Gorman v Winchester Australia Limited
[2014] VCC 157
•27 February 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00638
| PETER RAYMOND GORMAN | Plaintiff |
| v | |
| WINCHESTER AUSTRALIA LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 10, 11, 14 and 15 October 2013 | |
DATE OF JUDGMENT: | 27 February 2014 | |
CASE MAY BE CITED AS: | Gorman v Winchester Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 157 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury - compensable injury – injury to the cervical spine – psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti (1994) 1 VR 436; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment:Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Mr A McNab | Ryan Carlisle Thomas |
| For the Defendant | Mr R K Meldrum QC with Ms K Galpin | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 16 October 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the cervical spine.
5 The plaintiff also claims a psychiatric impairment pursuant to clause (c) of the definition of “serious injury”.
6 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
7 Winneke P, in Mobilio,[3] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in clause (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[3]Mobilio v Balliotis (supra)
8 A Chronic Pain Syndrome (“CPS”) can result in an impairment under clause (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a CPS which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[4]
[4][2005] VSCA 227
Outline of Section 134AB
9 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
10 The impairment of the body function must be permanent.
11 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
12 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
13 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
14 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
15 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
16 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] in reaching my conclusions;
[5](2005) 14 VR 622
18 In conformity with Barwon Spinners, in the present case I must identify the injury and impairment arising after 20 October 1999. I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after the injury: Petkovski v Galletti.[6]
[6](1994) 1 VR 436
19 The plaintiff relied upon four affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s general practitioner, Dr Blair Holt, and Margaret Leitch, vocational assessor, were required for cross-examination, as was the plaintiff’s partner, Tracey Lappin. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Background
20 The plaintiff is presently aged fifty, having been born in October 1963.
21 The plaintiff attended school until Year 9. Thereafter, he worked in a wide range of employments, usually as a factory worker, storeman, process worker and farmhand. He commenced employment with the defendant on 28 July 2006.
Work duties
22 In examination-in-chief, the plaintiff described his pre-injury duties in detail, explaining that he managed quite easily during his 10-hour shift.[7]
[7]Transcript (“T”) 30
23 The plaintiff performed a number of manual handling tasks including lifting heavy boxes weighing up to 12 kilograms, turning over aluminium plates weighing 5 to 8 kilograms, individually selecting lead bullets with tweezers and operating a hoist with his right hand.
24 The plaintiff’s duties also included working in the plating room, plating .22-calibre bullets. After the bucket of bullets had been lifted by a hoist, the plaintiff had to manually push the bucket across because of the weight of the drum.
25 All those tasks were performed with some consistency over the one-hour period the plaintiff was required to perform each of them. Most of his work was on the rim fire line and at other times, he did plating.[8]
[8]T49
26 As at the said date, the plaintiff was earning about $750 a week.
The incident
27 On the said date, the plaintiff instinctively tried to prevent a drum filled with .22‑calibre bullets from falling by putting out his right arm and taking hold of it. In suddenly taking the weight of the drum, he immediately felt pain in his neck and right shoulder (“the incident”).
28 With the assistance of two fellow workers, the plaintiff stopped the drum, which, when full, weighed 186.2 kilograms, from falling to the ground.
29 In cross-examination, the plaintiff confirmed his pain was instantaneous. When the incident happened, it was like someone immediately put a cigarette lighter to his shoulder and back.
30 The incident was reported, and an accident form completed.
31 The plaintiff subsequently attended the work doctor, Dr Davey, who told him he had a muscle strain. The plaintiff then continued his duties but lasted for only about half an hour because of persistent pain.
32 After a confrontation with the production manager who belittled the plaintiff in front of other workers, the plaintiff went home at about 11.30am. He took some Panadeine Forte and rested for the remainder of the day.
33 In his most recent affidavit sworn on the day of the hearing, the plaintiff deposed that he continued to work with the defendant until about April 2010, when his employment was terminated on the basis the defendant could no longer provide suitable duties.
Duties after the incident
34 Dr Davey certified the plaintiff fit for light duties. Resuming work the day after the incident, the plaintiff’s job for the next three weeks involved putting stickers on .22-calibre boxes.[9] He was then given a job on another line, more or less like quality control, checking ammunition and handling cases that weighed about a gram or two. He did that job for about six months.
[9]T52
35 The plaintiff also worked on the ramset machine, using and handling smaller plates. He was also helping the boss do office tasks like photocopying and running little errands from one office to another.[10]
[10]T31-32
36 The plaintiff used his left hand about 75 to 80 per cent of the time. Every time he used his right hand, the pain would become too great to continue. He would then ask his supervisor to be given another job. He could not hold his arm out for longer than ten to fifteen minutes at a time.
37 It was just a make up job. There was no job specifically for the plaintiff to do. He worked his pre-injury hours. He could not recall telling Dr Jensen he was having problems with his duties.
38 The plaintiff’s employment was put to an end after he provided a report from Dr Jensen that he was unfit to return to normal duties. The plaintiff found it quite difficult keeping up with the pace of other workers at the time. He was having difficulties with neck, shoulder and back pain.
39 In cross-examination, the plaintiff agreed that he worked 99 per cent of the days Monday to Thursday until his employment was terminated.[11] There were a few days when the pain got to him and he went home early.[12]
[11]T48
[12]T66
40 The plaintiff agreed he would have stayed with the defendant if possible. He would have liked to have stayed working within the limitations certified by his doctors in early 2010 of no prolonged static postures and a 6-kilogram lifting restriction.[13]
[13]T94
Work since leaving the Defendant
41 The plaintiff knew it was his duty to try and get work, and he had applied for some pretty good jobs. He did not know whether he could do them, but he was prepared to try.
42 The plaintiff had cooperated with WorkAble. It tried to get him into traffic management. That job seemed to be fairly non-active and basic, but he would not be able to hold the sign in his hand for longer than five or ten minutes.
43 When the plaintiff explored the traffic management job, he was told it was more than holding up a sign. He had to put out from ten to one hundred bollards at one time, putting out “Slow Down” signs, “Stop” signs and other road management signs.[14]
[14]T119
44 The instructor at the traffic management course told the plaintiff the job would be too much for him. The plaintiff thought quite large signs would be involved. He could hold a sign for five minutes or so, then his neck and shoulder would be “on fire”. He would have spasms when holding a sign for prolonged periods.
45 The plaintiff has only had one job, obtained though WorkAble, since leaving the defendant in April 2010. In 2011, he worked at Lara Rose Garden for four hours the first day and three hours the second day, doing weeding. These duties aggravated his neck. This was the last job the plaintiff applied for.
46 The plaintiff has applied for six or seven jobs and got two interviews. He applied for a motor mechanic job just doing oil changes. He also applied for work as a carburettor technician.
47 The plaintiff looked at his computer overnight during cross-examination. He knew it contained details of six job applications but he could only access the details of two.
48 On 4 June 2010, the plaintiff contacted Caron Laboratories seeking work as a production worker and machine operator. He agreed he described himself in his application as available for immediate interview and that he was looking forward to a long term career opportunity. He had noted that he had extensive experience working in processing and labouring. At that time, he was willing to try anything. He really could not tell if he could do the job until he was actually doing it.
49 In September 2010, the plaintiff applied for work with Makybe Racing & Breeding Pty Ltd. It was a job as a gardener and farmhand but he was not quite sure what the work involved. He then did not think the job involved driving farm machinery; he thought it was more just tidying up the tracks. Stephanie Hunt from WorkAble wrote the application for him.
50 The plaintiff was offered work as a meter reader but was later told he did not have the job. No reason was given. He did not think he would be able to do that job now due to his neck, shoulder and back pain and he would have difficulty walking long distances all the time.
51 The plaintiff was also offered a job doing minor motor mechanic work but WorkAble intervened and he was told he was not suitable for the job.
52 The plaintiff would find it difficult documenting numbers on a regular basis in a computer or a book, due to his mental health, as he is not thinking straight. He always has pain in the right side of his neck and a burning pain in his back and pins and needles.
53 The plaintiff did not consider he could work as a speed camera operator with Serco. He did not have the necessary education to cope with writing reports and he has no computer training. He would have difficulty sitting for prolonged periods in the car. He would have to get out of the car and actually walk around for at least five to ten minutes and during that time he did not think he would be able to monitor the camera equipment.
54 The plaintiff would find it difficult and painful reaching out to assemble and manoeuvre the 5-kilogram camera on the dashboard.[15]
[15]T204
55 The plaintiff did not know anything about current police or government guidelines in relation to camera equipment. He would have a considerable amount of difficulty dealing with the Road Safety Act and legislation and has had no experience in that regard.
56 The plaintiff was able to do text messages but he would have problems getting mixed up with directions. He could use a tape measure and read figures but he would have trouble writing out a sentence. He cannot even turn on some new machines.
57 The plaintiff only just passed Form 3 and his reading and writing skills are very poor and has never had to rely on them for a job.
58 The plaintiff has no experience troubleshooting, repairing equipment issues or liaising with technical staff. He would find it very, very hard to give evidence in Court. He has difficulty actually talking to people and would be unable to give expert advice.
59 The plaintiff’s hearing is only below average and he is borderline deaf on an on industrial basis. He would be scared if he was required to engage in conflict resolution.
60 The plaintiff did not believe he would be able to do repetitive work, putting items on the shelves at a service station. He would have problems cleaning large areas.
61 Driving for a lengthy period of time impacts the plaintiff’s pain and symptoms. His driving tolerance is fifteen to twenty minutes and he would find it quite difficult driving around all day in a job that was focussed around driving.
62 Given the extent of his physical injury on its own, the plaintiff believes that he is no longer capable of working. He also believes that his psychiatric injury on its own also prevents him from working.
