiff’s evidence
19 The plaintiff is presently aged forty-three, having been born in May 1970.
20 The plaintiff lives with his wife, Lisa, his stepson, Drew, aged twenty-three and his son, Ryan, aged fourteen, who is enrolled in distance education. They have been homeless for the past year or so and live at times with different family members, spending a lot of time in South Gippsland.
21 The plaintiff’s wife has been his Carer since at least 2010. The plaintiff receives a Disability Support Pension of about $600 a fortnight. His wife receives a Carer’s allowance of about the same amount.
22 Having completed Year 12, the plaintiff worked as a retail assistant from 1989 to 1996.
23 During the 1990s, the plaintiff obtained some qualifications as a commercial pilot. He did not continue his pilot training as he was unable to afford it, giving up flying in 1996-1997.[7]
[7]Transcript “T”48
24 From 1997 until about 2001, the plaintiff suffered from a muscular ailment involving his legs and right knee and was not able to work during that time.
25 In 2000, the plaintiff obtained a Certificate of Computer Systems Engineering and returned to work in 2001.
26 In February 2004, the plaintiff worked for himself for a couple of months installing antennas for Manocraft Industries. In March that year, he started work for Jet Couriers, subcontracting as a courier. He did that job for nine months.
27 In November 2004, the plaintiff commenced employment with the first defendant as a driver and storeman. His duties involved mainly driving, delivering spas, moving spas and equipment around the storeroom and driving a forklift.
28 On 24 January 2005, the plaintiff suffered injury to his head, neck and left arm when he fell and tripped on a water pump and hit his head (“the incident”). He was initially knocked out, and having got up, fell again, losing consciousness.
29 The plaintiff was transported by his manager to Betta Health Medical Centre where he was referred to Knox Private Hospital Emergency. There, the plaintiff first complained of neck and shoulder pain in the area of the trapezius muscle and he was prescribed Tramadol.[8]
[8]T28
30 On about 2 February 2005, the plaintiff consulted his general practitioner, Dr Wang, for treatment. Later that month, he had physiotherapy treatment with Mr Mellas.
31 The plaintiff explained he did not see Dr Wang again until December 2006, because he was depressed and Dr Wang was often unavailable. The plaintiff had also been notified that his claim had been rejected.[9]
[9]T24
32 In February 2007, Dr Wang referred the plaintiff to Dr Seneviratne, neurologist, for treatment of his work injuries.
33 In March 2007, Dr Wang referred the plaintiff to Mr Cocking, physiotherapist, for treatment of his work injuries. The plaintiff continued this treatment until 2012.
34 The following investigations of the plaintiff’s neck have been organised – x-ray in December 2006; CT scan in January 2007; x-ray in April 2007; CT scan in May 2007 and MRI scan in August 2007. There was also a brain CT scan in March 2005.
35 On 5 March 2008, on referral from Dr Wang, the plaintiff saw Dr Gassin, musculoskeletal physician.
36 In about July 2008, on referral from Dr Wang, the plaintiff saw Michael Haywood, psychologist.
37 In September 2008, on referral from Dr Gassin, the plaintiff saw Dr Verrills, pain specialist.
38 The plaintiff has continued to seek treatment from Dr Wang, his general practitioner, on a regular basis.
39 In about October 2011, the plaintiff began consulting Sharon Anderson, psychologist, whom he saw until November 2012. It has been difficult to consult her since that time as he has had no fixed address.
40 In about 2012, the plaintiff consulted with Professor Thyagarajan, neurologist.
41 In June 2013, the plaintiff consulted with Dr Bates of the Metropolitan Spinal Clinic on referral from Dr Wang with regard to undergoing a further nerve block procedure on his neck.
42 At various times, the plaintiff has taken medication including, but not limited to, Panadeine Forte and Ibuprofen for pain relief. He tends to take up to eight Panadeine Forte tablets a day and two Ibuprofen tablets, which give minimal transient benefit in relieving his constant, but varied pain. He also takes Lovan for depression. The plaintiff has received advice in the past from his doctors about the side effects of strong painkilling medication.
Work
43 The plaintiff was absent from work for about two days following the incident.
44 On about 15 February 2005, the plaintiff commenced a graduated return to work program in which he was assigned light modified duties on a full time basis, including administration work in the storage area. While performing those tasks, he had great difficulty with his concentration and memory. He reported this situation to a supervisor but was told to continue working.
45 In about mid March 2005, the plaintiff was asked by the first defendant to resume normal duties due to an employee shortage. He returned to duties including, but not limited to, lifting and moving spa baths and boxes of parts and driving up to approximately 500 to 600 kilometres per day on deliveries. After his return to these duties, the plaintiff’s symptoms worsened to the extent that he was regularly taking medication. He complained to his supervisors of his difficulties but was encouraged to persist.
46 On about 1 April 2005, the plaintiff’s employment with the first defendant was effectively terminated due to his inability to return to performing his pre-injury work duties. The plaintiff has been unable to engage in any long term employment with any employer since.
47 The plaintiff had never been certified to return to full duties in March 2005. He was just told by his manager he was required because the storeman was going on holidays.[10]
[10]T26
48 The plaintiff was in a lot of pain and having great difficulty doing his job and his boss basically baited him into an argument, after which the plaintiff stormed out and was told to leave the premises.[11] On his return to the workplace the following Monday, the plaintiff was told that he had been replaced.
[11]T25
49 Between 2006 and 2008, the plaintiff was referred by Centrelink to Sarina Russo at JobSearch. During that time, he was sent for job trials with a number of employers; however, his pain from his work injuries meant he was either unsuitable for the role or unable to last in any position for longer than a week.
50 The plaintiff worked for Origin Energy in its call centre but lasted only three quarters of a day as he got too flustered and had to leave. The next job he attempted was working in the storeroom at an electronic company moving white goods but he found the work physically impossible and did not last even one day.
51 In about 2006, the plaintiff commenced casual employment with Latrobe Roofing through a friend who was aware of his injury and was prepared to provide him with sheltered artificial work. His duties involved assisting the roofer with basic tasks. This employment was terminated due to the plaintiff’s inability to perform his duties and undertake roof work and it became uneconomical for his friend to continue to employ him.[12]
[12]T31
52 The plaintiff was made bankrupt in about March 2007. Work Streams indicated to him that, because of his status, he would not be suitable for a range of jobs involving handling personal information and money.[13]
[13]T37
53 The plaintiff attempted a paper run job in Endeavour Hills. He lasted a couple of weeks working an hour a day one day per week. The job was more physical than he expected, walking around a very hilly area with a full trolley.
54 The plaintiff had found it difficult to find and retain any alternative work which accommodated his injuries. He felt that manual labour was the only suitable form of work he could undertake as he did not really regard himself as suitable for retraining in any alternative career, given the state of each of his work injuries.
55 The plaintiff was not aware of being certified fit for light duties by Dr Wang during 2008, but he could recall being told he was not to do any heavy lifting or moving objects weighing more than 5 kilograms and no repetitive bending and twisting of his neck.[14]
[14]T26
56 The plaintiff was very keen to work and had intended to work until at least sixty five. However, he did not have the capacity to return to pre-injury duties or any other employment reasonably available, given his limited education and prior work experience.
57 The plaintiff believed he would experience difficulty retraining as a result of his work injury and its consequences, even if there was an occupation in existence (or created) that would be within his physical limitations.
58 Given his time out of the workforce, the plaintiff was concerned that his prospects of securing and being able to stay in employment on the open market were minimal.
59 The plaintiff is upset and frustrated by the cutting short of his working life, as he considered himself a good worker and enjoyed leading a normal, productive and respectable working life.
60 The plaintiff continues to use skills he was given to seek work but he is not looking for work as much anymore because he and his family are moving around. He is also looking at undergoing a further RFN, after which he would more than likely start seeking work again.[15]
[15]T38
61 The plaintiff continues to experience constant though varied pain in his neck, radiating into his left shoulder, arm and hand. His neck pain spreads up into his head and down into his left shoulder and arm. He continues to experience a feeling of numbness in his fingers of the left hand and loss of strength.
62 The plaintiff’s neck pain is aggravated by activities such as turning or twisting and at times it becomes severe and debilitating. He has an increase in pain if he adopts postures for lengthy periods and he often seeks to change his posture and position to minimise his neck and left shoulder pain.
