Hawkins v DHL Express (Australia) Pty Ltd
[2011] VCC 1182
•12 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01704
| JOHN HAWKINS | Plaintiff |
| v | |
| DHL EXPRESS (AUSTRALIA) PTY LTD | Defendant |
| (formerly DHL INTERNATIONAL (AUST) PTY LTD) |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 and 16 June 2011 |
| DATE OF JUDGMENT: | 12 August 2011 |
| CASE MAY BE CITED AS: | Hawkins v DHL Express (Australia) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1182 |
REASONS FOR JUDGMENT
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Catchwords: Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – impairment to the cervical spine – impairment to the right shoulder – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy SC and Mr | Rose Mary Brondolino & Co |
| R Lawson | ||
| For the Defendant | Mr M Titshall QC with | Herbert Geer |
| Ms R Annesley | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(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 in July 2004 (“the first date”) and February 2005 (“the second date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The impairment of body function relied upon in this case is the cervical spine and the right shoulder.
5 The impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being more than significant or marked and at least very considerable.
6 The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged seventy one, having been born on 28 September 1939. He was educated to about Form 3 and in 1954, when he was aged about fifteen, he first commenced employment.
8 Since that time, the plaintiff has had a range of jobs, initially in workshops and motor repair shops and in later years as a truck driver involved principally in transporting meat.
9 In about 1981, with the truck he had purchased from his previous employer, Samson Meat Company, the plaintiff started his own wholesale meat business. Over the following years he was again in paid employment and he later purchased another truck and worked as a sub-contractor.
10 The plaintiff’s last job prior to starting work with the defendant in 1998 was with Jeff Jones as a salesman of meat and similar products to retail outlets.
11 The defendant operated a freight and transport courier business. When the plaintiff first started work in its employ, the defendant operated from premises at Kensington. From 2000, the defendant was based in premises at Tullamarine.
12 The plaintiff was employed as a driver of an eight ton truck. Whilst working at Tullamarine he worked six days a week, Monday to Saturday, normally 5.00 am to about 1.30 pm, but the hours varied. He did a lot of overtime. In 2004, he was earning about $850 net per week.
13 The plaintiff’s duties at Tullamarine involved the manual handling of heavy containers. He was also required to manually push and shove cages from the warehouse to the back of a truck. This task required him to maintain one hand and arm on the dolly lever to keep the cage tilted and moving forward on the wheels, whilst using the other hand or arm to grip the cage and pull it and control its movement over an uneven surface. These tasks were heavy and awkward and placed a lot of strain on the plaintiff’s neck and shoulders (“the work duties”).
14 Over the years, including his employment before working with the defendant, the plaintiff often experienced back, neck and shoulder pain because of the nature of his work. Generally, the pain or stiffness settled overnight. On some occasions the plaintiff had physiotherapy and he normally did not attend a doctor.
15 For about ten years prior to ceasing work with the defendant in February 2005, the plaintiff was treated by physiotherapist, Jeff Austin. The plaintiff could not recall having any time off work as a result of neck, shoulder, or back pain or injuries.
16 The plaintiff did not have any investigations of his neck before the first date. He had had some problems with aching in his lower back and had seen Barry Richardson for physiotherapy treatment but he did not take any medication.
17 In about February 2004, the plaintiff injured his left ankle and foot at work. He had two months off work, during which time he received worker’s compensation payments, and his medical expenses were paid. Thereafter, he returned to normal duties with the defendant.
18 In the early part of 2004, the plaintiff experienced lower abdominal discomfort and attended his general practitioner, Dr McColl, who diagnosed an inguinal hernia and organised specialist referral, which ultimately resulted in the plaintiff having surgery in September 2004.
19 On or about the first date, whilst working at Tullamarine, pushing and attempting to manoeuvre a loaded cage weighing between 500 and 600 kilograms onto the dolly, the plaintiff experienced a sudden severe pain in his neck that extended into his right shoulder (“the first incident”). He also experienced a sudden feeling of pressure in his head. He vomited and felt very unsteady on his feet.
20 The plaintiff had never previously experienced such sudden and severe neck and shoulder pain. He finished his shift and reported the injury. After the first incident, the plaintiff rested at home and hoped his neck and right shoulder pain would settle. It did not, and he attended Jeff Austin for physiotherapy. The plaintiff continued working and was not given any assistance, nor was there any change in his duties.
21 The plaintiff had about ten physiotherapy sessions between about August to September 2004, but his condition was not improving and he was experiencing severe constant neck and right shoulder pain. He saw a physiotherapist, Kate McManus, and later Jeff Austin, who told him to go and see his doctor, Dr McColl.
22 On 20 September 2004, the plaintiff saw Dr McColl as he was not getting any relief from the physiotherapy treatment. Coincidentally at that time, the plaintiff was to have the hernia operation the following day. Thereafter, he was off work for two months, hoping that not being at work would allow his neck and shoulder pain to settle.
23 At that time, Dr McColl arranged a CT scan of the plaintiff’s neck and prescribed medication and referred him to an osteopath, Mr Katsapis. Neither medication nor osteopathic treatment provided any significant relief.
24 The plaintiff returned to work with the defendant in about mid November 2004, at which time his neck and right shoulder pain continued. There was no change in his duties and he continued to perform heavy work.
25 On or about the second date when the plaintiff was moving loaded cages into the rear of the truck, a task that was physically difficult and awkward, he had trouble coping with his neck and shoulder pain. His pain worsened, with him experiencing pain across both shoulders, mostly the right (“the second incident”).
