Hardingham v VWA
[2022] VCC 208
•7 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-01537
| DARREN HARDINGHAM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2022 | |
DATE OF JUDGMENT: | 7 March 2022 | |
CASE MAY BE CITED AS: | Hardingham v VWA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 208 | |
JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – low back injury – other workplace injuries suffered prior and subsequent to subject accident – other injuries include shoulder injury and chronic regional pain syndrome – Plaintiff’s credit not in issue
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic)
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Cameron | Adviceline Injury Lawyers |
| For the Defendant | Mr C A Miles | Lander & Rogers |
HIS HONOUR:
1The Victorian WorkCover Authority (“VWA”) argues that the consequences of Mr Hardingham’s 2013 low back injury are not more than significant or marked under paragraph (a)[1] of the definition of serious injury. Their argument proceeds on a number of bases. First, that his current lower back impairment consequences are due to longstanding degenerative changes and the 2013 injury was transient in nature only. Second, that even if his current low back impairment consequences are attributable to the 2013 work incident, they are entangled and overborne by his serious right shoulder injury and longstanding chronic regional pain syndrome (“CRPS”) condition. Lastly, to the extent that any impairment consequences related to the 2013 low back injury can be isolated in accordance with Peak Engineering & Anor v McKenzie,[2] they do not rise to the requisite level to be determined as serious. For the reasons which follow, I reject the Defendant’s arguments and find the impairment consequences flowing from the 2013 low back injury warrant a determination in Mr Hardingham’s favour.
[1] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325(a)
[2] [2014] VSCA 67
Relevant background
2A broad chronology only is necessary. Mr Hardingham was born in England on 27 May 1971. He completed Year 12 and qualified as a plumber. He worked predominantly in that role until coming to Australia in 2006. He is married to his second wife and has two stepsons. He commenced work with A&P Fairbairns Pty Ltd as a full-time plumber in 2006. It involved heavy and awkward work.[3] He sustained a “muscular back strain” while lifting an evaporative unit at work with A&P Fairbairns in December 2007.[4] The CT scan of his low back was reported as “[a] normal study”.[5] He had some weeks off work, took pain medication and had a limited course of physiotherapy. [6] By late February 2008, he had returned to work on full duties at full-time hours.
[3]Plaintiff’s Court Book (“PCB”) 7, Plaintiff’s affidavit at paragraph [11]
[4]Defendant’s Court Book (“DCB”) 203, Dr Sing Hing (James) Mok’s clinical notes from 13 December 2007
[5]DCB 196
[6]PCB 7-8, at paragraphs [12]-[13]
3In March 2008, Mr Hardingham sustained injury to his right hand when a shard of metal caused a serious laceration. He was off work for several months, had two surgeries, but unfortunately developed serious CRPS. He ceased work completely for about 12 months.
4Mr Hardingham commenced work with Henry Schein Regional Pty Ltd (“Schein”) as a full-time dental equipment technician in November 2009. In April 2010, he fell on some stairs and hurt his knees, wrists, shoulders, neck and back. He was off work a short time and then returned to work on full duties. He had chiropractic treatment for about a year, but needed no ongoing pain medication during this period.
5On 6 April 2011, Mr Hardingham injured his neck and low back at work when replacing a light. He was off work for a short time, then gradually returned to work until he achieved full work duties.[7] During this time, he had chiropractic treatment, took Panadeine Forte at times, and found heavy lifting to be difficult.[8]
[7]Dr Monika Berghofen, the treating doctor’s notes indicate that as at April 2012 Mr Hardingham was back working full time DCB 228
[8]PCB 11, at paragraph [31]
6In September 2012, Mr Hardingham ceased treatment with his chiropractor, reported no significant ongoing low back pain, and was not hampered in his daily life by any low back injury consequences.[9] This evidence was essentially unchallenged.
[9]PCB 12-13, at paragraph [35]
7On 10 January 2013, the subject accident occurred. Mr Hardingham was lifting a tool bag out of a car when he felt severe pain in his low back and buttocks. He fell to the floor and remained there. An ambulance was called. He was unable to move. He was taken to the Epworth Hospital where he remained for a few days. He came under the care of Mr David de la Harpe. An MRI scan showed “L5/S1 degeneration and focal disc protrusion contacting the S1 nerves bilaterally”.[10] In Mr de la Harpe’s view, this was a “mild prolapse of the L5/S1 disc without significant neural compression”.[11] Mr Hardingham then commenced chiropractic treatment, hydrotherapy, had some myotherapy treatment, and took pain medication for relief and management of his symptoms. He returned to work on light duties with Schein in about March 2013, but in April 2013, moved to Device Technologies Australia as a full-time equipment technician.[12] He continued to attend chiropractic and myotherapy treatments, but did not require any prescribed pain medication to cope with his low back pain while in his new job.
