Francis v VWA
[2022] VCC 176
•28 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03458
| ANDREW FRANCIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2022 (via Zoom) | |
DATE OF JUDGMENT: | 28 February 2022 | |
CASE MAY BE CITED AS: | Francis v VWA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 176 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering consequences – injury to the lumbar spine
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick with Mr C O’Donnell | Maurice Blackburn |
| For the Defendant | Ms M Tsikaris | Russell Kennedy |
HIS HONOUR:
Introduction
1This is a “serious injury” application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff, Mr Andrew Francis, in which he seeks the leave of the Court to commence a common law proceeding for pain and suffering damages.
2The plaintiff relies upon injury to the spine as the “serious injury”.
3The relevant legal principles are well-known and are not in dispute. This proceeding involves treading a well-worn path to determine whether the claimed “serious injury” is causally connected to a workplace injury and, secondly, if it is causally connected, whether such injury produces impairment and impairment consequences which are “very considerable”.
4The plaintiff is a 33-year-old man. He was born and raised in Portland, Victoria. He completed Year 10 and then completed an apprenticeship as an auto electrician and thereafter worked as an auto electrician. In 2012, he moved to Melbourne and commenced employment as an auto electrician for Paccar Australia Pty Ltd (“the employer”), initially through a labour hire company and then as a direct employee. His work involved electrical repairs on trucks.
5The plaintiff was at work on 16 October 2013, when he was involved in an unusual accident. He was involved in reassembling a truck and had placed a safety pin to hold up a large and heavy bull bar on the truck. He bent down to retrieve bolts from the ground, when the safety pin failed and the bull bar fell, striking him to the middle of the back (“the incident”).
6Immediately after the incident, the plaintiff developed pain in his low back, which is not surprising given the weight of the bull bar that had fallen onto him. He saw a general practitioner and had conservative treatment.
7The plaintiff initially attended Dr Chung Chee at a clinic in Laverton North. That treatment was limited and included a referral for a CT scan. A CT scan dated 13 November 2013 is reported as concluding that there is just the suggestion of a very subtle left paracentral L3-4-disc protrusion, but no nerve root compression.[1]
[1]Plaintiff’s Court Book (“PCB”) 40
8The plaintiff’s employment was terminated by his employer not long after the injury. In approximately late 2013-early 2014, he moved back to Portland to live with his mother and commenced attending at the Seaport Medical Centre.
9The plaintiff was involved in a significant motorcycle accident on 13 January 2014, when he lost control of his motorcycle on the Geelong Ring Road. Amongst other injuries, he suffered a fracture of the right arm which required internal fixation by way of plate and screws.
10The plaintiff’s treatment for his back, such as it has been, has been limited and conservative. He has had sporadic attendance on general practitioners at the Seaport Medical Centre. He uses over-the-counter painkillers.
11Before the incident, the plaintiff had regularly trained and competed in a martial art of “Doce Pares”, having obtained his orange and then blue belts in that martial art.
12The plaintiff has returned to employment. Sometime after the incident he obtained an apprenticeship as an arborist and completed that apprenticeship. He worked for approximately four years in that vocation. Then, in early 2021, he returned to his trade as an auto electrician and commenced his own business “Drew’s Auto Electrics”. He continues to operate that business.
13It is in that setting that this proceeding comes before the Court. Regarding the impairment consequences, the plaintiff relied heavily upon an inability to pursue his interest in martial arts, together with the fact that he has had ongoing low back pain, with some interference for employment and day to day activities.
14This proceeding was conducted in the “usual manner”. The plaintiff tendered two affidavits sworn by him, and two affidavits from colleagues with whom he had engaged in martial arts. In addition, he tendered various medical reports. The defendant tendered a medical report and other medical documents, such as clinical records. I have considered all the tendered evidence and the transcript of the plaintiff’s oral evidence, but I shall only refer to it to the extent necessary in these reasons.