26 That day the plaintiff finished his shift but he did not feel he could cope any longer with that job. He reported this situation to his team leader.
27 The plaintiff attended Dr McColl who prescribed Mobic and Panadeine Forte for pain relief. The plaintiff was certified unfit for work. He made a claim for compensation which was accepted.
28 In his claim form completed on 13 August 2004, the plaintiff set out that he injured his neck and shoulder muscle on 3 August 2004 when a cage twisted and jerked his shoulder whilst loading cages of freight into the back of a truck. The plaintiff set out he was working thirty eight hours a week, with twelve hours overtime.
29 Dr McColl continued to treat the plaintiff with medication and the plaintiff continued to undergo osteopathic treatment.
30 When Dr McColl put the plaintiff off work in February 2005, the plaintiff was then aged nearly sixty six. He did not want to retire. He received WorkCover payments for two and a half years.
31 There was no work the plaintiff could do. He could drive a truck but he could not unload it.
32 In cross-examination, the plaintiff denied he had decided to retire at that time, or that he had told Work Focus that was his intention. He was classified unfit for work, having been seen by Work Focus a couple of times.
33 The plaintiff could not recall alternative jobs being mentioned to him by Work Focus. The plaintiff wanted to keep working with the defendant, but he could not because of his neck condition. He was under doctor’s orders and he was not fit to work.
34 In about May 2005, Dr McColl referred the plaintiff to Mr de la Harpe, an orthopaedic surgeon, who arranged an MRI scan of the plaintiff’s cervical spine the following month. He later advised the plaintiff he did not believe surgical treatment would assist him.
35 The plaintiff continued with medication and osteopathic treatment until WorkCover insisted that treatment be reduced, and it was recommended that the plaintiff take up hydrotherapy which he did until about late 2006.
36 Between August 2005 and July 2006, at the request of the defendant, the plaintiff attended a number of interviews and assessments with a rehabilitation organisation known as Workforce Australia (“Workforce”).
37 Dr McColl continued to certify the plaintiff unfit for work. The plaintiff had little experience in other than manual work and discussed various options and employment with Workforce. The only work that the plaintiff was really suited for was working as a driver.
38 The defendant did not have any positions for a driver that did not involve loading or unloading a vehicle. That was the situation generally in the industry. By about July 2006, the plaintiff did not receive any further assistance from Workforce and he was not offered any alternative duties with the defendant.
39 Until 2006, the plaintiff received weekly payments when he was aged sixty seven. If not for his injuries, the plaintiff would have continued working for the defendant indefinitely. There was not any retiring age in that job and the defendant was prepared to keep employing workers as long as they could perform the work.
40 The plaintiff’s son-in-law works with an air conditioning company, Pro Air Systems (“Pro Air”), in Abbotsford.
41 After cessation of compensation payments in August 2007, the plaintiff was put on an aged pension. He struggled financially and was extremely bored at home and unable to engage in any regular stressful activity. He had worked since the age of fifteen and he felt useless and mentally down.
42 The plaintiff’s son-in-law arranged for the plaintiff to do part time delivery work with Pro Air, delivering light parts or equipment in a company ute to work sites.
43 Initially the plaintiff worked between one and three days a week but he has now built up these hours, normally working twenty eight hours a week.
44 The plaintiff continues to suffer a significant loss of wages. He receives a part aged pension. However, he prefers to work and get out of the house.
45 The plaintiff can generally work at his own pace and avoid anything which he might consider may cause him increased neck and shoulder pain. He can normally avoid lifting other than light items and the co-workers on site are very helpful.
46 The plaintiff presently works from 7.30 am to 3.30 pm at the latest. In a company ute, the plaintiff delivers items as light as architectural drawings and also heavier air conditioning parts to various sites anywhere in the Melbourne Metropolitan Area.
47 In his eight hours a day at work, the plaintiff spends most of the time on the road. He has an arranged work plan at the start of the day, but sometimes he gets a call while he is on the road to do another job.
48 As soon as he arrives at a job, the plaintiff just undoes the ropes, and the other workers on site unload the ute.
49 In December 2009, the plaintiff deposed he suffered constant neck and shoulder pain, mainly in the right shoulder. The pain was variable but even when he did not engage in activity, he experienced some pain. More recently, the plaintiff also experienced feelings of numbness in his left hand particularly at night.
50 In the past, the plaintiff did not have many recreational activities, mainly because he worked as much as he could. Prior to suffering injury, the plaintiff played golf about six times a year. He did not have a handicap, nor was he a member of a club. He enjoyed playing but he did not play much, as he was not a very good player. He no longer plays because of his neck condition.
51 The plaintiff still tries and undertakes light gardening and maintenance work around the house but he can take his time and avoid any work which might cause him more pain.
52 Now the plaintiff just sits around and reads books in his spare time, whereas before he suffered injury he used to get out and garden and do things. He no longer does a lot of gardening, with his wife doing a lot of it now. She is a keen gardener. The plaintiff takes the dog for a walk to the shop to buy the paper.
53 In re-examination, the plaintiff said he does not go out in the garden much any more because he cannot do much because of pretty severe pain in his neck, which he rates at about eight out of ten. He agreed that he told Mr Jones that this was the case and that he had pain 24/7.
54 The plaintiff goes to bed at about 9.30 pm and usually wakes up at about 2.30 am because his neck starts to ache. He then just lies there and tosses and turns until he gets up at 5.30 am.
55 The plaintiff agreed with the history he had given that his injury impacted on his everyday activities and he had to be more reliant on others to assist him.
