George v Unigrain Pty Ltd
[2023] VCC 2393
•22 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-04936
| SIJOMON GEORGE | Plaintiff |
| v | |
| UNIGRAIN PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24-26 July 2023 | |
DATE OF JUDGMENT: | 22 December 2023 | |
CASE MAY BE CITED AS: | George v Unigrain Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2393 | |
JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering only – paragraph (a) – injury to the neck and low back – credit – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Commission v Zepic [2013] VSCA 232; Johns v Oaktech Pty Ltd [2020] VSCA 10; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Church v Echuca Regional Health (2008) 20 VR 566
Judgment:Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Jurica | Redlich’s Work Injury Lawyers |
| For the Defendant | Mr B R McKenzie | Russell Kennedy |
HIS HONOUR:
1The plaintiff, Sijomon George, alleges he was injured in the course of his employment as a warehouse assistant with the defendant, Unigrain Pty Ltd (“Unigrain”).
2Mr George started working for Unigrain as a warehouse assistant in 2010, and since 2016 he has complained of various symptoms in his neck and back due to:
(a) the nature of his employment, which required him to lift heavy bags and boxes of goods;
(b) sitting on a hydraulic loading machine in an awkward position; and
(c) an incident on or about 20 December 2016, when the chair on a hydraulic loading machine broke, Mr George slipped out of the seat and struck a metal platform before landing on the ground on his back.
3Mr George seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering consequences, for the permanent serious impairment of his spine, inclusive of his cervical and lumbar spine.
4He makes no claim in respect of pecuniary loss; and his claim under paragraph (c) of the relevant definition of “serious injury” for a psychological injury was abandoned at trial.
5For the reasons that follow, I refuse his application for leave to commence proceedings for damages at common law for pain and suffering.
The issues
6The relevant legal principles in applications of this type are well known and not in dispute.
7Mr George bears the onus of demonstrating that his impairment is permanent, and that the consequences are serious.
8He must establish that the consequences to him with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, or mental or behavioural disturbance or disorder respectively, are fairly described as being more than significant or marked, and as being at least very considerable, in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.[1]
[1] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
9It was not in dispute that the spine is considered a single body function for the purpose of applications of this type, and consequences of injury which relate to the cervical and lumbar spine may be aggregated.[2]
[2]Transport Accident Commission v Zepic [2013] VSCA 232, [136]
10Whilst not formally conceded, the case was conducted on the premise of the injury to the spine being aggravation of previously asymptomatic spondylosis. Unigrain defended the application on the basis of credit issues which meant that Mr George could not establish the consequences he relied upon to satisfy the Court his injuries were serious; alternatively on the basis of “range”.
11In Haden Engineering Pty Ltd v McKinnon,[3] the Court of Appeal set out the relevant principles:
[3](2010) 31 VR 1
“The experience of pain
10.As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
11.The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
12.As to (a), 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. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
13.As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.
The disabling effect of pain
14.As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’
15.As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].”
12In “serious injury” applications the credit of the plaintiff assumes particular importance.[4] In the circumstances of an unoperated injury to the spine, a claim in relation to pain and suffering damages only, without lay evidence from family or friends to corroborate the plaintiff’s account of the extent of difficulties faced by him, the issue of credit assumes even greater significance.
[4] Johns v Oaktech Pty Ltd [2020] VSCA 10
13In accordance with the two-step analysis in Meadows v Lichmore Pty Ltd,[5] I am satisfied that there is an organic basis for the plaintiff’s symptoms and, accordingly, there is no need to disentangle any psychological component of Mr George’s presentation.[6]
[5][2013] VSCA 201, [21]-[22]
[6]Whilst the report of Dr Barton at Defendant’s Court Book (“DCB”) 32 records his opinion that soft tissue injuries sustained in the fall in 2016 have now resolved, Dr Barton was the only medical practitioner to offer this view, and I prefer the preponderance of medical evidence to the effect that it is an organic injury
Background and medical history
14Mr George was born in 1977 and is currently 46 years of age. He is married with three children aged 10, 7 and 5 years, and lives with his family.
