Hovenden v VWA and Pasta Master Pty Ltd
[2009] VCC 379
•23 April 2009
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised |
(Not) Restricted
AT BENDIGO
CIVIL DIVISION
Case No. CI-08-4623
| DAMIEN FRANCIS ANTHONY HOVENDEN | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY & | Defendants |
| PASTA MASTER PTY LTD |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 16 and 17 April 2009 |
| DATE OF JUDGMENT: | 23 April 2009 |
| CASE MAY BE CITED AS: | Hovenden v VWA & Pasta Master Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0379 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application s.134AB; Accident Compensation Act 1985; whether consequences to plaintiff of injury to low back “more than significant or marked” and “at least very considerable”; plaintiff obtained alternative full-time employment; leave sought for pain and suffering damages only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with | Arnold Dallas McPherson |
| Mr M Schultz | ||
| For the Defendants | Mr R Middleton SC with | Hall & Wilcox |
| Ms S Manova |
1 Mr Damien Hovenden suffered injury to his low back when working in the mincer room of Pasta Master in Bendigo in late November 2001. He seeks leave to bring a claim for damages for pain and suffering against his former employer in respect of that injury, and to do so must satisfy the court that he suffered “serious injury” as defined in s.134AB of the Accident Compensation Act 1985 (“the Act”). His claim is based on part (a) of the definition of “serious injury” in that he claims to have suffered permanent serious impairment of function of his lower back.
2 The key issue in this case is whether the consequences to Mr Hovenden of the injury to his lower back are of an extent that can be “fairly described as being more than significant or marked, and as being at least very considerable”[1] when judged by comparison with other cases in the range of possible impairments of a body function.[2] The assessment of the degree of seriousness of the consequences of the plaintiff’s injury must be assessed at the time of hearing of his application.
[1] s.134AB(38)(c)
[2] s.134AB(38)(b)
3 The defendants argue that whatever the short-term consequences, Mr Hovenden now needs only minimal intermittent treatment, has obtained alternative employment at which he earns considerably more than his pre- injury earnings, and has adjusted his lifestyle so as to avoid all but occasional flare-up of back symptoms. They argue that his evidence is unreliable insofar as he complains of ongoing serious consequences from this injury, and point to the lack of current evidence - from any treater or family or work colleague - to support his version of current or ongoing symptoms or consequences of them.
4 The evidence in the case consisted of the documents set out in the attached schedule, and Mr Hovenden’s oral evidence when he supplemented his affidavit and was cross-examined.
Plaintiff’s Background
5 Mr Hovenden is now aged 39. He left school at Year 11 and worked in a number of jobs mainly centred on the hotel and bottle shop industry.
6 As at November 2001, aged 32, he was living with his partner and one young child, with his partner again pregnant. He also had an older child with whom he spent time. He had an interest in working on cars. Until the age of 30 he had not held a driver’s licence and rode a bicycle most places. He had no significant prior injuries or illnesses. Relevantly, he says his weight was approximately 90 kilograms.
7 In July 1999 he commenced employment with the defendant on a casual part- time basis as a process worker. By 2001 he was working four 10 hour shifts per week. Duties varied and were rotated, assigned each day by the supervisor, including to the mincing room. This was regarded as the heaviest physical work as it involved much standing at mincers, bending and twisting, taking chunks of meat weighing four to five kilograms from a container at ground level, mincing them and when another container filled with minced meat, moving it onto a conveyor belt. Mr Hovenden says and I accept that it was the practice that each worker would only be assigned one day a week to the mincing room because it was regarded as the heaviest work.
The injury
8 On 26 November 2001 he was assigned for the day to the mincing room. He says that he felt some pain and stiffness in his back at the end of the shift, but that was not unusual and not enough to complain about. However, on the following day, 27 November, he was assigned by his supervisor to again work in the mincing room to assist another worker. He says he still felt some pain and stiffness in his back from the start, but an hour or two into that shift he found the pain in his back increasing to the extent that it became excruciating and he could not continue. He reported his condition and saw a general practitioner that day.