Treatment
63 The plaintiff, having initially seen Dr Davey, continued under the care of his general practitioner, Dr Loy.
64 The plaintiff underwent C5‑6 and C6‑7 facet joint blocks with Dr Jensen on 17 December 2009. Dr Jensen eventually could not do anything more for him.
65 The plaintiff tried physiotherapy with Bill Dixon for three or four months and also hydrotherapy, but he obtained no relief from those treatments, which in fact aggravated his condition.
66 As of October 2010, the plaintiff was taking Panadeine Forte and OxyContin every day.
67 In early 2011, the plaintiff had stopped attending the You Yangs Medical Centre and was seeing Dr Blair-Holt at the Corio Medical Practice, because he found Dr Loy was not very sympathetic or helpful.
68 The plaintiff had difficulty getting a doctor to treat him. Dr Blair-Holt only took him on as a patient if he agreed to try and get off OxyContin. The plaintiff found this very difficult but managed to do so.
69 The plaintiff was referred to psychologist, Sarah Gale, in mid 2011. He continues to see her every two to three weeks.
70 In late 2011, Dr Blair-Holt referred the plaintiff to a pain management clinic where he was put on a lengthy waiting list. Having been told it was a twelve-month wait, the plaintiff contacted CGU, which agreed to enable him to make application to Geelong Private Hospital for their pain-management program.
71 After eight to ten weeks, the plaintiff was advised of a medical appointment with Mr Brett Chandler, which occurred in February 2013. The plaintiff was assessed and referred for an MRI scan. A ketamine infusion took place on 15 June 2013, but it did not help the plaintiff’s pain.
72 In about August 2013, Dr Chandler sent the plaintiff to Dr Joe Black, psychiatrist, for treatment. The plaintiff attends him fortnightly.
73 The plaintiff continues to consult Dr Blair-Holt regularly, and is currently prescribed Pristiq, recently increased from 50 milligrams to 100 milligrams daily; Panadeine Forte, four to eight daily, and Diazepam. About two weeks ago, he stopped taking Endep and Lyrica, having spoken to Dr Black, who told him that anything more than four Panadeine Forte a day was not going to be helpful.[16]
[16]T42
74 During the day, the plaintiff probably stretches for about half an hour doing exercises suggested by his physiotherapist, moving his arm, neck, shoulders and back and trying to bend. If he does not do his exercises, the plaintiff gets very stiff that night.[17]
[17]T45
Progress of pain
75 The plaintiff deposed in October 2010 that despite trying a number of different treatments, there had been no improvement. He had constant, severe and unremitting pain which interfered with almost every activity in the day, and waking him at night. He had numbness down his arm to his three middle fingers.
76 In February 2012, the plaintiff deposed he continued to suffer neck pain on a daily basis radiating down his right arm and into his back and right shoulder. He had numbness and pins and needles down his right arm, extending to his thumb, index and middle finger, and he could not hold his arms out for more than five or ten minutes.
77 Activities that involved lifting, bending, twisting, stooping, pushing and pulling were types of activities that made the plaintiff’s symptoms worse. He had difficulty keeping his head in a fixed position for prolonged periods and needed frequently to change his position and posture. He also suffered from severe headaches on a daily basis, and overall felt his symptoms were getting worse.
78 The plaintiff swore a third affidavit on 20 March 2013 which repeated the matters deposed to in his second affidavit.
79 In his fourth affidavit sworn on 10 October 2013, the plaintiff confirmed he continues to suffer the physical symptoms and restrictions as outlined in his previous affidavits.
80 The plaintiff feels he has lost control and lost considerable strength in his right arm. If he uses it over a prolonged period or repetitively, he generally suffers from worse symptoms.
81 The plaintiff has difficulty sitting for lengthy periods without suffering from worse neck and arm pain. Sleep remains a problem, and he has difficulty with getting comfortable in bed, and often struggles to fall asleep due to pain. He is often also woken during the night by pain.
82 At times, the plaintiff suffers from severe headaches which are normally bad when he suffers from worse neck pain. Two to four days a week, the headaches involve pain in his eyes and around in the back of his neck and radiating into his shoulders. He does not know what triggers them off. He usually has pins and needles and a numb feeling at the same time.
83 With the headaches, there is a constant dull pain in the plaintiff’s head which was not small and sometimes it felt like it was going to explode.
84 At times, the plaintiff also suffers pain and pins and needles down his left arm, but these symptoms are not nearly as bad or as constant as those down his right arm.
85 The plaintiff thought the onset of leg pain would have been in early 2000. When it was suggested to him that he did not tell Mr Hjorth of any leg problem when examined in March 2011, the plaintiff said he did not think that was related to his neck or his shoulder. Doctors were not asking him questions about the lower half of his body and they were more concerned about the top half. Only when he told the doctors later in life that he was having trouble with his right leg did he think it might be related to his incident injury. In any event, it was more the right leg and there was hardly anything wrong with his left leg.
86 The plaintiff continues to be frustrated, anxious and depressed, and often thinks his life is not worth living. At times he has thought of suicide. His concentration and memory are poor. Sometimes he is irritable and teary and he lacks energy and motivation. His self-esteem and confidence are low.
87 As a result of suffering injury, considerable stress and strain has been put on the plaintiff’s relationships with his partner and family members.
88 Just sitting in the witness box, the plaintiff’s shoulder and neck felt like they were on fire, and he had neck pain.[18] He demonstrated the pain was on the right side, going down into his shoulder, starting at about his hairline, and all the way down to a bit higher than his belt, round the middle of his back from the middle up – pointing to his chest to around the sternum. His right arm pain goes all the way down to the elbow, and when he is lying down, it travels a lot further down into his hand.
[18]T36
89 The plaintiff also has daily, but variable, numbness and pins and needles going down his right arm, starting from his neck behind his ear, straight down his arm all the way to his index finger, middle finger and little finger. His whole hand goes numb.
90 The pain from his neck down to his right arm is continuous every day but varies. Probably about three to four times a week, he experiences high pain levels.[19]
[19]T39
91 The pain in the right arm presently is on both sides of the plaintiff’s shoulder blade. It is really tight, tense and burning. Whilst he still has some left arm pain, his left arm now seems like it is a lot stronger than his right. He has left arm pain at least three times a week, anything from an hour to two or three hours.
92 The plaintiff is right handed and his strength is restricted a lot when he goes to lift or move things and activities like lifting or pushing and repetitive use of his arms increase the pain level. There is no strength in his right arm – it is more or less dead, a numb feeling.
93 The plaintiff finds it quite difficult sitting for lengthy periods because of the burning pain in his neck and shoulder, going down to his shoulder and back.
94 The plaintiff has jarring problems when walking that aggravate his neck and shoulder so he can only walk probably about 400 metres, then he has to find a place to sit down. He could not recall, over the last year or so, whether there had been occasions when he walked over 400 metres.
95 The plaintiff would have to stop probably at least twice when walking 400 metres. He would prefer to use a ramp to stairs. A burst blood vessel caused him problems walking. On good days, he can do longer strides and on bad days, he tends to find the jolting of the road surface on his feet pumps up to his neck and shoulder.
96 The plaintiff would nearly always be at the back of a group crossing at the lights because his strides are slower and shorter than most people.[20]
[20]T94
97 The plaintiff might wake up two or three times a night with pain in his neck, shoulder and back. Usually, his right arm and hand is numb and he has lots of pins and needles that are painful.[21] He takes Diazepam to sleep, once in the morning and once at night – 5 milligrams. If he does not take them, he just cannot relax.
[21]T42
98 The plaintiff demonstrated in the witness box that he could move his neck quite easily to the left, but to the right “it would not go.” His neck, when moved to the right, got no further than the edge of his collar and shirt.[22]
[22]T46
99 Moving and lifting his arm at about above shoulder height, the plaintiff reached to 80 degrees out to the side and to the front with his right arm – a movement his counsel described as like a “horizontal Nazi Salute”.[23]
[23]T47
100 Some days the pain comes straight across the plaintiff’s nipple area and up into the armpit. The pins and needles come from nearly the top of the shoulder, all the way down to his fingers. He can only feel a pinprick in the middle of the back of his hand. Sometimes the pain goes almost to his bellybutton level. The pins and needles go into his buttock.[24]
[24]T70
101 The plaintiff did not fold his arms a great deal because doing so would be uncomfortable for his neck mostly. Sometimes he rests his right arm against his stomach to take its weight.
102 If he has to carry anything like a glass of water, the plaintiff chooses mostly to carry it in his left hand 95 per cent of the time. He finds it painful to carry something like a can of baked beans behind his back near his back pocket.[25] He described having difficulty holding out a 3-litre milk container to pour.[26]
[25]T72
[26]T67
103 The plaintiff was then asked in great detail about what hand he used to do what activity. Probably 95 per cent of the time he opens the car door with his left hand because of his neck pain. He would ordinarily carry the papers in his left hand. He puts his seatbelt on with his left hand and he grabs and shuts the door with his left.[27]
[27]T82
104 The plaintiff described the first day in the witness box as a bad day, about the same as the second.[28] He normally gets one day a week that is not bad and in the last month, he probably had one good day. The pain was constant, mainly on the right side and also on the left. The severe pain is more like 7 or 8 out of 10; it never gets less than 5. Pain on the left side is not as bad and can commonly reach 7 out of 10.