15In 1999, Mr George completed a Bachelor of Arts (majoring in economics) in India, then worked as a social worker before coming to Australia in 2009.
16He commenced working for Unigrain as a warehouse assistant in 2010. His duties included lifting and stacking bags and boxes of goods often weighing between 18 and 40 kilograms, usually containing peas, fava beans, broad beans, oats or wheat.
17In 2016, he started experiencing occasional neck and back pain; and on 20 December 2016, Mr George was operating a hydraulic loading machine to move boxes when his chair broke. He slipped out of the seat and fell on to a metal platform.
18Mr George first consulted a general practitioner on 30 December 2016, and commenced physiotherapy in February 2017. He had no time off, and worked until he was diagnosed with thyroid cancer in 2018, which required time off for treatment. That cancer is now in remission.
19Following a return to light duties in the office at Unigrain in 2019, Mr George progressed to other duties including cleaning. As a result of neck pain from both his cancer and the nature of his employment, he was unable to return to his pre-injury duties and terminated in August 2021.
20Mr George had a period of time off work before finding a position in the disability sector in January 2022, where he remains employed as a casual support worker for up to 55 hours per week.
The injury
21Overwhelmingly the objective medical evidence supports my finding that Mr George has sustained an organic injury to his spine by way of aggravation of underlying spondylosis.
Radiological
22In addition to various X-rays and CT scans, Mr George has undergone a number of MRI investigations.
23The report of the MRI conducted on 12 January 2017 concluded:
“Non-compressive disc bulges at multiple levels in the cervical spine region. Non-compressive posterocentral protrusion at L3-L4 level and disc bulge at L4-5 level. No demonstrable vertebral collapse or fracture.”
24An MRI in June 2018 showed degenerative changes of the cervical spine with dominant disc bulges at C3-C4 and C5-C6, not causing significant stenosis of the central vertebral canal or exiting foramina. There was no evidence of cord or nerve root impingement. The appearance was stable compared to the prior study from January 2017. Disc desiccation at L3-L4 and L4-L5 without nerve root impingement was also stable compared to a prior study.[7]
[7] Plaintiff’s Court Book (“PCB”) 106
25An MRI of the cervical spine on 23 January 2020 found:
“Multilevel degenerative change of the cervical spine as described most significantly affecting C3-C4 intervertebral level where there is bilateral mild existing foraminal stenosis with contact of the existing C4 nerve roots. No significant narrowing of the central vertebral canal. No cord compression or cord signal abnormality.”
26The most recent MRI on 1 July 2023 confirmed the presence of mild degenerative change of the cervical spine, with findings stable compared to prior imaging.
Treaters
Dr Paul Kurian, general practitioner
27Mr George reported pain in his neck and low back to his general practitioner Dr Paul Kurian on 19 January 2017.[8] Dr Kurian recommended restrictions of no heavy lifting above the shoulder level, especially weights of more than 20 kgs, and no constant bending down.
