Hobday v VWA
[2022] VCC 255
•11 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04484
| GRANT HOBDAY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 November 2021 | |
DATE OF JUDGMENT: | 11 March 2022 | |
CASE MAY BE CITED AS: | Hobday v VWA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 255 | |
REASONS FOR JUDGMENT
---
Subject:Accident Compensation
Catchwords: – lower back injury – right shoulder injury – whether frank injury or course of employment – whether pain and suffering consequences are at least very considerable
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Ansett v Taylor [2006] VSCA 171 Bruce v Victorian WorkCover Authority [2021] VCC 433 Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 Sabo v George Weston Foods [2009] VSCA 242 Haden EngineeringPty Ltd v McKinnon [2010] VSCA 69Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 Sumbul v Melbourne All Toyota Wreckers Pty Ltd [2006] VSCA 292, Tatiara Meat Co v Kelso [2010] VSCA 12 , Sutton v Laminex Group Pty Ltd [2011] VSCA 52, Stijepic v One Force Group Pty Ltd [2009] VSCA 181
Judgment: Applications dismissed
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F A L Ryan | Maurice Blackburn |
| For the Defendant | Mr A W Middleton | Russell Kennedy |
HIS HONOUR:
Introduction
1The plaintiff seeks certificates to pursue common law damages against his former employer, Bayswater Automatic Transmissions Pty Ltd. He alleges that in the course of his employment he suffered a low back injury, as well as a right shoulder injury.
2The plaintiff has just turned 60, is divorced, and remains employed. He was educated to Form 5 at Burwood Tech. He completed an apprenticeship as a fitter and turner, and worked in that trade for many years. He commenced working for Wholesale Automatics in 1988. In 2000, he commenced working with Bayswater Automatic Transmissions Pty Ltd, and continued there until April 2016. He alleges that, in the course of his employment with the latter employer, he sustained a back injury and an injury to his right shoulder. He was employed as an auto-technician and his duties involved road testing, diagnosing, removing and rebuilding, and refitting automatic transmissions.
3In his affidavit he states that the work was very heavy and physically strenuous, and that he had to do a lot of work overhead, including handling heavy automatic transmissions underneath a hoist. The parts weighed up to 80 kilograms. He was not provided with adequate lifting or manual handling equipment. The work was heavy.
4In 2002, he experienced neck and lower back pain and sought treatment from an osteopath. On 16 October 2006, he experienced lower back pain when removing a four-wheel drive gearbox and lodged a WorkCover claim. He was sent for a CT scan. He sought treatment from an osteopath. In July 2014, he suffered lower back pain whilst removing a gearbox and felt his back “go”. It was particularly strenuous. He tried to lodge a WorkCover claim, but the employer would not accept it, but paid for the treatment outside the WorkCover system. He was unable to do this work for 10 weeks.
5He sought treatment from a physiotherapist, Mr Torstensson, who indicated that in fact he saw the plaintiff for sciatic pain in both legs on 28 July 2014, and gave him nine treatments to his lumbar spine and both hips, and he responded well and worked full-time with modified duties. He then saw him in November 2015 for problems with the left hip.
6In November 2015, he was experiencing pain in his left hip and underwent physiotherapy treatment. He states in his affidavit that his boss paid for many of his physiotherapy and osteopathy treatments.
7On 18 November 2015, he was servicing a gearbox when he experienced increased right shoulder pain. He had been suffering right shoulder pain for some months. He lodged a WorkCover claim and was referred for an MRI and to an orthopaedic surgeon. He decided against surgery and instead had conservative treatment, including physiotherapy. The diagnosis of his right shoulder was posterior and inferior labral tear, ACJ arthropathy and subacromial bursitis and a ganglion. He saw his general practitioner on a frequent basis for the shoulder, such that by 5 April 2016 the notes report “has improvement in right shoulder movement. No pain now. Says he can return to some duties”.
8The plaintiff resigned his employment in May 2016 and returned to work with his first employer. He was working on lighter work that only involved benchtop transmission work.
9In the period subsequently, he has found that his lower back pain and left hip have been aggravated from time to time. In June 2017, he slipped at work and experienced a temporary aggravation of his lower back pain for which he sought physiotherapy treatment.
10The general practitioner reports that in September 2016 he complained of pain in his left hip for one year.