[10]PCB 122
[11]PCB 98
[12]PCB 14, at paragraph [42] and [44]
8In January 2014, he returned to Mr de la Harpe because of ongoing low back and left leg pain. Mr de la Harpe recorded left leg pain in the S1 distribution.[13] An updated MRI was reported as unchanged. An epidural injection was performed. A good result from that injection was obtained in respect of the left leg pain, but his low back pain continued. Mr de la Harpe sought approval for physiotherapy treatment, but funding for this was denied.
[13]PCB 98
9While at work in July 2014, Mr Hardingham was lifting a tool box when his low back pain flared. He returned to see Mr de la Harpe who arranged an MRI. Significantly, it was reported as unchanged.[14] He had a further flare-up of pain on 31 August 2014 when moving in bed and spent several days in the Maroondah Hospital. He had an epidural and was prescribed strong medication. It is unclear when he returned to work on full duties. In November 2014, he had a further low back epidural.
[14] PCB 99
10I interpose in the chronology to record that the Defendant submitted that from 1 September 2014 to 20 May 2018, there were no recordings of pain in any of the medical reports and in any of the medical notes, save for one recording in Ms Lynda Johnstone’s notes in July 2017.[15]
[15] PCB 153
11The Plaintiff’s affidavit deposed to experiencing lower back pain on most days, the need for pain medication on occasion, and an interference with his activities of daily living during this period. He deposed that despite these ongoing problems, he worked full normal work full-time during this time.
12Returning to the chronology. On 15 August 2016, Mr Hardingham suffered a very significant right shoulder injury. Over the next two years, he had three significant shoulder surgeries, a worsening of his CRPS, and a range of allied health treatment.[16]
[16]PCB 19, at paragraph [63] to PCB 22, at paragraph [86]
13On 22 June 2018, he returned to Mr de la Harpe with a flare-up of lower back pain. An MRI did not diagnose any new condition.[17] An epidural was performed. He was off work for some weeks and returned to work in July or August 2018.[18]
[17]PCB 99
[18]PCB 26, at paragraph [102]
14A further epidural was performed in October 2018 due to a worsening of Mr Hardingham’s condition. A further injection to alleviate worsening symptoms was performed in May 2019. It caused a serious reaction, possibly from a cerebrospinal fluid leak. Mr Hardingham had a week off work. He had a further epidural in June 2019 and had a similarly extreme reaction. He was required to take a short time off work as well. In November 2019, he was hospitalised with back pain for a weekend.[19] He had a further epidural in December 2019. In February 2020, he had facet joint injections. He ceased work at Device Technologies in March 2020 for psychological reasons, primarily. In late 2020, he tried to start a handyman business, but this was not successful. In April 2021, he commenced work as a full-time technician with Presidential Pty Ltd. He currently remains working in this position. In June 2021, he had bilateral sacroiliac joint injections.
[19]PCB 97
Credit
15It is often said that the Plaintiff’s credit is of central importance in serious injury applications. The Plaintiff’s credit here is unimpeached. The Plaintiff presented during the hearing as a straightforward and honest witness. He conceded matters readily in cross examination, such as the accuracy of medical notes in preference to his memory of events sometime ago or the fact that his pain medications cover both his shoulder and low back pain. He did not try to embellish in any way. The manner of his giving of evidence was impressive and unvarnished. This was notable because, in this case, Mr Hardingham at one point had a WorkCover claim for his right shoulder. That shoulder claim had resolved by the time this matter came on for trial, but it would have been tempting then for great emphasis to be placed on the low back injury and the right shoulder injury downplayed. But Mr Hardingham did not do that in any way. He gave a fair and balanced account of his injuries and the consequences of those on him. I also record that the Defendant did not attack his credit or the veracity of his affidavit material. All this in the context of a man who, despite the numerous work injuries he has suffered, has returned to work after every setback. He remains working today. This is an impressive record and stands in his favour. I record my finding that I accept the Plaintiff’s evidence.