[8] Report of Dr Paul Kurian dated 4 September 2019, PCB 32
28Dr Kurian diagnosed a flare-up of cervical spine degenerative disease against a history of degenerative cervical and lumbar disc disease at multiple levels.[9] He recommended that the plaintiff continue with physiotherapy, hydrotherapy, massage, and acupuncture as required.[10]
[9] PCB 125
[10] PCB 63
Ms Naomi Crawley, physiotherapist
29Mr George first attended MC Physio on 13 February 2017, receiving treatment from Ms Naomi Crawley and Mr Matthew Clark.[11]
[11] Report of Mr Matthew Clark dated 28 August 2022, PCB 52
30In November 2018, Ms Crawley diagnosed a recent exacerbation of cervical symptoms with cervical disc bulges at C3/4 and C5/6; and also at L3/4 and L4/5.[12]
[12] Report of Ms Naomi Crawley dated 26 November 2018, PCB 29; PCB 55
31In his report dated 28 August 2022, Mr Clark reported:
“Sijomon has shown moderate symptomatic and range of motion response to Physiotherapy treatment. He may continue to see further gains with ongoing commitment to care of Physiotherapy and a focus on contributing to gains utilizing exercises for range of motion, flexibility, posture, strength and general fitness.”[13]
[13] PCB 55
Dr Michael Wong, neurosurgeon
32Treating neurosurgeon and spinal surgeon Dr Michael Wong saw Mr George on 18 October 2018 and 29 November 2018, and reported:
“This patient had an MRI scan of his cervical and lumbar spine done in June 2018. It demonstrated minor cervical and lumbar spondylolisthesis without any significant neural compression. Sijomon had a bone scan in October 2018. This did not demonstrate any active facet arthropathy or significant disc degeneration.”[14]
[14] Report of Dr Michael Wong dated 22 December 2022, PCB 59
33Dr Wong opined that since there was a lack of significant abnormality demonstrated on these scans, Mr George had a good chance in improving his pain with non-surgical treatment.[15]
[15] Ibid
Dr James Choong, general practitioner
34Dr James Choong provided a report dated 2 January 2020;, however, he has never treated Mr George personally, and his report is based on medical notes available to him through the medical practice’s records. Dr Choong diagnosed chronic pain from soft tissue injury to the cervical spine; disc protrusion at L3-L4 level; and disc bulge at L4-L5 level.[16] He was unable to comment on Mr George’s progress or current condition.
Medico-legal
[16] Report of Dr James Choong dated 2 January 2020, PCB 35
Dr Leon Le Leu, occupational physician
35Dr Le Leu examined Mr George on 23 August 2018, and reported that Mr George had suffered an exacerbation of most likely pre-existing degeneration of the cervical and lumbar spine.
36Dr Le Leu related Mr George’s injury to the workplace:
“This could have been initiated by the poor ergonomic arrangements on the loader and then exacerbated by his fall.
…
It is more probable than not that his pre-existing degeneration of the cervical and lumbar spine was brought on or at least accelerator [sic] by the pre-existing poor ergonomic seating arrangements on the loader.”[17]
[17] Report of Dr Leon Le Leu, DCB 10, 17
37Dr Le Leu concluded that Mr George’s condition had not stabilised, and was temporally overshadowed by his thyroidectomy that occurred two weeks prior to his examination.
Dr Graham Long, consultant occupational physician
38Dr Graham Long examined Mr George on behalf of the defendant on 14 February 2019. Dr Long reported that the plaintiff had soft tissue injuries with aggravation of previously asymptomatic underlying degenerative changes in the cervical and lumbar spine due to the fall in the workplace. He opined that this had not resolved at the date of the examination.[18]
[18] Report of Dr Graham Long dated 14 February 2019, DCB 20, 25
39Although Dr Long found that Mr George was unable to resume his pre-injury duties, he opined that the plaintiff was able to return to alternative duties, initially with reduced hours.
Dr David Barton, consultant occupational physician
40Dr David Barton examined Mr George on 17 June 2020. While he accepted that Mr George may have received soft tissue injuries or bruising due to the fall at the workplace, Dr Barton was unclear why the issue had persisted since the date of the injury in 2016 to the date of his examination:
“Physically I believe any such problem would have resolved. I do not accept that the general nature of the work has contributed to any protracted musculoskeletal injuries. His investigations show relatively minor long-standing changes.
…
I would accept that the fall at work caused some temporary symptoms.[19]
…
Physically I believe any employment-related problem has resolved.”[20]
[19] Report of Dr David Barton dated 18 June 2020, DCB 29, 32
[20] DCB 33
Mr Roy Carey, consultant orthopaedic surgeon
41Mr Carey examined Mr George on 3 December 2020 for the purpose of conducting an independent medical examination. Mr Carey diagnosed aggravation of pre-existing asymptomatic cervical and lumbar spondylosis, with no radiculopathy or myelopathy. He opined:
“The prognosis is for continued discomfort into the foreseeable future.