56 The worst aspect of the plaintiff’s neck/shoulder injury is the constant pain which drives him nuts. He considers that apart from that he is in reasonably good health.
57 It is five years or so since the plaintiff last took any medication such as Mobic, Tramal, Panadol and Nurofen, as eventually it did not provide him with any pain relief.
58 The plaintiff last had physiotherapy in 2004. He had a lot of osteopathic treatment between 2005 and 2007. He last saw Dr McColl in relation to his shoulder/neck condition in September 2007.
59 Treatment stopped around the time the plaintiff started work with Pro Air, in May 2007.
60 The plaintiff continues to attend Dr McColl for general health matters, including his neck and shoulder. However, other than to generally enquire about and discuss his condition, Dr McColl no longer provides any specific treatment for the plaintiff’s neck/shoulder condition.
61 The plaintiff would prefer not to have to bother with ongoing treatment and just put up with his neck and shoulder pain than continue with treatment which did not provide much relief in any event.
62 The plaintiff tries to remain active and if possible avoid activity which causes increased pain. He does not believe there is any treatment which will provide him with long term relief.
63 In the last twelve months, the plaintiff has been diagnosed with a heart problem after he ran short of breath, and he was sent for a cardiograph. He is presently taking Warfarin and Atenolol.
64 In his more recent affidavit sworn on 10 November 2010, the plaintiff indicated he intended to bring proceedings for recovery of damages and, to some extent, that affidavit related to wage details. However, that application is no longer being pursued.
65 The plaintiff deposed he copes with his current duties at Pro Air although he experiences increased neck and right shoulder pain at work.
66 Since he swore his first affidavit in December 2009, it has become increasingly apparent the plaintiff cannot cope with increased hours or days or any change in his duties because of his neck and shoulder pain. He does not want to quit his job but he does not know how long he can continue.
67 The proprietor of Pro Air is very sympathetic and helpful and the plaintiff receives assistance when required and he can avoid lifting anything heavy and there is normally no repetitive lifting.
68 Although the plaintiff is now aged seventy one, he prefers to work. If not for the injuries to his neck and right shoulder, he would have continued working full time.
69 The plaintiff continues to suffer pain and restrictions similar to those set out in his previous affidavit. He continues to avoid taking medication as it does not provide him with any lasting relief. His sleep is disturbed by neck and right arm pain which wakes him during the night and he has trouble getting back to sleep.
The Plaintiff’s Medical Evidence
70 The plaintiff has seen Dr McColl since the late eighties/ early 1990s.
71 Dr McColl reported on 5 December 2006 that the plaintiff had initially injured his neck in the first incident in July 2004. The plaintiff underwent seven sessions of physiotherapy over July to September with no improvement, and the physiotherapist referred the plaintiff to him.
72 When examined on 20 September 2004, the plaintiff complained of ongoing neck and right shoulder pain since the first incident and he was due to have an operation for a hernia the next day. That procedure went ahead uneventfully and the plaintiff had a couple of weeks off work.
73 However, the plaintiff’s cervical neck pain and right shoulder pain never resolved with this period of rest and a CT scan was organised.
74 The plaintiff returned to work after the hernia operation with ongoing cervical neck pain and right shoulder pain.
75 Despite physiotherapy, osteopathic treatment and non-steroid anti- inflammatories and a course of oral steroids, the plaintiff’s symptoms only partially responded.
76 The plaintiff continued to work despite his problems but aggravated his neck again pushing heavy trolleys on the second date.
77 That day Dr McColl prescribed Mobic daily and Panadeine Forte, but this only partially resolved the plaintiff’s pain. He also referred the plaintiff to Mr de la Harpe who organised an MRI scan.
78 Dr McColl reported in December 2006 that the plaintiff’s neck problems had remained resistant to all treatment and while they improved over the last twenty six months, the problems were still persistent and precluded him from returning to work. The plaintiff then continued to have osteopathic treatment and used Tramal, intermittent courses of steroids that helped on occasions, and hydrotherapy that was also beneficial.
79 Dr McColl then diagnosed soft tissue cervical ligamentous injuries, initially in the first incident and later in the second incident. These aggravated the plaintiff’s longstanding cervical degenerative disease which, previous to the injuries, was likely asymptomatic.
80 Dr McColl then thought the plaintiff’s injury had stabilised to the point that his pain was fairly well controlled by analgesia and physical therapies but precluded him from ever returning to his previous job.
81 In Dr McColl’s view, employment was a substantial contributing factor to the onset of the plaintiff’s cervical neck pain.
82 At that stage, he did not think the plaintiff’s symptoms would resolve and considered he would never be able to return to work due to the persistence of those work-related symptoms.
83 In April 2009, Dr McColl further reported to the plaintiff’s solicitor. He diagnosed cervical ligamentous injuries to the spine in the two incidents. He
84 At that stage, Dr McColl thought it unlikely any treatment would significantly affect the consequences of the plaintiff’s injuries, and treatment would focus on controlling and minimising the plaintiff’s symptoms with anti-inflammatories, analgesics and physical therapies, such as osteopathy or physiotherapy.
85 Dr McColl thought the plaintiff’s activities were affected by ongoing cervical pain. He noted the plaintiff was able to perform some domestic and recreational activities but those inevitably resulted in an aggravation of the cervical neck symptoms which required analgesics or anti-inflammatories. He then thought the plaintiff would not be able to work in any employment and certainly not the physical work he did previously without aggravating his symptoms.