The Defendant’s arguments
16The Defendant first argued that any current low back impairment consequences are the result of degenerative changes and not any long lasting effect of the January 2013 incident. Mr Miles, counsel for the Defendant, argued that there was a consistent pattern of low back flare-ups arising from a degenerative spinal condition since 2007 and that the 2013 incident was simply part of that ongoing process. I do not accept that this was the case. I find that the January 2013 incident occurred on a background of relatively mild, occasional low back pain. From 2007, these episodes required very limited treatment, medication or time off work. The event of 10 January 2013 was wholly different in nature and character. This can first be seen in the radiology. In December 2007, the CT scan was reported as “[a] normal study”[20] and diagnosed by the treating doctor, Dr Sin Hing (James) Mok, as a muscular strain. In contrast, the 10 January 2013 event was reported as showing a disc protrusion and diagnosed by Mr de la Harpe as a “mild prolapse”.[21] I consider this a significant physiological difference. The circumstances of the events also stand out in the chronology. Mr Hardingham was afflicted with such significant pain after the 2013 incident that he fell to the floor, struggled to move, and an ambulance was called to take him to hospital, which is where he remained for days. This was completely out of character with previous episodes. It tells strongly in favour of the January 2013 incident as being significantly different to those which had gone before. That this event was the cause of ongoing problems thereafter is the consensus medical opinion, as well.[22] Associate Professor Miron Goldwasser considered an injury occurred on this date which constituted an aggravation of the symptom-free condition.[23] Mr Kevin Siu opined that the January 2013 incident was when a “more substantial injury” occurred.[24] Mr de la Harpe, the treating specialist, indicated he considered that there was a mild prolapse on this day.[25] These matters lead to my finding that the January 2013 incident was not just another episode of age-related degenerative change but rather when an injury to the low back was caused. I find the body function impaired was his spine.
[20] DCB 196
[21] PCB 98
[22]Professor Bittar at PCB 59; Dr Horsley at PCB 82; Mr Slattery at PCB 89
[23]DCB 35
[24] DCB 62
[25] PCB 98
17Turning then to consider the impairment consequences of the injury in January 2013. The Defendant submitted that the impairment consequences could not be isolated from those flowing from the right shoulder and CRPS in the manner required by PeakEngineering.[26] This argument, I find, cannot be made good. In part, this is because of the acceptance of Mr Hardingham’s evidence and in part because of the plethora of other evidence.
[26]Peak Engineering & Anorv McKenzie [2014] VSCA 67
18Turning to perform the analysis required in accordance with Peak Engineering.[27] Where different injuries are concurrently producing pain and suffering consequences for Mr Hardingham, it is necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial as a starting point. [28] This is so the consequences properly referable to the low back injury can be isolated and assessed to establish whether they are “more than significant or marked, and ... at least very considerable”.
[27] Ibid
[28] Ibid
Mr Hardingham’s experience of pain
19The first consequence complained of is that of ongoing pain. In considering this topic, and in keeping with Peak Engineering,[29] I will make findings regarding the overall pain consequences by setting out findings relating to the pain in his low back, and then the pain emanating from his right shoulder and CRPS. I will then move to isolate the low back pain consequences and make findings in that regard.
[29] Ibid
20Mr Hardingham claims that he has lower back pain present all the time and it becomes sharp when aggravated. When really bad, it radiates to the left lower limb.[30] The Defendant did not seek to contradict that evidence, but rather suggested that it was not as severe as he deposed. The Defendant submitted that the lack of treatment from 1 September 2014 to 20 May 2018 for lower back pain was good evidence that his lower back pain was well under control. I do not accept that submission. When regard is had to the chronology, it can be seen that in 2013 there was significant treatment with various modalities. All this was under the supervision of Mr de la Harpe, the specialist. This is recorded in his report.[31] When this treatment did not provide relief, Mr de la Harpe provided epidural blocks on two occasions in 2014. In addition, Mr Hardingham’s pain flared with a simple movement in bed necessitating a hospital stay. The second epidural in November 2014, he fairly conceded, reduced his pain but did not eliminate it entirely. In those circumstances, with ongoing intensive treatment from January 2013 to November 2014 and, finally, the easing, but not elimination, of his symptoms with the second epidural, I consider it understandable as to why there is then no recording of ongoing back pain through 2015 and most of 2016. It is also in keeping with the fact that Mr Hardingham has always demonstrated a willingness to push on and push through his injury, to work and get on with life. While the Defendant argues his ability to return to work in a heavy physical job during 2015 and 2016 indicates his low back injury was not significant, as I have accepted his evidence on affidavit, I reject the Defendant’s argument in this regard. Then in August 2016, Mr Hardingham sustained a very significant right shoulder injury and all attention focussed on that from a diagnostic and treatment perspective. This is entirely understandable. In 2017, he continued to have terrible trouble with his right shoulder and ultimately came to a third surgery in 2018. Hence, I accept that his low back pain was not reported extensively because it was not the focus of his attention or that of his doctors. But this is not to deny that he continued to have low back pain.[32]
[30]PCB 27, at paragraph [108]
[31]PCB 98-99
[32] As confirmed in Ms Johnstone’s clinical note of 7 July 2017 for example.
