Grieve v VWA
[2018] VCC 1807
•12 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-18-01938
| TRAVIS GRIEVE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2,7,8 November 2018 | |
DATE OF JUDGMENT: | 12 November 2018 | |
CASE MAY BE CITED AS: | Grieve v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1807 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury - neck
Legislation Cited: Accident Compensation Act 1985
Cases Cited:
Judgment: Leave granted to bring proceedings for the recovery of damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr A Hill | Slater and Gordon |
| For the Defendant | Mr J Batten | IDP Lawyers |
HIS HONOUR:
1 In the course of his employment as a concrete and excavator driver with Jancourt Beach Pty Ltd this thirty nine year old plaintiff injured his neck in 2013. He suffered an admitted compensable injury to his cervical spine.[1] He underwent major surgery by way of C6-7 cervical discectomy, instrumental inter-body fusion and rhizolysis on 22 December 2014 at the hands of Mr Paul D’Urso, neurosurgeon.
[1]Transcript(T)7
2 The defendant did not formally concede “serious injury” in terms of pain and suffering but made no submission against that claim.[2] The real issue for the court is namely, whether or not the plaintiff has proved a permanent loss of earning capacity of 40% or more due to his neck impairment.[3] The defendant submitted that surgery had been successful and there was a residual capacity for work that saw the plaintiff fail to jump the permanent 40% bar.
[2]T14
[3]T14,16-17
3 The plaintiff’s last year at school was year ten. He has only ever worked in heavy manual, unskilled jobs. This has been with a large number of different companies who have had contracts on roads, been involved in quarry and construction site jobs of one type or another.[4] He has a solid work history since about age sixteen and it has been in work performing labouring, concreting as well as operating large heavy vehicles and machines. These jobs could only be fairly described as extremely heavy work. He started as a casual for Jancourt on the usual three months trial or probationary basis in that industry and then he was put on as a fulltime or permanent in December 2012.
[4]Defendant’s Court Book(DCB) 95-96
4 Following fusion surgery in 2014 and convalescence he returned to some sporadic casual work in February 2018 in the same field of basically concreting and excavator tasks on sites. This was for a helpful mate of his who has a local business. Mr Grieve works one or two days a week for cash. This friend is Jimmy Swan who lives in the plaintiff’s home town and he is a man who is sympathetic to Mr Grieve’s neck problems.[5] Mr Swan gave oral evidence and I will discuss that later.
[5]Plaintiff’s Court Book(PCB)30,35-37
5 The plaintiff had real difficulties coping with the court process. He is a very simple unsophisticated man. Often he just did not understand a fairly basic question. He was compliant and appeared to be willing to answer questions at times to avoid what he seemed to feel was embarrassment if he said he did not really follow what was being asked. In spite of his patent lack of understanding and sophistication, I found him a truthful witness trying at all times to simply “tell it how it was”. There was no exaggeration nor was he in any way evasive. He was candid. He also made concessions against interest. I reject the defendant’s submission that he was not frank and not forthright.
6 He has a stoical attitude to his serious neck condition and to life generally. He is a man well motivated to work in unskilled labour with a neck that has been fused with the insertion of instruments. His condition has been not been challenged by the defendant as a “serious injury” for pain and suffering purposes. It is a condition that would put less well motivated people off from even attempting to work let alone go out on sites and do what he has been doing on a part time basis for Jimmy Swan since early 2018.
7 He was taken to some prior medical records of low back complaints but on perusal there was an attendance in 2002 and one in 2003 and not much more, so this went nowhere.[6] There are other records of various physical symptoms but given his very heavy work over the years this is no surprise. He said all concreters have low back problems. I do not need evidence to tell me this is very heavy repetitive manual labour and on the probabilities I accept what he said about low back complaints in that industry. Jancourt is no longer operating but it remains that there was no evidence before the court from the defendant about any problems with the plaintiff’s capacity, performance or attendance at work prior to the compensable neck injury in June 2013.
[6]Exhibit 3
8 Back complaints after June 2013 were focussed on and were more to the point. There were medical attendances and a CT scan was carried out on his lumbar spine in October 2017.[7] At times his back has caused symptoms separate from and lower in the spine than the C6-7 region. But it needs to be remembered this is the area where the cervical and thoracic spines meet so arm and thoracic complaints are clearly consistent with major pathology in the lowest part of the neck requiring fusion. A few points need to be made about evidence of back complaints.