86 In his most recent report of 2 May 2011, Dr McColl advised he did not believe any rehabilitation or medical treatment would significantly affect the consequences of the injury to the plaintiff’s spine. He noted all the plaintiff’s activities were affected by ongoing cervical spine pain. He was able to perform some domestic and recreational activities for a short period of time but they inevitably caused aggravation which limited activities and required analgesia.
87 Dr McColl thought the plaintiff was able to work only in a casual capacity due to ongoing pain and definitely was not capable of working in his old physical job.
88 Dr McColl thought the plaintiff’s prognosis was poor and he would have neck pain restricting his activities for the rest of his life. He considered the plaintiff’s pain was likely to worsen with time and restrict him further in all activities and require stronger and more frequent analgesia. He also thought physiotherapy or osteopathic treatments would also probably be required more regularly.
89 In examination-in-chief, Dr McColl confirmed the aggravation of degenerative disease was a long term problem.
90 In cross-examination, Dr McColl noted the plaintiff had worked physically for most of his life. The plaintiff was a certain age and had degenerative disease in his spine for years. He agreed the investigations showed substantially cervical degenerative change.
91 Dr McColl confirmed his view that work was a substantial contributing factor to the plaintiff’s condition, which was either caused or exacerbated by his lifetime of hard work, and also two sorts of trigger points in the two incidents. In his view, there was certainly wear and tear, but the plaintiff’s condition seemed to have been specifically triggered to cause severity of pain in the two incidents.
92 Dr McColl considered there had been an acute exacerbation of pain which did not go away and did not seem to get any better, on the background of degenerative disease. In his view, the plaintiff’s present condition was not just a matter of age. It depended on his level of activity, particularly heavy physical work.
93 Dr McColl agreed he probably would have last treated the plaintiff for his neck in September 2007. Unfortunately not much he gave the plaintiff did a lot of good. He referred the plaintiff to a physiotherapist and an osteopath. He tried anti-inflammatory medications, short courses of corticosteroids and Tramal and Panadol, and really nothing much happened. The Tramal did not give the plaintiff much relief because he did not request further prescriptions.
94 After September 2007 he saw the plaintiff, and spoke to him on occasions about his neck, and the plaintiff indicated it was still sore and restricting him, but the plaintiff did not specifically see him about his neck.
95 Dr McColl confirmed that the plaintiff would not be able to work in any employment. He could not see there was any way the plaintiff could actually return to his employment pushing heavy items. He certainly did not have the capacity to really probably lift anything on a repetitive basis much past five to ten kilograms.
96 Dr McColl thought the plaintiff would have a problem driving if he had a sore neck, but he thought the plaintiff was a pretty tough sort of bloke, and he may well be able to do a bit of driving. He considered it would be hard for the plaintiff to drive five days a week. In any event, the sort of driving he was doing now was very, very different from what he was doing when he aggravated his neck injury.
97 Dr McColl would not have thought, in 2007, that the plaintiff could do the work he now does.
98 The main reason Dr McColl has seen the plaintiff of recent times is for cardiac problems. On occasion they have discussed the plaintiff’s symptomatology relating to his neck briefly over the last three or four years. The plaintiff has indicated to Dr McColl it still restricted him and still hurt, but that was probably the extent of the discussion.
99 In re-examination, Dr McColl confirmed sometimes there is not a direct correlation between what is shown on x-ray in terms of degenerative disease and ongoing symptoms.
100 Dr McColl confirmed he agreed with Mr de la Harpe’s view that the plaintiff had suffered an acute mechanical exacerbation of pre-existing degenerative changes in his neck.
101 Dr McColl confirmed that the various modalities had not helped the plaintiff much at all. Tablets were the initial treatment, and they were not doing very much, so the plaintiff decided, probably wisely, to seek physical treatment, which Dr McColl thought gave him a bit more assistance.
102 In terms of the plaintiff’s general demeanour, Dr McColl thought the plaintiff was somebody who would not want to see a doctor too often, and would only do so when really in strife. He did not believe the plaintiff had ever amplified his pain, and it was genuine and ongoing, and had been very, very restrictive.
103 In Dr McColl’s view, the plaintiff certainly was not a hypochondriacal individual. He thought the plaintiff was probably on the other end of the spectrum. The plaintiff really did not like coming to see him much, because he thought he was bothering him with trivial things, which often were not trivial.
104 Mr de la Harpe, orthopaedic surgeon, saw the plaintiff on referral from Dr McColl on 30 May 2005.
105 Mr de la Harpe reported to Dr McColl, noting the injury in July 2004 and the fact the plaintiff did quite a lot of manual work.
106 On examination, the plaintiff had a decreased range of movement of his neck to the left-hand side in rotation. There was no neurological abnormality in the upper and lower limbs. The CT scan basically outlined some degenerative change.
107 Mr de la Harpe advised he was not sure whether the plaintiff had a significant disc prolapse and suggested an MRI scan but he was sure the plaintiff’s ongoing management was going to be conservative.
108 Mr de la Harpe reviewed the plaintiff on 20 June 2005 following the MRI scan.
109 Mr de la Harpe noted, unfortunately, that investigation showed degenerative change in the plaintiff’s neck. It had been reported as having a C3-4 foraminal stenosis but Mr de la Harpe did not want to wish any surgery on the plaintiff and wanted to persist with conservative management.
110 Mr de la Harpe suggested the plaintiff have further treatment to his neck, including some intermittent traction. He asked the plaintiff to try some glucosamine tablets and he did not make another appointment to see him.