21Mr Miles tendered a plethora of reports in respect of this period. [33] He said the absence of reporting of low back pain supported his proposition that the Plaintiff was not suffering from any low back impairment consequences during this period. When regard is had to each report, it can be seen they are medico-legal practitioners who were specifically asked by the insurer to opine on variously the right shoulder, the CRPS, Mr Hardingham’s psychiatric reaction to his right shoulder injury and his increased blood pressure in the case of Mr Hammond. They were not tasked with commenting on his back injury. In those circumstances, the lack of recording regarding any complaints of low back pain or its consequences is entirely explainable. For example, on 11 November 2019, Mr Hardingham had seen Mr de la Harpe, having spent the weekend in hospital after an acute episode of low back pain. This is a very significant episode where hospitalisation was required after his back pain became unable to be managed at home. Shortly thereafter, he was examined by Dr Stern, a medico-legal psychiatrist, on 27 November 2019, to assess the psychiatric impairment he had sustained as a result of his shoulder injury. This appointment was arranged by the insurer. In the section entitled “Other medical and psychiatric history”, Dr Stern simply recorded the following: “He suffered a low back injury at work in 2013 and has been left with constant low back pain”.[34] It is completely unclear why the hospitalisation of the Plaintiff some two weeks prior, which was an undoubtedly significant medical event, did not feature in Dr Stern’s history-taking. I have set out this example as I consider it demonstrates why I do not accept the Defendant’s submission that an absence of recording of low back pain tells against an acceptance of Mr Hardingham’s evidence. I further note that Dr Stern’s recording is consistent with Mr Hardingham’s evidence of consistent low back pain.
[33]Reports of Mr Vasudeva Pai and Drs Sanjay Joshi, Clayton Thomas, Peter Wilkins, Nicole Phillips, Stephen Stern, Roy Karna and Jeremy Hammond, DCB 71-153. Tendered as part of Exhibit D2
[34]DCB 122
22Turning to the non-controversial consequences regarding the right shoulder and CRPS injuries. I find the right shoulder was a clinically serious injury. It causes ongoing constant pain, that is a long-term condition. It has required three surgical procedures. The pain is mainly at 5/10, but fluctuates to 10/10 on the visual analogue scale, and is often sharp and stabbing.[35] It requires the use of daily strong pain medication, being Gabapentin, Panamax, Palexia, Panadeine Forte, and Panadol.[36] Mr Hardingham’s right shoulder injury prevents him doing heavy manual work, such as plumbing. It also impacts his ability to do household tasks as he deposes.[37] I find that it stops him participating in his hobbies such as riding and repairing motorbikes and scooters.[38] I find his right shoulder pain makes his sleep difficult, and to alleviate this pain he takes Panadeine Forte most nights. I find his right shoulder stops him enjoying his recreational pastimes of shooting, fishing and playing with his grandchildren.[39]
[35]PCB 30, at paragraph [119]
[36]PCB 49, at paragraph [13]
[37]PCB 31, at paragraph [123]
[38]PCB 29-30, at paragraph [117]; PCB 32, at paragraph [127]
[39]PCB 32-33, at paragraphs [129]-[130]
23Turning to consider those consequences which are said to flow from the low back injury, I have adopted the categories set out in Haden Engineering Pty Ltd v McKinnon.[40]
[40](2010) 31 VR 1
24The evidence was almost unanimous that the low back pain was constant.[41] The only real contrary evidence was a recording from Mr Gavin Weekes, who recorded that the pain was intermittent.[42] However, I note this was after a good result from a sacroiliac joint block. I consider the history of the condition a better guide than this isolated recording immediately after the block. I find that Mr Hardingham’s pain is constant.[43]
[41]DCB 31 Associate Professor Goldwasser; Plaintiff’s affidavit at PCB 27, at paragraph [108]; PCB 56 Professor Richard Bittar; PCB 66 Dr Robyn Horsley
[42]PCB 94
[43]See also PCB 48, at paragraph [9]
25Mr Hardingham’s low back pain is recorded as being as low as 2-3/10, and when it flares up to being 6-7/10.[44] He deposes that it is rarely as low as 3/10.[45] I accept that evidence. I find also that the pain is constant in his left leg,[46] with intermittent tingling in the left leg.[47]
[44]PCB 56 Professor Bittar; DCB 68 Dr Siu
[45]PCB 50, at paragraph [18]
[46]PCB 56 Professor Bittar
[47]DCB 31 Associate Professor Goldwasser
26I find the pain from his low back has a significant effect on Mr Hardingham. I have set out in the relevant history the numerous epidural injections and joint blocks performed to provide symptomatic relief. This regime of invasive treatments speaks of the substantial difficulty Mr Hardingham has in coping with his pain. These treatments have also had serious side effects on at least two occasions. In addition, the low back pain was sufficient on two further occasions that he was admitted to hospital for several days.