[28]T86
105 The plaintiff agreed that he had a limp that day of the hearing, having woken that morning with pins and needles in his back right down to his hips.[29] He agreed more days than not, the symptoms go into his legs and there is something of a limp. He has probably been limping just on twelve months or a little bit over, but then said he had been limping for longer than eighteen months, having started doing so three or four years ago. He wakes up after a bad night and it is more or less the right side “does not want to work”.[30]
[29]T88
[30]T89
106 A bad night is a mixture of pins and needles, numbness and pain and they come together in the plaintiff’s groin, all the way down to all his toes. There are not similar symptoms in the left. It is rare to get numbness in the right leg that does not go all the way into the feet. He has pain, numbness and pins and needles. He found himself having trouble walking at work, probably about three or four months after the incident. [31]
[31]T91
107 The plaintiff has not had a full range of neck movement since the incident. [32]
[32]T115
108 The plaintiff denied deliberately contracting his muscles on examination and said he had never been dishonest in his whole life.
109 The plaintiff agreed he told Mr Gale in 2011 that every three weeks he would develop overall feelings of weakness, usually with a sharp pain down his right arm and pins and needles in the back of his chest, which could cause him to slowly fall to the floor and lie semiconscious on the floor. He first noticed that problem about three weeks after the incident. It had happened a couple of times at work and last happened about eight months ago.[33]
[33]T123
110 The plaintiff agreed he had been painting a picture that he was worse of recent times. He told Dr Blair-Holt when he was good or bad and that there was more than a little deterioration.
Activities pre and post incident
111 The plaintiff used to play cricket, and would have liked to have played cricket with his sons in a social competition, but was unable to do so. He could not even participate properly in backyard cricket. He probably had not played for ten years when he played part of a game filling in.
112 The plaintiff was not a hundred per cent sure he told Dr Davison he last played competitive sport in 1996. He had a couple of odd matches after that and agreed he had all but given up playing active sport by then.
113 The plaintiff has not held a cricket bat in his hands since the incident. He denied he had started a bit of cricket in February 2010, as Dr Loy then noted.
114 Prior to the incident, the plaintiff went bushwalking in country Victoria, sometimes walking for a full day on a 14-kilometre return trip. He enjoyed camping, hiking and walking more than fishing before the incident. He had not gone camping since probably 2008.
115 Since ceasing work, the plaintiff had only very occasionally been fishing in his tinny. He had probably been fishing maybe five or six times in the last five years – in the boat and on the jetty.
116 When the plaintiff stayed in Curdie Vale with his brother for a number of days, they went out in the tinny for maybe up to three hours but they pulled up at the bank and rested because the plaintiff had problems sitting in the one spot.
117 When the plaintiff goes fishing from a jetty, he flicks the line out with his left arm. He has not been fishing from a pier this year. He can put on some types of bait with one hand. About two and a half years ago, he stopped fishing every month because he lost interest and did not have enough money to go.
118 The plaintiff has thirty surf rods and collects them. He had a passion of more or less collecting fishing rods and refurbishing them. He has not been surf fishing for ten years or more and would have problems doing so, not being able to cast the distance. He has not cast a surf rod since suffering injury.
119 The plaintiff has last renewed his fishing licence about three or four weeks ago.
120 The plaintiff’s partner, Tracey, does most of the gardening and the housework. He would like to help her, but has difficulty because of his arm. She does most of the mowing. The biggest area the plaintiff has mown was probably the size of the bar table.
121 The plaintiff has difficulty cooking and, in particular, cutting hard vegetables. Most of the time, Tracey cuts up his steak up for him. The total sum of his contribution around the house is putting a few things away or tidying up, and he did not do any actual work. To fill in his day, he tries to help in all the littlest jobs he can perform easily, doing a couple of plates or dishes.
122 If Dr Loy noted the plaintiff was doing “heaps” at home in February 2010, the plaintiff meant he was more or less trying to help his partner more than what he had been able to do.[34]
[34]T98
123 The plaintiff could only wash his hair by keeping his right elbow tucked into his chest and bending over. He has difficulty with personal hygiene and combing his hair.[35] It is terribly painful showering and he rated his pain at 7 to 8 out of 10 pain, doing so, twisting in the shower.
[35]T103
124 The plaintiff is limited to about fifteen minutes’ driving, and had to stop twice on a recent trip to Ballarat. It was a strange feeling driving when he was taking OxyContin because he did not feel in control.[36]
[36]T97
125 Since the incident, the plaintiff no longer does any major service on his own car or cars belonging to friends. His car did not need any work. He agreed he was a bloke who used to work a fair bit on cars. His last project was six or seven years.
126 In cross-examination, the plaintiff described, in a convoluted way, having taken three hours to change a headlight bulb, having told Dr Chandler he was able to do car maintenance for five to ten minutes.[37]
[37]T175
127 When he goes shopping, the plaintiff always uses a basket because it is harder to manoeuvre a trolley around other customers. He would never carry the basket in his right hand and if he is putting things in it, he would put the basket down on the ground. He agreed he was effectively a one handed shopper and he usually just buys bread, milk and maybe a chook.
128 The plaintiff confirmed his difficulties with sitting making him uncomfortable in his arms and neck. Even on a good day at home he is lying down after fifteen to twenty minutes because it is too painful to keep sitting. He is really wriggling around if he has to sit for more than twenty minutes and he then has to stand up and go for a walk. The plaintiff thought he had told doctors about his right leg problem.
129 Ninety-five per cent of the time, the plaintiff would pull out a 3-litre carton of milk with his left hand. Sometimes he uses his right and has to pay the penalty.
130 The plaintiff explained that he had been on many antidepressants and he was not quite sure of his answers in court. He felt jittery inside and he had not slept well. The plaintiff required a break in cross-examination.
Surveillance
131 There was total surveillance of 72 hours and 45 minutes between 10 December 2010 and September 2012. On a number of days, the plaintiff was not sighted.
132 On 10 December 2011, there was surveillance between 6.00am and 3.00pm of nine hours at CGU and SuperAuto, five hours shopping on 17 December 2011; four hours on 10 December 2010 driving to Ballarat but the film was lost.
133 There was a total of 6 minutes of film, 4 minutes on 12 December 2011 and the balance on 17 December 2011.
134 At 12.25pm on 12 December 2011, the plaintiff was shown walking along the street and crossing the road. He had papers in his left hand and held his right arm in a “Lord Nelson type” position and appeared to be walking normally. At 1.37 to 1.39pm, he continued to walk down the street.
135 At 1.56pm, the plaintiff was shown looking at items on the shelves at SuperAuto. He reached with his left hand and retrieved an item from the shelf and then put it on a bench and appeared to read the label. He then took the item down with his right hand and stood in the same position with the item behind his right back pocket.
136 At 2.01pm, the plaintiff returned to his car, opened and closed the door with his right hand and drove off.
137 The plaintiff did not agree that he walked freely across the road. His right arm did not swing normally like it used to and he was carrying his right arm most of the time up near his bellybutton or at his chest.
138 After he went to CGU, the plaintiff went to Super Cheap Auto to buy an oil filter for his son. He agreed he took an item from reasonably high on the shelf with his left hand. He then chose an item at about shoulder height with his right hand and held it firstly in his right with his hand beside his body and then behind his back pocket.
139 The plaintiff always believed he was able to carry up to 5 kilograms in his right hand and he knew no one would notice it but he bent his arm back around his body and he was usually stretching his shoulders and that is what he then did. He only shops for small things. He had always said to doctors he could move his arm to that level and that was where he started feeling pain.
140 The plaintiff agreed he went back to his car with his keys in his right hand and the shopping in his left. He opened the door with his right hand, pulled the handle on the door with his right hand and shut it with his right hand. That is not how he opens and gets into the car all the time and not how he mostly does it. He can open the door with his right hand but he had items in his left at that time.
141 The plaintiff used his left hand spontaneously mostly since the incident. Only a small number of times a year he would use his right hand getting in and out of the car.
142 The plaintiff was seen on 17 December 2011 at 10.23am pushing the car door open with his right arm and holding it open with his left, then locking the car with his right hand.
143 At 12.27pm, the plaintiff was shown walking down the aisle of Coles carrying a shopping basket in both hands. He lifted what appeared to be a large milk carton into his shopping basket with his left hand and continued carrying the basket with two hands.
144 At 12.28pm, the plaintiff was shown reaching to grab a loaf of bread with his left hand. He then continued to carry the shopping basket in his left hand. He then lifted the shopping basket onto the conveyor belt with his left hand and unloaded the shopping with both hands.
145 At 12.29pm, the plaintiff exited Coles, carrying the shopping bag in his left hand for about forty seconds until the video ceased.
146 The plaintiff denied he opened the car door with his right hand and actually pushed it with his left hand. He denied he locked the door with his right hand as there was central locking. He agreed that initially he lifted the milk into the basket with his left hand, then carried the basket in both hands in the middle in the front at waist height. He took goods out of the basket with his right hand for a very short time. He disagreed his right arm was swinging freely, with his left holding the shopping basket. He was not turning his neck around to the right side as he had trouble looking to his right.
147 The plaintiff described how he had been walking with a limp now for quite some time and it was obvious on the film.
The Plaintiff’s earnings
Financial Year Gross 2005-2006 $3,342
plus $10,381 government allowance
2006-2007 $34,675 2007-2008 $37,859 2008-2009 $40,505 2009-2010 $40,074
plus $4,290 ETP
2010-2011 $34,378 2011-2012 $33,134 2012-2013 $34,749
Lay evidence
148 The plaintiff’s partner, Tracey Lippman, swore an affidavit on 9 March 2012 confirming that she had observed the plaintiff to be restricted in his general movement and activities in the way he described in his affidavits.
149 Ms Lippman, was required for cross-examination. She met the plaintiff in 2005 and started going out with him in 2007 and moved in with him in December 2008.
