Hipolito v Victorian WorkCover Authority
[2015] VCC 1534
•6 November 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04124
| RODRIGO MANDI HIPOLITO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2015 | |
DATE OF JUDGMENT: | 6 November 2015 | |
CASE MAY BE CITED AS: | Hipolito v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1534 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application on the basis of s134AB(37)(a) – whether injury to the lower back and lumbar spine “serious” within the meaning of s134AB(38)(c) – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Maurice Blackburn |
| For the Defendant | Mr A Middleton | IDP Lawyers |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion dated 26 August 2014.[1] In the Originating Motion, the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”) to commence a common law proceeding against the defendant and, his former employer, claiming damages for pain and suffering only.
[1]Plaintiff’s Court Book (“PCB”) 2
2 The plaintiff’s case is that he suffered an injury arising out of or during the course of his employment with Initiating Explosives Systems Pty Ltd where he worked operating machines and transferring explosives between sections of a factory using a pallet truck. The plaintiff, who is now aged 63, was employed doing this kind of work between 1989 and December 2008 when he accepted a redundancy package upon closure of the factory. His period of employment thus spanned nearly 20 years.
3 For the reasons that follow, this application must be dismissed.
4 The plaintiff claims to have injured his right elbow and arm, as well as his neck and/or his cervical spine, during the course of his employment. But the application in this Court proceeded on the basis that the plaintiff claims to have suffered a serious injury to his lumbar spine resulting in what are claimed to be serious injury consequences. In his opening and final submissions, Mr Carson, who appeared as counsel for the plaintiff, confined his application to the claimed injury to the lower back and the consequences to the plaintiff from that injury.
5 Mr A Middleton, who appeared as counsel for the defendant, told me that the issue in the case for me to decide is whether or not the plaintiff can succeed in proving on the balance of probabilities that he has suffered an injury to the lumbar spine which meets the definition of ”serious injury”. In summary, he submitted that the evidence shows that the plaintiff cannot establish that his claimed serious injury meets what Mr Middleton described as “the serious injury threshold”.
6 The plaintiff claims that the injury he sustained has resulted in permanent serious impairment or loss of a body function to his lower back and lumbar spine within the meaning of s134AB(37)(a) of the Act.
7 The plaintiff bears the onus of proof that the pain and suffering consequences of his injury are “serious” within the meaning of s134AB(38)(c). This issue is to be determined having regard to all of the evidence.
8 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c).
9 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of his employment and, what consequences (if any) were suffered and continue to be suffered by him.
10 The plaintiff filed and served two affidavits in support of his application. Those affidavits were sworn on 22 May 2014[2] and 15 October 2015[3]. There was no direct challenge to the credit of the plaintiff.
[2]PCB 19
[3]PCB 25
11 In addition, the plaintiff was called for cross-examination and was cross-examined by Mr Middleton.
12 In addition, the plaintiff filed a Court Book containing a number of medical reports and radiological images. I admitted into evidence as exhibit A the Plaintiff’s Court Book (“PCB”) pages 19 to 55 and 60 to 62 inclusive.
13 I admitted into evidence as exhibit 1, on behalf of the defendants, pages 4 to 46 inclusive from the Defendant’s Court Book (“DCB”).
14 In the index to the Defendant’s Court Book, the defendant admitted having carried out video surveillance of the plaintiff, none of which was led in evidence opposing the plaintiff’s claim. Mr Carson submitted I can infer that the video surveillance, if produced, would not have adversely affected the credibility of the plaintiff. I accept that submission.
15 In his first affidavit, the plaintiff said that he was born in the Philippines in March 1952. That affidavit was made and sworn by the plaintiff without the aid of an interpreter. In his evidence in the Court, the plaintiff seemed to be able to understand much of what was put to him but at times the interpreter was needed to explain things. I will come shortly to the medical evidence. There is no reference in any of the medical reports to the plaintiff requiring an interpreter to aid in any of the medical examinations. Having observed the plaintiff give his evidence, I have concluded that he can communicate and understand spoken English adequately.
