Hough v VWA

[2019] VCC 660

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY

Case No. CI-18-04485

MICHAEL HOUGH	Plaintiff
v
WAGSTAFF CRANBOURNE PTY LTD	Defendant

---

JUDGE:	His Honour Judge Jordan
WHERE HELD:	Melbourne
DATE OF HEARING:	15,16 May 2019
DATE OF JUDGMENT:	May 2019
CASE MAY BE CITED AS:	Hough v VWA
MEDIUM NEUTRAL CITATION:	[2019] VCC 660

REASONS FOR JUDGMENT
---

Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury-low back
Legislation Cited: Accident Compensation Act 1985
Cases Cited:            
Judgment:                Leave granted to bring proceedings for the recovery of damages

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Garnham	Slater and Gordon
For the Defendant	Mr R Stanley	Thomson Geer

HIS HONOUR:

1       Leave is sought for pain and suffering only for a spinal impairment suffered in the course of or due to the nature of employment between 2006 and about July 2013. This forty six year old worked at the defendant’s abattoirs as a slaughterman on the beef floor. He has been a slaughterman since 2000 and enjoyed the job which he would have still been in save for his back injury.[1] After injury he worked in the boning room for a time on lighter duties before being formally terminated in 2015.

[1]Plaintiff’s Court Book(PCB)5,8

2       This well-motivated worker has found no less than three further alternative  jobs in other fields. He currently drives a rigid crane truck full time for a company since commencing with it in August 2018. He still suffers constant daily back pain but does not take any prescription medication as it affects his capacity to drive and operate a crane.[2] He relies on over the counter Panadol for pain. He is wise in adopting this course as he wants to keep working. I do not need evidence in this case to tell me that industrial agreements in our community sensibly prohibit anyone operating a crane who is on prescription painkillers.

[2]PCB12,13

3       The defendant indicated this is an admitted compensable injury to the spine. The only issue for determination by the court is whether or not it is a “serious injury” and this was expressed by the term it is “a range case”.[3] A number of  consequences  the plaintiff relied on included pain, how the back affected his capacity to work, his recreations of motorbike riding and fishing as well as the impact on daily activities such as sitting, driving and walking.

[3]Transcript(T)14-15

4       The task is to judge the consequences established on the evidence by comparison with other cases in the range of possible spinal impairments and to determine whether or not those pain and suffering consequences can be fairly described as being at least very considerable. It almost goes without saying in a case such as this that the credit of the plaintiff is critically important. I have had the considerable advantage of hearing him and observing his demeanour under cross-examination by experienced counsel.

5       The first comment to make is that this man is a stoic. He is quite an unsophisticated  fellow who only went to year ten at school and at times had some difficulties with the court process. But he appeared at all times to be trying to tell the truth and there was no hint of exaggeration. I found him a reliable and accurate witness who understated what he had to put up with in terms of constant daily back pain as he went about his full-time job and his life generally. Sensibly he had made the decision to change jobs and cease his years of interest in motorbike riding and limit his fishing out in boats at sea  because of spinal symptoms. His motivation is to work and he has accepted restrictions so he can keep working.

6       There is probably no reason to go into any great detail about his treatment but while it seems to have been a sensible decision not to have undergone surgery it is not without relevance that twice, his treating surgeon Mr Justin Hunt, sought approval from WorkCover for a spinal decompression and fusion. This was in 2014 and again in 2015. Approval was not forthcoming and surgery has not taken place.

7       However this opinion from a treating surgeon is indicative of a level of symptomology that was very considerable at that time, and on the evidence, that condition has barely altered since. The plaintiff has just sensibly accommodated his work and his personal and recreational life around that spinal impairment which called for surgery back in those early years and which has not really changed much. The constant pain he puts up with and copes with by making those accommodations will be with him for the foreseeable future. He is a man prepared to make activity sacrifices so he can keep working.

8       It serves no real purpose to deal with this treatment journey at any great length as it is not controversial. But as well as various investigations by way of CT and MRI scans that show clear discal damage in his low back, he has tried different treatments. He attended his general practitioner, Dr Lal, on multiple occasions and tried various medications as well as physiotherapy. In addition to what his specialist, Mr Hunt, has advised he has also undergone two courses of multi-disciplinary pain management at St John of God Rehabilitation Hospital in Frankston that went for many weeks to try and deal with his back and leg pain.[4]  In recent times he has not really had any treatment but  this again is not an indication of a lack of any spinal injury but more an indication of this man’s attitude. He accepts that there is really nothing medication can offer him and so he just gets on with life.

[4]31 March-28 May 2015,30 June-11 September 2015, PCB66-68

9       He made many admissions against interest when he could easily have attempted to enhance his case. There were a number of examples of this, including how sporadically he took Panadol. This is an over-the-counter medication so  no one would have ever really been able to challenge the amount he took. He in no way embellished the need for these tablets which he tended to take at the end of the day after finishing his driving duties.[5] Other examples were his not going to see doctors in recent years, when a dishonest witness could have easily had a few attendances on a doctor and complained about his back.

