Goodrum v Victorian WorkCover Authority
[2022] VCC 1922
•15 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Mildura COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-00245
| SHAMUS MICHAEL GOODRUM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2022 | |
DATE OF JUDGMENT: | 15 November 2022 | |
CASE MAY BE CITED AS: | Goodrum v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1922 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – range – retained capacity – lower back injury – pain and suffering consequences
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Mr C O’Sullivan | Maurice Blackburn |
| For the Defendant | Mr P A Scanlon KC with Mr S Martin | TG Legal & Technology |
HIS HONOUR:
Introduction
1The plaintiff, Mr Shamus Goodrum, is aged thirty-three years. Mr Goodrum commenced work with Simplot Australia Pty Ltd (“Simplot”) as a casual cleaner in about July 2009.
2After a short time working with Simplot, Mr Goodrum became a permanent employee. In or about 2016, he changed roles. Mr Goodrum became a full-time nightshift preparation operator.
3Mr Goodrum said that the work he undertook as an operator was heavy and physically demanding. This was not challenged by the defendant, the Victorian WorkCover Authority (“VWA”).
4By reason of the nature of his work over time, and in particular as a result of incidents in April and June 2019, Mr Goodrum alleges he sustained an injury to his lower back. This was not disputed by the VWA.
5After an incident which occurred on 11 June 2019, Mr Goodrum was off work until 26 June 2019. On that day, he returned to work on modified duties. Mr Goodrum continued working modified duties until early 2020. He then resumed his normal full-time duties.[1] Since that time, apart from some occasional periods on modified duties, he has continued working his normal duties. He works some overtime.
[1]Transcript (“T”) 21, Lines (“L”) 3-16
6Mr Goodrum says that the pain and suffering consequences of his lower back injury are “serious”. The VWA accepts that Mr Goodrum continues to suffer some consequences of his lower back injury. However, they deny that these consequences meet the test for serious injury.
The issues
7Mr Goodrum’s credit was not put into issue by the VWA.[2]
[2]T6, L29-31
8The application, put simply, is a “range case”.[3]
[3]T8 L1-6 and T18, L1-3; See Humphries and Anor v Poljak [1992] 2 VR 129
The medical evidence
The radiology
9Mr Goodrum relied upon three radiology reports.
10The first radiology report is dated 11 December 2012. This investigation was requested by Dr Fedwa Dakhil. It was said that Mr Goodrum had suffered “severe pain following lifting heavy weight”.[4]
[4]Plaintiff’s Court Book (“PCB”) 35
11This investigation was reported:
“There is a mild left scoliosis. The vertebral bodies and disc spaces are within normal limits.
There is partial sacralisation of the right aspect of L5.
The spinal canal is of normal dimensions.No compression fractures are seen.”[5]
[5]PCB 35
12Secondly, a CT scan was undertaken 24 July 2019. The clinical notes in the report said Mr Goodrum had a “lifting incident, pain left side and down left leg”.[6] The report concluded:
“CONCLUSION: Mild diffuse disc bulging at L4-5 on the anterior aspect of the thecal sac causing a minor degree of canal stenosis. However, no other disc protrusion is seen. There are no significant facet joint degenerative changes or foraminal stenosis otherwise.”[7]
[6]PCB 36
[7]PCB 37
13Thirdly, a further CT scan was reported on 29 September 2022. Under “Comment”, this scan was reported:
“Shallow diffuse annular bulge at the L4-5 level without significant canal or foraminal stenosis.”[8]
[8]PCB 38
14Mr Harrison appropriately conceded that the radiology reports showed “comparatively minor pathology”.[9]
[9]T24, L1
Mr Goodrum’s treating doctors and other health service providers
15Mr Goodrum relied upon:
(a) a report from his treating general practitioner, Dr Adrian Waldron, dated 22 September 2020;
(b) Patient Complaint History Reports from Work Healthy Australia dated 15 September 2022 and 24 October 2022.
16The VWA relied upon a Certificate of Capacity from Dr Merav Katz, general practitioner, of Echuca, which was issued 24 October 2022.
Dr Adrian Waldron
17Referring, firstly, to Dr Waldron. Dr Waldron said that Mr Goodrum had a working diagnosis of lower back strain and mild degenerative disc disease, with intermittent referred pain to his lower limbs. Dr Waldron said Mr Goodrum had gradually returned to his heavy physical workload. At the time of his report in September 2020, Dr Waldron considered Mr Goodrum’s mechanical lower back pain had improved and he was “now considered currently completely recovered”.[10]
[10]PCB 24
18While Dr Waldron said that Mr Goodrum “may require future medical treatment for intermittent low lumbar back pain”, he considered Mr Goodrum to be “completely rehabilitated and currently symptom free”.[11]
[11]PCB 24
19There were no updated medical reports from Dr Waldron or any of Mr Goodrum’s other treating general practitioners.