11On 12 May 2017, the report indicates he has “continued pain in his right shoulder, low back and left hip areas”. On 28 March 2018, the report states “He still has discomfort in his right shoulder, low back and left hip. He requires ongoing hydrotherapy with physiotherapy”. On 1 July 2021 the plaintiff reported persistent low back pain with restricted spinal movement.
Pain and suffering consequences
12In his first affidavit sworn 27 May 2020, the plaintiff indicates that he still suffers from pain and restriction in his lower back and right shoulder, but his lower back is his main problem – “I suffer constant pain in my lower back. It is a constant, dull pain which increases in severity when I am more physically active”. He has to ensure that he is vigilant about the condition of his lower back and before COVID-19 exercised regularly in the pool and had monthly massages. It affects his sleep, and climbing upstairs causes his back pain to increase. He is limited in his gardening and avoids mowing the lawn and weeding because of back pain. He avoids tasks that require him to bend for prolonged periods. He is able to use a leaf blower.
13In his second affidavit, he indicates that from May 2016 he had been working full-time with his original employer, Wholesale. The work is much lighter and he does not have to do the work while bending over. His employer is aware of his physical limitations.
14In late 2020, he moved to another job in technical sales, selling parts for performance vehicles. It is much better for his back and right shoulder because there is very limited physical work. He experiences constant back pain that varies in intensity. The pain runs down his legs, worse on the left, and he is always managing his back condition. He knows what he can and cannot do, and avoids twisting, bending and lifting as much as he can. He will often squat or sit down on the ground instead of bending. He has been able to do a bit of weeding for up to half an hour in that stance. He cannot do it for more than five minutes if he bends over. His back can “go” if he twists awkwardly and, when this happens, he can experience severe pain which lasts for 2-4 days.
15He does not take pain relief medication as he has seen the effects of it on friends. He gets massages on a regular basis and continues to attend his general practitioner. His walking is limited due to back pain, and when he took his daughter’s dog for a walk recently he had to stop and rest regularly.
16He continues to suffer from right shoulder pain and deals with it by limiting overhead movements of his right arm.
Employment consequences
17He deposes that he has lost his ability to work in an unrestricted capacity as an auto-technician because of his low back condition and, separately, his right shoulder condition. The fact that he cannot do the work he loved, the technical work as an auto-electrician, is a great loss. He used to build converters and gearboxes and was highly skilled. He would love to build technical parts for himself but the work is too heavy for his back and, separately, for his right shoulder.
18He has also lost the ability to work on his own cars in his spare time. He requires the assistance of his son. The inability to do the technical side of auto work, which he loved, is very upsetting to him.
Cross-examination
19The cross-examination of the plaintiff did not really challenge the pain and suffering consequences set out in the affidavits. Rather, the cross-examination was directed to the issue as to whether the two claimed injuries were truly injuries sustained over the course of the employment with the defendant, or were in truth to be considered specific injuries. The plaintiff was also probed as to his engagement with medical practitioners over the years.
20Under cross-examination the plaintiff noted that he last worked for the defendant in November 2015. He had a period off work following the shoulder injury and then arranged another position with Wholesale which he commenced in May 2016. He was able to continue that work as it was lighter work at the benchtop level and while in that position the pain in the lower back and left hip and been aggravated from time to time. When that occurred he sought physiotherapy. He had exacerbations of his back pain from time to time and sought physiotherapy treatment and then recently took a new job in technical sales because the position at Wholesale was aggravating his back and shoulder pain. The new job paid more and there is very little physical work on automatic transmissions. He conceded part of the reason why he left Wholesale was because it was aggravating his back. When he commenced at Wholesale he had had six months of concentrating on his shoulder and his strength in his back was not what it used to be. He had to get it better by movement, that that tended to aggravate his back.
Course of treatment
21Under cross-examination the plaintiff indicated that over the years he had undertaken treatment for his back condition from an osteopath whose records were not available. He has also relied on advice from a local physiotherapist Mr Torstensson. His records indicate that he first saw the plaintiff under WorkCover on 28 July 2014 for sciatic pain in both legs and he was provided with nine treatments for lumbar spine and both hips.
22His general practitioner records that the plaintiff consulted him on 7 August 2014 stating he had injured his back four weeks previously. A CT scan was arranged.
23Mr Torstensson saw the plaintiff twice in November 2015 for problems with his left hip. The condition improved and he was able to keep it under control with stretches and exercises. In August 2016 his left hip was aggravated at work and he improved with treatment. In June 2017 he had a fall at work and this aggravated his lower back.