[5]T18

10      Further examples of admissions that did not really help his case were his capacity to still enjoy a camping trip he went on. He spoke of the manual  duties involved in the first alternative job he obtained erecting and dismantling real estate signs on properties, as well as the two crane truck driving jobs that he found after that first one. He did not shy away from his capacity to carry out this work. Indeed in his current job he admitted that at times he worked up to 45 to 50 hours in a week and it could involve a six-day working week.

11      Probably the best example of an admission against interest that indicated a very forthright witness was with respect to his childhood dream of being a truck driver. While I accept after he got into the workforce and enjoyed being a slaughterman that he would still have been working in that area if he had not injured his spine, nevertheless he readily volunteered that as a child he wanted to drive a truck and that is exactly what he is doing now. No-one would have known of that childhood wish if he had not mentioned it. Importantly though he still has back problems with his current job but just works around them.[6]

[6]T78

12      He was a candid witness but an unsophisticated fellow. He could not really remember what he had said to various doctors when this was put to him in cross examination. It was clear that he really had little or no recollection of even seeing the practitioner counsel brought to his attention. Nevertheless he never really shied away from what was being suggested even though at times the statement to a doctor may not have been helpful to his application.

13      Thus there was some attempt to impugn his credit but in the end it was not successful. His capacity to have sex, his interest in 4WD driving, camping  and  motor bikes were other topics he was challenged on in the sense of suggested inconsistency and exaggeration but I found neither were made out. Fishing was something that he said he could not really enjoy as much now or as often and  I took that evidence to really mean being out in a boat on the sea when it was   choppy and the waves made his back symptoms worse.[7] He very candidly volunteered a more recent occasion he was he was out on Westernport Bay but “the water was nice and calm” so he had no difficulties.[8] Some Facebook photos of himself with some small trout that had been caught in a lake in New Zealand were put to him but none of this detracted from his credibility or reliability.[9] A man who can drive and operate a crane truck for 50 hours in a week can catch a trout.

[7]T55,56,78

[8]T78-79

[9]Defendant’s Court Book(DCB)175,176

14      He probably best summed up the present situation when he said with a commendable attitude of resignation “Given the difficulties and frustrations I have experienced with the WorkCover system I have continued on working as best I can and tried to put up with low back and right leg pain.”[10]

[10]PCB13

15      I accept his evidence about constant pain that is not always severe but is always there. Some different adjectives were used at different times about pain but coming from him, with his understated manner, pain is a very considerable consequence in itself in spite of his sensible and stoical determination to not let it get on top of him. His own words which I accept  were “I am always in pain.” [11]Given the time he has suffered this and the exhaustion of all relevant treatment modalities, the likelihood is he will have it for the foreseeable future.

[11]T26

16      Another consequence that on its own is a very considerable one for the plaintiff is the loss of capacity to enjoy a full and restful night’s sleep. His affidavits describe his struggle to sleep and how it is broken by back pain.[12] In the witness box he emphasised this again and explained how he found his constant pain meant he could not get comfortable.[13]

[12]PCB8,13

[13]T79

17      I have discussed some consequences in isolation but of course the plaintiff is entitled to have all the pain and suffering and loss of enjoyment of life consequences looked at as a whole and I do so. They include not being able to continuing working  in the field he enjoyed as a slaughterman, the recreations and  personal activities that have been impacted as well as  the  simple things we take for granted in everyday life such as an unrestricted ability to walk and to sit for long periods.[14] But just to make it clear, I am satisfied he has proved his constant daily pain which varies in severity is a permanent consequence that on its own is  very considerable. The same applies to the loss of his ability to have a proper night’s sleep when looked at as a consequence on its own.

[14]PCB13

18      It is only necessary to deal with the medical opinions very briefly. Before  that it is worth making a few comments about the radiology. This man was only in his 30’s when he was injured in 2012. Yet there is clear organic evidence of sources of back pain and some leg symptoms in terms of spinal pathology. Radiology involving CT and MRI scanning from 2012, 2014 and 2016 show clear disc damage probably at the two levels of L4/5 and L5/S1.[15] Also displacement of the L5 nerve root and tear of the annulus were objectively demonstrated.[16] These objective findings are consistent with his complaints of back pain together with some leg symptoms.

[15]PCB61-65

[16]PCB61-65

19      Dr Lal has not seen him for over two years so his opinion is of limited weight in  making an assessment now. I accept the plaintiff’s evidence that in the end Dr Lal did not show much enthusiasm for continuing to treat him as in effect, there were no treatment options still reasonably open other than prescription painkillers, and the plaintiff is a man who did not wish to take those  for his own understandable reasons.[17]  

[17]PCB13,T27,75

20      Mr Hunt is similarly out of date and his last report was also back in 2017. But as stated this specialist saw sufficient spinal pathology to write off for approval for fusion surgery. In 2015 he thought there was an L5/S1 disc prolapse with leg radicular pain on the right side. He thought this would persist and “continue to restrict Mr Hough with his normal activities of daily living and  lifestyle and his ability to work to full capacity.”[18]

[18]PCB42.