63 The plaintiff continues to experience recurring headaches and pain behind his left eye. His neck and left shoulder pain tends to be worse in cold weather.
64 The plaintiff’s neck, left shoulder and arm pain is present daily and he is cautious about sudden movements or being bumped. His left shoulder pain tends to be aggravated with the use of his left arm, particularly strenuous use. He continues to have trouble gripping items with his left arm and with repetitive use. His neck and left shoulder pain tends to be aggravated with activities such as lifting, pushing and pulling.
65 The plaintiff’s condition has worsened since around 2008.[16]
[16]T49
66 The plaintiff continues to experience feelings of stress, anxiety and depression. He now lives very differently and cautiously lest he aggravate his neck and left shoulder pain. He finds that he gets upset over minor things.
67 The plaintiff’s use of painkilling medication has led to constipation and digestive upset and pain and he tries to manage his diet to relieve those symptoms as much as possible.
68 The plaintiff’s inability to return to a normal working life is of great concern to him and a source of loss of enjoyment for him.
69 The plaintiff continues to experience difficulty getting a restful night’s sleep due to his work injury, tending to wake with pain at night. As a result, he tends to feel tired and lethargic during the day.
70 The plaintiff has increased pain and difficulty in his neck and left shoulder with grooming and dressing. He tends to find tasks such as shaving are more painful.
71 The plaintiff continues to experience problems with using his left hand, particularly repetitive or strenuous activity.
72 The plaintiff continues to experience increased pain in his neck with basic physical activity, including carrying, lifting, pushing, pulling, climbing and exercising. He tries to remain as active as possible but tends to find some days are particularly bad and he tends to pay for increased activity with more pain afterwards, despite medication. The plaintiff is frustrated by his restricted physical endurance and reliability and general dependence on others to perform tasks that he was previously able to do, as well as his normal work.
73 The plaintiff has not owned a car for six months. When driving, he experienced increased pain. In particular, he had neck pain when looking over his shoulder and when sitting for long periods.
74 The plaintiff finds that as a result of his work injury, he tends to be distracted and has noticed that he is generally less able to concentrate due to his pain and quality of sleep.
75 Prior to the onset of his work injury, the plaintiff enjoyed woodworking, bike riding, computers, playing cricket, basketball and tennis with his children. He now tends to avoid those activities as a result of his pain. His ability to wrestle or engage actively with his son has been significantly affected, as has his ability to enjoy social participation by going out to see family and friends or entertain at home.
76 On his general practitioner’s advice, the plaintiff is trying to be as active as possible within his very significantly limited physical limitations arising from the work injury. He tries to walk, as and when he feels able, to try and relieve his pain.
77 The plaintiff’s ability to perform activities inside his house continues to vary, significantly affected by his injury. He remains dependent upon the assistance of others with meal preparation, cleaning, laundry and outdoor activities – activities he was previously well able to perform alongside his work. He tries to help, although he finds that these activities aggravate his neck pain and he has suffered from very bad pain following vacuuming and sweeping. He is frustrated and embarrassed by his predicament and feels like a burden and much older than he should.
78 The passing of time since the incident has brought home to the plaintiff that at this point, in reality, he feels that he will not be able to enjoy his life interacting with his children and family in the way he had hoped. He is worried about his future and that of his family.
79 The onset of the work injury has had a very significant financial impact on the plaintiff and his family. As of June 2013, they had been forced to move in with his step-daughter, which involved moving the family to Moe and taking his son out of school.
80 The plaintiff has made every reasonable effort to participate in occupational, rehabilitation and return to work initiatives of the first and second defendant. However, he has been unable to sustain a return to employment as a result of his injury.
81 The 2007 WorkStreams report was prepared without significant input form the plaintiff’s treaters. As a result of the physical consequences of his neck injury, the plaintiff believes he would have problems with being regular, reliable and attentive and being able to perform all of the required duties of the positions listed in that report. But for his work injury, he would have remained in active employment until at least sixty five.
82 The plaintiff’s main problem to the present time is constant though varied physical pain and incapacity experienced as a result of his spinal injury, in particular, his cervical spine; injury to the head; injury by way of referred pain to his left upper extremity and particularly his left shoulder, left arm and hand, and mental injury, including, but not limited to, stress and anxiety.
83 On or about 29 November 2007, the plaintiff was assaulted when head butted. He consulted his general practitioner and was seen at Monash Hospital where his broken nose was reset. He could not recall any further pain in his neck as a result of the first assault and the nasal discomfort passed.[17]
[17]T45
84 In February 2012, the plaintiff was again assaulted. Following the assault, he noticed an increase in neck pain as well as pain in his head, right ear and chest. Over the following several days, his neck pain returned to the level it had been prior to the incident.[18]
[18]T46
Video surveillance
85 It was suggested to the plaintiff that he was shown on video on 31 August 2007 moving perfectly normally and was not behaving as he had described in his affidavit, being cautious about sudden movements and being worried about being bumped.
86 The plaintiff denied he moved his neck very briskly in each direction in a perfectly normal manner, saying that when he looked to the left he actually turned his body in the car seat to look over his left shoulder.
87 When it was suggested he walked briskly in the second video taken on 1 October 2007, the plaintiff explained that he had been encouraged to do so by his neurosurgeon.
88 It was also suggested to the plaintiff that he walked in a normal manner briskly when he attended the laundromat on 4 June 2013. The plaintiff said he noticed he was very stiff and he was using mostly his body to turn left and he was limping a bit. He did not suggest his neck made him limp; it was just a tightness on that side.[19]
[19]T44
89 When it was suggested to the plaintiff that he used his left hand to open the laundromat door and he then closed it very swiftly with that arm, he explained he was carrying a bag in his right hand and he would normally use his right hand.
90 In re-examination, the plaintiff explained that he was rubbing his arm in the first film to relieve his pain. He found that an effective means of pain relief, stretching and rubbing it. At the end of that film he was shown stretching his fingers out to relieve the stiffness in his hand from pins and needles.[20]
[20]T51
91 When the plaintiff owned a car, after driving for about five minutes he would be in a fair amount of pain in his neck and shoulder. He twists his neck to the right but he turns his body when he has to look to the left. He would have driven at most half and hour to an hour in the last six months that he had a car.
92 The plaintiff carried the x-rays in his right hand only as they were too heavy to carry in the left.
Lay evidence
93 The plaintiff’s wife, Lisa Farley, swore an affidavit on 27 June 2013. She has known the plaintiff for about seventeen years.
94 Prior to the incident, the plaintiff was an active and capable man enjoying playing active games with the children and doing house and handy work and car maintenance.
95 Since the incident, the plaintiff has continued to complain to her of neck pain going into his left upper limb. He complains of numbness and lack of sensation in his fingers.
96 Since the incident, she has observed the plaintiff experiences pain and restrictions in his neck, left shoulder and arm and he continues to complain of headaches. She has observed that he experiences exacerbated neck pain with twisting or turning and with activities such as lifting and sitting down for long periods. He often adjusts his posture and will rub his neck and left shoulder and arm to alleviate the pain. He tends to grimace in pain, particularly with neck movements.
97 Since the incident, the plaintiff has tended to avoid carrying anything heavy.
98 Since the incident, the plaintiff has trouble sleeping at night and he tends to be tired and lethargic the next day and often sleeps during the day.
99 Since the incident, the plaintiff has increased difficulty performing everyday tasks, taking much longer to do basic things such as getting dressed. He has increased difficulty and pain using his left arm. He seems to have lost strength in it. He has a tendency to drop things from his left hand. He tends to favour his right hand to do things.
100 Since the incident, Mrs Farley has seen the plaintiff suffering from increased neck and shoulder pain after driving. Thus, prior to selling their car, she tended to do most of the driving.
101 The plaintiff experiences increased pain doing tasks around the house. As a result, she does a lot of the shopping, cleaning, cooking and caring for the children. He tries to help. When he does, he has increased pain.
102 Since the incident, Mrs Farley has acted as the plaintiff’s carer, assisting him with dressing, gentle massage to his neck and shoulder and doing tasks, including mowing the lawn.