[7]PCB39
9 Firstly any perusal of the pages of clinical records leads to the conclusion that his neck was his major problem over the last five years and low back issues pale into insignificance with the cervical spine that warranted major surgery. Secondly I accept what he said when he started doing some work for his friend Mr Swan in early 2018 as to his low back “It wasn’t bothering me when I started with Jimmy. It wasn’t a back problem. I didn’t have a back problem when I started with Jimmy. It’s -that’s exactly the way it is. I had a sore muscle that got good, I dealt with it, it wasn’t a problem”. [8] Thirdly at least four or five times in cross-examination when he was asked about “back” pain in the past and presently, he indicated with his hand his neck, then down his spine into the shoulder blades and he further downwards. I even commented on this several times in order to ensure the transcript was properly recording the areas he was indicating.[9]
[8]T42
[9]T52,57
10 He was adamant and repeated that his low back in recent times and in regard to work presents no real problem. I accept that evidence. He has also been involved in a motor bike accident about fifteen years ago and an accident involving a car going down an embankment several years ago . He was candid about these as well as a loss of driving licence at one stage although he generally has a poor memory.[10] I am satisfied that on the probabilities these accidents have no significance now in assessing his loss of earning capacity. He has lost capacity due to the impairment of the neck that has been so bad as to require a man only in his thirties to have it fused.
[10]T24,62-63
11 Some other topics were the subject of some challenge in cross-examination and included what he had said about his occupation in the past as a concreter and/or machine operator. This challenge had little merit. From the outset in the fourth, fifth and sixth paragraphs of his first affidavit he made it very clear that he has been a labourer, machine operator, concrete tip truck driver and worked in carpentry over the years. In fact machine operating was mentioned several times.[11]
[11]PCB20
12 He was criticised also about not giving a correct history about his returning to work with Mr Swan in early 2018. Again there are references to this man mentioning trying to get back to work or doing some work to various doctors and there was no damage done to his credit on either motivation or his casual intermittent work with Mr Swan. In fact his attempting to return to work this year in very public places such as concreting sites was testimony to his being very upfront about his limitations and about his keenness to try and work again. He is a motivated worker but one who is severely hamstrung by his impaired neck and his other considerable more personal limitations.
13 Exhibit 1 was film of Mr Grieve on several dates this year including working on a site for Mr Swan. The defendant relied on this in terms of credit and demonstrating residual work capacity. Several aspects deserve comment. For a number of reasons the film did not impact adversely on the plaintiff’s credit nor demonstrate anything other than a quite limited capacity.
14 Firstly these are only mere snapshots of a few minutes here and there out of a period well over five years since injury. Secondly they show him doing active tasks on site but none of those are sustained over a long period. Thirdly I do not need evidence to convince me there are a number of tasks on a concrete pour job that are heavier, more sustained and arduous than what Mr Grieve was filmed performing. Wheel barrowing, heavy lifting and digging are just three examples. Fourthly there are many unexplained gaps throughout the film. The plaintiff is in full view and then the film for some unexplained reason just jumps to another time frame with the plaintiff back in view. Often neither his exit from the first time frame is depicted nor his entry into the second time frame. Fifthly it is admitted surveillance people were instructed to observe the plaintiff over six separate days and a total of close to thirty six hours was allowed for that. I have only been shown about twenty minutes or so of surveillance.
15 I accept the plaintiff’s detailed evidence about ongoing neck symptoms in spite of surgery that was technically successful. It is not necessary to list all of these but they speak for themselves in impacting on daily life in a multitude of ways.[12] I accept Mr Grieve’s assessment of his own capacity for work when he swore only two weeks ago “Other people do the heavier work like using heavy equipment and pushing and pulling heavy items like wheelbarrows. I can and do spread concrete in smaller jobs but if I do that for a long time, I get increased pain and arm pain. I cannot work like I previously did where I was labouring in concreting large building sites all day before I was injured. In those jobs that work was heavy with large formwork and heavy lifting, pushing and pulling. I try and do what I can now.”[13]
[12]PCB25-28,30-33
[13]PCB30
16 He added further comments about capacity and motivation. These were consistent with the film as well as him having a sympathetic and understanding boss. He said “I’m not given any of the bigger concreting jobs as there is no way I could sustain a whole day of constant concreting. On the smaller jobs, I can go in spurts but then have to stop or slow down. I want to work. I have to work because I have to support myself and partner. I have done manual jobs my entire life. I’m no good on computers or in an office.”[14]
[14]PCB30
17 I accept the evidence of Mr Grieve in relation to what his neck impairment allows him to do across a litany of daily tasks around home and elsewhere that we take for granted as well as in an employment context. What they amount to is a capacity for some very sporadic, limited duties that are given to him by a benevolent employer who both knows what he can do and readily accepts those limitations. When the reality of the open employment market is considered, a boss of that type is more theoretical than real.