The plaintiff’s evidence
15The plaintiff swore affidavits on 28 October 2019[2] and 9 February 2022.[3] The tenor of his affidavits is that since the incident he has had ongoing low back pain. He described his employment as an arborist, how he had an understanding employer and how he was able to cope with that employment. He said he would still like to be working as an auto electrician but, because of the various postures required to work on vehicles, he was unable to continue in that employment. He was suffering a constant dull ache in his lower back with a sharp flare-up most days. He described the activities that increased the pain. He also described his inability to return to martial arts, motorbike riding, working on vehicles and undertaking tasks around the house.
[2]PCB 10
[3]PCB 18
16In his second affidavit, he described ongoing back pain that “goes up and down depending on what I am doing”.[4] The pain was not improving, but he was getting better at managing it and avoiding activities which aggravated it. He was using Panadol (up to 4 tablets) and Mersyndol (1-2) most days to manage his pain and inflammation.[5] He described how he had given up the work as an arborist and commenced his own employment. He detailed interference with tasks such as riding his motorcycle. He sets out the treatment at the Seaport Medical Clinic and summarised by saying that he now self-managed his pain with over-the-counter medications, stretching exercises and by listening to his body and not over-exerting himself.[6]
[4]PCB 18
[5]PCB 19
[6]PCB 20
17During cross-examination, the plaintiff was questioned about his work since the accident. He confirmed he had obtained work as an arborist at a time when he could not obtain work as an auto-electrician. He agreed work as an arborist was heavy work, he had completed an apprenticeship as an arborist and undertaken that work without requiring any medication and he accepted as a general proposition that he had not required any medication for many years.[7]
[7] Transcript (“T”) 12
18He also confirmed in cross examination that he had set up his own business as an auto-electrician and that he is able to undertake the work as an auto electrician. He agreed that the work involved getting under the bonnet of cars and underneath cars. He agreed it was predominately physical work and said that “I try and avoid it, but yes I do it”.[8]
[8] T9, Line (“L”) 12
19He also agreed that he had been building up his business and he was confident he had done the right thing setting it up.[9] There had been an initial start-up period for the business. He was now working full time. relevantly, he did not suggest that because of his back injury he would be unable to continue to run his business.
[9] T19, L15-16
20He also confirmed in cross examination that he is not having any active treatment. The records of the Seaport Medical Centre were put to him to demonstrate that he attends the clinic when needed for general health issues but has had no recent treatment for his back as evidenced by there being no complaint regarding back pain in the clinical records. He explained that he has mentioned his back to his current general Practitioner, Dr Vikram Singh, who told him he could offer nothing, and he was doing a great job managing the pain.[10]
[10] T9, L2
21He was cross examined about martial arts and said that he did attempt a return to martial arts training after the incident, but said he gave it away. He disagreed that his right arm would now prevent him from undertaking martial arts. He disagreed that he stopped martial arts because of his arm injury. I shall discuss the evidence about martial arts in more detail in due course.
The medical evidence
Treating practitioners
22The evidence from treating medical practitioners is, to say the least, extremely limited.
23Dr Chee provided a letter dated 22 January 2014, confirming the work-related injury[11] but otherwise adding little to the discussion of the issues in this case.
[11]PCB 29
24Dr Chee provided a further letter dated 29 April 2015, by way of a referral to a neurosurgeon,[12] which records two months’ treatment at the clinic before the plaintiff moved back to Portland, and that he had not received any treatment thereafter. Dr Chee also noted the plaintiff had returned that day (29 April 2015) for assessment after being pressured by Centrelink. He described the plaintiff as having pain that was ongoing, especially worse after repeated lifting and bending, but examination showed no objective neurological signs and only minor restriction in flexion. As of 29 April 2015, no analgesia was required.
[12]The plaintiff did not follow through with the referral
25Dr Chee also took a history that before the incident the plaintiff had participated in martial arts training three times a week and in tournaments. Dr Chee noted that the plaintiff was not able to do that now, but that note appears to simply record what the plaintiff had told him, rather than offering a medical opinion to that effect.