He is not likely to suffer injury/harm by engaging in appropriate occupational and daily living activities.
The presentation is consistent with the workplace injury as described and subsequent treatment.
The condition is now stable and is unlikely to change substantially and by more than 3% whole person impairment in the next year with or without medical treatment.”[21]
[21] Report of Mr Roy Carey dated 3 December 2020, DCB 36, 41
42Mr Carey concluded that Mr George had a 5% whole person impairment as a consequence of a minor impairment to his cervicothoracic spine.
Mr Ash Chehata, orthopaedic upper limb surgeon
43In his report dated 2 September 2022, Mr Chehata opined:
“The diagnosis in relation to the neck and back is that of asymptomatic cervical and lumbar spondylosis that have been aggravated initially by a fall and then is now coloured by likely psychosocial and compensation issues.”[22]
[22] Report of Mr Ash Chehata dated 2 September 2022, DCB 45, 50
44Mr Chehata was unable to explain Mr George’s level of pain and restriction, which he concluded was minimal. He reported that the plaintiff’s condition has stabilised:
“At this stage, his condition has more or less plateaued. It is likely, although there was a significant peak after the fall, that essentially this has settled, as would be expected with arthritis. As such, he has returned back to employment in the disability sector.”[23]
[23] Ibid
Dr Parminder Singh, orthopaedic surgeon
45In his reports dated 29 March and 8 June 2023, Dr Parminder Singh diagnosed:
“Chronic neck pain and lower back pain.[24]
…
A)Non-compressive disc bulges at multiple levels in the lumbar spine region. Non-compressive postero-central protrusion at L3-L4 level and disc bulge at L4-5 level causing lower back pain.
B)Multi-level degenerative changes of the cervical spine most significant at the level of C3-C4 intervertebral level where there is bilateral mild exiting foraminal stenosis with contact of the exiting C4 nerve roots causing neck pain.”[25]
[24] PCB 77
[25] PCB 93, 94
46Although Dr Singh confirmed the cervical and lumbar changes in the spine can naturally occur due to ageing, in his opinion Mr George’s heavy and repetitive work duties throughout the course of his employment are likely to have aggravated his cervical and lower back.
Findings
47Ultimately I am not persuaded that the plaintiff has suffered the consequences he alleges to the extent set out in his affidavits, and in accordance with his oral evidence at trial.
48Mr George’s evidence of the seriousness of the consequences of his injury to the spine must be considered in the context of the following:
· Mr George gave somewhat improbable evidence that before his injury he was playing cricket and cycling with his children who, at the time, were aged 3 and less than 12 months old respectively.[26]
[26]Transcript (“T”) 104-5
· He has retained capacity for fulltime employment from which he derives significant satisfaction, providing a history to Dr Radhakrishna that he finds his work rewarding.[27]
· Mr George has made no complaint to any treating or examining doctor about neck and back pain arising from his long hours of work currently as a disability support worker.
· Within minutes of being observed during the course of a medico-legal examination by Dr Barton moving in a “slightly slow and cautious manner”, and having “some limitation of neck movements with reported pain”, Mr George was depicted in surveillance video footage moving his neck without restriction, even jogging across a road to his car which was parked outside the examination rooms. Upon returning home, a one-and-a-half-hour drive to Ballarat, Mr George had no difficulty exiting the car without any apparent pain. This footage was in stark contrast to various histories to doctors about difficulties sitting for extended periods of time.
· I was unable to discern from his presentation in court that Mr George was experiencing any back or neck discomfort whatsoever over the course of three hours of cross-examination.