103 Prior to the incident, the plaintiff enjoyed playing active games with the children, playing football, basketball and cricket and performing jobs around the house, and car maintenance. However, since the incident, he has not undertaken these activities like he used to.
104 The plaintiff is no longer as active as he used to be and frequently gets frustrated and down and becomes withdrawn. He has a tendency to get upset much more easily.
105 The work injury has had a major effect on Mrs Farley and the plaintiff financially and she has observed he is often worried and anxious. He has lost contact with many of his friends and lost his enjoyment of life since the incident.
Claim documentation
106 The plaintiff submitted a Claim for Compensation in February 2005, setting out the incident had occurred when putting a medium-sized box into a storage area, he tripped on something, falling headfirst, striking his forehead violently. Pre-injury he worked 38 hours per week earning $15 an hour, totalling $577. This was confirmed in the employer’s form.
107 There was a further Claim Form signed by the plaintiff on 7 April 2007 relating to the same injury. The plaintiff described, while carrying a box, he tripped over a pump and fell headfirst into a storage area. He described his injuries as chronic pain, neck and left shoulder, and chronic migraines.
108 The plaintiff lodged a claim for impairment benefits in September 2009 relating to the cervical spine and left upper extremity.
Investigations
109 Dr Wang organised an MRI scan of the plaintiff’s cervical spine in August 2007. It was reported there were mild mid-cervical degenerative changes with minimal posterior disc bulging between C2, C3 and C5‑6. There was no cervical cord or nerve root compression.
110 Dr Wang organised a CT scan of the plaintiff’s cervical spine in 31 January 2007, after which it was reported no significant abnormality was demonstrated. There was a further CT scan of the brain with similar findings in March 2007.
111 Mr Cocking, physiotherapist, organised an x‑ray of the plaintiff’s cervical spine in April 2007.
112 Dr Wang organised a CT scan of the plaintiff’s cervical spine in May 2007. There was no bony injury identified. The C1 vertebra appeared intact, as did the dens. There was no disc protrusion seen, apart from a very minor left paracentral disc bulge at C3‑4. There was no bony encroachment of the spinal canal or neural exit foramina. The facet joints were preserved throughout.
113 Mr Mangos organised an MRI scan of the plaintiff’s cervical spine in March 2012. It was reported there were multiple disc osteophyte complexes demonstrated within the cervical spine. That did not result in any significant cord compression or focal cord signal change to suggest the presence of compressive myelopathy. The neural exit foramina remained adequate.
114 There was an MRI scan of the plaintiff’s left shoulder organised by Mr Mangos in March 2012. It was reported there was no evidence of a rotator cuff tear. However, there was mild tendinopathy demonstrated involving the distal subscapularis tendon. A small volume of subacromial-subdeltoid bursal fluid was noted in the setting of a mildly degenerative acromioclavicular joint. There was mention of lateral downsloping acromion and it was noted that the changes may represent a degree of impingement. Clinical correlation was suggested.
The Plaintiff’s treaters
115 Dr Wang, the plaintiff’s general practitioner, provided a detailed report in July 2013.
116 The plaintiff first saw Dr Wang on 2 February 2005, five days after an injury where he tripped after having stepped over something while carrying a box at work. His left foot was caught on a water pump, and he fell forward, hitting his forehead against a trolley wheel, with his neck hyper-extending. He lost consciousness, and there was a laceration on his forehead.
117 The plaintiff next saw Dr Wang on 15 December 2006, complaining that neck pain was persisting, radiating to the left shoulder. The plaintiff was referred to a neurologist in February 2007 and to Cedar Court for function assessment in March 2007. He was also referred to Mr Cocking for physiotherapy.
118 The plaintiff was assessed at Epworth Rehabilitation in Dandenong. Headache and neck pain still fluctuated, and a cervical MRI scan was organised in August 2007.
119 The plaintiff visited Dr Wang’s surgery regularly with neck pain, headache and shoulder pain from 1 March 2007 to 2008. Dr Wang noted sometimes the plaintiff felt headache and/or left finger numbness. Most of the time he was unable to drive, and needed strong analgesia, Oxycodone. Physiotherapy and hydrotherapy gave short-term relief.
120 The plaintiff’s symptoms were not significantly improved with the rehabilitation program which ended in April 2008. He was very depressed, with insomnia and anxiety, and was worried for his future, and, accordingly, was referred to Mr Haywood, psychologist, and Lovan was prescribed in July 2008.
121 Because of persisting pain with little response, the plaintiff was referred to Dr Gassin, musculoskeletal physician, whom he saw in March 2008. Dr Gassin found it difficult to ascertain the cause of the plaintiff’s pain. He suggested medial branch blocks which was undertaken by Dr Verrills in September 2008 with a positive result. A radiofrequency neurotomy “RFN” undertaken in November 2008, resulted in a significant improvement of neck pain for six months.
122 From 2009 to April 2012, the plaintiff complained of intermittent headache, constant neck pain, left shoulder and left arm pain. He was reviewed every one to three months. He requested Panadeine Forte for his pain and he was undergoing continuing physiotherapy.
123 Because of his ongoing pain, the plaintiff was investigated with a CT scan of the cervical spine in August 2011. This investigation did not show any cervical spinal disc protrusion at any levels. The plaintiff had a series of MRI scans arranged by Mr Mangos in 2012.
124 The plaintiff has been treated with Lovan, 20 milligrams daily, for the last several years.
125 Dr Wang thought the incident was a significant contributing factor to the plaintiff’s condition.
126 Dr Wang diagnosed chronic neck pain and headache with brain concussion and a suspected cervical spine injury. He also diagnosed shoulder and wrist tendinopathy and an Adjustment Disorder with Mixed Anxiety and Depression.
127 Current treatment for the chronic neck pain, headache, left shoulder and left wrist pain involved self-exercise and physiotherapy with Panadeine Forte when needed. In terms of the psychiatric condition, the plaintiff was prescribed Lovan, 20 milligrams daily, and regular psychological counselling.
128 Dr Wang thought, in terms of prognosis, it was very difficult to determine the consequences. He noted there was no evidence the pain could disappear in a short period of time. There are also not any effective treatments or therapy at the time being, including the RFN, and he thought the pain may keep fluctuating in the future.
129 Dr Wang thought obviously the plaintiff was unfit for pre-injury duties in the future. He thought he was unfit for any labour work at the time being. He thought it uncertain when the plaintiff would be able to do some part-time work of a suitable light duty, for example some office work, while the pain was less intense and he was able to drive longer.
130 Accordingly, Dr Wang thought the plaintiff may need retraining to help him return to the workforce; otherwise he would be totally disabled permanently. He thought the plaintiff may need another assessment by a multidisciplinary team for the future.
131 The plaintiff was referred to Monash Neurology by Dr Wang in July 2012 with a long history of depression and headaches dating from the incident. It was noted the brain MRI scan of March 2012 showed some possible abnormalities and that was the reason for the referral.
132 The plaintiff told Professor Thyagarajan at Monash that before the incident, he did not have headaches, but since then, the headaches had a vice-like pain, not throbbing, particularly in the neuro-orbital and occipital distribution without nausea or sura, and also a separate pain which was a shooting left occipital pain that travelled into the shoulder and the arm.
133 Professor Thyagarajan did not believe they were migrainous and that was relevant, because sometimes T2 hyper intense lesions of this type are seen in migraines.
134 Professor Thyagarajan noted a raised blood pressure on examination and otherwise a normal examination of the neurological system and no cerebellar signs.
135 Professor Thyagarajan thought the MRI signal changes were quite non-specific. However, the possibility remained that the plaintiff had mild hypertension and he would recommend strongly that his blood pressure be checked again when he was in a more relaxed state, and if he had sustained hypertension, then probably treatment was indicated with medication. He advised Dr Wang it would be prudent to keep an eye on the plaintiff’s cardiovascular risk factors such as his cholesterol.
136 Professor Thyagarajan did not believe the findings on MRI warranted any further investigation and he did not believe there was any relationship between those changes and the plaintiff’s minor head injury in 2005.
137 The plaintiff was referred to physiotherapist, Nicholas Cocking, in March 2007. As of April 2008, Mr Cocking thought the plaintiff was capable of returning to some of his pre-injury duties. He noted the plaintiff had experienced significant improvement to his condition and the main factor preventing a return to pre-injury duties was his lack of concentration due to severe headaches. He anticipated a return to work in late 2008 when the plaintiff had completed a gym program.