Investigations
111 Dr Whitecross, a partner of Dr McColl’s, organised a CT scan of the plaintiff’s cervical spine on 30 September 2004.
112 It was reported there was spinal stenosis due to disc protrusion and endplate osteophytosis at the levels C4-5 and C5-6. There was foraminal narrowing at the level of C5-6 and C6-7 and mildly on the right at C3-4. There was mild spinal stenosis due to disc bulging, mild disc protrusion or endplate osteophytosis at level C2-3, C3-4 and C6-7.
113 Mr de la Harpe organised an MRI scan of the plaintiff’s cervical spine on 20 June 2005.
114 It was reported there was advanced cervical spondylosis with severe right foraminal stenosis at C3-4 due to moderate right foraminal disc protrusion and moderate facet osteoarthritis. There was bilateral foraminal stenosis due to osteophytes and disc bulges at C4-5, C5-6 and C6-7 as described.
The Plaintiff’s Medico-legal Evidence
115 The plaintiff has been examined on three occasions by Mr Miller, orthopaedic surgeon.
116 On the first examination on 5 June 2007, the plaintiff told Mr Miller he had neck pain and discomfort which fluctuated and was at times severe, with radiation in the shoulders, but neck pain was the dominant feature.
117 The plaintiff told Mr Miller he had had low back pain and discomfort on and off over the years and would cope with it, as he did with occasional shoulder ache. There were no problems with his neck prior to the incident in August 2005.
118 On examination of the cervical spine, there was no deformity or muscle spasm but there was diffuse tenderness and some restriction of movement. There was no neurological deficit. There were similar findings in relation to the lumbar spine.
119 Mr Miller had available the June 2005 MRI scan.
120 Mr Miller thought the plaintiff had underlying degenerative disease in the cervical spine of a significant degree precipitated by the work injury. Noting the plaintiff had significant ongoing symptoms, he thought his prognosis was only poor. He considered the plaintiff had some ongoing low back symptoms which were likely to be due to degenerative disease. These were moderate and the prognosis was good. There was minor rotator cuff pathology in the shoulder and the plaintiff had only minimal symptoms. The prognosis was good.
121 Mr Miller thought the pre-existing but asymptomatic disease in the cervical spine was likely to have been rendered symptomatic by the plaintiff’s work in general and the work event.
122 At that stage, Mr Miller thought conservative treatment was appropriate and that the plaintiff could not return to work that involved repetitive lifting, pushing, pulling and heavy work and he could not return to his physical occupation. At that stage, it was not envisaged there would be a return to work.
123 Mr Miller thought the plaintiff’s mobility should not be significantly restricted by the August 2005 incident. He noted the plaintiff coped with normal domestic and gardening tasks but he received assistance from his wife. He did gardening slowly.
124 Mr Miller also noted the plaintiff was non specific about leisure and recreational activity and it was reasonable to conclude however that orthopaedic disease of this kind would impose some limitations on leisure and recreational pursuits.
125 Mr Miller re-examined the plaintiff on 17 July 2009.
126 At that stage, the plaintiff continued to have neck pain and discomfort radiating to his shoulders. He was now particularly bothered by left arm pain at night which caused him significant sleep disturbance. The plaintiff advised there had been significant symptom progression since he was last reviewed. He also had low back pain and discomfort which was much less severe than the neck symptoms.
127 The plaintiff had effectively given up treatment as he found it ineffective.
128 There were similar findings on physical examination. Mr Miller did not think the plaintiff was displaying symptom magnification.
129 Mr Miller then thought the plaintiff had significant symptoms in the cervical spine. He noted there appeared to be a pattern of ongoing deterioration and noted the development in particular of left arm symptoms. He thought the long term prognosis for the cervical spine was fair to poor and his view remained unchanged in relation to the other conditions.
130 Mr Miller thought it was highly likely that the work injury had contributed to the development of symptoms in the cervical spine and precipitated the symptoms. He believed the plaintiff’s heavy work over a significant period had contributed to the evolution of the disease in the lumbar spine and related shoulder. Noting the plaintiff was having minimal conservative treatment, he thought that would need to continue on an indefinite basis.
131 Mr Miller noted the plaintiff had returned to work and was then working approximately seven days a fortnight. The plaintiff told Mr Miller he felt unable to increase his work hours beyond that because of significant symptoms. His neck and arm symptoms were aggravated by his work.
132 Mr Miller believed, unfortunately, it was unlikely the plaintiff would sustain that level of work and he believed in the medium term that in a five-year timeframe, it was likely the plaintiff would have suffered further work restrictions. He thought the plaintiff’s symptoms had then stabilised, in the sense that there was no prospect of improvement.
133 On final examination on 19 May 2011, the plaintiff told Mr Miller he regarded his neck symptoms as his major problem. There was some low backache and discomfort, but not as severe as his neck condition.
134 There were similar findings on clinical examination to earlier examinations.
135 The plaintiff told Mr Miller he had significant symptoms at work and felt himself unable to increase his work hours because of problems with his neck and back pain.
136 Mr Miller noted there seemed to have been a further slight deterioration in the plaintiff’s neck status since he was last reviewed in July 2009 and he confirmed the plaintiff’s prognosis was fair to poor.
137 Mr Miller advised that the impairment was the result of a physical injury. He had identified no evidence of significant psychological or functional overlay and was of the view the plaintiff presented as a very genuine person. He thought the neck injury and symptoms impacted significantly on the plaintiff’s capacity for employment and noted the plaintiff was not able to continue with full time employment.