· Although he asserts an inability to partake in various pre-injury sporting activities, his evidence is quite limited as to the extent of these.[28] He was unable to recall when he last partook in these activities.
· His counsel conceded that Mr George’s pre-injury travel was barely affected by his injury. Leaving aside years affected by COVID-19 restrictions, Mr George has travelled annually home to India.
· Mr George’s evidence that his family and social life has been affected is inconsistent with the level of activity recorded in various social media images and videos posted by him including family holidays to India, Geelong and the Blue Mountains.
· I reject Mr George’s evidence as to difficulties with concentration as a consequence of his physical injuries. There is no medical evidence in support of this assertion; and medical certificates dated April 2021 and May 2023 provided by his general practitioner, Dr Kurian, specifically record that Mr George’s mental status was not affected by his injury.[29]
· His limited evidence as to disturbed and interrupted sleep as a result of pain[30] is inconsistent with the history provided to psychiatrist Dr Radhakrishna.[31] The high point of the sleep difficulties experienced by Mr George appears to be waking intermittently worrying about things, which has improved.
· At times while giving his evidence, Mr George launched into lengthy speeches which were non-responsive to direct questions about his current situation and symptoms.
[27]PCB 89
[28]T95
[29] DCB 8; PCB 125
[30]PCB 121, [12]
[31]PCB 86
49Overall, I find that Mr George, consciously or unconsciously, had a clear tendency to overstate the consequences of his injury. Whilst I accept his spinal condition has resulted in some consequences, I find that they do not satisfy the narrative test.
50In his affidavit, Mr George sets out the consequences of his injury as follows:
“Consequences of injury
13. I continue to experience the following:
(a) Ongoing pain in my neck.
(b) Ongoing pain in my back.
(c) Pain, which sometimes travels into my right arm.
(d) Regular headaches.
(e) Restricted movement in my neck and back.
(f) Anxiety and depression.
(g)Feelings of frustration. My family tell me that I am now quite grumpy and less tolerant of others.
14.As I am working more hours, my pain has increased since swearing my last affidavit. Having said that, it important to me to work, as I want to feel productive and purposeful. It is also important to me to support my family.
15.As a result of the injury to my spine, I continue to have difficulty with the following:
(a)Sitting for long periods of time.
(b)Standing for long periods of time.
(c)Looking in the one direction for long periods of time.
(d)Bending and twisting.
(e)Performing any tasks involving repetitive pushing and pulling.
(f)Performing any tasks involving heavy or repetitive lifting.
(g)Driving for long periods of time. I find that I quickly start to seize up when I drive.
(h)Sleeping. I find it hard to get comfortable at night and I often wake due to pain.
(i)Walking with my family. We used to enjoy walking together in the evenings. I now find that a long walk leads to increased pain. I can now only do shorter and slower walks.
(j)Playing cricket with friends. I really enjoyed social cricket before my injury. I now find this too physically demanding.
(k)Performing household tasks such as vacuuming, mopping, changing the beds and cleaning the bathrooms. I also find it hard to move furniture in order to clean.
(I)Cycling with my family. We were an active family before my injury and we enjoyed regular bike rides together. I now find this too painful and no longer enjoyable. I feel sad that we are less active together as a family, as this was really important to me.
(m)Doing the grocery shopping. I still do this, but I have to be careful about what and how I lift things. I try to avoid lifting heavy shopping baskets, as I find this difficult.
(n)Performing tasks such as carrying a gas cylinder. If I push myself to do physical activities, I usually pay for it with increased pain.
(o)Playing freely with my children. For example, we used to go to the swimming pool and I would lift them in the water. I no longer do this. I feel particularly upset about the impact that my injury has had on my ability to be the father I want to be to my children.
(p)My intimate relationship with wife. This is now quite limited.
(q)Bending down to cut my toenails. My wife usually does this, as I find it hard to bend down to do this.
(r)Mowing the lawn. This leads to increased pain. I now usually pay someone to do this for me.
