Heaney v Victorian WorkCover Authority
[2014] VCC 1615
•27 August 2014
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-14-00368
| JASON CRAIG HEANEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 25, 26 and 27 August 2014 | |
DATE OF JUDGMENT: | 27 August 2014 | |
CASE MAY BE CITED AS: | Heaney v Victorian WorkCover Authority | |
| MEDIUM NEUTRAL CITATION: [First revision 26 September 2014] | [2014] VCC 1615 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – aggravation of low back – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird with Mr I R Fehring | Stringer Clark |
| For the Defendant | Mr P D Elliott QC with Mr J L Batten | Lander & Rogers |
HIS HONOUR:
1 This application for leave to bring proceedings for pain and suffering damages only relies on a paragraph (a) injury to the back. The issue for determination was said to involve a before and after analysis due to it being an aggravation case.[1] It was argued that the aggravation of itself did not cause consequences that were “serious”.[2]
[1] See Petkovski v Galletti [1994] 1 VR 436
[2]Transcript (“T”) 22
2 In a limited sense, this is an aggravation case. In 2002, the plaintiff had an injury at L4-5 that required discectomy in April 2004.[3] On all the material, the injury is best described as “disc injury” or “disc degeneration” at three levels with bulges or prolapses at L3-4, L4-5 and L5-S1, together with sciatica.[4] Some doctors say there are really fresh or distinct injuries at two levels in the lumbar spine. This was described by one surgeon as “quite new derangements” at L3-4 and L5-S1.[5]
[3]Plaintiff’s Court Book (“PCB”) 20
[4]PCB 27, 29-30 and 82
[5]PCB 75
3 Nevertheless, in view of the parties’ approach to the case, I am prepared to view the analysis as an aggravation of a general low back condition, in spite of evidence that there are sites of distinct new injury. Thus a before and after analysis was required. The plaintiff has worked as a qualified carpenter for most of his adult life. He is now forty-four years old. After surgery in 2004, he largely recovered and returned to different carpentry jobs, carrying out heavy work in the construction industry at times, as well as maintenance and renovation work. He still continued to suffer low back pain from time to time and was taking medication up to the subject period at the start of 2011. The medical records of his local doctor indicate he was troubled by back symptoms with some leg symptoms over the years 2004 to 2011.[6]
[6]Defendant’s Court Book (“DCB”) 84-98
4 About ten to twelve visits, as I read the records, had been made to his general practitioner in that time for scripts, but really little else in terms of treatment save for a CT scan in 2007 took place. Active treatment was limited. He was working all that time. He has also suffered from bilateral knee symptoms over several decades now that have required a number of operations. The plaintiff worked full time between 2004 and his February 2011 back injury.
5 He was also engaged in three competitive sports and reached a level of being Australian Champion in 2009 in powerboat racing. He has not been able to work full time since. I accept the plaintiff’s evidence that back and knee symptoms that he suffered between 2004 and the 2011 injury did not interfere in any significant way with his work or his very active life outside work. The before picture is in stark contrast to his life after February 2011.
6 In early 2011, he was doing very heavy jackhammering and crowbar work with Kimpton Builders and hurt his low back. He was working at a residence replacing concrete paths as part of a renovation job. Conservative treatment commenced with him seeing a general practitioner in February 2011. He had to cease work later in March 2011. He returned to lighter duties in about August 2011 at about 25 hours a week. It was too much. He went back to 15 hours a week on the lightest type of maintenance work.
7 It is work that could hardly be described as carpentry work as it is more of a handyman type occupation fitting door locks, hanging doors and replacing glass in broken windows. He currently does 20 to 25 hours a week approximately. He is protected to some extent by working with his father’s assistance which involves the plaintiff not being asked to lift anything heavy or awkward.[7] The plaintiff feels depressed about not being able to follow his chosen trade as “a proper carpenter”.[8]
[7]PCB 17
[8]PCB 5-6 and 12
8 He suffers continuous back pain as well as referred right leg pain.[9]
[9]PCB 4, 8 and 11; T92
9 His treatment has really explored all options including prospective further surgery suggested by a treating surgeon, Mr P Chan. The plaintiff has opted not to have the fusion operation that was discussed.[10] I find that is a reasonable decision on his part.