138 In his 2012 report, Mr Cocking noted that the plaintiff had RFN in November 2008 which was a great success, and that it was not until the middle to latter half of 2009 that the plaintiff began to notice a return to symptoms.
139 Physiotherapy was instigated again in November 2011, following the earlier referral in March 2007 and ongoing treatment until 2009.
140 Mr Cocking noted that functional outcome measures indicated a current level of disability consistent with pre RFN levels. He diagnosed a chronic upper left cervical spine dysfunction directly attributed to the incident.
141 Mr Cocking through the plaintiff had a work capacity. Currently, it was not for pre-injury duties but for restricted duties, as the plaintiff could not drive for long periods, and his lifting capacity was reduced. Mr Cocking noted several employment opportunities had been outlined in Dr Mutton’s July 2011 report that was appropriate for the plaintiff’s current presentation.
142 With the remarkable RFN result, Mr Cocking strongly recommended the plaintiff have a repeat procedure.
143 Dr Gassin reported in June 2008 following an examination in March of that year when the plaintiff reported persistent left-sided neck pain since the incident.
144 Dr Gassin thought it was difficult to ascertain the cause of the plaintiff’s persistent pain but he considered diagnostic blocks would be of value in determining whether it was arising from the third occipital nerve or the facet joints.
145 Dr Verrills undertook a left third occipital nerve and C3‑4 medial branch block on 16 September 2008. He performed a control block on 21 October 2008. In his view, a significant component of the plaintiff’s pain in all three regions – being head, neck and shoulder – arose from his left C2‑3 and C3‑4 facet joints. In view of his positive control medial branch block, Dr Verrills then sought funding for RFN, which was undertaken on 28 November 2008, which he thought appeared to be successful.
146 In his report of June 2010, Dr Verrills noted while one might expect the plaintiff to have recurrent pain, he believed that even when the plaintiff was at his worst, he indicated at the clinic that he was only slightly limited in many of his activities of daily living.
147 In November 2013, Dr Bates from the Metropolitan Spinal Clinic wrote to CGU requesting he proceed to medial branch blocks of the left C2-3 and C3-4 regions in an attempt to identify the origin of the plaintiff’s pain and devise an appropriate management plan for him.
148 Sharon Anderson, psychologist, reported in August 2012. The plaintiff first presented in April 2011 and as of the date of her report, he had attended eight times.
149 The plaintiff reported symptoms of depression including insomnia, poor concentration, poor memory, irritability and low libido.
150 Using the Beck Anxiety Inventory, results indicated severe depression, severe anxiety, severe psychological distress and symptoms of Post-Traumatic Stress Disorder (“PTSD”).
151 Ms Anderson diagnosed a Pain Disorder with psychological factors and a general medical condition and an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
152 Therapy had focussed on pain management, anger management and cognitive behavioural therapy.
153 Given the amount of pain the plaintiff reported experiencing and the level of depression and anxiety he was experiencing, together with poor impulse control and angry feelings, Ms Anderson thought he was not capable of returning to full time pre-employment.
154 Ms Anderson noted the plaintiff had become socially withdrawn and was no longer able to engage in pre-injury recreational activity.
155 The plaintiff’s psychological condition, in her view, was closely related to the pain he was experiencing, and because the pain was chronic and there was little likelihood of permanent relief, Ms Anderson thought it unlikely that the plaintiff would return to full time or part time employment, and his enjoyment of life was significantly and most likely permanently compromised.
Medico-legal evidence
156 In 2008, the Medical Panel considered the plaintiff was suffering from neck and left shoulder girdle pain due to the residual effects of a soft tissue injury to the neck relevant to the claimed neck pain radiating to the left shoulder and arm injury.
157 In the Panel’s opinion, the proposed medical services, namely, third occipital nerve and medial branch blocks at C3 and 4 to help determine if the pain is arising from the upper cervical facet joints, are appropriate and adequate for the plaintiff’s injury and condition.
158 Mr Kossmann, orthopaedic surgeon, examined the plaintiff in March 2012.
159 The plaintiff then complained he had pain in his neck on the left radiating into the left shoulder and arm. In particular, the third and fourth fingers of his left hand were affected.
160 Mr Kossmann diagnosed pain and movement restrictions of the cervical spine on the basis of multidisc osteophytes complexes of the C3-4, C4-5 and C5-6 levels without cord compression or compressive myelopathy, left shoulder pain on the basis of mild tendinopathy of the distal subscapularis tendon and anxiety/depression.
161 Mr Kossmann thought the plaintiff would suffer pain in his cervical spine for the rest of his life. He did not believe he was then a candidate for surgery. He thought the plaintiff has to undergo maintenance therapy in the form of physiotherapy, hydrotherapy and possibly acupuncture to ease his cervical spine problem. Conservative treatment was required for the left shoulder.
162 Mr Kossmann thought the plaintiff should not engage in any work where he had to repeatedly use his upper extremities, particularly if he had to lift above shoulder and head height. He had to take care that he was not engaged in any employment that put a strain on his cervical spine.
163 Mr Kossmann thought the plaintiff may have to undergo a vocational assessment to find out the work for which he would be best suited.
164 In Mr Kossmann’s view, the plaintiff does not have the capacity for unrestricted, manual or pre-injury employment. Due to the formation of osteophyte complexes in the cervical spine at multiple levels, Mr Kossmann thought the plaintiff would be limited in terms of physical work. Further, he thought he should not engage in any work where he was required to lift more than 10 kilograms or use his upper extremities and repetitive manner.
165 Mr Kossmann noted the plaintiff’s difficulties in domestic, social, recreational and sporting activities would last for the foreseeable future.
166 Dr Blombery, consultant physician in vascular disease, saw the plaintiff in March 2013.
167 On examination, the plaintiff appeared somewhat depressed. There was no significant tenderness in the neck, shoulder or left arm but he said there was pain deep in those areas. The left hand was a little redder than the right but there was no difference in temperature.
168 Reflexes in the upper limbs were intact and symmetrical.
169 In the left shoulder, there was a full range of movement but the plaintiff appeared to have difficulty in sustaining this arm in an abducted position because of weakness. There was reduced light touch sensation all the way down the left arm.
170 In Dr Blombery’s opinion, the plaintiff’s current pain is a consequence of previously asymptomatic degenerative changes becoming symptomatic as a consequence of the injury. There also appeared to be some pain derived from the facet joints at C2, C3 and C4 levels as the plaintiff responded quite well to RFN in that area and it would be worthwhile repeating the procedure.
171 Dr Blombery noted the plaintiff had some minor changes in temperature and colour but he did not feel there was a major component of CRPS Type 1 present.
172 Dr Blombery thought all of the plaintiff’s injury was physical in nature and although he had some secondary depression, that was a secondary phenomenon rather than being an initiating phenomenon.
173 Dr Blombery thought the prognosis was poor but with no significant change in the plaintiff’s level of disability in the foreseeable future. In his view, the plaintiff had no capacity now or in the future for pre-injury employment and the injuries to his neck and arm had had a very significant impact on his ability to remain in employment.
174 Dr David Middleton, occupational physician, examined the plaintiff in April 2012 and more recently in July 2013.
175 On re-examination, the plaintiff was rather glum and depressed. He remained unfit without obvious muscular wasting or deformity. Dr Middleton noted the plaintiff tended to avoid elevation of the left shoulder and arm and vocalised his discomfort on movement.
176 Dr Middleton noted the rounding of shoulders greater on the left than the right with continuing left shoulder depression of about 2 centimetres. There was clearly loss of muscular tone in the left upper trapezius and subscapular areas.
177 Tendon reflexes in the upper limbs were brisk and equal. Clinical assessment of sensation appeared normal and grip strength was reduced on the left (to a greater extent than on the earlier assessment). There were significant restrictions in flexion and extension and movements to the left of the cervical spine. There were normal results in relation to movement of the shoulders.
178 Dr Middleton thought the plaintiff suffered a chronic straining of the cervical spine aggravating underlying previous asymptomatic degenerative disease, in particular involving the C3-4, C4-5 and C6-7 levels, and discogenic pain extending down the left and occipital headaches as a result of the left third occipital nerve and posterior columns of the upper cervical spine.