16 In his first affidavit, the plaintiff described the work that he performed for his former employer. There does not seem to be any issue in this case that his work was relatively heavy and required him to constantly twist and bend and carry heavy objects. The plaintiff was not challenged in cross-examination, where he described his work as “always heavy and difficult”.[4] The plaintiff described how he experienced right elbow pain in the late 1990s which settled down over time but re-emerged around 2004 to 2005.[5] He said it was around that time he started to experience increasing neck and lower back pain.[6] He said that he kept working but did so with increasing difficulty and pain. By 2007 and, early 2008, he said he was having “great difficulty in coping at work”. He said, “the neck, back and right elbow were all painful and work was only flaring things up even further”.[7]
[4]PCB 21 [9]
[5]PCB 21 [10]
[6]PCB 21 [11]
[7]PCB 22 [12]
17 The plaintiff deposed that he saw his general practitioner, Dr C K NG, and, also an occupational specialist, Dr Robyn Horsley.[8] In fact the plaintiff did not consult Dr NG for any complaint related to his back pain and this has been verified by a medical report obtained from Dr NG, who said “I have not treated him for back pain at any stage”.[9]
[8]PCB 22 [13]
[9]PCB 40 report dated 19 February 2010
18 The plaintiff ceased work for the defendant in December 2008, at which time he accepted a redundancy package. The plaintiff said that by that time, he was experiencing constant pain in his lower back that was travelling down into his legs. He said he was also experiencing neck pain and pain in the right elbow. He said the pain was more or less always present and it was only a matter of how strong that pain was from time to time. He said that his work constantly aggravated the pain. It became harder to get through a working day.[10]
[10]PCB 22 [14]
19 The plaintiff was out of work for about a year before he obtained work with Australia Post as a mail sorter. Initially this work was on a full-time basis but soon after became a full-time job for the plaintiff and he continues to work 36 hours per week on a permanent basis. In his work with Australia Post, the plaintiff says that he has difficulty in standing for more than an hour or two “as back and neck pain quickly builds up”. He says he is thus struggling at work.[11]
[11]PCB 23 [16]
20 So far as his lower back is concerned, the plaintiff said in his first affidavit that his lower back is always stiff and painful in the morning but this improves with movement. He said he often feels a sharp stabbing pain in the low back associated with pain that radiates to the right groin area and down the right leg to the knee. He also deposed that there is some numbness over the front of his right thigh, and the right leg often feels weak.[12]
[12]PCB 23 [17b]
21 In his first affidavit, the plaintiff said that he needs his time away from work in order to rest his back and neck and to get over the increased pain that builds up whilst he is working. There was no attempt by the plaintiff in this case to disentangle the extent of pain or disability related to the neck injury from the back injury. The same comment applies to the injury to the right elbow. The plaintiff also deposed that he does not do much by way of household chores. He said he used to do some gardening but his back pain has made it difficult for him to do so and “I would rarely do any gardening now”.[13]
[13]PCB 24 [19]
22 The plaintiff swore his second affidavit on 15 October 2015. The second affidavit was sworn with the aid of an interpreter.[14] The plaintiff said that his condition had not improved since the first affidavit and he remained with pain across his lower back. He said the pain also spreads into his right buttock and thigh down to his right knee. He went on to say that he remains with soreness in the neck with associated headaches and pain around the right elbow.[15]
[14]PCB 29
[15]PCB 26 [2]
23 The plaintiff described the low-back pain as being always there and that the only thing that varied was the level of severity. He said that the level of pain could be described as, at best, as being 3 out of 10. He described an average day as being 6 out of 10 and the pain as being 8 out of 10 when at its worst.[16] Referring to his current employment as a mail sorter, he said that his work is performed whilst standing and he needs to rest every couple of hours. He said that his back, buttock and leg pain flares every day at work. “I come home with increased pain each day and the pain would generally increase as the working week progresses.”[17]
[16]PCB 26 [3]
[17]PCB 26 [4]
24 Also in his second affidavit, the plaintiff deposed to needing his evenings and weekends to rest in order to settle the pain. He said that he did this by sitting in front of the television. It was only by this means that he was able to keep up his permanent employment working hours.[18]
[18]PCB 27 [8]
25 On the question of medication, the plaintiff said that he tries to put up with the pain but, he still takes one or two Panadol Osteo once or twice each day, taking two tablets at a time. He said he occasionally takes Voltaren tablets.[19] In his evidence, the plaintiff said that he takes two Panadol tablets in the morning and two before he goes to work in the afternoon.[20] The plaintiff does not presently take any prescribed medication for his lower back pain. Also, he does not take any prescribed medication for his sleeping difficulties and there is no evidence of any complaint having been made to his general practitioner, Dr NG, of him having difficulty sleeping because of his back pain.