[10]PCB 12a to b
10 Conservative treatment has included massage, exercises, physiotherapy, epidural injection treatment, specialist referrals to at least two surgeons, as well as different medications. He has also sought help from a personal trainer two days a week, and gymnasium. A recent flare-up saw him seek a re‑referral to Mr P Chan, his treating surgeon.[11]
[11]PCB 27a
11 His medication has at times included the narcotic, OxyContin, 20 milligrams a day, as well as Lyrica, 150 to 225 milligrams per day.[12] At present he is taking three to four Tramadol most days or, alternatively, the narcotic, Endone.[13] In addition, he takes over-the-counter analgesics. There is really no further conservative treatment that he could reasonably undertake that would alter his condition. While his pain fluctuates to some extent, I accept that it is constant. The endurance of constant pain in the circumstances of this case is a very considerable consequence of the impairment of his spine. I accept his present level of pain and discomfort is permanent.
[12]PCB 9
[13]PCB 10
12 He is able to work part time up to 20 to 25 hours a week working with his father, but his father is able to manage the business such that the plaintiff can avoid the heavier and cumbersome tasks by obtaining assistance.[14] It is only very light work the plaintiff performs as part of his father’s enterprise and on the evidence of his father, it is to some extent protected employment.[15]
[14]PCB 12 and 16
[15]PCB 16-17
13 I accept the plaintiff’s evidence that he cannot work more than about 25 hours a week because of pain. Contrasting this with him prior to February 2011 speaks for itself when one accepts the evidence, which I do, that he worked 40 to 50 hours a week in heavy construction work in the years between 2004 to 2007 in various jobs.[16]
[16]T88
14 The pain he had in 2004 to 2011 was intermittent and of a dull nature, whereas the pain now he described as “like a knife in his hip". It is now constant pain. Between 2004 and 2011 he gave evidence that he was never required to stop working or stop powerboat driving or dirt bike riding. It never interfered with work or his hours of work. It never caused him to leave work early.[17]
[17]T92-94
15 I accept he now works light duties only and part-time hours. I accept he needs at times to lie down at work because of back pain. What is also germane to the before and after picture is that he was capable of this full-time work of the heaviest nature. The type of crowbar and jackhammering work that he was doing does not need evidence before me as to the heavy physical demands involved in those activities. His capacity before being injured in 2011 was such that he was made a permanent employee in 2009 by Kimpton Builders.
16 I have had the advantage of observing the plaintiff give oral evidence and be cross-examined over some time. He was a reliable and honest witness, in my view. He answered candidly and, if anything, made light of his injuries and symptoms. There was no embellishment. He altered his posture repeatedly in court and at times stretched and flexed his back.
17 A lengthy video was shown of the plaintiff at power boat races in April 2014. With the assistance of modifications to his speed boat, the plaintiff has been able to return to his great interest of high-speed boat racing.[18] It was racing in which he had been obviously very accomplished to have reached Australian Champion status. He recommenced this racing in November 2013 and has continued into this year. I accept his evidence that the speeds travelled of 150 to 160 kilometres an hour do not mean there is much jolting involved. These are inland waterways, not the sea. I also accept his evidence that if there are waves, the events are not staged.
[18]PCB 12
18 The plaintiff answered forthrightly on the topic of his power boat racing. I do not consider the film impacted on his credit in any way. He is, in effect, in a cockpit immobilised like a Formula One racing driver. His return to racing is consistent with his evidence generally of being an active man who is motivated and tries to do anything and everything he can.
19 That motivation was shown by his returning to extremely heavy work following spinal surgery in 2004. More timid souls may well have avoided heavy construction work following spinal surgery. He is rather stoical in his attitude to his constant back pain. He is determined to do as much as he can in terms of work and his life outside work. He is not to be penalised for this.
20 He is racing in very public events that are the subject of record-keeping, officialdom and some media coverage. His participation is in keeping with his general candour and straightforward manner. He was a reliable witness, not seeking in any way to hide anything in regard to his boat racing. The evidence about large distances travelled to boat racing events, as well as the testing required to obtain qualifications to compete, are relied on by the defendant. It was argued that this evidence detracts from what the plaintiff said about his back pain. I do not agree. He travels with other people in a team situation. His driving is limited.[19]
[19]T46
21 Bearing in mind that the plaintiff works 20 to 25 hours a week in light physical maintenance work which must, of necessity, involve a range of physical activities, what I saw on the video did not cause any concern about his credit or credibility in relation to his pain. At work he would be more active, hanging doors and replacing broken windows than what this film showed. I find the boat racing activity is consistent with a man who is simply determined to do everything he can to live his life to the full and, in particular, to live the life that he led before February 2011. The video is not inconsistent with the level of symptoms he described. I accept his evidence about those symptoms. I accept he just puts up with his constant pain and does as much as he can every day. It remains to be said also that the video is really only a snapshot of activities on two days out of the last three-and-a-half years since injury.