18 It is almost four years since the fusion and probably his loss of capacity will last probably for the foreseeable future so it is permanent. Given he is almost 40 years of age he has effectively lost his capacity not only for his usual work as a concrete and plant operator but for any “suitable employment”. At its highest he is only good for an odd day here and there, on the lightest of physical duties but even that is with an understanding boss.
19 Mr J Swan has been a friend for twenty years. From about Christmas last year he has given the plaintiff some very sporadic casual work after hearing Mr Grieve was depressed just “staying at home”.[15] Mr Swan runs a concrete and excavation business near Bacchus Marsh. He gave the plaintiff some limited tasks including driving men around “just to get him out of the house”.[16] He then gave him some limited manual work. He has only given the plaintiff about five or six days per month and these have been at times only half days as well as some full days in about equal proportions. For a half day he has given him $100 in cash and $200 for days he went beyond one or two o’clock.
[15]Transcript(T)88
[16]T89
20 He was cross examined but was not challenged at all about what he had sworn in his affidavit concerning the plaintiff’s very reduced capacity.[17] It is a very limited capacity indeed. After three or four hours he would end up with headaches. “The main problem with Travis is that he just cannot keep going like he once did and like my other employees do. He might be good for a day or so then he is wrecked.”[18] This evidence came from a man who has worked with the plaintiff and also knows him well as a mate for some 20 years. Mr Swan is very well qualified to make these remarks about his work mate and friend.
[17]PCB35-37
[18]PCB36
21 Mr Jimmy Swan was a very straightforward witness. His credit was not impeached. He readily conceded that he had no paperwork to support his employment of the plaintiff but that does not take the matter anywhere. Just giving a mate a few hours’ work on a sporadic basis here and there on odd days is a situation where in the community today cash payment is no surprise. Mr Swan’s evidence and the video of the plaintiff at work support a very limited residual capacity for manual labour even with the protection Mr Swan gives him.
22 Mr Swan also said that his business was busy and he could employ the plaintiff full-time if he was not injured. “Travis has told me that he wants to work and has always appeared keen. I have always regarded Travis as a good worker and a good employee. I would certainly give him as much work as he wanted if he was physically capable.”[19]
[19]PCB36
23 It is not often in these applications that a current employer of an injured plaintiff gives oral evidence. He was a persuasive “matter of fact” witness. After both hearing and observing Mr Swan I accept his evidence about his good intentions in trying to help a friend but more importantly the very real limitations his mate has in terms of ability to do any work. It is one thing to do some work for a benevolent friend who understands the person’s limitations but it is a very different thing out in the real open employment market competing with other workers.
24 Mr Grieve is almost 40 years of age with very limited education, no skills other than for very heavy labour and is a quite simple fellow in many respects. His capacity for work when looked at realistically against the definition of “suitable employment” under the Act is all but lost. In this case this well- motivated injured worker has got out and actually tested his capacity for work. Unlike other cases where sometimes the court is required to assess a theoretical or un-exercised residual capacity spoken about in vocational assessment reports, this man has attempted work and I accept the real limitations he described and his friend described are accurate. Capacity here has been tested.
25 There was considerable to-ing and fro-ing between counsel about wage rates and regarding the three years pre-and post mathematical exercise required by the Act. I have found that this man has effectively lost his capacity for suitable employment in the real world, except for a few hours here and there. This really amounts to having no employment capacity at all so it is not necessary to dwell on the arithmetic at any length. I will only make a few remarks.
26 Less there is any doubt about the matter I am satisfied on the evidence that it is “capacity” which I have to consider. The language and the methodology required under section 134AB(38) are clear. The concept is what the worker was capable of earning that “most fairly reflects the workers earning capacity had the injury not occurred”. It is the last 16 weeks of his full-time employment with Jancourt immediately prior to injury in June 2013 that is the fair measure of that capacity. Annualised that is $77,535 but it was agreed there are also regular industry increments on top of that. While mathematical calculations are not strictly necessary due to the conclusions I have reached about lost capacity, I adopt the figures set out in the transcript that plaintiff’s counsel relied on.
27 Accordingly if it was necessary to reduce this application to an arithmetical exercise. This is because I am satisfied he has only the most sporadic capacity for suitable work doing a few hours a few days a week on modified duties for an understanding boss and that is no capacity at all in the real employment world. Therefore he has permanently lost much more than 40% of his earning capacity.