24In a report to the solicitors dated 16 April 2018 Mr Torstensson reviews the treatment he has provided and the various investigations and notes that at that point he did not believe that further treatment for the right shoulder and neck was required but that a gym swim program would keep the shoulder from deteriorating. He noted that the left hip and lower back needs more work to fully recover. He received authority from the insurer on 4 April 2017 to provide treatment until 4 October 2017 and that the hip and lower back had taken longer to recover than first thought. He opined that the termination of treatment will cause significant deterioration and ability to perform day-to-day activities.
25Counsel for the defendant strongly emphasised the relatively minimal medical treatment that the plaintiff has had for both conditions over the years. Under cross-examination the plaintiff conceded that he had filed injury claim forms for specific injuries being for a left hand lower back injury on 16 October 2006, and for sciatic pain and left hand buttocks and lower back on 3 September 2014, and for his right shoulder on 23 November 2015.
26Just prior to the plaintiff ceasing employment with the defendant he filed a further claim form on 5 May 2016 alleging that he had sustained left hip, neck, lower back and right shoulder injuries over the course of his employment with the defendant. At that point the plaintiff had been off work since November 2015 following the right shoulder injury that had been the subject of the earlier claim form. He was assisted to file the later claim form by a solicitor. He did not return to work with the defendant and then commenced with Wholesale doing similar work that only required benchtop work.
27Under cross-examination the plaintiff accepted that he had not seen his local doctor for the period between 2006 and 2009 as he was seeing an osteopath at the time and his employer was paying the fees.
28The general practitioner records in evidence reveal that the plaintiff did tell his general practitioner on 7 August 2014 that he had sustained an injury to his back at work four weeks ago. On 9 July 2015 he reported pain in his right shoulder for the last few months. That was repeated on 19 November 2015. Thereafter until May 2016 there are a number of consultations in relation to the right shoulder as it gradually improved.
29In his report dated 15 June 2018, the general practitioner notes that on 12 September 2016 the plaintiff had complained of pain in his left hip for one year and that it was caused by getting in and out of cars and there was restriction of movement. It his report dated 12 July 2021 he noted consultations for low back pain on 19 September 2018, 6 December 2018 where there was also a complaint of hip pain, similarly on 2 February 2019 including a complaint of neck pain, and on 1 July 2021 where the plaintiff had “persistent low back pain with restricted spinal movements. He also had left hip pain. He has pain in his neck with restricted movements. He also complained of pain in his legs.”
30The plaintiff conceded that from September 2019 to 2 July 2021 there are no records of GP attendances for his right shoulder or lower back problems. The plaintiff explained that he was “managing the pain myself.” He also had no treatment from Mr Torstensson since mid-2018. At his own expense he pays for a massage every month.
31The plaintiff does not take any pain medication and when he is able to undertakes hydrotherapy.
Specialist opinions: shoulder
32Counsel for the defendant noted that the plaintiff had only been referred to one specialist for his conditions, which was a referral to Mr Booth, orthopaedic surgeon on 1 December 2015 for his right shoulder. He recommended surgery however the plaintiff, after consulting Mr Torstensson, determined not to proceed.
33The plaintiff was seen by Dr Soliman for the insurer on 11 April 2016 in relation to his right shoulder. The examiner noted that the right shoulder had responded very well to conservative management and that the plaintiff had temporarily exacerbated his right shoulder chronic condition “which has now almost resolved.”
34The plaintiff was examined by Mr Richard Pease, orthopaedic surgeon, on 30 May 2016 in relation to both his claims. The plaintiff gave a history that he had from time to time “experienced discomfort in various areas of his body.” He had been attending physiotherapy and an osteopath since 2002. He found at that point that the plaintiff “told me that the active treatment program for his right shoulder had been entirely successful. To demonstrate this he showed me a full range of pain free shoulder joint movement.”
35Mr Barclay Reid, general surgeon, examined the plaintiff on 2 October 2018 for an impairment assessment. The plaintiff gave a history in relation to his shoulder injury and indicated that the shoulder was improving. He reported intermittent pain with a base level of 2/10 but which increases with activity. He found that the plaintiff would not recover completely and that he could continue with work that did not require him to lift his arms above mid chest level or make repeated or sustained movements of the right arm. He assessed an 8% impairment of the upper limb.