(s)Working. I do not feel able to return to my previous job and I find aspects of my current job difficult. It is nonetheless important to me to work, so I am going to persevere as best I can.
(t)Sweeping and mopping. These leads to increased pain. I try to avoid this.
(u)Performing most physically demanding activities. I push myself at times, as I hate feeling limited. Having said that, when I do this, I experience increased pain.”[32]
[32]Plaintiff’s affidavit sworn 19 June 2023, PCB 9-10
51In his final affidavit sworn 21 July 2023, Mr George confirms the consequences referred to above, and provides some further detail.
52In assessing Mr George’s credit, I take into account that under cross-examination he made some concessions, generally engaged appropriately with the cross-examiner, and was a respectful witness. Nevertheless, on key issues I reject his evidence and find that I cannot rely upon the plaintiff as a credible witness in assessing the seriousness of the consequences of his injury.
53In Cakir v Arnott’s Biscuits Pty Ltd,[33] the Court of Appeal observed that an adverse finding concerning the appellant’s credibility is not, by itself, sufficient to justify the refusal of a serious injury application; regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[34]
[33] [2007] VSCA 104
[34] Ibid, [49]-[58]
54Mr George gave evidence that he experienced pain of 5/10 constantly, with spikes in pain to 9/10 from time to time. I do not accept that evidence as a reliable indicator of Mr George’s ongoing pain.
55Surveillance video and various social media videos depict the plaintiff in various contexts, including driving, walking, jogging across the road and dancing in an unrestricted fashion. Taking into account the circumstances of the surveillance, the amount of it and that this is a range case,[35] I find that the surveillance footage was inconsistent with Mr George’s evidence as to his level of functioning. It did not assist his application.
[35] See Church v Echuca Regional Health (2008) 20 VR 566
56Mr George’s evidence in relation to consumption of Panadeine Forte to manage his pain provides a further example of exaggeration of his symptoms, and his unreliability.
57His history to orthopaedic surgeon Dr Singh in March 2023 implied that relief from Mr George’s increased episodes of sharp, shooting pain was achieved by taking Panadeine Forte.
58In his second affidavit, sworn in June 2023, Mr George said that he takes Panadeine Forte “usually” daily, being an increase from “most days” a year earlier.[36] The need to take medication was because he was experiencing more pain due to working increased hours.[37]
[36] Affidavit of the plaintiff sworn 14 June 2022, [19(c)]
[37]Affidavit of the plaintiff sworn 21 July 2023, [11]
59Only a month later, in his final affidavit sworn 21 July 2023,[38] the evidence evolved again: “Now, I usually take four tablets of Panadeine Forte a day for my pain, and sometimes this is two tablets a day”.[39] This evidence was despite Mr George confirming that his symptoms remain “pretty much the same”.[40]
[38] PCB 119
[39]Affidavit of the plaintiff sworn 21 July 2023, [5]
[40]Ibid, [4]
60During cross-examination, he said variously:
(a) he was taking Panadeine Forte twice a day,[41] two 500 milligram Panadeine Forte tablets in the morning and two in the afternoon;
(b) this was prescribed by his general practitioner, Dr Kurian, who prescribed packets of 20 tablets;[42]
(c) Dr Kurian does not give him any repeats;[43] and
(d) his consumption of Panadeine Forte currently was:
“ “I usually take four tablets of Panadeine Forte a day.” You say that, don’t you?---I’m sorry, usually means not every day. I’m having difference on pain. If not too much pain, two. Otherwise I’m - some days I’m having - manage with the Panadol.”[44]
[41]T70
[42]T71
[43] ibid
[44]T71, L18-23
61The tendered medical records of Dr Kurian establish the last prescription of 20 tablets of Panadeine Forte, without any repeats, was on 22 February 2023.[45]
[45]DCB 73-76
62Mr McKenzie fairly put to Mr George in cross-examination that he could not possibly have taken four tablets a day since his last prescription of 20 tablets in February 2023.[46]
[46] T71
63I reject Mr George’s evidence as to the amount of strong medication he takes to control his pain. He has not established that he requires medication on a daily basis.