26Dr Chee provided a medical a certificate to Centrelink on 29 April 2015,[13] but it adds little to this proceeding.
[13]PCB 32
27The plaintiff attended Marilyn Risk, clinical social worker, on 22 March 2016 and tendered correspondence from her. Ms Risk recorded the plaintiff describing a severe back injury in 2013 and a subsequent suicide attempt,[14] but her comments add little to the issues in this proceeding.
[14]PCB 35
28Dr Abraham Stephanson of the Seaport Medical Centre is one of the practitioners who has treated the plaintiff at that clinic. Dr Stephanson provided a report dated 30 December 2017.[15] In that report, Dr Stephanson confirmed an MRI as revealing multilevel degenerative lumbar spinal changes. Dr Stephanson described the physical clinical symptoms as of moderate lumbar spinal pain to palpation and limited range of flexion/extension and rotation, but that lower limb neurology was normal.
[15]PCB 36
29Dr Stephanson then goes on to describe the plaintiff’s psychological condition and a referral for counselling. He described the plaintiff as being unable to perform many of his previous social and sporting activities, like martial arts, and sleep-impaired pain.[16] He does not say whether those restrictions are due to the physical back injury, or the psychological condition, or both.
[16]PCB 36-37
30More recently, the plaintiff has attended Dr Singh at the Seaport Medical Centre. Dr Singh provided a letter dated 16 January 2022 which confirms that Dr Singh does not provide correspondence regarding WorkCover injuries.[17]
[17]PCB 38
Medico-legal
31The plaintiff was examined by Professor Richard Bittar, neurosurgeon, by telehealth (due to COVID-19 restrictions) on 20 July 2021.[18] Dr Bittar was unable to conduct a clinical examination because of the limitations of telehealth. He obtained a history from the plaintiff, including that the plaintiff took daily Paracetamol and anti-inflammatory medication. He noted that the plaintiff was not having any other treatment. Professor Bittar had available radiology reports.
[18]PCB 43
32In that report, Professor Bittar opined that the plaintiff presented with aggravation of lumbar spondylosis.[19] He further opined that the plaintiff’s employment had been a significant contributing factor to current symptoms. He recommended assessment by a neurosurgeon and a pain specialist and described the prognosis as that the plaintiff would continue to experience significant pain and associated disability in the long term.[20]
[19]PCB 45
[20]PCB 46
33Professor Bittar then provided a further report dated 27 January 2022, after a re-examination of the plaintiff. At that time, he was able to conduct a clinical examination and described a mild restriction of lumbar spine flexion and moderate restriction of lumbar spine extension. He repeated his diagnosis of aggravation of lumbar spondylosis. He said, “In my opinion, the facet joints are the most likely contributor”.[21]
[21]PCB 50
34Professor Bittar repeated his opinion that employment remained a significant contributing factor and that the plaintiff should be reviewed by a pain specialist and considered for medial branch blocks and other possible treatments.
35In his further report, Professor Bittar had been provided with a report from Mr Kevin Siu, neurosurgeon, dated 17 January 2022. I shall discuss Mr Siu’s report in due course, but Professor Bittar took issue with Mr Siu’s diagnosis of a “soft tissue injury”, and the opinion that that soft tissue injury should have resolved by that stage. Professor Bittar disagreed and repeated his opinion that employment remained a significant contributing factor. He described the prognosis as guarded. He described the plaintiff as having an ongoing incapacity to return to full-time, unrestricted work and placed a limitation on repetitive or sustained bending, twisting, pushing, pulling and heavy lifting.[22]
[22]PCB 52
36Next, Dr Joseph Slesenger is a specialist occupational physician who examined the plaintiff (via telehealth) on 28 October 2021, and provided a report dated 16 November 2021.[23] Dr Slesenger took a history from the plaintiff, including that the plaintiff required Panadol occasionally and anti-inflammatory medication.[24]
[23]PCB 53
[24]PCB 55
37Dr Slesenger noted that the plaintiff was no longer seeing the physiotherapist and had not had any further specialist referrals. He took a history of the plaintiff’s return to work, firstly as an arborist, and then as an auto electrician. He was unable to perform any of the usual examination procedures because of the limitations of telehealth, but he did set out a range of movements of the lumbar spine which, bearing in mind the limitations of telehealth, demonstrated some mild restriction for extension.