Dr Merav Katz
20Dr Katz, in the 24 October 2022 Certificate of Capacity, said that Mr Goodrum:
· Can sit with modifications
· Can stand/walk
· Can bend
· Can squat
· Can kneel with modifications
· Can reach above shoulder
· Can use injured arm/hand
· Can lift
· Can move neck.
21Dr Katz also certified that Mr Goodrum’s:
· Attention/concentration was not affected
· Memory (short and/or long term) was not affected
· Judgement (ability to make decisions) was not affected.[12]
[12]Defendant’s Amended Court Book (“DCB”) 42
22Dr Katz certified that Mr Goodrum had capacity for his pre-injury employment from 24 October 2022.[13]
[13]DCB 43
Work Healthy Australia
23Mr Goodrum relied upon records from the “soft tissue centre” operated at his workplace by Work Healthy Australia. Mr Goodrum said that he attended at this centre “from time to time” and he received massage and/or acupuncture treatment.[14] He said that these were fifteen-minute consultations.
[14]PCB 17, paragraph 9
24The records from Work Healthy Australia span the period 29 November 2012 to 11 October 2022. The Patient Complaint History Report generated 15 September 2022,[15] identified Mr Goodrum’s attendances at the clinic as follows:
[15]DCB 34
No
Date
Diagnosis
Total number of treatments received
1 29/11/2012 Left Lumbar Disc Lesion with Radiculopathy 6 2 30/07/2015 Bilateral Lumbosacral Myofascial Pain Syndrome 2 3 02/03/2021 Left Lumbosacral Disc Lesion with Radiculopathy 5 4 03/08/2021 Right Thoracic Articular Dysfunction 1 5 16/11/2021 Bilateral Lumbosacral Disc Lesion with Radiculopathy 3 25The Patient Complaint Report dated 24 October 2022 did not provide the same useful summary as the printout of 15 September 2022. This report recorded attendances on 16 November 2021, 23 November 2021 and 1 February 2022. There was further treatment provided on 11 October 2022. While it was not identified specifically, it would seem that the three attendances following 16 November 2021 are also included in the 15 September 2022 report. The second Work Healthy Australia report only introduces one new consultation. That is, the 11 October 2022 attendance. If this is correct, then Mr Goodrum has attended at the soft tissue centre on eighteen occasions over a period of almost ten years.
26At the soft tissue centre, Mr Goodrum received treatment from numerous people, including Kristina Del Grosso, Ruth Garcia, Darren Hartney, Jacob Black and Heather McCutcheon. The qualifications of these people are unknown. The histories recorded various “flare ups” or “aggravations”, which were attributed to different causes, including:
(a) work;[16]
(b) poor lifestyle habits;[17]
(c) gardening;[18]
(d) aggravations outside work;[19]
(e) moving a trailer;[20]
(f) falling down stairs;[21]
(g) falling onto his left side.[22]
[16]See for example the entries 29 November 2012, 3 August 2021 and 16 November 2021 at DCB 34 and 39
[17]See the consultation notes for 30 July 2015 and 6 August 2015 at DCB 37
[18]See the consultation notes for 2 March 2021 at DCB 37
[19]See the consultation notes for 20 April 2021 at DCB 38
[20]See the consultation notes for 23 November 2021 at DCB 45
[21]See the consultation notes for 1 February 2022 at DCB 41
[22]See the consultation notes for 11 October 2022 at DCB 45
27While these entries record various “flare ups” and “aggravations” which were referred to in the course of the application, there were also references in these records to periods when Mr Goodrum’s back pain had settled and where he had periods of minimal back problems. See for example the entry of 16 November 2021 made by Ms Del Grosso:
“‘Shamus has been managing well over the last 5 months. He has not had any active treatment during this time due to lockdowns but reports that he has not had any significant pain.’”[23]
[23]DCB 44
28There is also reference in the records to home exercise programs which were provided to Mr Goodrum. While Mr Goodrum said he undertook such programs, on 23 November 2021, Ms Del Grosso reported:
“… ‘Felt good after last treatment but aggravated his low back moving his trailer this week. I have taped his low back for support today. Shamus is not very compliant with home management … .’”[24]
[24]DCB 45
29Finally, in respect to the Work Healthy Australia records, at the time of both his 1 February 2022 and 11 October 2022 attendances, it was recorded that it was recommended Mr Goodrum “remain on Full duties”.[25]
[25]DCB 45
The medico-legal reports
30There are three medico-legal reports in evidence:
(a) Report of Dr Amanda Sillcock, consultant occupational physician, dated 3 July 2022;
(b) Report of Dr Philip Sheard, orthopaedic surgeon, dated 6 September 2022; and
(c) Report of Dr Joseph Slesenger, occupational physician, dated 12 September 2022.