64As to his other subjective allegations, I make the following observations:
(a) Mr George said he finds it hard sitting for a long time due to his back pain; however, the surveillance footage shows no evidence of this following a one-and-a-half-hour drive from Melbourne to Ballarat.
(b) Although Mr George made generalised complaints of pain, I saw nothing in his demeanour during his evidence in court consistent with this in circumstances where he stood for long periods of time. He was able to maintain his neck posture and turn his head without any apparent difficulty; and his concentration did not appear to be impaired.
(c) While Mr George says he tries to avoid bending and twisting, the surveillance footage showed him bending and twisting without any apparent difficulty.
(d) Mr George says he still finds it hard driving for a long time. I find it difficult to accept this evidence because he continues to drive long distances, for example on family holidays to Albury, Canberra and Sydney; and various social media posts depict him driving. I have no way of confirming his evidence that his wife tends to drive during the longer journeys, by reference to any corroborative or objective evidence.
(e) The claim of disturbed and interrupted sleep due to his neck and back pain is not supported by the histories he provided to doctors. The high point is his history to Dr Radhakrishna that, as a consequence of deterioration in mood, his sleep “became more erratic, and he tends to wake up intermittently during the night. When he awakens at night he used to worry about things; however, he has learnt to live with some of his stressors.”[47]
(f) The claim that he finds it harder walking for a long time due to back pain is inconsistent with surveillance video showing him in the Blue Mountains with his family where he was clearly able to navigate steep terrain including steps to access viewing platforms. I have no way of confirming his oral evidence in cross-examination that he was not able to navigate some aspects of the terrain with his family.
(g) Mr George says that he played social cricket before his injury. The evidence is not clear, however, as to how often he played. He was not able to identify the last time he played social cricket before his injury. That he avoids playing social cricket occasionally or even on a semi-regular basis, whilst significant, is not, on the available evidence, a very considerable consequence.
(h) None of his evidence that while he is still able to do shopping, he finds it harder; he finds it harder to cut his toenails and undertake general gardening; he has difficulty with the housework; and that his wife now does nearly all domestic tasks, is supported by any corroborative evidence.
(i) Mr George says he now avoids cycling outings with his family due to neck and back pain. On balance, it is likely that this activity with his family has been compromised by his ongoing neck symptoms.
(j) He says he finds it hard walking up hills due to his back pain. However, the surveillance footage tends against this evidence, particularly that taken on a holiday with his family to the Blue Mountains. I accept that navigating uneven ground may produce some difficulty.
(k) His claim of reduced concentration and memory is largely unsupported by the medical evidence. I reject this evidence having regard to his presentation in court and his current work capacity.
(l) His evidence that his social life has been reduced due to pain is unsupported by objective evidence, and not supported by the evidence of his involvement with various charitable pursuits (which he did not disclose in his affidavit material or otherwise) and his various social media posts. It is unclear, in any event, the extent to which Mr George previously enjoyed a social life, having regard to histories provided to doctors that he is a family man, and that he did not enjoy any recreational activities before the injury. There is no objective evidence to support this claimed consequence.
(m) The inference from his affidavit evidence that he needs to take breaks and lie down at work, and that he feels tired with his neck and back pain after work, is attended with some doubt. The nature of his duties, looking after a client with a mental disability, involves regular breaks, including sleeping when he works overnight. Mr George has a separate room in his current client’s accommodation. He makes no claim to any doctor of disability worker-related symptoms in his neck and back; and his work, on his own account, is not physical.
[47] PCB 86
65Unfortunately, Mr George’s evidence presentation in court and evidence generally meant that I was left with the impression that his evidence as to his symptoms was significantly exaggerated. I am not confident that I may rely on his account of those symptoms and the extent of his pain. In those circumstances, the importance of the objective evidence cannot be overstated.