150 Ms Lippman last worked in 2009 as an administrator/bookkeeper for Book City in Melbourne. She was the principal cleaner, handyman and cook in their house and she did most of the shopping. She did the gardening which was not an activity shared by the plaintiff. She agreed she was always carrying the bigger burden domestically.
151 Ms Lippman could not remember what, if any, time off work the plaintiff had after the incident and she was not sure when the plaintiff’s depression commenced.
152 The plaintiff used to talk a lot about his incident-related problems but she had “heard it all before”. She agreed that she tried and blocked it out more or less.
153 The plaintiff’s initial complaints related to his right shoulder and upper limb, into his neck. There had been other complaints. She thought he just had a little bit of pain in his left arm about which he complained about a loss less frequently. She was not sure how long it was since she had heard anything about his left arm. She had not heard anything about complaints in his lower spine.
154 The plaintiff complains of constant numbness which has been continuous without a break. He complained of pins and needles quite often in his right arm but she could not be sure whether he had similar complaints in his left. He has also complained of pins and needles down the legs which he said was caused by physiotherapy some years ago. He had also complained about a bruise behind his knee.
155 When they first met, the plaintiff did a lot of work on cars. Now he just tries to have a go but he does not stick to it very long. He tries to potter around. Ms Lippman thought he was bored and he just goes out and looks for something to do. She has not seen him under the car and did not know if he worked under the bonnet. If there is any handyman work around the house she does it. She loves painting.
156 Ms Lippman always drives with the plaintiff as a passenger because he is not a good driver. She drove the plaintiff to doctors’ appointments in Melbourne.
157 Ms Lippman and the plaintiff went fishing and camping before his injury but they have not been together since. She thought the plaintiff had been fishing with his brother about four years ago.
158 The plaintiff had taken the tinny out probably twice, once with his son and once to Curdie Vale. She confirmed he was a collector of fishing rods and he enjoyed refurbishing them. He might have fixed up one since the incident. The plaintiff recently got his fishing licence and went fishing on the pier just to get out of the house.
159 Ms Lippman agreed that the plaintiff had good days and bad days but on a good day, he still had restrictions. He walked with a limp when he became tired or had overdone it but did not walk with some sign of a limp every day. She thought he started limping roughly about twelve months ago. She has noticed it is getting worse. The plaintiff walks a lot less and they do not go for walks now, having previously enjoyed bushwalking as a mutual interest.
160 Ms Lippman has set up the plaintiff’s computer at home. He is not a regular user and he is “not big on the computer”. She has shown him a few things such as how to log on but he does not stay on the computer for very long, looking at sites like Gumtree to buy things.
Claim documentation
161 The plaintiff completed a Claim for Compensation on 18 November 2008, claiming injury to his right shoulder, girdle strain and middle back, helping move a 60‑litre drum of bullets when the drum fell over and he tried to stop it falling and hurt his right shoulder and back.
162 The plaintiff was then working 38 hours a week, and his usual pre-tax hourly rate was $19.23, and usual pre-tax weekly earnings $731.
163 By a letter dated 3 September 2010, CGU accepted liability for the plaintiff’s claim pursuant to s98C of the Act in relation to his neck, upper back and right shoulder, based on the assessments carried out by Mr Gale.
164 By letter dated 3 September 2010, the plaintiff was advised by CGU that his request for payment of a ketamine infusion and inpatient admission at Geelong Private Hospital had been approved.
The Plaintiff’s medical evidence
Treaters
165 Dr Pak first saw the plaintiff on 3 April 2009 when the plaintiff reported having right upper back pain since reaching out to grab a falling steel drum at work four months earlier. He complained of constant localised right upper back pain with surrounding paraesthesia and a moving sensation.
166 Dr Pak thought the history and examination findings were suggestive of a right rhomboid muscle strain or tear injury. He noted the treating physiotherapist thought, in addition, there might be an injury to the right facet joints with some neuropathic pain.
167 Dr Pak believed, as of the April 2009, that employment was the main contributing factor to the plaintiff’s injury.
168 Dr Pak thought the plaintiff was fit for work with suitable restrictions.
169 Dr Blair-Holt from the Corio Village Medical Practice reported in March 2013 that the plaintiff had attended that practice since January 2011. He noted that the plaintiff had decided to change doctors because of perceived differences with Dr Loy. He noted it was not his usual practice to take on new patients with chronic unresolved WorkCover injuries, as he thought they were best served by their general practitioner.
170 Dr Blair-Holt thought the plaintiff appeared to have suffered a genuine work-related injury to his cervical spine nearly three years ago and continues to have related symptoms. The plaintiff was weaned off OxyContin over two months.
171 Dr Blair‑Holt organised investigations of the plaintiff’s right shoulder in March 2011. There was temporary relief from shoulder pain and increased movement following a cortisone injection in that month.
172 Dr Blair‑Holt noted symptoms of anxiety and depression became apparent during May and June 2011 and the plaintiff required counselling as well as antidepressant medication. He referred the plaintiff to Janine Lucas, psychologist, for counselling and was first seen by her in July 2011.
173 There was a referral to Barwon Health Chronic Pain Management Clinic in October 2011.
174 Following regular review for chronic pain and depressive symptoms in September 2011, Dr Blair‑Holt thought it became obvious that the combination of those illnesses made the plaintiff totally unfit for work, and subsequent WorkCover certificates were for total incapacity. He thought the physical injuries alone made the plaintiff unfit for his pre-injury duties in the foreseeable future. He considered the plaintiff did not have a current capacity to perform his pre-injury duties and he thought that was likely to last for the foreseeable future.
175 Dr Blair-Holt thought the physical injuries had restricted social, domestic and recreational activities from the time of injury into the foreseeable future. He thought future treatment should include a full assessment by Barwon Health Pain Management Clinic. He was then pessimistic about the possibility of the plaintiff’s symptoms resolving; however, he thought the plaintiff may gain some benefit after his assessment at the Pain Management Clinic.
176 Dr Blair‑Holt reported in April 2013 that the plaintiff had remained under medical surveillance for his work-related neck and right upper limb injury as well as his Chronic Pain Syndrome and Depression. He continued to require regular pain relief including Panadeine Forte, Lyrica and Endep on a regular basis, as well as Diazepam and the antidepressant, Pristiq.
177 Dr Blair‑Holt reported that during the last year there had been no significant change in the plaintiff’s symptoms or signs and he had short-term relief from medication but simple daily activities led to an increase in pain.
178 Dr Blair‑Holt noted that in February 2013, the plaintiff was seen by Dr Chandler at Geelong Private Consulting Rooms, who organised an MRI scan. As of April 2013, the plaintiff was on a waiting list for a trial of ketamine infusion. He continued to suffer from anxiety and depression, related to his neck, and continued to see a psychologist regularly, as well as receive counselling.
179 As of the April 2013, Dr Blair‑Holt thought the plaintiff remained unfit for all work, owing to his work-related neck injury and depressive illness. He remained pessimistic about the possibility of the plaintiff returning to gainful employment and noted, in the time the plaintiff had had treatment at Corio, his symptoms had not improved at all.
180 Dr Blair‑Holt thought the plaintiff sustained a soft tissue injury to his neck region, including his cervical spine, with clinical evidence of cervical neuritis. He subsequently developed chronic pain and associated depressive illness.
181 Dr Blair‑Holt considered the plaintiff’s employment with the defendant to be a significant contributing factor to his current impairment of his neck and right upper limb. He believed that for the foreseeable future the plaintiff is unlikely to be able to carry out any activities involving lifting, pushing, pulling, prolonged or repetitive use of the right arm or sitting for prolonged periods. He thought the plaintiff did not have a capacity for suitable employment and his physical injury and impairment to his neck and right upper limb would continue to restrict his social, domestic and recreational activities for the foreseeable future.
182 Dr Blair‑Holt thought the plaintiff required further support with conservative pain management to cope with his Chronic Pain Syndrome and his depressive illness. He thought the prognosis was one of ongoing pain and disability associated with an inability to carry out paid employment and associated restriction in social and domestic activities. He remained pessimistic about any significant change in the future from the history obtained in providing general practitioner-care to the plaintiff during the last two years.
183 Dr Blair‑Holt, was required for cross-examination.
184 Dr Blair‑Holt explained that from a medical point of view, the neck and shoulder muscles are somewhat linked with regard to movement, and neck pain is often reflected by pain in the trapezius region and across the shoulder. Certainly at some stages it can be difficult to determine where the pain is coming from.
185 Dr Blair‑Holt thought it not uncommon for patients who have a neck injury to have a headache as well as shoulder and arm pain. He confirmed that the extent of the plaintiff’s pain was to the thoracic area and he was not aware of him having pain below his waist or pins and needles and numbness down the whole circumference of both legs and down to all ten toes.
186 Dr Blair‑Holt confirmed he gave the plaintiff the opportunity to tell him where his problems were.
187 Dr Blair‑Holt confirmed the first complaint of depression was 6 June 2011, where he recorded:
“Concern re depressive symptoms; financial problems; partner not employed; she was sacked last year; five years together; crying and depressed at home; now getting her down; lacks computer skills; trying to get another job; reason for contact, depression and a prescription for Mirtazapine.”
188 Although Dr Blair‑Holt conceded that was the first reference to depressive symptoms, he noted on 29 April 2011, the plaintiff was quite anxious and edgy and he diagnosed anxiety, which quite commonly co-exists with symptoms of depression.
189 Dr Blair‑Holt wrote “depression” next to worker’s compensation because the plaintiff attended for a worker’s compensation consultation and his symptoms were related to his work injury.
190 Dr Blair‑Holt confirmed he certainly attempted to write down all that was important.
191 Dr Blair‑Holt confirmed it was not only the plaintiff’s complaint of depressive symptoms but his clinical examination confirmed that diagnosis and that was the reason why he prescribed the antidepressant medication.