31There is also a vocational assessment report from Ms Erin Williams dated 25 September 2022. Ms Williams’ qualifications, set out in her report, are a Bachelor of Health Science and a Graduate Diploma in Career Development.[26]
[26]PCB 77
Dr Amanda Sillcock
32At the time of her assessment on 10 May 2022, Dr Sillcock diagnosed Mr Goodrum as “suffering from mechanical low back pain”.[27] She said there was no evidence of neural compression. Dr Sillcock did not believe Mr Goodrum had a psychological condition.
[27]PCB 44, in response to specific Question 1
33Dr Sillcock did not believe Mr Goodrum required any formal restrictions at work, but he should avoid heavy lifting. She said that Mr Goodrum had a “good prognosis”.[28]
[28]PCB 45, in response to specific Question 6
Dr Philip Sheard
34At the time of his examination on 6 September 2022, Dr Sheard noted Mr Goodrum had full forward flexion and extension, along with lateral rotation and lateral flexion. He said Mr Goodrum told him that he had no neurological or radicular symptoms.
35Dr Sheard said that Mr Goodrum had a “lower back strain and mild underlying degenerative disease”.[29] He noted that Mr Goodrum had returned to full-time unrestricted work in his pre-injury position with the aid of self-management and changes in working practices at Simplot.[30]
[29]PCB 53 in response to Question 1
[30]PCB 53, in response to Question 4
36Dr Sheard said that Mr Goodrum was at risk of having further episodes of back pain and may need occasional days off. He said it was likely Mr Goodrum will continue to self-manage his lower back pain. He thought it unlikely that Mr Goodrum would need surgery, but that he may benefit from an occasional session of physiotherapy.
Dr Joseph Slesenger
37Dr Slesenger assessed Mr Goodrum on 22 August 2022. Dr Slesenger was of the opinion that Mr Goodrum had suffered a “lumbar spinal soft tissue injury”.[31] He said that Mr Goodrum advised him that his residual pain was mild to moderate and aggravated by activity.
[31]DCB 32
38Dr Slesenger said that Mr Goodrum had consulted a neurosurgeon who had advised against surgery.
39Mr Goodrum told Dr Slesenger that he had attended his physiotherapist until 2021. Mr Goodrum told Dr Sheard that he had an “open appointment” to re-attend his physiotherapist if need be. Dr Slesenger said that Mr Goodrum had told him that he attended at the “soft tissue centre” at work for about fifteen minutes once per month.
40Dr Slesenger said that Mr Goodrum had been managing his symptoms with “occasional Nurofen”.[32]
[32]DCB 33
Ms Erin Williams
41Ms Williams met with Mr Goodrum on 16 September 2022.
42Ms Williams said that Mr Goodrum was a highly motivated worker who loves his current employer. Ms Williams, in her summary of Mr Goodrum’s work capacity and employability, said that he had now returned to his pre-injury duties and hours.[33] Ms Williams said that Mr Goodrum was maintaining suitable full-time employment.[34]
[33]PCB 76
[34]PCB 75
Mr Goodrum’s evidence
43Mr Goodrum relied upon two affidavits: The first sworn 17 September 2021. The second sworn 19 October 2022. He was not cross-examined. There were a number of consequences identified in his evidence.
Work
44Mr Goodrum said that he had returned to his normal work duties in early 2020. He said, at the time of swearing his first affidavit, he was continuing to work full-time hours and normal duties.
45In his second affidavit, Mr Goodrum said that he had been on modified duties after an incident in September 2022 while lifting a heavy bag at home. I note, however, the 24 October 2022 medical certificate from Dr Katz certified, from that date, he was fit for normal duties.
46At the time of his most recent affidavit, Mr Goodrum said that he continued to work full-time nightshifts. He said that, while he still works some overtime, there were times when he said “no” to further overtime because of back pain.
47Mr Goodrum said that, while he will often start a shift “feeling pretty good”, that by the end of the shift he will be in quite a bit of pain and would go home and lie down.