38Dr Slesenger then summarised the situation as the plaintiff having a soft tissue injury to the thoracolumbar spine and chronic lower back pain without radiating features. He expressed the opinion that employment was a materially contributing factor to the ongoing back pain. In support of that, he noted the continuing symptoms since the incident. He expressed the opinion that there should be restrictions for the sort of work that the plaintiff could undertake. He recommended the plaintiff see a pain specialist.
39Finally, from the plaintiff’s end of the Bar Table, he was seen for medico-legal purposes by Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, by video link on 11 January 2022. In a report of that date,[25] Dr Sullivan sets out the history, the fact that no clinical examination could be conducted due to telehealth, and his review of material.
[25]PCB 62
40In summary, he then described the plaintiff as having chronic pain affecting his lumbar spine and a diagnosed aggravation of lumbar spondylosis.[26] He described permanent restrictions for physical activity. He said the plaintiff was able to continue in his own self-employment where he can modulate his work activities and hours. He expected the plaintiff would have chronic pain affecting his lower back into the foreseeable future and permanent restrictions regarding vocational, social, domestic and recreational activities.[27]
[26]PCB 65
[27]PCB 67
41The defendant tendered a report from Mr John O’Brien, orthopaedic surgeon, dated 28 November 2018.[28] Mr O’Brien’s report is of limited utility, given that it is now well out of date. Mr O’Brien did note that current physical signs were entirely subjective. The neurological examination was normal. There was a slight restriction in the thoracolumbar spine for flexion and extension. He obtained a history that the plaintiff had experienced constant low back pain since the incident and described the MRI as indicating the presence of multilevel early degenerative change. He said “This patient does not present with signs which define a definitive diagnosis. Rather the patient now presents with chronic non-specific low back pain”. He also said “Historically, the patient reports a work-related incident, and on that basis, it could be concluded that employment does remain a significant contributing factor to the current clinical problem”.[29]
[28]PCB 68
[29]PCB 70
42The defendant tendered a report from Dr Stephen Stern, psychiatrist, dated 21 December 2018. It does not add much to a discussion about a physical injury, but Dr Stern did obtain a history that the plaintiff had not had any real improvement in his back pain over the years.[30]
[30]PCB 73
43Finally, the defendant tendered a report from Mr Kevin Siu, neurosurgeon, dated 17 January 2022. That examination took place in person. Mr Siu had various documents and materials and obtained a history from the plaintiff. He also conducted a clinical examination and described neurological examination as normal.
44In respect to diagnosis, Mr Siu stated that the plaintiff sustained a soft tissue injury for which he had not received significant medical treatment. He said further that the accident of 16 October 2013 should have resolved. He said “It was a soft tissue injury. It is no longer contributing to his condition”.[31]
[31]Defendant’s Court Book (“DCB”) 9
45In respect to ongoing treatment, Mr Siu thought a gym membership would be reasonable, but did not make any other treatment recommendations.
Causation
46The defendant accepts that the plaintiff suffered injury to his back in the incident. It relies on the opinions of Mr O’Brien and Mr Siu. It says those opinions struggle to provide a diagnosis referable to the incident, describing it as a “soft tissue” injury and, in the case of Mr Siu, one that should have resolved by now. In the setting of very little hands-on treatment, the defendant submitted that the plaintiff’s current condition, whatever it may be, is no longer work-related.
47I do not accept that submission. It ignores the fact that the plaintiff has had ongoing low back pain since the incident, which has been recorded over the years when he has attended medical practitioners. Further, Mr Siu’s report does not disclose a clear path of reasoning as to how, when, or why the soft tissue strain resolved, and there is no explanation given for why the plaintiff continues to be symptomatic.