179 Dr Middleton thought the plaintiff also suffered with mild to moderate concussion associated with loss of consciousness, post concussive vascular type headaches.
180 Dr Middleton noted there remained the issue of brain damage which, despite the advice of Dr Das to have a neuropsychological assessment, was not performed.
181 Dr Middleton thought the plaintiff suffered with a significant soft tissue injury to the left side of his neck and shoulder and suffered with a Chronic Adjustment Disorder with significant depression and ongoing anxiety.
182 Dr Middleton thought the plaintiff no longer had the capacity to undertake manual or pre-injury employment in an unrestricted manner on a full or part time basis, addressing not only his current capacity but taking into consideration more particularly his background, education and prior work experience.
183 Dr Middleton thought the prognosis of the plaintiff’s work-related injury was likely to continue for the foreseeable future by significantly impeding his capacity for work and limiting his enjoyment of life.
184 Having fully assessed the 2007 vocational assessment, Dr Middleton thought it should not be relied upon. In his view, none of the proposed suitable employment options had addressed the actual physical requirements of the job or made appropriate ergonomic assessment of the inherent requirements of the job. Noting that the plaintiff had, in particular, severely limited postural and physically active endurances, Dr Middleton thought those vocational options, noting his transferable skills in each of area, and on the balance of probabilities, were unsuitable even in generic terms.
185 Dr Middleton thought the plaintiff no longer had a reliable physical capacity and was limited to less than normal full time work. From a purely physical point of view, he thought the plaintiff may attend work between one and four hours in any one day, two to four in non consecutive days in any one week, recognising his attendance at work could not be relied upon. Should such a flexible arrangement be available, he would recommend the plaintiff attend work no more than fifteen hours in any one week.
186 Dr Middleton addressed himself exclusively to physical injuries when considering questions and excluded any psychological contribution.
187 Professor Myers examined the plaintiff in June 2013.
188 On examination, there was a full range of rotation and natural movement of the neck to the right but practically no rotation or lateral movement to the left. There was a normal range of shoulder movement and no loss of power in the long muscles or intrinsic muscles of the left hand.
189 The plaintiff indicated decreased sensation in the little finger and ulnar side of the ring finger in the distribution of the ulnar nerve.
190 Professor Myers thought the plaintiff had damaged the intervertebral discs in the upper cervical spine causing nerve root compression with referred pain to the head and left shoulder.
191 In Professor Myers’ view, the plaintiff has no capacity for full time unrestricted manual or pre-injury work. He doubted the plaintiff would ever get back to employment. There would also be restriction of social, recreational and domestic activities.
192 Professor Myers doubted the plaintiff would ever be able to cope with any of the jobs suggested in the 2007 vocational report due to an inability to concentrate, as would be required due to ongoing pain. After successful treatment with radiofrequency ablation, it may be possible for him to consider returning to some form of a clerical nature. Although he did not think the plaintiff would be able to cope with any work at the present time, if the radiofrequency was successful, the plaintiff might well be able to resume, initially on a half-day basis, with a view to attempting to full time employment.
193 Professor Myers thought the plaintiff’s condition was quite genuine, that he had showed a marked improvement after nerve blocks and radiofrequency treatment.
194 The plaintiff was examined by Dr Kaplan, psychiatrist, in April 2012.
195 The plaintiff advised he was deeply depressed, although he had been less so since taking Lovan.
196 On mental state examination, the plaintiff displayed obsessional character traits, describing his history in some detail. His thinking was characterised by a pre-occupation with his condition and its impact on his life. Otherwise speech, thinking and perception were normal. The plaintiff displayed a reduced range of motion and expressed intense frustration about his condition and physical limitation. His insight appeared unimpaired.
197 Dr Kaplan thought the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered the prognosis of the plaintiff’s psychiatric condition would be determined by the outcome of his physical condition and he was likely to remain prone to depression and anxiety as long as his pain persisted.
198 Dr Kaplan thought the plaintiff’s psychiatric condition, in particular his low frustration tolerance, impaired memory and concentration, and damaged self-esteem, was likely to have an impact upon his capacity to engage in his pre-injury employment or any other employment, although this capacity would largely be determined by his physical condition.
199 Dr Paoletti, psychiatrist, examined the plaintiff in July 2013.
200 On mental state examination, the plaintiff’s speech was of normal to fast rate, soft to normal volume and somewhat anxious with little repetition. Affect at the interview was anxious and depressed with limited reactivity consistent with reported vague mood state. The plaintiff reported irritability.
201 Thought stream was normal. Form was coherent and content revealed depressive ideation with no classic phobias or obsessions or delusions.
202 There was no suggestion of hallucinations or illusions and no flashbacks. Concentration was a little reduced. There were no inherent deficits of memory but it may be affected by concentration. The plaintiff had reasonable insight into his illness.
203 Dr Paoletti thought the plaintiff had an Anxiety Disorder, not otherwise specified; Depressive Disorder, not otherwise specified and a Pain Disorder associated with both psychological factors and a general medical condition.
204 Dr Paoletti thought the plaintiff was pervasively and severely affected by his psychiatric problems and had no sustainable capacity in the open job market, even on psychiatric grounds alone, for the foreseeable future.
205 Dr Paoletti thought, in view of the persistent pervasive and very considerable symptoms of anxious and depressive type in his clinical condition, the plaintiff had a severe mental disorder, although he deferred to the Court’s expertise in that regard.
Medical certificates
206 On 17 August 2012, Dr Wang certified the plaintiff unfit for any duties from August to September 2012, detailing the injury/disease as head and neck injury at work and the diagnosis of headache, neck and left shoulder pain. He also noted that the plaintiff’s neck pain was recurrent and he was unfit to return to any duties. Depression was also worse at that time.
207 There were similar certificates from September 2012 to January 2014.
The Defendants’ lay evidence
208 Peter Sanderson, general manager of the first defendant, swore an affidavit in May 2011.
209 The plaintiff spoke to him on the said date and reported he had sustained injury, having tripped over a roller door chain which had caused him to fall. At no stage did the plaintiff mention he had tripped over a pump. Mr Sanderson denied the plaintiff asked him whether he could move a pump in the ground so he did not need to step over it when cleaning the storage area.
210 The first defendant’s records indicate that as a consequence of his alleged injuries, the plaintiff was absent from work on the said date, 2 to 4 February, 10 to 11 February, 14 February and 23 March 2005.
211 Following the alleged injury, the plaintiff returned to work performing modified duties and subsequently returned to usual duties.
212 The first defendant denied the allegation that the plaintiff was required to resume his normal duties as a result of an employee shortage. To the contrary, Mr Sanderson had received verbal advice from the plaintiff’s physiotherapist that he was fit to resume his usual duties.
213 The first defendant denied that the plaintiff informed it that he was struggling to perform his duties as a result of the injuries alleged. The plaintiff resigned from employment on 4 April 2005.
Medico-legal evidence
214 Mr Grossbard, orthopaedic surgeon, examined the plaintiff in May 2005.
215 Mr Grossbard thought the plaintiff had sustained an injury to which employment was a significant contributing factor and it had resulted in a degree of incapacity for employment, particularly for his previous occupation. He anticipated improvement over the next two to three months and then employment would be unrestricted.
216 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff in May 2007.
217 Mr Kudelka diagnosed Post Concussion Syndrome and a soft tissue injury to the neck. He then thought the plaintiff was not fit for pre-injury duties. He could not predict how long the plaintiff’s symptoms would to take to lessen. He thought the condition was due to the incident.
218 Associate Professor Balla, consultant neurologist, examined the plaintiff in October 2007.
219 Associate Professor Balla thought the plaintiff had soft tissue injuries with possible musculoskeletal strain. It was a minor head injury but some headaches could persist for some months after such an injury.
220 Associate Professor Balla then thought the plaintiff was fit for appropriate employment that did not involve heavy lifting or prolonged postures.
221 On re-examination in March 2008, the plaintiff advised he had improved over the last five months or so and had fewer headaches and less pain, although some degree of pain in the left side of the neck and shoulder was likely to persist in the future.