36Mr Doig, orthopaedic surgeon, reported on 3 May 2021 and found that the episode at work on November 20, 2015 almost certainly caused the pain in the right shoulder. He noted that the condition had improved with treatment but never returned to normal. He further noted that the plaintiff had transferred to another employer in November 2020 because he had a better offer and partly because he had ongoing low back pain as well as right shoulder pain. He noted there was not a great deal of pain associated with his shoulder but “he is very careful about not aggravating his shoulder.” He was of the view that the plaintiff was likely to have ongoing restrictions. Even though he does not have a lot of pain as far as the shoulder was concerned at this stage: “I consider it is extremely unlikely that he is going to be able to do any heavy job in the foreseeable future.”
37Mr Doig supports the plaintiff’s case in that he records that the plaintiff “gives a history of a gradual process type injury affecting both his right shoulder and his lumbar spine whilst at work.” He attributed the injuries to the physical nature of the employment and work. The injuries are permanent and he is of the view that he will continue to have ongoing pain and restriction in the lumbar spine . Mr Doig supports the plaintiff’s case in that he records that the plaintiff “gives a history of a gradual process type injury affecting both his right shoulder and his lumbar spine whilst at work.” He attributed the injuries to the physical nature of the employment and work. The injuries are permanent and he is of the view that he will continue to have ongoing pain and restriction in the lumbar spine and ongoing restrictions in his shoulder although not a lot of pain. He noted that the plaintiff ceased work with Wholesale partly because, he had ongoing low back pain as well as right shoulder pain.
38In his first report dated 4 May 2021 Dr James Rowe, specialist occupational physician, having obtained a history of ongoing pain in the lower back and right shoulder and also pain in the neck and left hip opined that the plaintiff had been left with a permanent long-term impairment in his neck, and right shoulder.
39The plaintiff was challenged as to the inconsistency between the examination the day before by Mr Doig and that of Dr Rowe but explained it by the technique of the two examiners.
40Dr Rowe was of the opinion that the plaintiff could not return to his previous occupation as an auto technician and that these conditions will eventually cause him to stop working. In his supplementary report dated 27 October 2021 he sought to separate out the incapacity from the shoulder and back injuries and opined that both conditions were permanent and would prevent return to full-time preinjury and unrestricted or modified preinjury duties. He noted that the spine and shoulder were integrally related and depended upon each other for efficient function. He made no reference to the neck or hip.
41In relation to his back injury, the plaintiff told Dr Rowe that while he was doing exercises in a gym he said that he hurt his back. He said that before this event “I sort of had low back pain.” He explained that he had suffered an injury to his back when pushing a vehicle onto a hoist and was away from work for 10 weeks. His complaints at that stage were occasional low back discomfort. Further when he injured his back doing exercises in 2014 he experienced pain radiating across the left hip into the thigh. His left hip was very sore. He further told the doctor that his neck was sometimes stiff and he went for a tune-up.
42The defendant had the plaintiff examined by Mr Max Esser, orthopaedic surgeon, on two occasions. In the history recorded on 30 October 2020 the plaintiff told him that his shoulder symptoms are now much better than they had been in the past.
43The plaintiff was also aware of pain and discomfort in his low back and he had work-related “discomfort associated with lifting and pushing transmissions. He said he should not be doing this job. Twisting and turning, and working on a hoist can also cause left hip pain.” At that point he was of the opinion that the plaintiff’s work over the period 2000 to 2015 was not a materially contributing factor to his current condition. He noted that he has some “significant constitutional degenerative disease conditions”. He said there had been a work-related aggravation of this but this had now ceased.
44In his report dated 22 September 2021, Mr Esser noted that the plaintiff confirmed the history in his earlier report. The plaintiff had told him that he still has episodes of pain and discomfort in the low back with radiation of pain to the left hip. The episode of discomfort occurs every two months or thereabouts. In relation to back discomfort episodes of pain and discomfort occur every three or four weeks or thereabouts. They are managed by hydrotherapy. His shoulder symptoms are a lot more under control.
45This examiner noted wasting of the left quadriceps which may be caused by osteoarthritis of the left hip. He also noted some left L3/L4 facet joint pathology. He suggested further investigations as the radiological and clinical evidence was not clear. He was of the view that the plaintiff’s condition had improved somewhat due to the fact that he had changed his job.
Competing submissions – nature of injury – shoulder injury
46In his closing address, counsel for the defendant argued that the concession by the plaintiff of a specific injury to his shoulder in November 2015, followed by the history of treatment, and the cessation of that treatment meant that the consequences of the admitted right shoulder injury do not meet the narrative test.