192 Dr Blair‑Holt confirmed he received a telephone call from the psychologist, Ms Gale, on 6 September 2011, who was very concerned the plaintiff had suicidal thoughts, and he agreed to review him the following day. By that stage, the plaintiff had had at least three visits to her, having been referred by Dr Blair‑Holt. Dr Blair‑Holt explained that following the call from Ms Gale and the plaintiff’s attendance the following day, he certified him totally unfit.
193 The entry of 16 August 2011 Dr Blair‑Holt agreed was a situation of classic radiation in the right arm with numbness in the fingers and thumb, index and middle finger, consistent with that being neurological. It suggested that the plaintiff was having ongoing neuritis coming from his neck.
194 There was also a mention of severe headaches in October 2011 and removing Tramal because of the side effects.
195 Dr Blair‑Holt agreed that up until 2 September 2011, he still considered the plaintiff was fit for modified duties but that was academic at that stage, because he was no longer employed. What changed his mind was the onset of depression and the plaintiff’s physical condition. Dr Blair‑Holt advised that if he looked at each condition individually, he may still come up with the same answer that the plaintiff is unfit for all employment. He thought the plaintiff was psychiatrically unfit from early September 2011 and ongoing.
196 Dr Blair‑Holt did not necessarily agree with the proposition that there had been no advance in the plaintiff’s physical symptoms after September 2011 that resulted in a total work incapacity. He believed that from that time onwards, the chronic pain in the plaintiff’s neck and shoulder, and at times down his arm, would prevent him on a physical basis alone, from carrying out his pre-injury or suitable employment.
197 Dr Blair‑Holt agreed, when taken through the notes, he did not have a specific entry noting that the plaintiff’s pain had become more severe or frequent. He agreed the pain has been ongoing since the original incident in 2008. It was certainly his feeling that that there was a worsening even though this was not specifically noted. He thought it was quite clear from the plaintiff’s records he had pain that was chronic and disabling.
198 Dr Blair‑Holt agreed he had many years of practice involving people with worker’s compensation claims and he would record any progress of a patient’s health and he would ordinarily record it if there was an increase in intensity and frequency. He commented though, the plaintiff appeared to be in pain every time he saw him, right from the beginning, and if there were such facts he would ordinarily record them.
199 When diagnosing a soft tissue injury on 21 October 2011, Dr Blair‑Holt included the nerves, thus he did not exclude the fact the plaintiff had cervical neuritis. He was seeing the plaintiff on a regular basis and every time he saw him he did not necessarily record things that may have been recorded before.
200 It was suggested to Dr Blair‑Holt that on every examination, he did not record radicular pain. The plaintiff may have told him about those complaints but he did not record it, but he conceded he attempted in consultations to record the important facts, symptoms and signs that are present. He agreed the absence of a record probably meant that it had not been complained of.
201 In re-examination, Dr Blair‑Holt confirmed he was prescribing Panadeine Forte on a continuing basis.
202 Dr Blair‑Holt confirmed he concluded that the plaintiff’s pain and symptoms were getting worse, on the grounds of history, in the sense that the pain was chronic and ongoing and not responding to treatment.
203 Dr Blair Holt believed the plaintiff sustained a soft tissue injury that included cervical neuritis and also he had evidence of degenerative arthritis in the cervical spine that was obviously aggravated by the incident.
204 It was Dr Blair Holt’s opinion that the plaintiff would be permanently unfit for work he was trained for and what he could do, owing to his physical injuries sustained in the incident. From the perspective of a psychiatric injury, he thought the plaintiff was totally unfit for all work relating to his psychiatric illness.
205 In his initial report of September 2009 to Dr Pak, Dr Jensen advised he perceived the plaintiff must have some right C6 nerve root impingement to explain his pain and he thought it would be worth pursuing an MRI scan of his cervical spine to confirm that, before embarking on any specific treatment regime.
206 The plaintiff then described an immediate burning sensation around his right neck, shoulder and scapular region. That pain had persisted. There was almost total numbness through his thumb and index finger, as well as the shoulder girdle itself. The plaintiff certainly had a head protracted posture.
207 Dr Jensen thought there was some widespread altered sensation through the right upper limb, and at the shoulder girdle it seemed much denser through the right thumb and index finger consistent with a C6 lesion.
208 In January 2010, Dr Jensen wrote to Dr Loy advising that when he undertook right C5-6 and C6-7 facet joint blocks, there was a marked resolution of the plaintiff’s right-sided pain. Dr Jensen noted that over the last several weeks, the plaintiff had been bothered by left-sided symptoms, which Dr Jensen thought suggested that there was some C6 or C7 nerve root irritation on that side.
209 The plaintiff reported things seemed to have settled as of February 2010 and the right side was a little sore again. Dr Jensen advised that for the time he was going to leave things be, and he elected to put further facet joint injections on hold.
210 The plaintiff telephoned Dr Jensen in March 2010, advising he was really struggling with his work duties because of the flare up of his right-sided neck and scapular pain. There was no referred arm pain.
211 In a report to CGU of March 2010, Dr Jensen advised his initial current diagnosis was of mechanical cervical spine dysfunction with referred right arm pain. The plaintiff initially had signs suggestive of a significant neuropathic component to his Pain Syndrome and at times he displayed subtle right C6 nerve root signs in the form of altered C6 sensation in the right upper limb.
212 Dr Jensen advised the plaintiff’s current working diagnosis was that the radicular component to his pain had settled. He still had neuropathic features, as evidenced by burning quality pain he suffered through his neck and shoulder girdles.
213 Dr Jensen wrote to Dr Loy in May 2010, advising the cervical medial branch blocks ruled out facet joints as being significant pain generators. Therefore, he concluded the plaintiff’s pain must be discophytic, as was his initial assumption. He thought there was then no cure for the plaintiff’s problem. He had discussed it with the plaintiff and stressed the importance of maintaining his exercise program. He thought, therapeutically, the best thing they could do was to try and find the plaintiff alternative work.
214 In December 2010, Dr Jensen, having last seen the plaintiff in May 2010, believed, due to the nature of his injuries, that he was totally and permanently incapacitated to do his pre-injury work but he would be restricted in other activities to a mild to moderate degree for the foreseeable future. He did not think the plaintiff required any further formal medical treatment.
215 Dr Jensen thought the prognosis for the physical injury was poor and he believed the plaintiff would continue to have long-term chronic pain and associated disability from his neck injury and its sequelae.
216 Dr Jensen reported to Dr Blair‑Holt in September 2012, thanking him for referring the plaintiff for a further opinion.
217 Dr Jensen noted the plaintiff then presented in a very depressed state, citing pain levels of 7 out of 10. A completed questionnaire revealed a very high level of perceived disability and a very high level of psychosocial distress.
218 The plaintiff certainly looked very depressed with a hunched forward posture. Neurologically, Dr Jensen was not able to detect any true localising neurological signs, including any long tract signs. Sensation testing of the right upper limb revealed non-anatomical changes. The plaintiff certainly had irritable cervical spine movements in all planes. Palpation at about C5-6 shot pain through to the leg.
219 Dr Jensen advised that the plaintiff now presented with a very complex pain problem. He noted, although there was no doubt a primary cervical component, there were also quite profound secondary psychosocial issues. He noted the plaintiff’s pain certainly had a neuropathic flavour to it and he had given him a sample of Lyrica.
220 Dr Jensen reported to Dr Blair‑Holt again in January 2012. Having reviewed the plaintiff, he did not think they could justify keeping him on Lyrica. He was happy for the plaintiff to continue on Pristiq. He strongly urged the plaintiff to keep an appointment at a private pain clinic in Geelong.
221 Dr Jensen wrote to Dr Blair‑Holt again in July 2013 following a ketamine infusion, after which he noted really nothing much had changed.
222 Dr Jensen suggested the plaintiff must become more positive, pointing out that more pain does not equate to more damage. He thought the plaintiff needed to find some positive pursuits to stimulate his mental and physical wellbeing.
223 On examination, Dr Jensen noted that the plaintiff had a very slouched head, protracted posture and suggested to him adopting a more normal upright posture may take some of the stress off his neck and shoulder girdles. He concluded he had nothing further to offer and so had not specifically arranged to see the plaintiff again.
224 In his most recent report of September 2013, Dr Jensen noted he was of the opinion that the plaintiff’s working diagnosis was that of mechanical cervical spine dysfunction with referred right upper limb pain. He felt there was a significant neuropathic component to the plaintiff’s Pain Syndrome and that at times, he did display subtle signs suggestive of a right C6 nerve root impingement; however, objective signs were quite variable.
225 Dr Jensen thought that accepting the history as related to him, he could only conclude that the plaintiff’s employment was a significant contributing factor to the problems he was suffering in his neck and right upper limb.
226 Excluding psychological factors, Dr Jensen thought the plaintiff would be somewhat limited in his ability to push and pull, and could only manage very light weights on an occasional basis and would have great difficulty with prolonged or repetitive use of his right upper limb. From a purely physical perspective, he thought the plaintiff was likely to be precluded from performing any suitable employment for which he had had previous work experience, education or training. He believed the physical problems would significantly preclude and restrict the plaintiff in relation to social, domestic and/or recreational activities for the foreseeable future.
227 Mr Bill Dixon, physiotherapist, reported in February 2012 that the plaintiff was referred to that clinic in May 2011. He had been a patient of the clinic when he was originally treated from 22 October 2008 until 23 January 2009. The plaintiff represented with identical symptoms in May 2011.
228 Mr Dixon believed the plaintiff had sustained a significant injury to the right C5-6 nerve root and that the force of the initial injury had a significant traction strain to the right brachial flexes, contributing to right upper limb and cervical symptoms.