222 Associate Professor Balla thought the plaintiff’s ongoing symptoms in the neck and shoulder related directly to the incident and original injury of soft tissue damage to the cervical spine and shoulder. He thought ongoing headaches were unlikely to be related to the original injury and may have other, such as psychological causes rather than a direct physical injury impact.
223 He then thought the plaintiff was fit for employment provided it did not involve long periods of driving or significant amounts of heavy lifting or carrying. He noted there may be limitations on account of the plaintiff having been a bankrupt but that was not a medical matter.
224 Dr James Rowe, specialist occupational physician, examined the plaintiff in July 2008.
225 Dr Rowe then thought it would be reasonable for the plaintiff to undergo the median nerve branch blocks because at that time none of the treatment offered had made any difference to his condition. He thought the plaintiff would also be benefit from psychological counselling.
226 Dr Fish, consultant occupational and environmental physician, examined the plaintiff in August 2010.
227 Dr Fish thought the plaintiff was suffering neck and left shoulder pain due to the residual effects of the soft tissue injury to the neck with referred symptoms to the left arm but without clinical evidence of radiculopathy. He thought the plaintiff also had left ulnar neuritis but that was not relevant to the claimed injury.
228 Dr Fish considered there was no separate intrinsic medical condition of the left upper limb or neurological, apart from the soft tissue injury to the neck with referred symptom.
229 Mr Nye, neurosurgeon, examined the plaintiff in 2009, 2011 and May 2013.
230 During re-examination in May 2013, the plaintiff demonstrated a flat affect suggestive of depression. The peripheral neurological examination did not reveal any wasting or weakness of upper limb musculature; all reflexes were present and symmetrical; there was a variable impairment of pinprick appreciation affecting the left arm and hand without an anatomical pattern, and notably light touch perception is preserved in all areas. The ulnar nerve was not irritable to palpation, lower limbs were normal and sensorium was intact.
231 Spinal examination revealed retained cervical lordosis with no spasm of paravertebral musculature and a modest restriction of movement.
232 Following this re-examination, Mr Nye again concluded that in the incident a mild, concussive head injury was sustained. He considered recovery had occurred from that aspect of the injury. He remained of the view the plaintiff had developed a psychological condition and he should be assessed by a psychiatrist.
233 Mr Nye noted there was some evidence on MRI of mild cervical degeneration, which he considered was age related and constitutional in origin and unassociated with any neurological sequelae, radiculopathy or myelopathy.
234 In consideration of the mild, cervical, degenerative disease, Mr Nye thought some restrictions in an occupational situation would be required with restriction of use of the arms in an overhead or outstretched manner and a lifting limit of five kilograms would be appropriate and such should not be conducted to above shoulder height. With appropriate restrictions, he thought the plaintiff should be able to function with a normal time commitment.
235 Mr Nye disagreed with Mr Kossmann’s comments that the plaintiff’s cervical spine condition had a profound effect upon his social, domestic, recreational and sporting activities. He did not agree with Mr Kossmann’s poor prognosis.
236 Mr Nye commented that to his interpretation, Mr Kossmann’s report did not claim a direct nexus between the injury under consideration and the plaintiff’s development of a cervical degenerative disease. Mr Nye thought the nexus did not exist.
237 Dr Mutton, occupational physician, examined the plaintiff in 2009, 2011 and most recently in June 2013.
238 On most recent re-examination, the plaintiff complained of neck pain. There was altered sensation in the left upper limb through the fourth and fifth digits. There was reduced left rotation of the cervical spine and reduced left lateral flexion. There were good reflexes and power but reduced hand grip strength.
239 Dr Mutton commented that clinically the plaintiff presented as quite well but there was some slight loss of left rotation and left lateral flexion in the cervical spine and his predominant symptom was in fact pain.
240 Dr Mutton thought there appeared to be a functional component on presentation, in particular the plaintiff’s inability to recall certain aspects of his history from 2005 to 2006.
241 Dr Mutton expected the plaintiff should be able to return to his pre-injury duties as previously stated; however, he acknowledged this was confirmed in his letter to CGU in December 2011 that the effects of a RFN may wear off and the symptoms may recur.
242 Dr Mutton also thought it was noteworthy that the August 2007 MRI did identify significant degenerative changes in the cervical discs and that these may contribute to the plaintiff’s current clinical presentation, in addition to any facet joint problems that he may suffer from.
243 Dr Mutton commented, therefore, whilst the plaintiff may suffer from symptoms, it was difficult to relate those to the incident.
244 Having seen Dr Middleton’s report, Dr Mutton thought there may well be some interrelationship between chronic pathology and cervical spine and cervico and migraine type headaches. He confirmed what was surprising was the degree of pain and disability from which the plaintiff suffered.
245 Dr Mutton noted that certainly at the time of his most recent review, the plaintiff’s predominant symptoms related to his headaches, retro orbital pain, pain into the left eye, and pain and discomfort from the left shoulder into the fingers. The relief from his symptoms with RFN would certainly implicate that much of the plaintiff’s pain was facet joint pain and he may well benefit from a repeat of that procedure.
246 Mr Ian Jones, orthopaedic surgeon, first examined the plaintiff in March 2012. On re-examination in April 2013, the plaintiff reported that constant neck pain had not improved since the initial examination.
247 Following re-examination, Mr Jones noted the plaintiff complained of disproportionate symptoms of left-sided neck and intermittent arm pain. Whilst some mild degenerative changes were most pronounced at C3-4, that may account for some of his neck pain symptoms but the plaintiff’s complaints of neck and arm pain and the limitations he described with the impaired function affecting his neck and left upper limb were out of all proportion to the underlying degenerative pathology.
248 Considering the nature of the plaintiff’s neck injury and length of time since the work injury, Mr Jones did not believe neck or arm complaints were work related.
249 Mr Jones did not think the plaintiff was capable of undertaking his pre-injury employment due to the required amount of lifting and carrying involved. He thought the plaintiff could undertake suitable employment, including work of a packaging or processing nature where there is no requirement to engage in extremes of heavy pushing, pulling or lifting.
250 Mr Jones differed from Mr Kossmann’s view where he implicated the three levels in the injury rather than relating to multilevel degenerative disc disease as Mr Jones thought was the case. He was critical of Professor Myers’ opinion in that it was based mainly on the plaintiff’s symptoms of stress.
251 Professor Stephen Davis, neurologist, examined the plaintiff in April 2012.
252 Whilst not assessing cervical movement formally, Professor Davis noted that spontaneous movements appeared normal and there were no neurological abnormalities in the upper or lower limbs; specifically no features of radiculopathy or myelopathy.
253 Professor Davis thought the plaintiff suffered a mild head injury and there were no features present to support the diagnosis of Acquired Brain Injury. He noted the two blackouts on the said date. Although the plaintiff mentioned some problems with memory and concentration, Professor Davis thought those blackouts would not be consistent with a head injury of any significance, and that the plaintiff’s difficulties with memory and concentration would reflect psychological matters.
254 Professor Davis noted the plaintiff clearly had a cervical injury in the incident with pain mainly in the neck and left shoulder but variable left arm pain. He noted although one would think of the diagnosis of cervical radiculopathy and brachial neuralgia, serial imaging of the neck with CT and MRI scans had not shown any major pathology in the cervical spine (other than the expected age-related changes of cervical spondylosis) and certainly no evidence of nerve root compression or even significant contact.
255 Professor Davis thought the plaintiff did have soft tissue injuries to the neck and possibly left shoulder but he deferred to an orthopaedic surgeon in relation to the radiological changes in the left shoulder and whether they were materially relevant.
256 Professor Davis commented it was difficult to understand the left arm symptoms or the very protracted duration of the neck symptoms. One would normally have expected a good prognosis and he thought psychological factors were playing a very large part in the persistence of the symptoms with a rather complex pain syndrome due to substantially psychological factors.
257 Professor Davis considered the best treatment would be to get the plaintiff back into work and improve his sense of self worth and he would need vocational advice. He thought the plaintiff could cope with some labouring type duties or other work for which he was suitably trained. One would initially recommend this did not involve heavy weights and the plaintiff could have rest breaks.