47Counsel for the plaintiff, on the other hand, referred to the diagnosis of Mr Doig that the plaintiff had a chronic labral tear and that the shoulder restrictions are permanent, and he cannot do his preinjury work. It was submitted that given the heavy work over the period of employment with the defendant, then this was a process type injury to the right shoulder although there had been a specific claim made in November 2015.
48I prefer the plaintiff’s position on the nature of the right shoulder injury. While there was a specific incident in November 2015, the general practitioner notes that the plaintiff on 9 July 2015 complained of pain in his right shoulder “for the last few months.” The November 2015 incident which gave rise to a period of six months incapacity and extensive physiotherapy treatment was obviously more significant and led to the referral to a surgeon, but given the plaintiff’s account of heavy work over a long period, particularly under hoists then I am satisfied that this was an over the course of employment process type injury to his right shoulder.
49Counsel also referred to the payments of compensation by the defendant that she submitted constituted an admission of injury arising out of the employment (Ansett v Taylor [2006] VSCA 171 at [3]) which she submitted was very significant. I accept that submission. The injury itself has been treated conservatively and while one orthopaedic surgeon has recommended surgery, the decision to decline surgery has not been criticised as unreasonable. The plaintiff has been content to continue with what appears to be successful treatment with his physiotherapist and a masseuse, as well as hydrotherapy when available. The general practitioner records show significant periods without any complaints, with the last being a reference in July 2021 to “discomfort” leading to avoidance of above shoulder movement.
Lower back – course of employment
50The defendant’s position in closing address was that the concessions counsel had extracted from the plaintiff in the course of cross-examination that he had made claims for specific incidents and injuries relating to his low back were such that the plaintiff’s condition was a congenital degenerative condition that was progressive and there were exacerbations or aggravations from time to time. He referred to the successive imaging in 2006, 2014 and 2018 to support this. Further, the plaintiff had not been referred to any specialist such as an orthopaedic surgeon or a neurosurgeon or for pain management.
51If the Court was against the defendant on the issue of specific injuries to the lumbar spine, and the injury was an over the course of employment injury, then the plaintiff was required to exclude later exacerbations with subsequent employers.
52In final address counsel for the plaintiff, relying on the acceptance of liability for injury to the lumbar spine, the lack of a specific incident, and the approach in Bruce v Victorian WorkCover Authority [2021] VCC 433 at [23] – [24], submitted that overreliance on the actual claim forms (“artificial”) was to be avoided and the focus should be on the plaintiff’s evidence as to the performance of heavy work over a considerable period. This was to be combined with the clinical notes and the opinions of Messrs Carey and Doig, and Dr Rowe which support the conclusion that the plaintiff’s chronic disc degeneration has been rendered symptomatic by reason of his employment with the defendant. The plaintiff’s counsel criticised the conclusion of Mr Esser that any work-related exacerbation had ceased as not being the subject of any chain of reasoning.
Assessment – over the course – back injury
53I prefer the plaintiff’s submissions on the nature of the plaintiff’s lumbar spine injury. His evidence that the work he undertook with the defendant was heavy manual work, involving overhead work, as well as bending over, was not the subject of challenge. On the whole of the evidence I am satisfied that this was an aggravation of an underlying degenerative lumbar spine condition related to his employment with the defendant. The opinion of Mr Esser, however cannot be entirely discounted in that it is somewhat consistent with the history provided to Mr Doig recorded in his report dated 3 May 2021 where the plaintiff indicated that he ceased employment with Wholesale “partly because he had ongoing low back pain as well as right shoulder pain.” In his own evidence the plaintiff accepted that his position with Wholesale did aggravate his back from time to time. (T15)
54In closing addresses, however, an issue which arises, which was not explored in any detail in submissions, is what impact his subsequent employment with Wholesale, until he ceased employment with that organisation in late 2020, has had on his back injury, and indeed also on his right shoulder injury.
55The plaintiff is required to separate out the pain and suffering or impairment consequences from each injury. In his affidavits the plaintiff states that due to each injury considered separately, he has lost the ability to work as an auto technician. It was not disputed that after leaving the defendant he moved to Wholesale where he was working only at bench height. In a “boilerplate” opinion dated 27 October 2021, Dr Rowe who had earlier stated in a report dated 4 May 2021 that the plaintiff had complained of ongoing pain in his lower back and right shoulder and that he “had also developed pain in his neck and left hip”, opined that the plaintiff had suffered “multiple injuries as a result of working as an auto technician over a period of many years” and was unable to return to full or part-time unrestricted pre-injury duties. In the later opinion, without explaining the impact of the plaintiff’s complaints of neck and hip pain he confirmed that considered separately the right shoulder and low back injury prevented return to unrestricted preinjury duties.