The Defendant’s Medical Evidence
138 The defendant relied on a report from Mr de la Harpe of 12 January 2006.
139 At that stage, Mr de la Harpe concluded the plaintiff had suffered an acute mechanical exacerbation of pre-existing osteoarthritic change in his neck, and no surgery was going to be required. He thought it was likely that the plaintiff’s condition would improve with some conservative management in the form of osteopathic treatment and simple analgesia. He thought it was unlikely the plaintiff would return to a job where he was involved in manual labour, such as pushing 500-kilogram trolleys. He thought it may be possible that the plaintiff was capable of returning to some form of work. However, he noted the plaintiff was aged sixty-five and close to retirement age.
140 In that report, Mr de la Harpe also noted that the CT scan report basically outlined some degenerative changes, as did the MRI scan.
141 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on 9 November 2005, at which time he was aged sixty-six.
142 The plaintiff told Mr Shannon his complaints commenced in July 2004, and he had no previous history of neck trouble prior thereto. There was no specific incident or injury, but simply the gradual onset of pain. The plaintiff continued working until February 2005, but his pain was getting worse. He could not do anything. He could not lift, and he had constant neck pain extending to the right trapezius and right scapula region. His constant neck pain interfered with his sleep.
143 Mr Shannon noted the plaintiff denied any previous history of neck strain or injury, although he worked as a meat carter for thirty years.
144 On examination, the plaintiff had restriction of cervical movement by about a quarter. There was no significant spasm or hesitancy, and he had a full range of shoulder movement. There was tenderness in the right trapezius muscle, and no neurological abnormality.
145 Mr Shannon then thought the plaintiff was suffering from significant pre- existing longstanding multi-level cervical disc degeneration.
146 Mr Shannon thought it was likely that change was in part age-related, and contributed to by the plaintiff’s former extremely heavy occupation as a meat lumper.
147 Mr Shannon noted there were no neck symptoms prior to July 2004. He thought that if the plaintiff was required to push heavy cages, it was certainly consistent that this could have aggravated the degenerative change, which was multi-level. Mr Shannon thought there may have been a small right-sided C3-4 protrusion, although the degenerative change was fairly generalised. He noted the plaintiff reported initial aggravation by manipulative treatment from a physiotherapist, but got some temporary relief with osteopathic treatment.
148 Mr Shannon then thought the plaintiff had quite a reasonable range of neck movement without significant spasm.
149 Mr Shannon considered that the plaintiff was not fit for his former occupation or for any other heavy physical work and that he might be capable of light driving duties but it may be preferable if at least initially he returned to work involving some alternative duties in the office or base.
150 Mr Shannon thought the contributing factors to the plaintiff’s condition were age-related degenerative change, a long history of heavy physical work, particularly meat lumping, and further aggravated by his recent employment.
151 On re-examination by Mr Shannon in September 2010, the plaintiff said the pain was present twenty four hours a day.
152 On physical examination, there was mild restriction of cervical movements and a virtually full and equal range of shoulder movement. There was no neurological abnormality.
153 Mr Shannon concluded there had been little change in the plaintiff’s condition since the previous examination, and the range of movement in his cervical spine was very little different. He noted, to the plaintiff’s credit, although he is aged seventy, he has resumed light part time physical work which is appropriate to his condition.
154 Mr Shannon concluded the relevant injury was an aggravation of pre-existing cervical disc degeneration. He thought the prognosis remained essentially that the plaintiff’s neck would remain susceptible to further injury. He thought employment had been a significant contributing factor in this aggravation and acceleration of degenerative change due to the type of work that had been performed.
155 Noting the plaintiff was not receiving any treatment or physical therapy, and that his ongoing pain was interfering with his enjoyment of life, Mr Shannon thought the impairment was due to a combination of injury and pre-existing degenerative change. He considered that the plaintiff did not have the capacity for pre-injury employment duties or other work involving heavy lifting, pushing or pulling of heavy loads, and particularly work above shoulder level.
156 The plaintiff was examined by orthopaedic surgeon, Mr Ian Jones, on 24 March 2010.
157 The plaintiff told him of the heavy nature of his duties and the fact there was no previous history of neck complaints until a neck injury on 1 June 2003 and in February of the following year.
158 Mr Jones noted that when the plaintiff commenced work with Pro Air in mid- 2007, his neck was described as “not too bad”.
159 The plaintiff reported symptoms of pain in his neck 24/7.
160 The plaintiff told Mr Jones he avoided any aggravating activity. The plaintiff was able to drive, although sometimes this aggravated his neck symptoms. He did not take medication, as he found it gave little relief.
161 On examination, the plaintiff’s cervical spine had an almost full range of flexion and only slightly limited extension. Rotation to the right was moderately limited, and minimally limited to the left. The site of his tenderness was indicated to affect the right trapezius muscle. Neurological assessment in both upper limbs was normal.
162 Mr Jones noted the 2004 CT scan and the 2005 MRI scan and commented that the changes shown were longstanding.
163 In his view, the plaintiff suffered from symptoms of neck pain and stiffness, with referred pain to his left and right shoulder girdles, with some symptoms but no clear signs of neurological involvement affecting the left and right hand.
164 Mr Jones thought the prognosis was likely to be one of persisting symptoms, pain and stiffness in the short term, with a possible slow deterioration in the long term.
165 Mr Jones thought that it was possible that this manual work and the incident described in June 2003 aggravated this pre-existing degenerative condition. In spite of this, the plaintiff continued working until apparently spontaneously deteriorating in February of the following year.
166 Mr Jones believed the plaintiff’s work over that time and the particular incident had the capacity to aggravate his neck condition and was likely responsible for at least some of his continuing neck and shoulder girdle complaints.