48I prefer the opinions of Professor Bittar, Dr Slesenger and Dr Sullivan, namely that the plaintiff suffered a work-related injury, either the aggravation of lumbar spondylosis or a soft tissue injury which, in the setting of ongoing symptoms since the incident, continues to explain the plaintiff’s ongoing pain. That is also supported, to some extent, by the limited reporting from the general practitioners and Mr O’Brien, who despite having trouble coming to a diagnosis, accepted that the plaintiff had ongoing lower back pain referable to his employment.
49In short, I conclude that the plaintiff suffered injury to his low back in the incident, most likely the aggravation of lumbar spondylosis, which has persisted and continues to produce symptoms.
Is the compensable injury “serious”?
50The real thrust of the defendant’s submissions was directed towards whether the plaintiff can now demonstrate a “very considerable” consequence.
51In assessing the “seriousness” of an injury, the credit of the plaintiff is an important starting point. In this proceeding, the defendant did not press a credit case, and, in my view, no credit issue arises. The plaintiff gave his evidence in a straightforward manner and made appropriate concessions.
52Next, in assessing the “seriousness” of an injury, it is relevant to look at and ask what the plaintiff does to manage the injury and the pain. The answer to that question is that the plaintiff does very little. At best, he has had sporadic attendance on general practitioners over a now eight-year period. At one stage (2015) there was a referral to a neurosurgeon, but that was not followed through.
53In March 2021, the general practitioner’s notes record a discussion about a referral to “Precision”, which is the banner under which Professor Bittar and Dr Sullivan consult. There was cross-examination about whether that was a genuine attempt to obtain a referral for treatment, but at the end of the day not much turns on that, as Professor Bittar and Dr Sullivan saw the plaintiff for medico-legal purposes and not for treatment. The plaintiff in his oral evidence seemed to accept that the discussion related to medico-legal referrals. In any event, the general practitioner did not independently see the need for specialist referrals.
54The plaintiff is effectively having no treatment and the situation is that he has gone close to having had no treatment at all for his back. He now does home-based exercises (it is unclear who taught him those exercises) and he uses over-the-counter painkillers. That is the extent of any treatment.
55Next, I accept the plaintiff has an ongoing injury affecting his lumbar spine but viewed objectively it has not prevented him from obtaining and completing an apprenticeship as an arborist, which is physical work. Further, it has not prevented him from returning to his trade as an auto electrician, albeit in self-employment, and which he conceded is physical work.
56In his second affidavit, he described that when his back becomes very painful, he goes home from work to rest, but he does not say how often that occurs. He said that he is working the equivalent of full-time hours, 3.5 days per week on vehicles, and about 1-1.5 days a week on administrative or lighter duties and that most days after work he stretches and takes Panadol.[32] In cross examination he said that if he has physically exerted himself at work, he will probably take a day off here or there.[33]
[32]PCB 19
[33] T9, L14-15
57The evidence about his auto electrician business is limited.[34] It seems the business is viable and ongoing and is work with which the plaintiff can cope. At its highest, his evidence tends to a finding that, on occasion, his back becomes very painful with that work requiring him to go home and rest, perhaps with an occasional day off work, and that most days after work he does stretches and takes over-the-counter medication. But there is no suggestion by him that he will not continue working as a self-employed auto electrician. It is a significant contra-indicator to “serious injury” that the plaintiff can undertake physical work with no treatment other than self-pacing himself and over-the-counter medication. Nevertheless, I accept there is some consequence to him from that work, namely an increase in pain as described, but obviously it is not disabling him for physical work.
[34] The plaintiff did not produce any evidence of his earnings from the business
58The plaintiff, in closing submissions, said “in terms of what we say would get him over the line, really the martial arts is the number one point”.[35] In short, it was submitted that because of his low back injury he has been unable to continue with his passion of martial arts and that is a “very considerable” pain and suffering consequence to him. That is a submission that requires scrutiny considering the evidence.
[35] T52, L7-8
59Firstly, the water is muddied by the fact that the plaintiff moved back to Portland not long after his back injury, which would have made it difficult to continue to train and perform martial arts in Geelong, as he was pre-injury.