258 Professor Davis thought the type of accident and the normality of the imaging of the cervical spine made it very difficult to understand the protracted duration of symptoms and one was left with the impression psychological factors were playing a dominant role. That was not in any way to suggest the plaintiff was not completely genuine but the focus of treatment in Professor Davis’ view should be of a supportive psychological nature and strong encouragement to make a graduated return to work.
259 The plaintiff first saw Dr Das, psychiatrist, in December 2009.
260 Dr Das diagnosed an Adjustment Disorder with Depressed Mood of mild severity. He thought the condition appeared to have been precipitated in the context of loss of the plaintiff‘s employment and consequent financial instability.
261 Dr Das thought the plaintiff must have a neuropsychological assessment done, although it may not be much informative or conclusive as it possibly could have been a few years ago. Dr Das then thought the duration of the plaintiff’s ongoing treatment needs could not be predicted. Purely from a psychiatric perspective, the plaintiff could probably return to work in the next three months once treatment recommendations had been carried out and there was some variation in his medication.
262 Dr Das re-examined the plaintiff in February 2012.
263 On examination, there was no sign of any obvious physical discomfort or any problems maintaining level of concentration. The plaintiff was pre-occupied with his pain experience and expressed his sense of frustration securing approval for the treatment he was seeking.
264 The plaintiff had a rather irritable affect of restricted range and reduced reactivity. He complained of lack of motivation and thought content primarily revolved around pain experience and the associated limitations he experienced. No psychotic symptoms were evident and his insight was otherwise normal.
265 Dr Das thought the plaintiff suffered from a condition of an Adjustment Disorder with Depressed Mood developed and sustained in the context of a Chronic Pain Disorder associated with psychological factors.
266 Dr Das considered the plaintiff should be referred to a consultant psychiatrist for a review of his antidepressant therapy and for consideration of appropriate psychotherapy.
267 Dr Das thought the condition was chronic in the context of the prevailing circumstances around the plaintiff’s claims-related process. In his view, the condition was however not a cause for the plaintiff’s current work incapacity. He thought there may well be personality factors, including an element of abnormal illness behaviour impacting upon the plaintiff’s current presentation.
268 Dr Kornan, psychiatrist, examined the plaintiff in August 2010.
269 The plaintiff appeared to be someone of rather forceful and rigid temperament and Dr Kornan gained the impression he had some significant obsessive characteristics but he was quite cooperative. There appeared to be some problems with memory and concentration. There was no disorder of perception. The plaintiff’s judgment showed some difficulties to his general presentation and his mood situation. There was some ongoing subjective distress, heightened mood features and some anhedonia.
270 There was evidence of some anxiety and depression. The plaintiff’s behaviour showed a man who was tense and had some depression and who now had problems with his self-confidence levels and self esteem. There were no psychotic features, delusions or hallucinations.
271 Dr Kornan diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered a Pain Disorder associated with psychological factors appeared to be commencing.
272 From a psychiatric viewpoint, Dr Kornan thought there was no limitation to the plaintiff’s daily activities of living. From a psychiatric viewpoint, he thought the plaintiff’s impairment had stabilised. From a psychiatric viewpoint alone, Dr Kornan thought the plaintiff was capable of working.
273 Dr Alan Jager, psychiatrist, initially examined the plaintiff in April 2012 and re-examined him in May 2013.
274 On re-examination, the plaintiff was downcast and had a sad and unreactive emotional tone. He spoke quietly. His thought stream was fluent and coherent but the content negative. There were no abnormal sensory perceptions. He was alert and attended well to the interview. He believed he was unwell.
275 Dr Jager diagnosed moderately severe Major Depressive Disorder. The plaintiff told Dr Jager he became unwell after the incident. The Major Depressive Disorder however emerged more recently in March 2008.
276 Dr Jager thought the plaintiff was currently unfit for all employment due to the severity of his condition.
277 Dr Jager thought the plaintiff’s living conditions aggravated his condition from a mild Major Depressive Disorder diagnosed in 2012 to moderately severe Major Depressive Disorder in 2013. They were significant but not the main contributing factors to his presentation.
278 Dr Jager noted Dr Paoletti’s opinion was largely consistent with the exception about causation and severity. Dr Paoletti inferred the plaintiff had a permanent severe illness. In Dr Jager’s opinion, the underlying work-related illness was at the mild end of the spectrum but was currently moderately severe due to non work-related factors.
279 Dr Jager saw the plaintiff again in December 2013. Following that examination, he reported that homelessness and poverty were the main causes of the plaintiff’s current presentation, which Dr Jager diagnosed as a Major Depressive Disorder. Dr Jager noted the plaintiff had some transferable skills that would allow him to undertake work. Although the plaintiff complained of terrible concentration and feeling exhausted, these problems were not evident on interview and he suspected the plaintiff’s functioning was somewhat superior to his description.
Certificates
280 Dr Wang certified the plaintiff unfit for any duties from June to October 2007 and thereafter until the end of 2008, fit for alternate duties according to plan. The plaintiff was certified fit for light duties with no heavy lifting (five kilogram limit) or moving, and he was unfit for any jobs except office work.
Surveillance
281 There was five and half minutes of film taken on 31 August and 3 September 2007. On the first morning at 8.52am, the plaintiff was shown walking his child to school. Later, he sat in his car using his mobile telephone in his left hand. The plaintiff then reversed, moving his upper torso fully to the left.
282 There was a further five minutes of film taken on 1 and 2 October 2007 where the plaintiff was shown walking along the street. At one time he was carrying a bag in his right hand. He appeared to walk normally.
283 There was thirty six minutes of film taken on 30 April and 4 June 2013. On the first date, the plaintiff appeared to be limping. He was holding a bag in his right hand. On the second date, the plaintiff was shown walking. He later he attended a laundromat, where he was seated for half an hour.
Summary of taxation returns
284 In the financial year 2003-2004, the plaintiff received a Government payment of $6,622, business income of $7,857, making a total income of $14,479.00.
285 In the financial year 2004-2005, the plaintiff earned $12,727 as a sales assistance and business income of $8,264, making a total income of $20,991.
286 In the financial year 2005-2006, the plaintiff earned $1,500.00 as a roof tiler and he received a Government payment of $4,794 and business income of $2,546, making a total income of $8,850.
287 In the financial year 2006-2007, the plaintiff earned $2,038 in the construction industry and he received a Government payment of $9,359, making a total income of $11,397.
Overview
Impairment of the cervical spine
288 It is not disputed the plaintiff suffered a compensable injury to his cervical spine in the incident.
289 The defendants accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[21] such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[21][2006] VSCA 171; T63
290 The plaintiff’s condition has been diagnosed as a soft tissue injury involving aggravation of previously asymptomatic degenerative disease in the cervical spine.
291 Whilst Dr Mutton thought there appeared to be a functional component in the plaintiff’s presentation and Mr Jones and Professor Davis noted the plaintiff’s symptoms were disproportionate to the pathology, counsel for the defendants did not really argue that the plaintiff’s cervical impairment lacked a significant organic basis, thus raising the matters recently addressed by the Court of Appeal in Meadows v Lichmore Pty Ltd.[22] It was submitted on the defendants’ behalf that it was more a case of the plaintiff exaggerating his symptoms. It was not really suggested that there was a Chronic Pain Syndrome, just the presence of pain.[23]
[22][2013] VSCA 201
[23]T63
292 Whilst counsel for the defendants also submitted that the plaintiff’s response to interventional treatment was coincidental, with a likely placebo effect,[24] I prefer the view of Dr Mutton, Dr Verrills, Dr Gassin, Dr Blombery and Professor Myers that the reported improvement indicated the involvement of facet joint in the plaintiff’s pain.
[24]T60, view of Mr Nye
293 Further, it was submitted that any work-related aggravation had ceased and any ongoing cervical pain was age-related and constitutional in origin. Neither Mr Nye nor Mr Jones gave any explanation for this “cut off” date. As counsel for the plaintiff submitted, one cannot accurately put a time on degeneration taking over from injury aggravation.[25]
[25]T82
294 There is no suggestion in this case that the plaintiff experienced any neck problems prior to the incident.
Credit
295 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[26]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[26](2010) 31 VR 1 at paragraph [12]
296 I found the plaintiff to be a truthful witness. He was not shown on film doing anything inconsistent with his stated level of disability and at times, his cervical movement, particularly to the left was restricted.