48Mr Goodrum said that the severity of his pain which he suffered at work varied upon how physical the work was and how he was feeling prior to the shift. He said he never worked without pain. Mr Goodrum said he sometimes wore a back brace at work.
Pain
49In his most recent affidavit, Mr Goodrum said, in the last four to five months, he had suffered increasing back pain. He said, in September 2022, he had suffered increased back pain after lifting a bag of rubbish at home.
50In his first affidavit, Mr Goodrum said he had a flare up of back pain “at least once per week”.[35]
[35] PCB 13, paragraph 18
Treatment
51Mr Goodrum said that he “regularly” took Nurofen for pain relief. He said he continued to do the exercises he had been shown by his physiotherapist. Mr Goodrum said he attended the “soft tissue centre” at work from “time to time” and that he had massage or acupuncture.
52Mr Goodrum did not make reference in his affidavit to his referral to a neurosurgeon.
Activities with his children
53Mr Goodrum said his back pain interferes with what he can do with his children.
54Mr Goodrum’s youngest daughter is eighteen months old. Mr Goodrum said that, when he bathed her or changed her nappy, he suffered increased pain. He said, at times, he avoided picking her up if his pain was really bad. He said he often cannot get on the ground to play with his young daughter.
55Mr Goodrum has twin daughters who are aged twelve years old. He said they are “sporty” and he will engage in sporting activities with them, such as soccer, football, basketball and bike riding. He said he will have increased back pain afterwards. He said, sometimes he had to say “no” to these activities.
Sport and recreation
56Mr Goodrum said that, when he runs, that will cause increased pain. He says he now tries to avoid running as much as possible. He did not say how often he ran, or in what circumstances.
Relationship with his partner
57Mr Goodrum said his back pain affects his intimate relationship with his partner.
Are the consequences flowing from Mr Goodrum’s back injury “at least very considerable”?
58Mr Goodrum has the onus to establish that the pain and suffering consequences to him are “serious”. That is, these consequences are “more than ‘significant’ or ‘marked’” and are “at least very considerable”.[36]
[36] Humphries and Anor v Poljak (supra)
59As the VWA said, the significance of what Mr Goodrum has lost, which bears upon the seriousness of his consequences, may be informed to an extent by what Mr Goodrum has retained.[37] In the context of this case, I accept that is an important consideration
[37] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
60Firstly, turning to Mr Goodrum’s work capacity. In the course of the hearing, there was significant focus on Mr Goodrum’s work and the consequences of his lower back injury on his capacity to work, and the pain he suffered while undertaking his work.
61The VWA said that Mr Goodrum had returned to his normal work and continues to undertake overtime. They said that, while there may have been some modification within the workplace by Simplot, Mr Goodrum had returned to, and retained, the capacity to undertake his normal pre-injury job.
62It was Mr Goodrum’s evidence that he had, up until September 2022, been working in his normal job. Mr Goodrum said he suffered increased back pain in September 2022 after lifting a bag of rubbish at home. At that time, Mr Goodrum attended his general practitioner and was referred for a further CT scan. There was no updated medical report from the general practitioner who treated Mr Goodrum in September 2022 and/or who referred him for the further CT scan. The VWA said that I should draw an inference from the failure by Mr Goodrum to provide an updated report from his general practitioners. I accept that submission.
63The only evidence from a general practitioner who had treated Mr Goodrum in or around September/October 2022 was the Certificate of Capacity from Dr Katz. This Certificate of Capacity certified that Mr Goodrum was fit for his normal work. This is consistent with what Ms Williams said in her report.
64While I accept that Mr Goodrum is a stoic and committed worker, and ought not be penalised for this,[38] I accept that he has continued to work in his normal job, this being a job which Mr Goodrum said “pays well”.
[38] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
65Mr Goodrum is not precluded from working in the job which he had undertaken pre-injury and which he clearly enjoys. I accept what the VWA said, that Mr Goodrum has the capacity to continue on in this work. I am assisted in this regard by the opinions of Dr Sillcock and Dr Sheard. Dr Sillcock said that Mr Goodrum’s prognosis was good. Dr Sheard thought that Mr Goodrum may require only an occasional day off in the future.[39]
[39]PCB 53
66Moving, now, to the other consequences relevant to Mr Goodrum’s application.[40]
[40]See, in particular, Haden Engineering Pty Ltd v McKinnon (supra)
67The VWA said that Mr Goodrum had retained his capacity for activities of daily living. While Mr Goodrum said that there were some activities that caused him increased pain, he did not say there was any impact on his capacity for self-care or self-management.