229 On a physical basis alone, Mr Dixon thought those injuries would certainly prevent the plaintiff from attempting pre-injury work, and noted his current ability to do normal activities of daily living was significantly affected.
230 Mr Dixon noted future treatment would see cessation of physiotherapy management and hopefully a period of hydrotherapy and fitness training. Mr Dixon concluded, considering the plaintiff’s injury, age, current physical ability and length of time of injury, the prognosis appeared to be of permanent injury and disability.
231 Ms Gale, psychologist, provided a report of 30 January 2012 and also 11 September 2013.
232 As a result of his injuries, in Ms Gale’s view, the plaintiff continued to exhibit and report symptoms consistent with Major Depressive Disorder, DSM-IV.
233 In her most recent report, Ms Gale noted the plaintiff exhibited many of the essential features of a Major Depressive Disorder – feeling sad and experiencing a loss of interest in pleasurable activities for at least a two to four-week period; loss of appetite or eating too much; disturbances in sleep; feelings of worthlessness and/or guilt; feelings of hopelessness; diminished ability to think or concentrate; and indecisiveness nearly every day, feeling fatigued and thoughts of death.
234 Despite the plaintiff’s commitment to therapy and desire to return to pre-injury functioning, and given the severity of his injury and the limitations it had imposed upon his daily functioning and the ongoing impact that it had had upon him, Ms Gale considered the plaintiff’s physical and psychological incapacity was ongoing for the foreseeable future.
235 Dr Chandler, specialist pain medicine physician, reported in September 2013 that the plaintiff had been his patient since February 2013.
236 Dr Chandler diagnosed myofascial pain in the neck and right shoulder that was a direct result of the incident. He thought the mechanism of the injury was consistent with the plaintiff’s condition. He considered it unlikely there would be any significant improvement from this day and that it was unlikely the plaintiff would be able to be involved in lifting, pushing or pulling activities without significant pain and also for prolonged or repetitive use of his right arm.
237 As a consequence of his neck and right upper limb injury, Dr Chandler would find it very unlikely the plaintiff would ever be able to return to his pre-injury duties. Given the plaintiff’s injuries and history of manual labour and low educational level, he thought it was possible but unlikely he would be able to retrain in another field.
238 Dr Chandler described the plaintiff as having a severely limited tolerance for movement of the right limb to five to ten minutes’ activity at one time.
239 Dr Chandler thought further treatment targeted around the depression side was secondary to the plaintiff’s ongoing pain, as well as acceptance of the pain. Dr Chandler considered all avenues for resolution of the plaintiff’s pain and disability had been exhausted. His prognosis was that the plaintiff will have ongoing pain and disability secondary to his injury and will be unlikely to return to any paid occupation. He thought the plaintiff may have some improvement in recreational activities and, with treatment, he may have improvement in the psychological consequences of his pain.
240 Dr Black, psychiatrist, examined the plaintiff in August 2013 on referral from Dr Chandler, who was concerned about depression and suicidal ideation. Dr Black had seen the plaintiff three times as of September 2013.
241 Dr Black thought the plaintiff appeared to suffer from moderate to severe depression as a consequence of chronic pain, which appeared to have arisen from a work injury.
242 Dr Black noted the plaintiff’s depression and pronounced avoidance stance he had developed would then seem to preclude any employment. He could not see how this might change in the foreseeable future. He noted he would be pleased if the plaintiff got to the stage where his home and social life became more active.
243 Dr Black would see the plaintiff as having little or no work capacity as a result of the combined intertwined impact of his chronic pain and depression.
244 Dr Black noted the depression and avoidance stance were having a great impact on the plaintiff’s social, domestic and recreational activities and that was likely to persist for the foreseeable future.
245 Dr Black thought it would be important to monitor the plaintiff’s response to antidepressant medication and his suicidal ideation. He considered the plaintiff would require ongoing support and encouragement to resume activities and any process of recovery was likely to be extremely slow – suggesting a timeframe measured in years.
246 Dr Black thought the plaintiff was likely to continue with a highly restricted lifestyle and waxing and waning levels of distress for the foreseeable future and that suicide was a very real possibility.
Investigations
247 An x‑ray of the chest and thoracic spine was carried out on 27 May 2004 at Dr Scaife’s request. There was no abnormality of significance shown in the thoracic spine, and minor degenerative change was noted with slight narrowing of the disc spaces.
248 There was a CT scan of the cervical and thoracic spine organised by Dr Pak on 14 May 2009. It was reported there was possible impingement on the right C7 nerve in its neural exit foramen. At C5‑6, there was uncovertebral degenerative change with a broad-based disc protrusion effacing the anterior aspect of the thecal sac with minor flattening of the anterior aspect of the cord. There was osteophytic encroachment on the C6 neural exit foramen bilaterally but no definite impingement on either C6 nerve had been demonstrated.
249 At the C6‑7 level, there was a broad-based disc bulge with associated uncovertebral degenerative change effacing the anterior aspect of the thecal sac with minor flattening of the anterior aspect of the cord. Calcification of the posterior longitudinal ligament was also noted at the C6‑7 intervertebral disc level. There was osteophytic encroachment on the C7 neural exit foramen on the right, with possible contact on the emerging right C7 nerve. The left C7 nerve emerged without impingement.
250 Dr Jensen organised a cervical MRI scan in September 2009. It was reported there was uncovertebral and facet joint degenerative change at multiple levels, most prominently at the right C7 neural exit foramen, with probable impingement upon that nerve shown.
251 There was an x‑ray of the right shoulder and ultrasound organised by Dr Blair-Holt on 17 March 2011. On x-ray, it was concluded there was soft tissue calculation seen in the region of the rotator cuff, but appearances were otherwise unremarkable on the plain films.
252 On the ultrasound, it was concluded there was calcific supraspinatus tendinopathy confirmed. There was some bursal thickening and anterior bunching.
253 There was an x‑ray of the cervical spine organised by Dr Blair-Holt in October 2011, following which it was reported that there was reduced cervical lordosis but appearances were otherwise unremarkable.
254 Dr Brett Chandler at Geelong Private Consulting Suite organised an MRI scan of the cervical spine and right brachial plexus in February 2013. It was reported that there were spondylitic changes throughout, appearing similar to previous, with features of right foraminal stenosis at C6‑7. There was no appreciable foraminal stenosis at C5‑6. There was a normal appearance to the right brachial plexus on ultrasound.
The Plaintiff’s medico-legal evidence
255 Dr Capes, occupational health physician, initially examined the plaintiff in December 2010.
256 Dr Capes thought the plaintiff had cervical disc related pain with radiculopathy caused by the incident at work and that he was restricted in employment or related activities to a significant extent for the foreseeable future. The plaintiff then did not have the capacity to do his old job and suitable employment would involve limited right arm and neck movement.
257 Dr Capes thought that work would be likely in traffic management (as WorkAble suggested) and would start with six hours a day, three days a week, increased to 8 x 5 if possible. He thought the prognosis was only fair and expected the plaintiff’s condition would deteriorate.
258 On re-examination in February 2012, the plaintiff said he had not improved and he had lasted two days working a couple of hours at the rose garden before his pain was severely aggravated.
259 On examination, the plaintiff walked holding his right arm in a flexed position against his body and all neck movements were reduced. All right-sided upper limb reflexes were reduced, especially the right triceps jerk. There was dullness to sensation over the outer aspect of the right arm and forearm and over one to three fingers of the right hand.
260 Dr Capes thought the plaintiff appeared to have deteriorated since last seen and on that examination, exhibited evidence of cervical disc degenerative disease and radiculopathy of a mixed C6-7 origin. He thought the diagnosis occurred during his work, to which it was a contributing factor, and made similar comments about the plaintiff’s employability, save that he suspected he could now attempt only three hours a day, three days a week, to see how he coped, and then increase his hours slowly.
261 In a supplementary report of April 2012, Dr Capes had no doubt the plaintiff had a radiculopathy in his right upper limb. On examination on 2 December 2012, this diagnosis was also made by Professor Bittar, Dr Hjorth and Mr Brearley.
262 Whilst Dr Capes had said the plaintiff could do the traffic management duties in his report of December 2010, when he saw the plaintiff in February 2012, the plaintiff told him he would have to hold the sign out from his body for eight hours and Dr Capes thought that would obviously disqualify him from the job. Dr Capes thought the other jobs outlined by the vocational assessor would also be unsuitable for the plaintiff.
263 In Dr Capes’ view, the plaintiff’s only hope of getting a job would be a make up job with the restrictions he had outlined, starting at three hours a day, three days a week, and he doubted the plaintiff could get to fifteen hours per week over three days.
264 The plaintiff was examined by Mr Brearley, orthopaedic surgeon, on 22 December 2010, March 2012 and July 2013.
265 At the time of the initial examination, the plaintiff was taking OxyContin and complained of constant pain or discomfort in the right of the base of the neck and across the shoulder region.
266 Mr Brearley had available the CT scan of the cervical spine of May 2009 and the MRI scan of 16 September 2009. The initial diagnosis was intradisc damage to the lower cervical intervertebral discs and in particular, the C6-7 intervertebral disc, where there was resultant pressure on the emerging C7 nerve root causing right arm pain.
267 Mr Brearley thought the plaintiff’s symptoms were ongoing and suffered during the course of his work, which was a significant contributing factor to his current neck and right upper limb pain.
268 Mr Brearley thought the plaintiff’s condition precluded all activities involving lifting, pushing, pulling and repetitive use of the right arm and, at that stage, the plaintiff was likely to be completely precluded from performing his pre-injury duties for the foreseeable future and would make it extremely difficult to carry out alternative work, given his history of manual work and lack of experience in office work. He thought the plaintiff’s capacity would need to be of a light nature indeed, only four hours a day, five days a week, avoiding repetitive use of his arm and lifting beyond three kilograms.