22 I note the repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied it. Clear, proper and adequate reasons are still required. In this application however, it is not necessary to describe the medical evidence in any great detail.
23 The more up-to-date opinions assist most when comparing other cases in the range of possible spinal impairments and judging whether the consequences for the plaintiff can be fairly described as being “at least very considerable”.
24 The most up-to-date opinion is that of Mr T Kossmann, orthopaedic surgeon, of 22 April 2014. He diagnosed discogenic injury at three levels. He thought the prognosis was “guarded” with an ongoing need for pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture.[20] There was a moderate chance of further surgery.
[20]PCB 82
25 This treatment regime is in stark contrast to the years 2004 to 2011, as shown in some tendered clinical notes. Mr Kossmann felt that the plaintiff was restricted in his work and such restriction would be permanent.[21] He would not be able to increase the part-time hours he was working. The plaintiff was permanently restricted in relation to social, domestic and recreational activities in the surgeon’s opinion.
[21]PCB 81
26 The plaintiff’s treating general practitioner, Dr A McAllan, who has known the plaintiff as a patient of the clinic for some years, reported recently in June 2014. The clinical notes to the end of 2013 record Dr McAllan seeing the plaintiff personally about twenty times. This general practitioner diagnosed three-level disc prolapse by way of injury with right L5-S1 nerve root compression. He thought the limit of his patient’s working capacity was largely sedentary duties for about 15 hours a week.[22] This situation was permanent.
[22]PCB 27
27 He was also limited in relation to his domestic situation. The doctor wrote a re-referral letter to Mr Chan on 13 August 2014 due to back pain being aggravated and flaring up recently. The general practitioner recorded no ongoing limitations on work as at February 2011 due to previous back complaints.
28 I accept the general practitioner’s opinion and that of Mr Kossmann as up-to-date views about the plaintiff’s back complaints. For a person who was able to return to full-time work that was unrestricted and in a very heavy field, the limits now placed on his work capacity are extreme.
29 The application is, of course, in relation to pain and suffering consequences only, but it is never to be forgotten that one’s chosen vocation and the importance of one’s chosen vocation to the enjoyment of life is pivotal. His hours can be less than half full-time work, in view of the evidence of the plaintiff indicating he used to work 40 to 50 hours at times in very heavy duties.
30 Even in a case that is not a claim for pecuniary loss damages, it is highly relevant, in my view, to a qualified man to be not able to follow his chosen vocation. I accept this depresses the plaintiff and he genuinely misses his “work as a proper carpenter”.[23] This of itself is a very considerable consequence in this case.
[23]PCB 12
31 I do not need evidence to illustrate that perhaps after family, one’s chosen work or vocation is probably the next in order of importance in terms of enjoying daily life, given the amount of time and effort spent at work. For the plaintiff he has lost a trade that he enjoyed and a trade that he wishes to work in. He has lost that because of the aggravation that occurred in 2011.
32 The last report from his treating neurosurgeon and spinal surgeon, Mr P Chan, was in March 2013. He raised a question of fusion surgery, but after an epidural injection there was considerable relief. The very spectre of a fusion operation being raised is in contrast to my reading of the clinical notes about the back problems between 2004 and 2011. It is indicative of problems at a very high level.
33 Mr Chan said the symptoms had resolved at his last view in February 2013. I do not accept that this represents the present situation. On the probabilities the injection gave only temporary relief. The plaintiff has been re-referred to Mr Chan and was to see him in September. The plaintiff however has indicated he is not going to proceed to have a fusion operation after consideration of that suggestion.[24]
[24]PCB 12a-12b
34 Other fairly current medical opinion comes from Mr J Henderson, orthopaedic surgeon, in 2013. He diagnosed:
“… quite severe end stage chronic back strain … as a direct result of the injuries he sustained during the course of his employment with Kimpton Builders in February 2011.”[25]
[25]PCB 74
He thought there had been a severe re-aggravation of the original L4-5 disc injury with –
“… quite new intervertebral disc derangement at L3-4 and L5-S1.”[26]
[26]PCB 75
35 He considered the plaintiff was totally and permanently incapacitated for his pre-February 2011 heavy work. Also Mr Henderson thought the previous successful treatment of the L4-5 injury in 2004 had now been undone and there was a new disc prolapse at the L4-5 level.[27]
[27]PCB 75
36 His injury suffered in 2011 severely compromised the plaintiff’s social, domestic and recreational activities.[28] The conditions were permanent and the prognosis very bad indeed.[29]
[28]PCB 76
[29]PCB 76
37 Mr P Turner, orthopaedic surgeon, operated in 2004 and saw his patient again in June 2011. His report is therefore quite out of date. He recorded a great outcome from the 2004 operation. He thought, after a couple of months following surgery, the plaintiff could return to normal activities, which in fact he did.[30]
[30]PCB 21
38 The plaintiff had now suffered further muscular injury and would never be entirely symptom free. The problem was chronic. This “highly motivated man who likes to be busy, involved and doing his bit” would need to limit his activities.[31] Sensibly, that is what the plaintiff has done.