68Mr Goodrum relied upon the impact which his lower back injury had upon his involvement with his children. While Mr Goodrum conceded that he still undertook activities such as playing soccer, playing football and riding bikes with his children, he said that, at times, because of back pain, he had to say no to some activities. Mr Goodrum also said that he would pay for his involvement in these strenuous activities by way of increased pain afterwards. The VWA said that Mr Goodrum had maintained his involvement with his children and engaged in a wide range of activities with them. It is clear that Mr Goodrum does engage in a range of activities with his children – I accept, at times, this comes with some increased pain.
69The VWA said that there was no evidence from Mr Goodrum that he had suffered any loss of a particular sporting activity, recreational activity or special interest. While Mr Goodrum said he avoided running, that was not put in the context of any sporting or recreational activity. I accept that Mr Goodrum did not identify any specific sporting activity, recreational activity or particular special interest which had been affected by his back injury.
70The VWA said there was no evidence that Mr Goodrum did not continue to engage in a full range of home duties, domestic and maintenance activities. There was no evidence from Mr Goodrum that there was any particular activity by way of home duties, domestic activities or maintenance which he was precluded from undertaking. Indeed, it was apparent from the Work Healthy Australia records, that Mr Goodrum continued undertaking activities such as gardening and moving trailers.
71Referring to the pain consequences suffered by Mr Goodrum. He said that he continued to suffer ongoing, and at times, severe pain. He said he had pain at work every day. Mr Goodrum said I must take into account his relatively young age.
72In matters such as this, it is not only what Mr Goodrum says about his pain that I must consider, but also what he does about his pain, what the doctors say about the extent and intensity of his pain, and what the objective evidence shows about the disabling effects of his pain.[41]
[41] Ibid
73Mr Goodrum no longer attends his physiotherapist and has not done so since 2021.
74Mr Goodrum relied upon his attendance at the “soft tissue centre” at his work. Mr Goodrum said that he attended there “from time to time”. However, a careful review of these records would tend to the conclusion that these fifteen-minute consultations were, over the years, very intermittent, and often consequential to non-work-related incidents. Doing the best I could, it would seem that Mr Goodrum attended at this clinic approximately eighteen times over ten years. In 2022, he attended once in February and once in October.
75The only report from Mr Goodrum’s treating general practitioners was from Dr Waldron. That report provided no support to Mr Goodrum’s application. Dr Waldron concluded Mr Goodrum had completely recovered and was symptom free.
76Dr Slesenger said that Mr Goodrum told him that his residual lower back pain was 1-2/10, increasing to 5/10 with aggravation. This can be contrasted to Mr Goodrum’s affidavit evidence, where he said that, at times, he had 10/10 pain.
77Mr Goodrum said that he took Nurofen “regularly”. Dr Slesenger said that Mr Goodrum told him that he took Nurofen “occasionally”.
78While the VWA concedes that Mr Goodrum still has a residual lower back injury, I accept that Mr Goodrum receives minimal ongoing treatment in the context of his ongoing work and other activities.
79Mr Goodrum did not suggest that his sleep was impaired by his lower back injury. Indeed, what he said, was that it was not comfortable to sleep for more than eight hours because he would suffer back stiffness as a result.
80Referring, now, back to Mr Goodrum’s retained level of activity. Mr Goodrum is currently undertaking:
· Full-time work in a job which, it was common ground, is heavy and physically demanding.
· Some overtime at work.
· Strenuous activities with his children. For example, playing soccer, football and bike riding.
· All his self-care activities.
· A range of domestic maintenance, household and gardening activities.
81I accept that Mr Goodrum is leading an active life.
82To establish serious injury, the threshold is high. As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[42] while the evidence may disclose pain and suffering consequences which are both marked and significant, for Mr Goodrum to be successful, I have to be persuaded that the consequences due to his work injury can fairly be described as being “more than ‘significant’ or ‘marked’” and as being “at least very considerable”.
[42][2009] VSCA 181
83Having considered all of the evidence, I conclude that Mr Goodrum has not demonstrated the consequences to him are “at least very considerable”. I do so in the context, as I must, by reference of this matter to the range of impairments and impairment consequences, and not just those that come before the Court. While I accept that Mr Goodrum does have some ongoing consequences which are of significance, I do not accept the consequences flowing from Mr Goodrum’s lower back injury as being “very considerable”.
Conclusion
84Taking into account all of the evidence, I am not satisfied that the consequences of Mr Goodrum’s work-related lower back injury are “serious”.
85Accordingly, the application is dismissed.
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