56Counsel for the plaintiff emphasised in closing address this loss of employment flexibility and enjoyment (Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326) and also focused on the restrictions on the plaintiff’s hobby of rebuilding cars, as well as restrictions on day-to-day family activities.
57The defendant’s position was that neither the pain and suffering consequences in relation to the right shoulder injury, or the low back injury met the narrative test.
Back injury pain and suffering consequences
58In closing submissions counsel for the defendant noted that the plaintiff’s primary complaints related to his back injury. Counsel for the plaintiff referred to the unchallenged evidence in the affidavits as to the plaintiff’s complaint of constant dull pain in his lower back, which “increases in severity when … more physically active.” He manages the pain, by putting up with it, exercises regularly and has monthly massages. His sleep is affected. It affects some domestic activities including gardening and he has to avoid bending for prolonged periods. It has affected his ability to engage in his hobby of rebuilding and working on cars. The plaintiff’s counsel focused on the complaints of pain and consequent restriction in activities and enjoyment of life. This included inability to pick up his young grandson, restrictions on walking any distance, driving, walking a dog, and according to his daughter enjoying outdoor activities with her the field of his car enthusiast and rebuilding hobby.
59Counsel for the defendant on the other hand noted that the plaintiff had not been referred to any specialist in relation to his back. Further there are only limited references to complaints of back pain in the general practitioner clinical notes, and the plaintiff eschews taking medication, let alone prescription medication. Rather, the plaintiff manages his condition by hydrotherapy and massage. Counsel submitted that there is limited reference to restrictions on activities of daily living, and substantial impacts on social activities.
60Counsel further noted that, in so far as the plaintiff complained of left leg pain the doctors had not stated that there was any radiculopathy.
61In his final report Mr Esser recommended further investigations of the plaintiff’s hip condition that may explain left quadriceps wasting.
A range case?
62Counsel for the defendant referred the Court to the leading authorities on assessing whether the pain and suffering consequences meet the narrative test of being “at least very considerable.” In Sabo v George Weston Foods [2009] VSCA 242 at [73] there was reference to the adverb “very”. The Court was also referred to the leading case of Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 on the evaluation of pain, and on the issue of a stoical plaintiff Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at [49] and Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [3]. I was also referred to a number of other cases that concerned pain and suffering claims where there has been a return to duties or alternative employment. These included Sumbul v Melbourne All Toyota Wreckers Pty Ltd [2006] VSCA 292 at [24], Tatiara Meat Co v Kelso [2010] VSCA 12 at [45] – [46] and [77], Sutton v Laminex Group Pty Ltd [2011] VSCA 52, Stijepic v One Force Group Pty Ltd [2009] VSCA 181 at [44] – [47], and Halpin at [50].
63The description of a plaintiff’s pain as recorded by examiners, and indeed by himself, is relevant here. The plaintiff describes “constant dull pain”. In his second affidavit he indicates that his back can go if he twists awkwardly and he experiences “such severe pain that I am brought to tears. This severe pain lasts for two – four days.” This type of pain is not referred to in the histories provided to examiners. Thus his complaints to Mr Pease in May 2016 were that he had occasional low back discomfort, “not really low back pain, if I’m careful I try to use machines.” The same examiner refers to the plaintiff giving a “long history of aches and pains in various parts of his body.” Mr Carey in his report dated 14th February 2019 opines that the plaintiff “has diffuse pain in the cervical and lumbosacral spines.”