269 On re-examination in March 2012, the plaintiff said there had been no improvement at all and, in addition, he had developed quite severe clinical depression from about twelve months ago and was having counselling fortnightly. The plaintiff complained of similar pain to the first examination.
270 Mr Brearley confirmed his previous diagnosis and views as to the relationship of the plaintiff’s condition with employment. He could see no likelihood of the plaintiff carrying out alternative employment in the foreseeable future because of his physical injury and also because of his depression.
271 On most recent examination in July 2013, the plaintiff told Mr Brearley that over the last year there had been no improvement at all in his condition.
272 Mr Brearley thought there had been no basic change in the plaintiff’s condition at all since he saw him over a year ago and that he would be left with a significant permanent disability.
273 Mr Brearley confirmed that he did not believe the plaintiff had a capacity for any so-called suitable employment or alternative employment. He noted the plaintiff would be completely unreliable both in punctuality and attendance and this would also be compounded by the powerful analgesic tablets which he takes which do interfere seriously with concentration and cognitive function. He thought the prognosis was poor and it appeared the plaintiff’s symptoms would persist for the foreseeable future.
274 Professor Bittar, consultant neurosurgeon, examined the plaintiff in May 2011 and May 2013.
275 On initial examination, there was a moderate restriction of cervical spine movement and moderate restriction of motion at the right glenohumeral shoulder joint. The plaintiff had bilateral cervical paravertebral tenderness. Neurological examination of his limbs revealed a mild weakness of the right elbow and finger extension and diminished sensation in the right thumb and index finger.
276 Professor Bittar was provided with a report of the MRI scan of the cervical spine of September 2009.
277 Professor Bittar’s initial diagnosis was that the plaintiff presented with a right C7 radiculopathy secondary to foraminal stenosis at C6-7. He thought it was likely the plaintiff’s symptoms were also emanating from the C5-6 and/or C4-5 levels.
278 Professor Bittar thought the plaintiff’s employment had been a contributing factor, specifically the incident. He noted the plaintiff was asymptomatic prior to the injury. That particular injury had rendered him significantly symptomatic and aggravated pre-existing cervical spondylosis. He thought the incident remained the dominant contributing factor to the plaintiff’s symptoms, disability and requirement for treatment.
279 Professor Bittar then considered the plaintiff was permanently incapacitated for his pre-injury duties and would not be able to carry out any significant physical or manual labour but he did have the capacity to perform suitable part time sedentary duties but given his age, education, training, skills and work experience, he thought it extremely unlikely the plaintiff could procure and maintain employment in a suitable position. He recommended pain management.
280 Professor Bittar also thought that the plaintiff, as a result of his physical injury, was significantly restricted in relation to social, domestic and recreational activities for the foreseeable future.
422 The plaintiff described continuing to experience persistent right shoulder pain and neck pain associated with spasms, describing the worse pain at 10 out 10 and never less than 5 out of 10. He advised he continued to feel depressed and tearful nearly every day and described irritability and difficulty enjoying activities.
423 The plaintiff was then seeing his general practitioner, Dr Holt, every month and psychologist, Janine Lucas, every two weeks.
424 On mental state examination, there were moderately depressive beliefs about the plaintiff’s future and a preoccupation with his physical symptoms and no suicidal ideas. Attention, memory, concentration, insight and judgment were intact and perception was normal. Dr Daniels confirmed his earlier diagnosis.
425 Noting Dr Davison’s diagnosis of Chronic Regional Pain Syndrome, in light of limited objective physical findings, Dr Daniels thought it appeared the plaintiff had also developed an additional psychiatric diagnosis of a Pain Disorder associated with general medical condition.
426 Dr Daniels noted the plaintiff’s condition was currently complicated by ongoing financial stress and he was also at risk of developing benzodiazepine dependence.
427 Dr Daniels thought the plaintiff did not currently have a work capacity. However, with adequate and appropriate treatment, including attendance at a Pain Management Clinic and review of his antidepressant medication, he should have such a capacity in other twelve months.
428 Dr Daniels noted the plaintiff thought that his physical condition limited his capacity to return to the work options identified. He thought the plaintiff’s current psychiatric condition was an additional barrier to his return to work.
429 Dr Daniels thought employment continued to contribute to the plaintiff’s condition and there appeared to be a link between physical injury and the work events. Ongoing financial stress was also contributing to his condition.
430 Dr Daniels thought non-work-related stress had not overtaken the plaintiff’s employment as a pertinent factor and that a referral to a pain management clinic would be appropriate for the plaintiff’s symptoms.
Vocational evidence
431 WorkAble Consulting prepared an NES vocational assessment report dated 29 April 2010 in which the following jobs were identified suitable employment options in order of priority: product assembler; packer; production worker; machine operator; traffic management.
Overview
Impairment of the cervical spine
432 It is not disputed that the plaintiff suffered physical injury in the incident. Liability was accepted for the original claim relating to “right shoulder girdle strain and middle back” and also the plaintiff’s claim pursuant to s98C of the Act relating to the neck, upper back and right shoulder.
433 Although the plaintiff’s condition was initially diagnosed as a right rhomboid strain, the consensus of medical opinion is that the plaintiff suffered injury to his cervical spine in the incident.
434 Counsel for the defendant accepted there had been a neck injury and some radiating pain to the shoulder and arms and sometimes some neuritis affecting the three digits of the hand, but these would be the only symptoms classified as organic.[38]
[38]T383
435 Counsel for the defendant submitted that the plaintiff’s application should fail, as at the date of hearing, any organically-based consequences were not “serious”.
436 The Court of Appeal recently provided guidance as to how this type of issue should be determined.
437 As Nettle JA noted in Fokas v Staff Australia Pty Ltd,[39] the Court’s most recent pronouncement on the subject set out that a judge should now approach the task in a “two step manner”:[40]
“‘… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.’”
[39][2013] VSCA 230 at paragraph 5
[40]See Maxwell P at paragraphs 21-22 of Meadows v Lichmore Pty Ltd [2013] VSCA 201
438 Counsel for the plaintiff’s primary submission was that there was a substantial organic basis for the plaintiff’s pain and suffering consequences, relying on all the medical evidence save for the opinion of Mr Brazenor, who it was submitted was a lone voice who had based his opinion on irrelevant considerations and prepared his report in a combative manner.[41]
[41]T370
439 Further, it was submitted that the plaintiff’s cervical injury was adequately demonstrated by the radiology, namely the May 2009 CT scan and the most recent MRI scan of February 2013. It was submitted those investigations showed, in basic terms, nerve root impingement at C7 and also bulges from C2 downwards without the involvement of C5-6.
440 As Dr Davison pointed out, it must be noted that there was probable impingement in the MRI which corresponded to the reported symptoms of pain and sensory disturbance to the right thumb, index and middle finger.
441 Counsel for the defendant pointed to a number of examination findings in support of the submission that the plaintiff’s condition was non organic.
442 Counsel for the defendant submitted there had only been one finding of spasm on examination, although it was complained of by the plaintiff as a constant condition. Further, it was submitted if there was no radiculopathy and no neurological symptoms, “there could not be any basis for any pain that then gets magnified”. Whilst I accept neurological findings have differed on various examinations, a number of practitioners have found radiculopathy on examination.
443 In a supplementary report of April 2012, Dr Capes had no doubt the plaintiff had a radiculopathy in his right upper limb. On examination in 2012, this diagnosis was also made by Professor Bittar, Dr Hjorth and Mr Brearley.
444 Taking account all the medical evidence, I accept that the preponderance thereof, summarised as followed, is that the plaintiff’s cervical condition has an organic basis that can be described as “significant”.
445 Dr Blair-Holt diagnosed degenerative changes with C7 right nerve root impingement and clinical neuritis.
446 Dr Jensen diagnosed mechanical cervical spine dysfunction with associated neuropathic pain syndrome.
447 In 2013, Dr Chandler concluded that, as a result of the outcome of a nerve block conducted by Dr Jensen, the plaintiff’s pain must be discophytic, as was his initial assumption. He thought there was myofascial pain into the neck and right shoulder.
448 Mr Brearley diagnosed intradisc damage to the lower cervical intervertebral discs, in particular C7, with pressure on the C7 nerve root causing right arm pain.
449 Professor Bittar diagnosed right C7 radiculopathy secondary to aggravation, and said the other levels may be symptomatic.
450 Dr Hjorth diagnosed cervical spondylosis aggravated by work and causing a radiculopathy; prolapsed disc causing radiculopathy involving the nerves supplying the right arm.
451 Dr Capes diagnosed cervical disc-related pain with radiculopathy.
452 Whilst he thought, in part, psychological factors may be responsible for some of the plaintiff’s ongoing physical problems, Mr Gale diagnosed an aggravation of the multilevel pre-existing degenerative cervical spine with consequently neurological symptoms and signs affecting the upper extremity.
453 Dr Davison’s views as to a probable impingement of C6-7 have been noted earlier.
454 The only dissenting view was that of Mr Brazenor, whom counsel for the plaintiff noted provided his diagnosis in the context of a forensic examination of the affidavits, concluding the plaintiff had suffered a reversible soft-tissue injury that had long since passed. Mr Brazenor considered investigations were essentially normal and there was no evidence of any injury in the incident to the cervical or thoracic spine. He alone attributed the plaintiff’s long-held posture to his mental state, not the injury.
455 An examination of the plaintiff’s complaints is also relevant when addressing whether there is an organic basis to his condition.
Credit
456 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[42]
“… 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.”