167 Mr Jones thought the plaintiff’s employment with the defendant had been a minor but significant contributing factor to his complaints.
168 Mr Jones noted the plaintiff made light of his neck condition and appeared to be keen to continue work in spite of his age. The plaintiff avoided activities where he was required to lift and bend, and extremes of activity which involved neck movements. He noted that the plaintiff was not receiving any treatment and did not need to do so.
169 Mr Jones thought the major proportion of the plaintiff’s incapacity was as a result of the generalised degenerative state affecting his cervical spine. He rated a small proportion of the plaintiff’s neck complaint to be reasonably related to the injury at work and his subsequent employment until February the following year.
170 Mr Jones thought the plaintiff did not have the capacity to undertake his pre- injury duties on an unrestricted basis but was fit for restricted work not involving extremes of movement, heavy pulling, pushing or lifting. He thought the plaintiff currently had a permanent incapacity for heavy physical employment. He noted the plaintiff was currently working seven days out of every fortnight at a part-time job undertaking what he described as relatively light delivery duties for an air-conditioning company.
171 Mr Jones read extensive documentation from Mr de la Harpe, Mr Katsapis, osteopath, Mr Austin, physiotherapist, and subpoenaed documents from the Rosanna Medical Group.
172 Having reviewed the notes, it seemed to Mr Jones that Mr Katsapis performed four osteopathic treatments, including possible traction and exercises since 2007, and from that time the plaintiff had not received any physiotherapy. The only prescription medication noted was Tramal, which Mr Jones assumed was for the plaintiff’s neck and right shoulder pain, and there was additional reference to the plaintiff taking Panadol and Nurofen.
173 Having reviewed Dr McColl’s notes, most reference to the plaintiff’s back appeared in 1999 up to 2001, and there appeared to have been no reference to any back condition or sciatica since 2007.
174 Mr Jones re-examined the plaintiff on 6 October 2010, at which time the plaintiff reported he was currently exactly the same as he was, symptomatically, previously.
175 On examination, the cervical spine had a measured range of flexion of 45 degrees with extension of 35 degrees, rotation to the right of 50 degrees, and to the left of 35 degrees. Neurological examination in both upper limbs
176 Mr Jones thought the outlook for the plaintiff would be one of persisting neck pain and stiffness, long term, with a possible slow deterioration. He confirmed his view that the degenerative changes predated the reported work injury, and that work continued to be a minor contributing factor to the plaintiff’s symptoms. He thought short periods of osteopathy or physiotherapy treatment may be appropriate for the plaintiff’s neck in the future.
177 Mr Jones considered that a proportion of the plaintiff’s neck and right shoulder girdle symptoms related to the extensive degenerative disease affecting his lumbar and cervical spine. A small proportion of those, however, could be related to the work injury described by the plaintiff and to the heavy nature of his work in general.
178 Mr Jones confirmed the plaintiff did not have a capacity to do his pre-injury work, and was fit for work which did not require extremes of pulling, pushing or heavy lifting, and he had a permanent incapacity for heavy physical employment.
179 Mr Jones noted the plaintiff was working seven days out of every fortnight, and otherwise he appeared to be coping with his domestic activities in and around the home in spite of the aggravation caused to his neck.
180 By letter date 6 June 2011, Mr Jones advised that he believed the plaintiff would be capable of undertaking his current part time delivery job on a full time basis in spite of his neck condition and right shoulder girdle complaint.
Vocational Evidence
181 The defendant relied upon a JSA completion report prepared by Workfocus Australia. In its report dated 10 July 2006, it was noted that QBE advised Work Focus that the plaintiff was to cease the program on 30 June 2006.
182 Further, it was noted that the plaintiff did not wish to continue with the program as he was at retiring age.
183 At that stage, Workforce Australia agreed with QBE that it was inappropriate for the plaintiff to continue with the JSA program. It considered the plaintiff was cooperative within the workshops, and that he was sincere and concerned he was currently unable to return to work and concerned his age was a barrier to employment.
184 Workfocus had met with the plaintiff on 11 and 18 May 2006. It was noted the plaintiff was a sixty-six year old man who believed he did not have the capacity for work, and he also believed he was at an age where he could not gain employment.
185 In May 2006, the following employment options were identified as suitable employment option goals:
ƒ customer service officer; ƒ deliver driver/courier (within medical restrictions); ƒ forklift driver (within medical restrictions); and ƒ general clerk. 186 When interviewed in May 2006, the plaintiff reported he would love to return to work, but stated he did not have the capacity to do so. He was then having osteopathic treatment every three weeks. He advised he experienced constant neck pain and pain in the back of his shoulder. He was happy to participate in the program, but he felt some of the scheduled sessions were not relevant, as he reported he was unable to work.
187 Workfocus stated that the plaintiff was sincere and motivated to participate in the program and return to work, but it advised the plaintiff was currently unable to return to work as he did not have a capacity. The plaintiff also mentioned that he was concerned about his age being a barrier to
Overview
188 I accept the plaintiff suffered a compensable injury to his cervical spine due to the heavy nature of his work with the defendant, in particular as a result of both incidents.
189 Counsel for the defendant conceded that there was no doubt the plaintiff suffers pain said to be from an exacerbation of pre-existing degenerative disease in the cervical spine.
190 Whilst the plaintiff’s degenerative cervical condition was pre-existing and the he had some occasional neck pain resolved by physiotherapy before the incidents, the plaintiff did not have an ongoing neck condition.
191 The plaintiff’s general practitioner of twenty years, Dr McColl, was required for cross-examination, and the issue of any pre-existing neck condition was not taken up with him.