66The objective facts include Mr George is suffering a mild aggravation of a pre-existing spondylosis, relatively minor in nature, with some flare-ups. Surgery is not indicated. His GP accepts he has some ongoing pain and work restrictions. He has limited ongoing treatment.
67I take into account the following:
(a) there is no compelling evidence of radicular symptoms in his legs or arms. None was recorded in the MRI report of 30 June 2023.[48] Despite his evidence in court that he had some referred pain into his right arm, there is no evidence of any complaint to any doctor of this pain since 2018, around the time of his thyroid cancer diagnosis. His long standing general practitioner, Dr Kurian, has recently certified that there is no radiation down the arms or lower back or legs;[49]
(b) the most recent CT scan of the lumbar spine conducted on 24 March 2020[50] records mild broad-based disc protrusions at L3-4 and L4-5 with no significant spinal canal exit foraminal narrowing. Only very mild degenerative changes are seen within the facet joints of the lumbar spine;
(c) the most recent MRI scan of the cervical spine finds mild degenerative change of the cervical spine without evidence of cord compression or exiting nerve root compression; and
(d) the most significant change involves the C5-6 intervertebral level where a shallow broad-based protruded disc contributes to minor narrowing of the central vertebral canal.[51]
[48] DCB 77
[49]medical certificate dated 4 May 2023; see also report dated 29 March 2022; PCB 50
[50] PCB 117
[51]DCB 77
68As indicated above, I accept some of Mr George’s claims as to the effects of his injury. Some of his other evidence was not challenged or controversial, and as such I may more readily accept it.
69A dedicated family man, Mr George now avoids swimming where he used to partake in this activity with his children about once a week. He also avoids some usual interaction with his children, including playing soccer, due to his neck and back pain. Even though the video surveillance footage disclosed a picture of normality in his interaction with his children in the course of various social media posts and surveillance film, it is likely that his injuries have compromised his ability to interact with his children to some extent. This, for Mr George, is significant.
70I accept that it is likely that Mr George may have increased difficulty in undertaking physical activities at work like pushing and pulling due to his neck pain; likewise with heavy and repeated lifting in accordance with the medical restrictions recommended by Dr Kurian. As Mr George said in his oral evidence, he is not precluded from lifting, and is able to manage in his current employment and family life. He is able to carry his youngest daughter, aged seven or eight years, as disclosed in the surveillance footage.
71Ultimately, on the evidence as a whole, whilst I accept that Mr George sustained an injury to his cervical and lower spine in the nature of aggravation of underlying spondylosis, that aggravation is relatively minor. Whilst the consequences he has established that he has endured since his injury are significant, they are not to the extent that he has satisfied me that they ought be considered to be more than “marked” or at least “very considerable”.
72Mr George is currently in fulltime employment and is able to undertake extra hours. His evidence included that in a recent earning period of two weeks, his pay summary disclosed 110 hours. Even though he is now in a less physical role as a disability support worker, the capacity Mr George demonstrates in this employment is a factor to consider in the analysis and value judgement required in applications of this type.
73As a dedicated father and husband, he is compromised to an extent in his interactions with his children. To his credit, he continues to support his children and make a good life for them; he works hard to provide for them, including saving for their secondary education at a private school.
74In the end, I am left with a gentleman who has some ongoing pain in his neck and back as a result of an injury sustained in the course of his employment as a warehouse assistant. Mr George has now returned to his pre-injury skills, noting his experience as a social worker in India, and is working as a disability support worker for over 50 hours a week in a job which he enjoys.
75Doing the best I can, exercising a value judgement on the basis of all of the evidence before me, I am not satisfied when compared with the range of cases, including those that do not come before the court, Mr George has suffered a serious injury.
Conclusion
76For the reasons expressed, Mr George’s application is dismissed.
77I will hear the parties on the question of costs.
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