64A report from a clinic “Back in Motion – Blackburn” dated 18 July 2020 records that the plaintiff gave a 10 year history of back pain caused by an incident at work when lifting and twisting: “Has seen physio for past 10 years at varying times – has never fully recovered – does a hydro program which keeps pain in check – recently hasn’t been able to do program and has had a flareup.” An available inference from that report is that whatever back pain the plaintiff was suffering it was “in check” and thus could not bear a description such as “excruciating or unrelenting” (Sabo at [72])
65Mr Esser in his report dated 11 August 2020 records that the plaintiff told him that he is “aware of pain and discomfort in the low back, with some left hip discomfort, which he describes as a slight pain.” He refers to the plaintiff as having had “episodes of work-related exacerbations of cervical and lumbar spine pathology.” In his report dated 22 September 2021 his current symptoms were described as “episodes of pain and discomfort in the low back with radiation of pain to the left hip. He said this can occur with sudden movements, but he cannot predict when this is going to happen. This episode of discomfort occurs every two months, or thereabouts.” Further into the report when describing back discomfort, including avoiding bending, and difficulties with walking and stairs and leaning forward he said: “this man has episodes of pain and discomfort that occur once every 3 to 4 weeks, or thereabouts. He is helped with massage and hydrotherapy when available.”
66I have already referred to the report of Mr Doig dated 3 May 2021 where he refers to the plaintiff having “some ongoing low back pain. It is variable.”
Consideration
67The descriptions of the plaintiff’s back pain in his affidavits are all of more extensive pain episodes than what has been recorded in the histories referred to. The plaintiff’s credit was not attacked however significant weight must be given to recorded histories rather than an affidavit drafted years later. Further the plaintiff’s complaints of pain and incapacity must be considered in the context of his evidence that, as noted in closing address by counsel for the defendant, he returned to the heavy work after the incidents in 2006 and 2014. Thus notwithstanding his heavy work with the defendant, he continued working with Wholesale, albeit at bench level but still involving some manual handling, for over four years before commencing in his current sales position. Over the period since he left the defendant his complaints to his general practitioner in relation to his back were relatively minimal, and he was able to continue working in alternative duties with Wholesale by self treatment and engaging in hydrotherapy and a masseuse service from time to time. As noted above he was not taking either over-the-counter or prescription medication and has never been referred to a specialist for his condition. This latter consideration is relevant to a characterisation of the seriousness of the condition by the medical practitioners. The general lack of treatment and recourse to medication provides an insight into whether the pain that has been experienced was particularly disabling. On the lack of use of medication I accept however his explanation that he wished to avoid any risk of addiction to pain relief medication.
68In considering the plaintiff’s overall complaints of pain it is also relevant that his general practitioner refers to a sprain injury to the left hip and neck and ordered investigations. Dr Rowe in his report dated 4 May 2021 refers to “a permanent long-term impairment in his neck, and right shoulder.” When the plaintiff saw Mr Pease on 30 May 2016 he complained that his left hip was very sore. He also told him that his neck was sometimes stiff. This consultant noted that he had a thoracic kyphoscoliosis, and possible degenerative changes in his hip. This is confirmed in the report of Mr Esser dated 11 August 2020. In his later report dated 22 September 2021, Mr Esser stated “the radiological and clinical evidence is not clear enough to adequately explain this man’s current persisting pain, discomfort and wasting of his left thigh.” He suggested that the general practitioner review this issue.
69It is necessary to assess both the experience of pain and the disabling consequences. The adjectival descriptions that are recorded in the histories lack notions of severity that are often referred to in the authorities. He could not be said to “suffer a continuous substantial level of pain” (Stijepic at [48]). While the plaintiff said the pain affects his sleep, there is no reference to this complaint in the histories given, and it was not elaborated on in evidence. As submitted in closing address by counsel for the defendant there is little reference by the plaintiff to impact on social activities.
70My assessment is that pain cannot be said to dominate his life, and notwithstanding the credit that must be given to the plaintiff for seeking to avoid medication, the fact is that he had been able to continue in full time employment in a modified position until 2020, and then transfer to another position that he is enjoying, is relevant to considering the magnitude of the impairment consequences to him of his back condition. I accept that Sumbul and later cases do not mean that in the event of a return to full-time alternative employment the impairment consequences cannot be characterised as “at least very considerable.”
71In considering whether the narrative test has been met the authorities also require a comparison of what the plaintiff has retained as shedding light on what has been lost. In closing address counsel for the plaintiff emphasised the loss of the ability to work in auto transmission work on the tools, which flows into the impact on his hobby of building and repairing his own cars. He is now dependent on his son to replace relevant parts and is unable to bend over the engine bay, although he conceded that he had washed and vacuumed his current car prior to the hearing. His daughter in her affidavit refers to the impact on his enjoyment of his former passionate hobby. She also refers to the plaintiff regarding the activities and in his second affidavit he says that he is doing limited gardening but restricted if he has to bend over. It is affidavit states that walking is limited due to back pain. Although the plaintiff clearly has some uninvestigated left hip condition, separating the pain and limitations from his hip condition from pain associated with his low back condition was not explored in cross-examination.