28 Turning to the medical evidence it is not necessary to quote it in great detail given the single issue that is really before the court as to residual capacity. A number of the medical reports are quite out of date and are of little assistance in making the assessment that is required now. Dr W Wu, general practitioner, last reported in August 2018 and the report was very brief and did not take the matter very far. It did not say much at all about capacity.
29 What it did say was supportive of the plaintiff trying to work but the tenor of it is not optimistic. Dr Wu said the prognosis “appears to be modest to poor” and his patient was “losing strength and conditioning, aggravating his condition. This is eroding his functional capacity and reducing his ability to work. He has been working limited hours operating an earth excavator.”[20]
[20]PCB50
30 Mr P D’Urso who operated in 2014 only provided a very out of date report on 2 February 2015 which was only seven weeks post surgery so now it is almost four years out of date. The surgeon was optimistic at that very early stage but even back then, while he was hopeful Travis would be able to return to at least part-time light employment initially, there was some pessimism in his final statement “Travis will need assistance to find new employment and I would be grateful for vocational assistance for Travis.” [21] But only limited help can be gained from these old comments from Mr D’urso.
[21]PCB51
31 The treating osteopath, Mr J Williams, last reported almost two years ago in January 2017. Back then he saw a real need for ongoing physical treatment and he was fearful that if it stopped the “current clinical condition would regress. It is difficult to give a definitive prognosis due to chronic and permanent nature of Mr Grieve’s complaint.”[22] He also was hopeful that the patient could get back to some work providing there was no re-aggravation but it seems to be a very cautious osteopath regarding the future when one reads his material.
[22]PCB63
32 The medico-legal reports relied on by the plaintiff came from three practitioners. The neurosurgeon, Mr D Brownbill saw the plaintiff in 2014 and again in 2017. He had the advantage over all other medico-legal experts in this case of seeing the worker a second time. The reports are self-explanatory but dealing with his 2017 opinion it is pretty clear that there were very real and extensive restrictions that would permanently impact on this man’s ability to carry out any suitable work. Those restrictions were expressed as follows “As a consequence of the physical injury and impairment of this man’s neck …I consider he is likely to be restricted in relation to employment or activities involving heavy lifting, forced cervical spine mobility, or holding his neck in a fixed position to a marked extent and I consider such incapacity will continue for the foreseeable future.”[23]
[23]PCB71
33 Mr Brownbill thought there was a capacity for suitable employment but within the restrictions that have been outlined and with the number of hours being dependent on the patient’s responses. What the evidence has shown is that after testing his capacity to work in modified duties and with a very sympathetic boss, he has no capacity beyond what I have already expressed. When one looks realistically at the restrictions that I have quoted above they put a man with Mr Grieve’s limited skills and work experience, lack of any computer or clerical aptitude together with his general limitations obvious over three days in the witness box, all but out of the real employment market for suitable jobs.
34 Mr J O’Brien, surgeon, saw the plaintiff last month and his opinion was that the plaintiff’s attempts to pursue his former work even with some modification were unwise as aggravation of pain flowed from its physical nature. He referred to some job options identified in a vocational assessment report but it is unclear whether this was from IPAR or from Recovre which were the two vocational assessors engaged by the defendant.[24]
[24]DCB54-93,94-129
35 In any event he was not attracted to these job options as he said they “…will I am sure be also a continuing source of aggravation of symptoms and thus from the physical perspective, would not be more appropriate than the plaintiff current attempts to employment. In fact I would conclude that this patient is extremely unlikely to return to any form of suitable employment on a full-time basis. The plaintiff has in fact sustained a significant injury, as a consequence of this patient residual symptoms, he will remain significantly incapacitated.”[25]
[25]PCB77
36 I have not heard from Mr O’Brien or from any doctor in this case. But I accept his well argued and lengthy report as amounting to very recent specialist opinion that Mr Grieve has no capacity for suitable employment when his neck impairment and all the other relevant considerations are viewed realistically. Mr O’Brien ended with a comment on permanence. This “I believe, is likely to be a permanent situation.”[26]
[26]PCB77
37 Dr J Slesenger, specialist occupational physician, also reported in October 2018. He considered a large number of medical reports from doctors on both sides in this case. As to the plaintiff’s former work, after a lengthy and careful review of the materials, he made the gloomy statement “I am also of the opinion that based on the evidence presented, it is unlikely to be able to continue to perform unrestricted pre-injury duties on a consistent and reliable basis.”[27]
[27]PCB77L
38 He also discussed the job options put forward by Recovre in the July 2018 vocational assessment report the defendant tendered. Put at its highest what he was really saying was that there was a capacity to perform some duties as a picker and packer but within these following quite wide restrictions of “No push, pull, carry or lift over 10kg. No prolonged static postures. Avoid fast repetitive neck tasks. Avoid sustained extremes of neck postures.”[28]
[28]PCB77M
39 When considering any alternative suitable employment and it is looked at realistically rather than theoretically, the restrictions on capacity that Dr Slesenger considered were applicable to the plaintiff really amount to no capacity for any job with some manual demands out in the employment marketplace. This medical expert and the other medico-legal people the plaintiff relied on support my finding that realistically Mr Grieve has lost his capacity for suitable employment and that will be the case for the foreseeable future.