27The above matters can clearly be separated from the pain consequences flowing from the right shoulder. As was explained in Poholke,[48] the pain experienced by Mr Hardingham as a result of his right shoulder injury does not diminish or devalue the level of pain he suffers as a result of his low back injury.[49] Consequently, I find that they are consequences flowing directly from the low back injury.
[48] Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232
[49] Ibid at [110]
28Mr Hardingham has deposed that he took medications, Gabapentin, Panamax, Palexia, Panadeine Forte, and Panadol, on a daily basis after the right shoulder injury.[50] He deposed such medications covered both the pain from his right shoulder, low back pain and CRPS.[51] The state of this evidence leaves me unable to perform the exercise required of identifying to what extent the pain medications are taken in respect of the low back pain. As a result, I put them to one side as a consequence of the low back injury.
[50]PCB 49, at paragraph [13]
[51]PCB 45, at paragraph [18]; PCB 49, at paragraph [13]
The disabling effect of the low back pain
29Mr Hardingham deposes, and I accept, that prolonged walking for more than 15 minutes and sitting for more than 30 minutes aggravates his low back pain.[52] This means he cannot drive for more than 30 minutes. Such a limitation is important because he is regularly required to drive long distances for work. As such, he stops every 30 minutes or so to stretch his back. None of this is in controversy, and is a direct consequence of his low back injury and not his CRPS or right shoulder injury.
[52]PCB 27-28, at paragraph [109]
30It is also not in controversy that bending and twisting causes an increase in his low back pain.[53] At his work with Presidential this is a requirement of his job, and leads to an increase in his pain, and limits his movements somewhat. However, I accept that his right shoulder injury is the predominant reason why he cannot return to previous work such as he had with Schein or even Device Technologies. The right shoulder injury limits him in lifting, pulling, and pushing weight of any significance above 2-5 kilograms.
[53] PCB 28, at paragraph [111]
31I find that his walking and sitting limitations affect his ability to socialise. This is in the following ways. He struggles at social dinners or in restaurants because he cannot sit for lengthy periods. He cannot walk with his wife as they used to, as he often has to stop and she continues walking with the dog. I also find that his low back pain affects his sex life.
32I record my finding, however, that I am unable to find that the low back injury has the consequences of depriving him of his recreational pursuits such as shooting, fishing, riding and repairing scooters, and playing with his grandchildren. This is because these pursuits are significantly impacted, to an overwhelming degree, by his right shoulder injury.[54]
[54]Shooting, PCB 32, at paragraph [129]; fishing, PCB 32, at paragraph [128]; scooters, PCB 29-30, at paragraph [117] and PCB 32, at paragraph [127]; and grandchildren, PCB 32-33, at paragraph [130]
33Similarly, his right shoulder and the pain that emanates from it, stops him doing household tasks.[55]
[55]PCB 31, at paragraph [123]
34Taking the consequences attributable to the low back injury and excluding those enmeshed with the right shoulder and CRPS and comparing them with the other cases in the range of possible impairments, I find that they are more than significant or marked.
35In summation, I find Mr Hardingham’s low back injury warrants a determination that he has sustained a serious injury as:
―it has been present since 2013, when he was aged 42, a young age, and will persist for the rest of his life;
―the effect of this condition on a young man in the prime of his life with many years of such consequences is a significant feature;
―he has constant low back pain that flares up;
―he has required and will require ongoing specialist care, invasive injections with serious side effects and, on occasion, hospitalisation to manage his condition;
―it affects his social and intimate life;
―he is limited at work by his inability to drive distances as required; and
―he is a stoic man who has soldiered on, continuing to work despite his condition, and should not be penalised for his industrious hardworking ethic.
36For all the above reasons, I find in Mr Hardingham’s favour.
37I will hear the parties on the question of costs.
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