21      While Mr Hunt is well out of date when an assessment of consequences has to be made now, at least one matter is obvious. This worker has done very well to get back to a boning room  abattoirs job and upgrade his licence and perform the crane truck driving work he does full-time now when one looks at what his treating surgeon had reported when he last saw the patient “Mr Hough’s ability to work in the longer term is compromised by ongoing back and leg pain symptoms. Mr Hough’s back and leg radicular pain symptoms have resulted in significant reduction in his capacity to work.”[19] Where this worker finds himself now is more a testament to his motivation and determination rather than a lack of any spinal symptoms or impairment.

[19]PCB43

22      Two medico-legal opinions relied on by Mr Hough that are more up to date start with Mr G Grossbard, orthopaedic surgeon, in November 2018.[20] He diagnosed the physical damage to the low back as the cause of both the back and leg pain and accepted they  could vary in severity. His conclusion was “Whilst  this man is coping … I would regard  the present situation as stable and unlikely to change significantly in the foreseeable future. Mr Hough is not going to be able to return to a job where he is required to undertake repeated bending and lifting or working with machinery in which he becomes jolted around.”[21] This of course puts the worker out of his chosen vocation as a slaughterman which is the job he enjoyed and would be still working in except for his spinal impairment.

[20]PCB51-54

[21]PCB54

23      Similarly the surgeon, Mr K Brearley, who reported in February 2019 wrote a report that speaks for itself. He supports an ongoing back and leg pain caused by “Acute prolapse of the L5/S1 intervertebral disc with consequent low back pain and right sided sciatica”.[22] The condition in his opinion was stable and  would mean there would be a continuation of back and leg pain with no particular treatment available other than the taking of painkilling medication.[23] Mr Brearley went on to say that there was a likelihood of gradual deterioration with the passage of time.[24]

[22]PCB58

[23]PCB59

[24]PCB60

24      I accept the evidence of the plaintiff himself, together with  those reports he relied on, prove  a “serious injury” in terms of permanent pain and suffering consequences.  I prefer that well explained and clear evidence over the medical reports relied on by the defendant. Nevertheless I will comment on them briefly.

25      Five reports from psychiatrists Drs R Rathnayake, P Kornan and R Prytula which cover 51 typed pages were tendered. They do not assist much in an  assessment required of the paragraph (a) organic spinal impairment. From those pages sporadic, disconnected sentences were plucked from the histories Mr Hough was alleged to have given the doctors. He could not even recall the doctor let alone what he had said on most occasions. The suggested statements touched on topics as wide-ranging and disconnected as house work, his sex life, how long he stayed in bed on days off and house sharing duties.[25] These five reports have no direct relevance to his injured spine and can only have been randomly chosen in an attempt to try and damage the plaintiff’s credibility  and reliability. The attempt failed.

[25]DCB25,43,53,89,121

26      The Medical Panel Opinion as far back in October 2014 diagnosed “an unresolved soft tissue injury of the lumbosacral spine in the presence of lower lumbar degenerative change with chronic low back pain…”.[26] This very early opinion takes the matter no further now.

[26]DCB61

27      More up-to-date material came from the surgeons Mr R Carey, Mr R Simm and Mr A Drnda. The orthopaedic specialist, Mr Carey,  saw the worker once in January 2018 and really for AMA% impairment purposes. Mr Carey examined a genuine man who was a “…pleasant, straightforward and stoic witness to his problem.”[27] The surgeon found a permanent spinal impairment and put a figure on it under the AMA tables.

[27]DCB84

28      Mr R Simm, orthopaedic surgeon, examined Mr Hough once in March 2019 and produced two reports. The second  involved little more than a comment on some Facebook entries and on Mr Drnda’s opinions. Mr Simm reinforced there was a causative link between work and the back condition. Causation is not an issue in this admitted compensable injury case and Mr Simm’s views were  really consistent with an ongoing problem. He did not detract from or significantly damage the plaintiff’s case in any way.

29       Mr Drnda is a neurosurgeon who only saw the plaintiff once in March 2019 and reported twice.[28] He found a man who was “…co-operative without signs of embellishment.”[29] Mr Drnda also accepted there was ongoing pain.[30] His second report  also  commented on Facebook and apart from a critical comment about fishing, based on the photos of Mr Hough holding some small trout, the neurosurgeon did not offer any opinion that in any way alters my findings about the very considerable permanent consequences of the spinal impairment.

[28]DCB 111-116,117-118

[29]DCB113

[30]DCB114

30      True it is that in some applications a return to full time work can tend against a finding of “serious injury” pain and suffering consequences. But the whole of the evidence has to be looked at. I have done so. I reject the defendant’s submission I should find the pain here is only mild and is at the lower end of the spectrum. I accept it is a very considerable and constant pain but this man just accepts it and puts up with it, faced as he is with no real treatment suggestions  that will change anything.

31      For the reasons set out I am satisfied on the probabilities the plaintiff has proved a “serious injury” in terms of permanent pain and suffering consequences caused by his spinal impairment. I grant leave to issue proceedings for damages.