192 Whilst both the CT scan and the MRI scan since the incidents showed degenerative change in the cervical spine, counsel for the defendant conceded that condition was largely asymptomatic prior to July 2004 and later in February 2005.
193 As counsel for the defendant conceded, there is no argument that the plaintiff did suffer some insult to his spine at work. Liability was accepted in relation to his compensation claim, and weekly payments were made for two years after the plaintiff ceased work.
194 The issue then is whether, as at the date of the hearing, the plaintiff continues to suffer from the aggravation of pre-existing degenerative change suffered as a result of the two incidents and during the course of his employment with the defendant (it was accepted by counsel for the defendant that the work the plaintiff performed was heavy) and whether the consequences of this aggravation are serious.
195 Whilst Mr Jones and Mr Shannon both seemed to suggest that it was degenerative factors rather than the incidents that caused the plaintiff’s present condition, they both conceded there was some ongoing contribution from the workplace injuries.
196 Mr Miller, who examined the plaintiff on three occasions, thought the plaintiff suffered from ongoing effects of the aggravations at work, as did Dr McColl.
197 I am satisfied that the plaintiff continues to suffer work-related cervical symptoms which are organically based. There is no medical opinion to the contrary and there were no inconsistencies or exaggeration on the part of the plaintiff found on examination by any medical examiner.
198 I accept that the plaintiff was a credible witness – a position accepted by counsel for the defendant. Further, there was no surveillance film or any other evidence challenging the plaintiff’s evidence as to his ongoing complaints.
199 The focus of the plaintiff’s application was on his complaints of pain and the interference with his work activities.
200 I accept that until the age of sixty-five when he first suffered injury with the defendant, the plaintiff was capable of performing full time, heavy, unrestricted manual work.
201 As a result of his incident injuries, the plaintiff was off work for two years, during which time he received weekly payments of compensation.
202 However, I am required to consider the consequences of the plaintiff’s impairment at the date of the hearing.
203 From May 2007 to the present, the plaintiff has worked as a driver with Pro Air, increasing his hours from one to three days per week to now working three to four days per week, for twenty eight hours a week.
204 For four days one week and three days the following week the plaintiff spends eight hours driving, delivering plans or air conditioning products to various sites throughout the Melbourne Metropolitan Area.
205 The only restriction placed on the plaintiff’s work activities is that imposed by his employer that he not to untie the ropes and unload the company vehicle when he makes a delivery and that assistance be provided to him on site in that regard.
206 There are no medical restrictions whatsoever placed on the plaintiff’s duties. In fact until cross-examined, Dr McColl did not realise the plaintiff had returned to work.
207 Whilst the plaintiff has deposed he has constant pain in performing his duties and given this history also to medico-legal examiners, he has not required medication to assist him with his full day of driving, nor has he required any medical treatment or complained of increased neck problems to any treating doctor since resuming work.
208 The driving duties involve being away from the Abbotsford depot for the whole day, driving between various sites, pursuant to a work plan and also to calls on the particular day. It is not a situation where the plaintiff does a delivery and then returns to the base and rests between jobs.
209 Whilst I accept the plaintiff, who is now aged nearly seventy-two, does not have a capacity for unrestricted heavy manual work and has suffered a loss of income, he clearly has a capacity for light work of this nature on a fairly sustained basis working a full eight-hour day several days a week without the need for breaks.
210 As Ashley JA set out in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA at
“The seriousness of what has been lost which bears upon the seriousness of consequences, may be informed to an extent by what has been retained.”
211 Further, what the plaintiff does about his pain is relevant in an assessment of its consequences.
212 Despite complaining of constant pain 24/7 and experiencing pain which he described at times as being eight out of ten, for over five years and since taking up this job, the plaintiff has not taken any medication or required any treatment, explaining that it did not provide him with any benefit.
213 This is not a case of the type described by Dodds Streeton JA in Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 where the –
“… endurance of permanent daily pain required frequent medication.”
214 Further, whilst it may seem a somewhat harsh consideration, the plaintiff’s advanced age is also relevant. As Beach and Ashley JJA said in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, at paragraph 43, when judging the pain and suffering consequences for the plaintiff by comparison with other cases, it is relevant to look at the likely period for which these consequences will be experienced.
215 Further, whilst I accept that the plaintiff has had problems with his sleep due to his neck condition, he has not required any medication or sought any treatment in this regard.
216 The plaintiff tries to keep as active as possible. He is still able to potter around in the garden and do light maintenance work at home, not having had a particular interest in that regard before injury. Whilst the plaintiff played golf before suffering injury, ceasing playing thereafter, this has not been a particular concern for him.
217 Taking into account the totality of the evidence, whilst I am satisfied that the
218 Accordingly, the application in relation to the cervical spine is dismissed.
219 Whilst there was mention of right shoulder problems in the plaintiff’s affidavit, the focus of his application was on his neck condition to which the plaintiff’s impairment was principally attributed. Submissions were not made by counsel for the plaintiff in relation to the right shoulder.
220 In any event, medico-legal examiner, Mr Miller, thought it likely the plaintiff had minor rotator cuff pathology and had only minimal symptoms in his shoulder. Mr Miller considered the plaintiff’s prognosis in this regard was good. Further, Mr Jones considered the plaintiff’s right shoulder symptoms related to the degenerative condition affecting the plaintiff’s cervical spine.
221 Taking into account these factors and also my findings that the consequences relied upon by the plaintiff are not serious, the application relating to the right shoulder is also dismissed.
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