[31]PCB 22
39 Mr Turner thought it would be prudent for his patient to exercise care with the physical aspects at work and to seek assistance. Even on this report, which predates the 2012 CT and MRI scanning showing disc pathology at three levels, there is evidence of an aggravation that has very considerable consequences for the plaintiff. Mr Turner placed physical limitations on his patient, which the plaintiff did not have previously.
40 For an active, physical man, aged only forty years when the 2011 injury occurred, these limitations support my finding of a serious injury from the point of view of a seriously aggravated back condition that has led to multiple consequences.
41 The first general practitioner the plaintiff saw was Dr N Harindran. She has not reported since July 2011, but even in those early days reported the plaintiff had stopped playing squash, motorbike riding and cycling due to pain. Also she thought he could not go back to full-time work as a builder. On the evidence, nothing has changed over the last three years or so.[32] The physiotherapist, Ms T Atkin, is also quite out of date and unable to comment, not having seen the patient since August 2011.
[32]PCB 18
42 Looked at overall, the up-to-date medical evidence the plaintiff relies on supports a grant of leave for recovery of pain and suffering damages. This is on account of the constant pain, no effective treatment that will change things and it being a permanent condition.
43 The impact on his capacity to do a range of physical activities, both in a work context and recreationally, has been made out. At his age, and given his energy, they are very considerable limitations. Comparing him now to the man doing full-time work of the heaviest type in the field of his choosing before the 2011 injury, as well as enjoying very active recreations, the contrast is stark. He is now very limited and the aggravation of his back condition has resulted in very serious consequences in terms of enjoyment of life.
44 The lay evidence of his wife and father has not been challenged. It supports his severe pain and its impact on his daily life, including sleep, his sport and his work.
45 The surgeon, Mr K Brearley, reported two years ago in a medico-legal context. He recorded that a good result followed the 2004 operation at the L4‑5 level but there was now intradisc injury at L4-5 and L5-S1. He thought fresh injury had occurred in 2011 and said:
“The present injury does not represent an aggravation or occurrence of that first injury.”[33]
[33]PCB 35
46 Whether or not on the evidence this is really an aggravation case, as I have indicated, I have been prepared to undertake the analysis on that basis. Either way, by way of an aggravated low-back condition, or an aggravation together with some fresh injuries, or fresh injuries in themselves, I find that the plaintiff’s work and recreational activities have been seriously interfered with by the 2011 injuries to the discs. Mr Brearley’s opinion supports that finding.
47 Three doctors examined the plaintiff on behalf of the defendant. There was no critical comment on his conduct at examination, nor any suggestion of exaggeration.[34]
[34]DCB 7, 14 and 31
48 In 2012, Mr J Hooper diagnosed lumbar disc disease with a prolapse and nerve root impingement causing sciatica.[35] This injury was caused by the heavy work in early 2011, Mr Hooper thought. The plaintiff was unlikely to ever be able to return to his pre-injury duties or heavy duties.[36] A review was suggested but Mr Hooper was apparently not asked to see the plaintiff again.
[35]DCB 7
[36]DCB 8
49 Dr D Ho, an occupational health consultant, did not set out any specialist qualifications in his reports. I accept he is not as qualified as the surgeons in this case regarding clear spinal pathology and I do not give as much weight to his views. Dr Ho recorded previous successful surgery at L3-4. He has got this wrong. The surgery was at L4-5.