72The plaintiff has retained the ability to continue in full time employment in his chosen field although with restrictions. He has now moved his employment into a more desktop based specialised sales operation that draws on his experience over many years, and which on his account he appears to enjoy, although he is unable to undertake the machining aspect of the role. His back condition does cause limitations in his social activities in relation to his grandchild and walking and hobbies, but on the evidence does not have a major impact on activities of daily living. It also affects his enjoyment of his hobby of rebuilding vehicles. Mr Esser noted that the plaintiff recreational interests including driving his vehicle “long distances when he can tolerate his back.”
73Considered overall I accept that there have been impairment consequences and pain consequences that could be described as marked or significant. I am unable to accept however that the pain and suffering consequences of his back condition sustained with the defendant could be said to dominate his life or be at a level where his experience of pain and the impairment consequences of his back condition, within the range of possible impairments, meet the “at least very considerable” test.
74For the above reasons and having considered all the evidence and the submissions, the plaintiff’s application for a certificate to bring proceedings for his lumbar spine injury is refused.
Right shoulder injury
75Considering the right shoulder injury in the light of the medical material referred to above, I find that the disability resulting from this injury is such that the plaintiff is now unable to work the full scope of duties that he previously undertook as an automotive technician. This is a significant and permanent loss of occupational flexibility and fulfilment.
76Turning to the actual impairment impact of the shoulder injury I accept that in the period since November 2015 the plaintiff has effectively protected his right shoulder in day-to-day activities including his employment with Wholesale. In cross examination the plaintiff accepted that his shoulder condition had improved and that he had not had treatment since mid-2018. This is consistent with the medical records and was explained by the plaintiff on the basis that he was managing the pain himself. As noted above on 30 May 2016 Mr Pease found a full range of pain free movement. A note from Epworth dated 10 July 2017 (DCB 80) state that the plaintiff does not need any more treatment on his right shoulder at that time. This is consistent with a later report from Mr Torstensson dated 16 April 2018. In May 2021 Mr Doig noted that “he does not have a lot of pain as far as the shoulder was concerned at that stage” although he still had an inability to undertake a heavy job for the foreseeable future. Mr Esser in his report dated 22 September 2021 says that the plaintiff told him that his shoulder symptoms “are a lot more under control.”
77As with his back injury, the relatively minimal recourse to both medication and medical practitioners, the lack of evidence of time off work, and the cessation of treatment for the right shoulder injury are all insights into whether the pain is particularly disabling. This is not a case where the plaintiff is likely to require surgery, which is a factor that can go to the seriousness of an injury.
78As with the claim in relation to his back injury, while the plaintiff has sustained an impairment of his employment capability due to his restriction to lighter, non-overhead work, he has been able to work at a bench level with minimal recourse to medical practitioners from May 2016 until around May 2020 and then transferred to a sales position that he is currently enjoying.
79In relation to non-work activities, the plaintiff is able to carry a slab of beer, and as discussed above engage in gardening to some extent. While I accept that his involvement in rebuilding cars as a hobby is restricted. The plaintiff is not to be punished for persevering with employment and activities with his shoulder condition and with pain. The medical opinion indicates however that, on his own account, the pain consequences of his right shoulder condition are stable and have abated since he left the defendant.
80The Court was referred to the decision in Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235. The case is informative in that in that case there was a real prospect of shoulder surgery, there was significant pain, including night pain, there had been substantial rehabilitation, and the use of medication was considerable. The plaintiff in that case had continued working with occupational limitations, and social activities were restricted. On appeal a certificate to proceed was granted.
81Having considered all the evidence and the submissions, while the employment limitations and the restriction on the plaintiff’s hobby and day-to-day activities, as a consequence of the right shoulder injury, when combined, can be said to be marked or significant consequences, I’m not satisfied that the pain and suffering consequences of the injury can be fairly described as being more than significant and being “at least very considerable.”
82The plaintiff fails in his application in relation to his right shoulder.
Consequential orders
83Subject to any submissions by the parties, I propose to make an order dismissing the applications and order that the plaintiff pay the defendant’s costs, including any reserved costs, pursuant to the WorkCover (Litigated Claims) Costs Order 2016, such costs to be assessed by the Costs Court in default of agreement.
0
11
0