[19]PCB 27 [9]
[20]Transcript (“T”) 7
26 The plaintiff repeated that he now does not do much around the house by way of household chores but, he said, he will ”have a go” at basic chores “as and when I feel up to the task”. He says that he does not get more than three hours of sleep in a row “I then lay awake in pain and tend to worry about the future and worry about my ability to keep going in my job”.[21]
[21]PCB 28 [11]
27 In cross-examination, the plaintiff agreed that he had not been treated by Dr NG for his neck, elbow or lower back injury. He said he went to Dr NG, who did not want to be involved. Having regard to the report from Dr NG, I do not accept the plaintiff’s evidence on that point. The plaintiff agreed that Dr NG had been his general practitioner ever since he arrived in Australia in 1992.[22]
[22]T11
28 The plaintiff agreed that he had been referred by Dr Horsley to Mr R McGlynn, the physiotherapist. He also agreed that he had not attended all of the restoration program that was prescribed by Mr McGlynn.[23] He said this was because the doctor had stopped his benefits. He said he did the exercises as shown by Mr McGlynn but the pain was still there.[24]
[23]T12
[24]T13
29 It was put to the plaintiff in cross-examination that he had not consulted with Mr McGlynn since the middle of 2010 and, he had not returned to Dr Horsley since February 2011. The plaintiff did not directly answer these questions but said that Dr Horsley had given him a lot of Panadol for free.[25] When pressed, the plaintiff said that he had attended another doctor, Dr Sisson, because Dr NG had not helped him. When pressed, he was unable to identify where Dr Sisson practised. There is no report from this doctor in evidence. The plaintiff said Dr Sisson had told him to take Voltaren, which he used as a cream.[26] In re-examination, the plaintiff said he had only seen this doctor once or twice last year.[27]
[25]T14
[26]T15
[27]T21
30 In cross-examination, and when pressed, the plaintiff said that he now “never” goes out with friends, “used to but now everything stop”. But he then agreed that he goes to the TAB with his wife and to the poker machines “for lunch, dinner and then just to make my pain relax a bit”. He said he did not regard that as social activity, just relaxation.[28] The evidence of the plaintiff in cross-examination is punctuated by references to “my accident”. There is no evidence of any specific work-related accident causing the plaintiff’s lower back injury. I have understood the plaintiff’s evidence where he refers to “my accident” as being a reference to the point in time when he went to see Dr Horsley. That was at about the same time that he was made redundant or shortly thereafter. In his evidence, the plaintiff agreed that he had never been referred by any treating doctor for specialist treatment.[29]
[28]T17
[29]T18
31 The plaintiff was cross-examined about a questionnaire that he had been asked to complete when he applied for employment by Australia Post. The questionnaire went into evidence as exhibit 2. The following passage of the transcript is self-evidently relevant to this proceeding. Having agreed that as part of his application he provided a medical report from Dr NG which made no mention of any complaint of injury to his lower back, the plaintiff said:
Q: “And you were asked, ‘Is that anything that provides any difficulty with walking?’ and you answered ‘No.’ ‘Squatting?’ And you answered ‘No’. ‘Reaching?’ You answered ‘No’. ‘Sitting?’ You answered ‘No’. And you were also asked if you had any other injuries and you said ‘No’. Do you agree that that’s what you put in the form?‑‑‑
A: That’s true because I want the job. That’s why I said ‘No’.”[30]
[30]T19
32 I turn to consider the medical evidence. None of the doctors whom the plaintiff has consulted for any purpose was called to give evidence.
33 Dr Robyn Horsley is an occupational physician who has seen the plaintiff on a number of occasions and she has also reported on a number of occasions. She first saw the plaintiff in December 2008 on behalf of the defendant. In her first report, she said:
“He presents with mechanical back pain and mechanical neck pain. He also has right lateral epicondylitis. His right lateral epicondylitis has stabilised. He is about to complete a strengthening programme with physiotherapy.