50 Dr Ho did not have any radiology available to him.[37] He found the plaintiff pleasant and cooperative and without exaggeration. Dr Ho diagnosed soft-tissue strain or aggravation of degeneration changes in the lower back.[38] Curiously, he said the prognosis was favourable when compared to the previous disc injury.[39] It is not clear why he said this in view of Dr Ho’s recording how the plaintiff returned to his normal duties full-time after the earlier injury and how heavy those duties were, and the fact that he was now only doing three to five hours per day on light maintenance work.[40]
[37]DCB 13 and 22
[38]DCB 15-16
[39]DCB 15
[40]DCB 12-15
51 Dr Ho recorded dull to sharp pain still being suffered. He thought the plaintiff well motivated.[41] I do not follow Dr Ho’s reasoning as to why he says the plaintiff has recovered well. He was back on only limited work in terms of hours and limited duties and still suffering dull and sharp pain. I reject Dr Ho’s view that the plaintiff had recovered well. Without viewing radiology, I consider Dr Ho’s report suffers from that limitation.
[41]DCB 17
52 Dr Ho re-examined the plaintiff in 2013. He recorded a history of constant pain.[42] Again, no radiology was available apparently. Dr Ho now said the pain was related to the longstanding condition, and the aggravation in 2011 had now resolved. He did not explain how the symptoms suddenly were due to the previous injury or when that started to occur. His opinions are flawed in my view.
[42]DCB 21
53 He recorded L3-4 as the previous injury which it is not. He did not have radiology that the surgeons said show three levels of disc pathology. Overall, I am not assisted by Dr Ho’s reports. They are not well-reasoned and reach conclusions, the paths to which are not properly set out. His opinions are founded on information that is less than accurate and complete.
54 Dr D Elder, consultant in occupational and environmental medicine, reported to the insurer in May 2013. Again, as I read his reports, he is not as well qualified as the specialist surgeons engaged in this case. He diagnosed mechanical back pain with clinical evidence of a right L-5 radiculopathy. He found the objective sign of wasting in the right leg and thought the condition was stable.[43] He found a permanent AMA percentage impairment but did not really comment on consequences.
[43]DCB 31-32
55 Looking at the defendant’s medical evidence overall, it supports there being a compensable back injury in 2011 with pathology and limitations on the physical activities this young man can carry out.
56 Before leaving entirely the medical evidence, it is worth recording that at least four doctors, including three surgeons, raised the possibility of future surgery. This is a contrast with the before 2011 treatment picture and is a reflection on the spinal pathology that has followed and resulted from the 2011 insult to his spine.
57 A large body of general practice clinical records stretching back some fourteen years were tendered.[44] These, together with several reports of a Mr P Burns, show back symptoms over the years, as well as bilateral knee problems.[45] This material illustrates some back problems and clear knee problems but the notes do not detract from my finding of constant back pain at a higher level since February 2011.
[44]DCB 73-121
[45]DCB 137-140
58 I accept the plaintiff’s evidence that the knee problems, which stretch back some twenty years, did not impede his heavy work as a tradesman, nor his active sports. His evidence in that regard is supported by the uncontested evidence of his work record and sport, including at championship level over those decades.
59 A Nabenet job seeker plan was tendered. The defendant relied on that in the sense of the plaintiff being said to lack motivation in terms of alternative work. I reject that argument. This being a pain and suffering application, the job seeker plan does not assist. I accept the plaintiff, in any event, has always been a motivated worker. I find he was a “proper carpenter” prior to February 2011 and he would still be a “proper carpenter” now except for the injuries in 2011.
60 On the probabilities, I accept the evidence establishes that the injury suffered in 2011, whether described as an aggravation or new injuries or a combination of both, have caused consequences that could be fairly described as “at least very considerable”. Those consequences include constant pain. Before the 2011 injury, he only had intermittent pain.[46]
[46]T92
61 Other consequences of themselves include impact on recreational activity such as being involved in competitive sports. While he has been able to return to boat racing with a protected cockpit-type cabin, he has lost the capacity to compete in motorbike racing due to the jolting of his back.[47] He has also lost the capacity to be involved in competitive squash. At his age, these are very considerable losses in terms of lost sport and the enjoyment of sport.
[47]PCB 5
62 I do not need evidence of the importance to a lot of rural people of competitive sports. For this man to be unable to compete in two of his chosen sports I accept is a loss that is serious. He is also not capable of full-time work in his chosen trade. It is the trade for which he is qualified. He could previously do extremely heavy work before 2011; now he can only do lighter work.[48]
[48]T92-94
63 This is a serious consequence, even in terms of pain and suffering and the enjoyment one derives from one’s chosen occupation. The impact of back pain on his sleep was not contested in this case. It, of itself, is a serious consequence.[49]
[49]PCB 6
64 Also the restriction on his sex life is another example which of itself is a very considerable loss.[50]
[50]PCB 6
65 For the reasons set out I grant leave.
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