[42](2010) 31 VR 1 at paragraph 12
457 Counsel for the defendant submitted that the plaintiff was a liar. It was submitted he fell into the credibility gap, describing unbelievable and inexplicable pain, having settled into a lifestyle where he was reliant on his wife at home.
458 It was submitted that the plaintiff exaggerated everything, in particular the limping. He clutched at straws, and his answers were incredible. He adopted extreme postures in court, mimicking what Mr Brazenor had described, yet that position was paradoxically putting strain on the areas he complained of.[43]
[43]T351
459 Further, it was submitted the plaintiff was not credible, failing to acknowledge that there was a “good and bad day” scenario.
460 The surveillance film where the plaintiff was shown walking with a normal gait was relied on in answer to his complaint of constant limping. Further, the plaintiff was shown holding a small item in his right hand, a movement he had earlier said in cross-examination caused him pain.
461 However, these minor issues relating to the film do not cause me any concern as to the plaintiff’s credit. He was not shown engaged in any activity involving heavy or repeated use of this right arm. Further, he was not shown moving his neck to any degree. I accept that whilst the plaintiff walked relatively freely, he had his arm in a sort of Lord Nelson position. In any event, it was not the plaintiff’s evidence he limped all the time.
462 Further, the plaintiff’s complaints were largely corroborated by his partner, Tracey, who was cross-examined.
463 I accept, as counsel for the defendant submitted, the plaintiff’s complaints were widespread and went beyond the claimed cervical impairment to problems sitting, walking and sometimes collapsing to the ground (not said by him to be incident related).
464 It was submitted the plaintiff’s complaints were not just a moveable feast but an unbelievable one without any organic basis other than the right limb from time to time: however, there was no wasting in that limb until recently.
465 Whilst at times the plaintiff’s complaints were exaggerated and extended beyond his neck and right arm and there was some inconsistency in the level of cervical movement on examination, I am persuaded there was enough focus on the principal condition – neck and right arm pain – to describe the plaintiff’s current presentation as having a significant organic basis, despite the unrelated complaints.
466 The left shoulder, which the plaintiff claimed was a problem because of the right arm, was identified by Dr Jensen in January 2010. It was a very minor comparative part of the plaintiff’s presentation. He and other examiners had seen the plaintiff’s fixed posture at various times and did not consider there to be abnormal illness behaviour. Further, he found signs of C6 involvement on examination.
467 The complaint of collapsing was mentioned only once to Mr Gale and noted by the general practitioner on 12 December 2011. It was not attributed to the compensable injury.
468 There is medical support for the plaintiff’s neck problems resulting in difficulty with prolonged sitting.[44]
[44]2013 examination – Dr Hjorth – precluded from sitting for long periods, less an issue if able to move around; Dr Blair Holt, Mr Brearley and Professor Bittar.
469 I accept the submission that there is a substantial organic basis to the principal source of pain, of which the plaintiff complains in his neck, right arm and shoulder, and that view received widespread medical support.
470 I accept that unrelated health issues had arisen from time to time and were curious, but much more minor in terms of the plaintiff’s present presentation and complaints.
471 Having accepted that there is a significant organic basis to the plaintiff’s complaints, I am not required to take the second step as set out by Maxwell P in Meadows v Lichmore Pty Ltd[45] and undertake a disentangling of the physical and psychological contribution to the plaintiff’s pain.
[45]Supra
472 The issue for consideration is then whether the present cervical impairment is “serious”.
473 The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain to doctors and in court.[46]
[46]Haden Engineering v McKinnon (2010) 31 VR 1 per Maxwell P at paragraph 11
474 Since the incident, the plaintiff has complained of constant and at times severe neck pain radiating to his right shoulder, arm, hand and fingers. He also experiences numbness, weakness and pins and needles. It was accepted by the defendant that the plaintiff had experienced pain but its extent was exaggerated and unable to be accepted.
475 The plaintiff has been restricted in his ability to use his right arm, move his neck freely and adopt sustained postures.
476 The plaintiff continues under the care of his general practitioner, Dr Blair-Holt, who prescribes ongoing medication for pain relief, with the plaintiff taking up to eight Panadeine Forte per day.
477 The plaintiff has undergone a variety of treatment with limited success, including physiotherapy, nerve blocks and facet joint injections, and a ketamine infusion. The plaintiff recently commenced a pain management course. No further treatment has been recommended.
478 I accept that the plaintiff’s ability to perform daily activities including washing his hair and grooming has been affected by his neck and right arm pain. He is able to provide only very limited assistance around the house and no longer engages in car maintenance to any extent. Fishing and other recreational activities are also more limited since the incident.
479 In addition to his pain and restriction, a serious consequence of the plaintiff’s cervical condition is its impact on his employment capacity.
480 I am satisfied that since the incident, due to the cervical injury, the plaintiff has not had a capacity for unrestricted heavy manual work as was the case previously. His work history has been one of only manual work and his education level is low, as Ms Leitch confirmed.
481 I accept that the plaintiff’s post-injury duties were very light and could be described as protected employment. In those circumstances, I do not consider it significant, as counsel for the defendant submitted, that the plaintiff had very little time off after the incident, losing about twelve days of 10-hour shifts until leaving work in April 2010.
482 Dr Blair-Holt explained the change in certification from modified duties to total incapacity on physical and psychiatric grounds in September 2012. In his view, the plaintiff was unfit for presently unfit for work on both grounds.
483 Although he did not say so in his report, in his viva voce evidence, Dr Blair-Holt explained there had been a deterioration in the plaintiff’s condition, as did Professor Bittar.[47]
[47]PCB 94c
484 The consensus of medical opinion is that the plaintiff does not have the capacity to undertake his pre-incident duties or other unrestricted manual work.
485 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
486 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
487 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
488 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
489 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
490 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein – See Barwon Spinners Pty Ltd & Ors v Podolak.[48]
[48](supra) at paragraph 70
491 The “without injury” earnings figure was agreed at $838.00 or $43,576.00. Sixty per cent of those figures is $502.80 per week and $26,145 per annum.
492 Medical opinion as to the plaintiff’s capacity for employment relating to his cervical injury can be conveniently summarised as follows:
493 Dr Blair-Holt believes the plaintiff is unfit for employment on the physical factors alone (despite certification until September 2011 of fitness for modified duties) due to chronic pain not responding to treatment.
494 Dr Jensen thought the plaintiff was likely to be precluded from suitable employment from a purely physical perspective (July 2013).
495 Dr Chandler considered the plaintiff was unlikely to return to any paid employment or be able to retrain (September 2013).
496 Dr Capes, whilst initially somewhat optimistic in 2010 of the plaintiff’s suitability to work in traffic management, in 2012, noting deterioration since, thought the job would now be unsuitable for him.
497 Mr Brearley thought the plaintiff had no capacity for suitable employment and would be unreliable, compounded by issues relating to his medication (July 2013).
498 Professor Bittar considered the plaintiff suitable for part-time sedentary work but considered it extremely unlikely he could procure and maintain employment in a suitable position (May 2013).
499 Dr Hjorth believed the plaintiff was fit for limited light work not involving bending or lifting and where he could change his posture (April 2013).
500 Counsel for the defendant relied on Dr Loy’s certification in April 2010 of capacity to perform pre-injury duties on a physical basis and the diagnosis of a right rhomboid strain in certificates dated 28 May and June 2010.
501 Dr Bowles, in early 2009, thought the plaintiff was fit to continue alternate duties.
502 Mr Gale considered the only employment duty that could be within the plaintiff’s current level of physical activity would be a job as a mobile safety camera officer (December 2011).
503 Dr Davison thought, from a physical perspective, the plaintiff had a capacity for sedentary-type employment of a self-paced nature. He could work as a console officer, sales representative with restrictions, car park attendant, crossing supervisor, railways assistant, ticket collector, traffic controller, store person at Bunnings and customer service (February 2012).
504 Mr Brazenor considered the plaintiff was not currently fit for work entirely due to his own devices. The plaintiff would be fit if he corrected his postural damage. Mr Brazenor thought the only job the plaintiff could conceivably do in the foreseeable future would be as a traffic controller (February 2012).
505 Ms Leitch considered the plaintiff did not have a capacity for suitable employment and rejected all the jobs suggested by Dr Capes, Dr Davison and WorkAble.
506 Whilst the plaintiff has applied for a number of jobs, I am not satisfied he would have the physical capacity to work in any of those roles in a reliable and sustained manner. Any work involving heavy or repetitive use of his right arm would clearly be unsuitable as would jobs requiring neck flexion and prolonged postures.
507 In those circumstances, I am satisfied the plaintiff does not have the capacity to earn in excess of $502 per week. He continues to experience constant, and at times severe, neck and right shoulder pain and restriction, taking significant medication of six to eight Panadeine Forte a day. This regime would impact on his ability to concentrate on any work duties undertaken by him.
508 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
509 The plaintiff has only ever engaged in manual work and he has no skills or qualifications and the reading age of a primary school student. Further, he has no computer skills.
510 It is of note that WorkAble focused on only manual-type work and no particular retraining was seen to be appropriate, with the plaintiff simply sent off to do weeding and meter reading.
511 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
512 As the plaintiff’s condition has persisted for in excess of six years without improvement, I am satisfied that the impairment to his cervical spine is permanent.
513 Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages; ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[49] and Advanced Wire & Cable Pty Ltd v Abdulle.[50]
[49][2009] VSC 454 at paragraph 147
[50][2009] VSCA 170
514 Having found there is a serious injury in relation to pain and suffering and loss of earning capacity in the application pursuant to subparagraph (a), I am not required to determine the application pursuant to subparagraph (c).
515 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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