His restrictions at work included the avoidance of operating a pallet truck.
There were no other specific restrictions. … .”[31]
[31]PCB 30
34 In her second report dated 11 January 2010, Dr Horsley reported, inter alia:
“The diagnosis at the time of clinical assessment was mechanical back pain with a possible discal component.
I arranged for a plain x-ray and a CT scan and prescribed anti inflammatory agents. I referred him for physiotherapy. His duties were modified at work. He was taken off the pallet truck and he was given a lifting limit.
Please note the attached CT scan of the lumbosacral spine, which revealed a diffuse posterior bulge at L4/5 with no effacement of the thecal sac or nerve roots at that level, and at L5/S1 the intervertebral disc was normal in configuration with no effacement of the thecal sac or nerve roots at that level.
I confirmed the diagnosis of mechanical back pain. He continued with physiotherapy for several months. At that stage, he was made redundant and his management was transferred to his local doctor, Dr. Ng.
Mr. Hipolito re-presented on 24th November 2009, complaining of ongoing back pain. He stated that his back pain had never formally resolved. He had continued to experience paraesthesiae down the right lateral thigh, but no peripheral leg pain. His dynamic standing tolerance was two to three hours. His walking tolerance was an hour. His sitting tolerance was one to two hours. He was experiencing ongoing irritability in the lumbar spine.”[32]
[32]PCB 32
35 A second CT scan conducted in November 2009 at the request of Dr Horsley then revealed a disc lesion at L3-4. She prescribed Mobic and again referred the plaintiff for physiotherapy.[33]
[33]PCB 32
36 In February 2011, Dr Horsley reported, inter alia, as follows:
“Mr. Hipolito took up a position with Australia Post on a casual basis in 2010. He was working two or three shifts per week, but was experiencing increasing difficulty with the prolonged standing required in the role and the manual component. He has recently ceased this casual role.
He has persisting back pain and reduced functional tolerances. He has a sitting tolerance of about an hour, a dynamic standing tolerance of about an hour, a relatively normal walking and driving tolerance. He can experience intermittent discomfort into the right leg radiating down the lateral aspect of the right thigh.
He presents with a diagnosis of mechanical back pain with some referred right leg pain on a background of a degenerative lumbar spine with radiological evidence of an L3/4 lesion.
He would benefit from intermittent access to physical therapy for acute exacerbations of pain.”[34]
[34]PCB 37
37 Dr Horsley has not seen the plaintiff since February 2011.[35]
[35]PCB 39
38 The physiotherapist, Mr McGlynn, first reported on 7 July 2008. He said the plaintiff had a three-month history of neck and lower back pain caused by driving a pallet truck which tends to vibrate. He said that at the time of review, the neck was more of a problem than the lower back. He said that the range of movement of the lower spine was full, with minimal pain, and spinal joint stiffness was present. He diagnosed spinal joint stiffness combined with poor posture and vibration when driving the pallet truck was causing the plaintiff neck and back pain.[36]
[36]PCB 42
39 Mr McGlynn again reported on 7 January 2010 after the plaintiff had again attended. Mr McGlynn said the plaintiff had attended with an exacerbation of his lower back pain and he had commenced a functional restoration program.[37]
[37]PCB 43
40 Mr Peter Wilde, an orthopaedic surgeon, saw the plaintiff for medico-legal purposes on 7 July 2015.[38] He diagnosed the plaintiff suffered from an aggravation of cervical and lumbar spondylosis without radiculopathy. His opinion was that the plaintiff can continue to work as a postal sorter but he cannot go back to heavy physical manual work in a factory or elsewhere. [39]
[38]PCB 50
[39]PCB 54
41 The plaintiff saw Mr Michael Polke, orthopaedic surgeon, for medico-legal purposes on a number of occasions. In November 2009, Mr Polke said:
“Mr Hipolito is a fit fifty seven year old man with the history of spinal pain. [I]t would be appropriate that he restricts heavy lifting and avoids repeated bending and twisting; he is able to undertake most jobs for a man of his age adopting sensible postural recommendations; for example he could work as a packer, light process work, machine operator tasks and in driving roles.”[40]
[40]DCB 16
42 In a further report dated 12 January 2010, Mr Polke said:
“As far as his lower back is concerned, although he mentioned some dorso-lumbar pain symptoms, this was not accompanied by significant corresponding abnormal physical finding when I examined him on 26 November 2009; he presented with bilateral hand callosities suggesting some heavy activities.”[41]