60Secondly, the plaintiff suffered a fracture to his right arm in the motorcycle accident in January 2014. Of course, the plaintiff bears the onus in this application to demonstrate a “very considerable” consequence, and there is no useful medical information regarding that right arm injury. A fractured arm would make it difficult to participate in martial arts, so there must have been some interruption to his martial arts caused by that injury, which to some extent he accepted during cross examination when he said “It took a little while to get my arm right, because I did therapy, but it’s all good now”.[36]
[36] T23, L2-3
61Thirdly, in his first affidavit, the plaintiff described being unable to participate in training or competition since he hurt his back.[37] In his second affidavit, he said that after the incident he did try and train a few times, but his back would not allow him, so he had stopped training and competing.[38] That evidence needs to be evaluated in light of his oral evidence that he had in fact made some attempts to continue to train,[39] including travelling from his home in Portland to attend his instructor, after his instructor relocated to Terang in western Victoria,[40] a journey of approximately 1½ hours each way from Portland. Also, in his oral evidence, the plaintiff said that there was no appropriate martial arts facility for him to train at in Portland.[41]
[37]PCB 15 at [29]
[38]PCB 19 at [12]
[39] T23
[40] T27, L15
[41] T27, L5
62Pausing here, the whole of the plaintiff’s evidence about ceasing martial arts suggests several reasons why his training/martial arts came to an end, including the motorbike accident and his move to Portland.
63Fourthly, the plaintiff relied on an affidavit from Mr Glen Eden, who was his pre-incident martial arts coach/instructor. In his affidavit sworn 15 February 2022,[42] Mr Eden described the plaintiff’s skill in martial arts. He said the plaintiff attended a few sessions “here and there” after the incident but was unable to physically keep up with his peers. Mr Eden’s affidavit provides some support for the proposition that the plaintiff’s ability to undertake martial arts was impeded by his back injury but, Mr Eden’s affidavit is broad, deals with matters such as the plaintiff’s mood, and is not compelling for a finding that the plaintiff was unable to continue in martial arts because of a back injury.
[42]PCB 25
64The plaintiff also relied upon an affidavit from Mr Ben McGillivray. Mr McGillivray swore an affidavit on 15 February 2022.[43] He is a friend of the plaintiff and describes training with him, and riding motorbikes with him. His affidavit is, in some ways, like Mr Eden’s affidavit in that it is supportive of the plaintiff but is broad and deals with the plaintiff’s mood. His affidavit is similarly not compelling for a conclusion that the plaintiff’s back injury was the reason why martial arts came to an end.
[43]PCB 27
65In my opinion, the evidence about why the plaintiff ceased martial arts is vague but tends to a conclusion that the reason is multi-factorial, and is a mix of his back injury, the relocation to Portland, and his subsequent motorcycle accident. Similarly, the reasons why he has not resumed martial arts likely relate to some or all those factors, but specifically include the lack of an appropriate training facility in Portland. In any event, the nature of his post injury employment as an arborist and as an auto electrician suggest that he has a residual physical capacity for at least some level of physically demanding recreational activity, should he choose to do so. So, while I accept that the plaintiff has an ongoing back injury which may impact on his ability to undertake martial arts, I do not accept that the evidence established that it has destroyed any capacity for him to train or engage in martial arts, which was the main pain and suffering consequence relied on by him.
66The situation is that we are left with a relatively young man who has an ongoing back injury with some pain and interference for day-to-day activity. But, balanced against that, he can undertake physical employment, he has no treatment – apart from using over-the-counter painkillers - and he is still able to engage in a range of social and recreational activity, such as riding his motorbike and forming personal relationships.
67In my view, the plaintiff’s injury, whilst not trivial, cannot be described as more than “marked” or “significant”. In my opinion, the impairment consequences to the plaintiff do not meet the “very considerable” test.
68Accordingly, for the reasons given, the proceeding is dismissed.
69I shall hear from the parties as to consequential cost orders.
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