297 The plaintiff’s wife, Lisa, corroborated the plaintiff’s complaints and restrictions. She was not cross-examined.
298 Whilst some medical examiners have noted the plaintiff’s symptoms are disproportionate to his pathology, there is no suggestion the plaintiff is deliberately embellishing or exaggerating his symptoms.
299 Maxwell P, in Haden Engineering Pty Ltd v McKinnon,[27] noted that the assessment of pain will involve, among other factors, what the plaintiff says about his pain to the court and to doctors.
[27](supra) at paragraph [11]
300 The plaintiff continues to suffer constant fluctuating neck pain radiating to his left arm, shoulder and hand. He experiences a feeling of numbness in fingers and loss of strength in the left hand.
301 Cervical movement is restricted and the plaintiff has problems with prolonged postures. He has difficulty lifting, carrying, pushing and pulling with his left hand.
302 In terms of treatment, the plaintiff underwent physiotherapy with Mr Cocking from 2007 to 2012. Treatment from a musculoskeletal physician has taken the form of nerve blocks and RFN to date and further treatment of this nature is contemplated.
303 The plaintiff continues to require a large quantity of painkilling medication, taking up to eight Panadeine Forte a day and two Ibrufen. This medication gives him limited relief.
304 In Kelso v Tatiara Meat Company Pty Ltd,[28] Dodds-Streeton JA noted that the chronic pain was a prominent feature of the appellant’s case. Her Honour noted that the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[28][2007] VSCA 267 at paragraph [199]
305 The plaintiff has difficulty sleeping due to his neck pain. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[29]
“[It was] ... a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[29](supra) at paragraph [45]
306 The plaintiff continues to be restricted in activities with his young son and his general ability to help in and outside the house.
307 Save for Dr Mutton, who thought the plaintiff could work in pre-injury duties unless the RFN wore off, the consensus of medical opinion is that the plaintiff, is not fit for unrestricted manual work as a result of his neck condition.
308 In my view, this restriction is permanent. Whatever happens with any future RFN, it is not likely this situation would alter.[30]
[30]T80
309 I accept that the plaintiff’s neck pain and restrictions, particularly in relation to his employment, are consequences which meet the test of seriousness.
310 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
Loss of Earning Capacity
311 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
312 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
313 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
314 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
315 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
316 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein - See Barwon Spinners Pty Ltd & Ors v Podolak.[31]
[31](supra) at paragraph [70]
317 I am therefore required to determine a “without injury” earnings figure. Submissions were made by counsel in this respect.
318 Counsel for the defendants submitted the “without injury” earnings figure, when one takes into account the plaintiff’s earnings three years before and three years after the injury, might only be something in the order of $15,000 given his poor employment history and low earnings.[32]
[32]T77
319 Counsel for the plaintiff put a higher figure based on what the plaintiff was capable of earning. At the time of the incident, he was earning over $500 a week; therefore, $30,000 is the appropriate “without injury” figure.
320 In my view, $30,000 most accurately reflects the plaintiff’s earning capacity but for his neck injury.
321 To establish the requisite loss of 40 per cent, the plaintiff must show that he does not have the capacity to earn in excess of $18,000 per year or $350 per week.
322 Taking into account all the evidence in this case, I am not satisfied that the plaintiff has discharged the onus in this regard.
323 Clearly, the plaintiff cannot do unrestricted manual work. Lifting restrictions would be required as would avoidance of heavy or repetitive duties.
324 However, the plaintiff has completed Year 12. His work experience, whilst manual in later years, also included seven years in retail. He was able to obtain some qualifications as a commercial pilot in the 1990s and did not complete that training for financial reasons. Although the qualification would be now somewhat outdated, the plaintiff was able to complete a Certificate of Computer Engineering in 2000.
325 I am not satisfied that after some retraining in a clerical or administrative position, the plaintiff would not be able to earn in excess of the rather low figure of $350 per week.
326 As of mid 2013, Dr Wang thought the plaintiff had a capacity for employment, after some retraining, with light part-time office work.[33]
[33]T68
327 In 2008, treating physiotherapist, Mr Cocking, considered the plaintiff was fit to resume some of his pre-injury duties, noting a significant improvement at that time. In April 2012, he thought the plaintiff had a work capacity for the jobs suggested by Dr Mutton in 2011 – ICT business and systems analyst, ICT support technician, sales assistant and general clerk.
328 Whilst he did not consider the plaintiff suitable for the jobs suggested by Dr Mutton, Professor Myers thought the plaintiff could return to some work of a clerical nature. Then, if the RFN worked, he could perhaps increase to full-time hours.
329 Dr Middleton thought the plaintiff had the capacity for non manual work, although not in excess of fifteen hours per week. Mr Jones would not place any restrictions on the plaintiff in terms of full-time work, save for activities requiring particularly demanding activity involving his neck.
330 Mr Kossmann, whilst imposing restrictions on the plaintiff’s capacity to engage in physical work, thought the plaintiff may have to undergo a vocational assessment to find out the work for which he was best suited.
331 Dr Blombery did not comment on the plaintiff’s capacity for suitable employment save to say that his injuries had a very significant impact on his ability to remain in employment.
332 Professor Davis thought the best treatment would be to get the plaintiff back into work and improve his sense of self worth and he would need vocational assistance.
333 The plaintiff himself is hopeful that if he undergoes a further RFN, he “may be more than likely to try and pursue working again”.[34] He is not looking for work as much anymore as he and his family are moving around and does not have a permanent base.
[34]T38
334 Taking into account all the evidence, I am not satisfied that the plaintiff, a relatively educated man with transferable skills, will suffer the requisite loss of earning capacity after he has rehabilitated or retrained. After retraining, I do not accept he would not have the capacity to earn $350 per week on a permanent basis.
335 The plaintiff has therefore no discharged the onus pursuant to Section 134AB(38)(g) of the Act.
336 Accordingly, the plaintiff’s application for leave to bring proceedings for damages for loss of earning capacity is dismissed.
337 Having granted leave to bring proceedings for damages for pain and suffering in relation to the cervical spine, I am not required to consider the application in this regard relating to an organic brain impairment or psychiatric impairment.
338 In any event, no submissions were made on the plaintiff’s behalf in relation to any organic brain impairment. This was not surprising given the lack of medical evidence supporting any ongoing problems in this regard.
339 The application for loss of earning capacity relating to any organic brain impairment is therefore dismissed.
340 It is difficult to assess the level any of present psychiatric impairment.
341 The plaintiff has never received any psychiatric treatment. He has been prescribed Lovan for depression, although he told Dr Paoletti this was prescribed by his rheumatologist for fibromyalgia.
342 The plaintiff underwent counselling with Michael Haywood in 2008 and then with Sharon Anderson for a year from 2011.
343 Psychiatrists, Dr Kornan, who saw the plaintiff in 2010, and Dr Kaplan and Dr Das, who saw him in 2012, diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
344 Dr Kaplan thought the plaintiff’s employment capacity was largely determined by his physical condition. Dr Das did not think the plaintiff’s psychiatric condition was a cause for his current work incapacity. Dr Kornan thought, from a psychiatric point of view, the plaintiff would be capable of working.
345 In Dr Jager’s opinion, following examination in May 2013, the underlying work-related illness was at the mild end of the spectrum but was currently moderately severe due to non work-related factors. Following re-examination in December 2013, Dr Jager thought that homelessness and poverty were the main causes of the plaintiff’s current presentation which he diagnosed as a Major Depressive Disorder. Dr Jager noted the plaintiff had some transferable skills that would allow him to undertake work.
346 Dr Paoletti thought the plaintiff was pervasively and severely affected by his psychiatric problems and had no sustainable capacity in the open labour market, even no psychiatric grounds alone for the foreseeable future.
347 I accept the submission by counsel for the defendants that Dr Paoletti’s view in this regard “is way out a limb, really going right to the far end of pessimism”.[35]
[35]T74
348 On this limited material, and in the absence of the plaintiff having been referred for any psychiatric treatment, I am not satisfied that he has a psychiatric impairment resulting in a permanent loss of earning capacity of 40 per cent.
349 Accordingly, the plaintiff’s application for leave to bring proceedings for damages for loss of earning capacity in this regard is also dismissed.
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