40 The defendant tendered reports from Dr D Ho and Dr D Yong. Dr Ho only saw Mr Grieve once and that was on 26 May 2015, so three and a half years ago. He acknowledged it was “only six months” post surgery but in fact it was five months after the 22 December 2014 fusion.[29] The report is of little assistance now as all his comments were based on anticipation regarding recovery and he was never asked to see the worker again. Dr Ho thought he “may be able to resume his pre-injury duties as an excavator operator” but I am satisfied the evidence shows that his optimism was not well founded.[30]
[29]DCB30
[30]DCB31
41 Dr Yong reported in September 2018. Reading his language without hearing from him raises some uncertainty as he seemed to have a degree of caution about the hours the plaintiff could work using expressions like “could involve”, “could increase” and graduated basis “aiming to return” to full time. What is clear is the formidable limitations he puts on this unskilled worker when he said he had a current capacity to perform tasks within the following restrictions: “Avoid repetitive neck movements Avoid repeated awkward postures Avoid repeated firm pushing and pulling tasks Avoid lifting more than 8kg on a repeated basis Initial reduction in working hours”.[31]
[31]DCB47
42 He repeated these restrictions in a supplementary report when he was asked to look at the Recovre job options of medical courier, traffic controller, picker and packer.[32] These limitations, when taken together with all the other matters required by the definition of “suitable employment” in the Act, preclude Mr Grieve from any employment when the realistic requirements of regular hours, daily satisfactory performance and the absence of a boss sympathetic to his limitations are considered. Dr Wong thought the medical courier, picker and packer jobs would be suitable but I do not agree. His opinion is against the weight of evidence, does not factor in all the matters in the statutory definition and is inconsistent with the general limitations of the simple fellow worker I heard and observed over three days in court.
[32]DCB50
43 The vocational IPAR materials are well out of date. The first is based on an assessment on 12 February 2015, less than two months after the fusion procedure, and one on 19 June 2015 less than six months after it. [33] These are not helpful when I am required to assess capacity now in November 2018. The Recovre report job options have been discussed to some extent already but some further comments are warranted.
[33]DCB54-55,74-75
44 Firstly the medical reports sent to Recovre are very incomplete and do not represent anything like all the material at my disposal.[34] For example there is nothing from treaters. Secondly the demands of these job options have not been properly assessed. He is described as having “poor” computer skills and yet in this day and age competent skills would be required for a number of the jobs suggested and computers are even shown in the photos of the workstations.[35] Lifting and other manual tasks are implicit as set out in some of the job descriptions, for example in the courier and traffic controller jobs.[36] Thirdly the report does not adequately address all the matters required by the definition of “suitable employment”. Fourthly Recovre have not properly considered the affidavit they were sent which discussed his symptoms when viewing employment capacity. These symptoms include a persistent, burning pain in the back of his neck the intensity of which depends on the level of activity and can extend to a sharp, severe pain.[37] The worker is rarely pain-free and the pain radiates into his right arm and feels like an electric type pain. These symptoms, about which the plaintiff was effectively not challenged, have not been factored in when Recovre discussed the worker. Recovre seem to have forgotten issues such as reliability and daily satisfactory performance to the satisfaction of an employer when discussing capacity for work in a real and not a theoretical sense.
[34]DCB94-95
[35]DCB106,109,
[36]DCB103,112,116-119
[37]DCB94,PCB25-28
45 On all the evidence I reject the submission the Recovre job options are within the capacity of Mr Grieve to perform and to hold down. He might be able to sporadically perform parts of these jobs for parts of a day and for parts of a week but that is no capacity if assessed realistically.
46 If I am wrong on his capacity for any or all of these Recovre job suggestions, I adopt the arithmetic submitted by the plaintiff’s counsel that shows Mr Grieve has proved a 40% or more loss on the wage figures for these jobs anyway.
47 For the reasons outlined I grant leave to the plaintiff to bring proceedings for the recovery of pecuniary loss damages and it follows for pain and suffering damages also.
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