[41]DCB 17
43 Mr Polke re-examined the plaintiff for the defendant on 23 November 2010 when the plaintiff told him that he had not undergone any recent supervised treatment and that he takes the occasional Panadol but never more than six tablets per week.[42] His opinion then was that the plaintiff suffers from degenerative spondylosis of his cervical and lumbar regions.[43]
[42]DCB 21
[43]DCB 23
44 Mr Polke last saw the plaintiff for medico-legal purposes at the request of the defendant on 15 September 2015. In his report following that consultation, Mr Polke described the plaintiff as a fit 63-year-old. When he examined the plaintiff, he found a full range of movement of the lumbar spine without local tenderness, muscle spasm or guarding. There were no tension signs and there was no radiculopathy.[44] In his diagnosis, Mr Polke said:
[44]DCB 28
“He suffers from degenerative changes in his cervical and lumbar spine where there are minor issues of disc prolapse but not compromising the theca or nerve roots.
His radiological images exhibited some disc bulges, although clinically there were no features of nerve root compromise.
… .”[45]
[45]DCB 29
45 A report from another surgeon, Dr John McTeigue, who also saw the plaintiff on behalf of the defendant on 19 June 2013, agrees with the findings of Mr Polke.[46] There being no real dispute between the parties as to the various medical opinions tendered in evidence, it is not necessary for me to further deal with the other medical reports.
[46]DCB 36
46 The plaintiff’s case is that he should be accepted as a witness of truth and he should be given full benefit for having made the best of a bad situation by returning to full-time work, albeit under considerable difficulty. Mr Carson submits that the plaintiff is limited in the work opportunities available to him and this is a serious consequence. He also relies on the plaintiff’s evidence that he has continuous lower back pain which affects his ability to sleep and otherwise lead a normal life. He submits that the plaintiff’s evidence that he can only continue to work if he does nothing whilst at home including very restricted social activities, because he requires constant rest, shows that he continues to suffer from consequences of a low-back injury that are more than considerable.
47 Mr Middleton submits that the plaintiff has not proved on the balance of probabilities that he suffers a serious injury within the meaning of the legislation. I accept that submission.
48 I find that the plaintiff suffers from degenerative changes to his cervical and lumbar spine exacerbated during the course of his employment by the constant twisting and turning that he was required to undertake. However, I am not satisfied that the evidence disentangles the consequences to the plaintiff caused by the cervical spine injury as opposed to the lumbar spine injury.
49 I find that the plaintiff has from time to time suffered pain in his cervical and lumbar spines which has required treatment in the form of rest and/or limited physiotherapy and limited non-prescription medication. I am not satisfied that the plaintiff has proved on the balance of probabilities that he suffers consequences from an injury to his lumbar spine when judged by a comparison with other cases in the range of possible impairments that could fairly be described as being more than significant or marked or very considerable.
50 There was very limited evidence put forward as to the affect upon the plaintiff’s general living circumstances. I think it is telling evidence that when the plaintiff applied for employment with Australia Post in completing exhibit 3, he did not complain of any back injury at that time. Further, there is no evidence of any complaint by the plaintiff to his general practitioner, Dr NG, who has treated him continuously since 1992. Unless verified by a medical report, I do not accept the plaintiff’s evidence that he has complained of a back injury to Dr Sisson or, that he has received treatment from that doctor.
51 Dr Horsley and Mr McGlynn apart, there is no evidence of the plaintiff receiving medical treatment for his low-back injury. He is currently not receiving any medical treatment and he has never been referred for specialist orthopaedic or neurological assessment. He takes little or no over-the-counter medication and he takes no prescribed medication.
52 For these reasons, the plaintiff has not discharged the onus of proof that he bears, in that the evidence does not show that he suffers a serious injury to his lower back within the meaning of the Act.
53 The Originating Motion dated 26 August 2014 is dismissed.
54 I will hear the parties on the question of costs.
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