9 On the day of ceasing work due to severe pain, Mr Hovenden could not obtain an appointment with his long-time general practitioner, and instead attended the Primary Care clinic where he saw Dr Togno, complaining of a painful back after injury at work and that he was in constant low back pain radiating to the sacroiliac joints, worse with movement and better with rest. On examination Dr Togno found tenderness in the low back and loss of range of movement in the whole lower spine. Treatment was with physiotherapy by Mr Paul Bennett. Mr Hovenden soon improved his range of movement. He returned to work on modified duties less than a week later, initially causing flare-up of symptoms and needing a few more days off work, but over the following two months, with adjustments to his duties and continuing with physiotherapy, his symptoms settled. Dr Togno last saw him on 1 February 2002 when he was found to be able to return to usual duties. Dr Togno’s diagnosis was muscle injury of the lower back[3] but this was without having ordered or seen radiology.
[3] Exhibit D
10 By March 2002 Mr Hovenden’s symptoms had recurred and he consulted his long-time general practitioner, Dr Simon Thompson. He also returned to Mr Bennett for more physiotherapy on 20 March 2002. Mr Bennett reports[4] that there were six attendances to mid-April 2002, then Mr Hovenden returned on 1 May reporting increased lumbar pain after working, and he underwent 38 physiotherapy treatments over the following 13 months. Mr Bennett then reported that having administered treatment over about two years, less frequently in the last six months, and recognising that further improvement was unlikely, he had ceased treatment on Mr Hovenden. He was aware that osteopathy had given him greater benefit of recent times.
[4] Exhibit E
11 Mr Hovenden was referred by Dr Thompson to an osteopath, Ms Melanie O’Shea in February 2003[5]. After initial treatment which stirred up his back pain, she focused on treatment to increase movement at the thoracolumbar junction more passively, and with a more active approach at the lumbosacral region. After some improvement, she advised in December 2003 that ongoing intensive treatment was unlikely to dramatically change his condition, but recommended that further treatment “as crisis management if/when Damien finds his back pain incapacitating” should occur. Although there is no further report since December 2003 from Ms O’Shea, I accept the plaintiff’s evidence that he has returned to her for such intermittent crisis management treatment in the intervening years, although at most about three times last year and only once so far in 2009. The defendants’ insurer has agreed to fund up to six osteopathic treatments a year when certified as required by Dr Thompson.
[5] Exhibit B
12 The plaintiff’s long-time general practitioner, Dr Chris Thompson, obtained an X-ray and then CT scan[6] of his lumbar spine in May 2002, which was reported as showing at the L4/5 level a mild posterior prominence of the annulus impinging upon the anterior thecal sac and the arising L5 nerve root. At the L5/S1 level there is a rudimentary disc without any protrusion of canal stenosis. Dr Thompson has apparently managed Mr Hovenden’s treatment over the years since, but such treatment has been minimal. He was prescribed some anti-inflammatory medication but did not take it for long because as a side effect he found it made him drowsy. There is reference to analgesics but he has effectively taken no medication for his back condition for the last few years. Apart from the intensive physiotherapy and then osteopathy that he received during 2002 until the end of 2003, he has been maintained with intermittent visits to the osteopath for intensive treatment of flare-ups of his pain, certified as necessary by Dr Thompson, but those are no longer frequent.
[6] Exhibit J
Subsequent work history
13 Following some short intervals off work in 2002, Mr Hovenden continued to work for the defendant, being certified fit for modified duties and being protective of his back. He was eventually assigned duties of labelling trays in an upstairs room. He had to walk up and down the stairs at breaks as well as beginning and ceasing work, and I accept that he found that this aggravated his back condition but he persevered to keep working. For two years after he suffered injury he was paid make-up pay, but once the employer’s obligation to do that ceased, he found, by 2005, that he was only being offered work for six to 10 hours per week by the defendant. As he had a family to support he looked for alternative employment.
14 He obtained work at AAPT dealing with telephone faults and sales enquiries and worked there for some four to six months. He ultimately left because of a disagreement with a supervisor, but I accept from his evidence that he was also experiencing pain in his back with prolonged sitting at that job. He then attempted to work at Hazeldene’s Chicken factory, but lasted only two weeks as the tasks were too physically demanding and his symptoms flared up.
15 In early 2006 he obtained employment with the Commonwealth Employment Service (CES) as a customer service operator and he has continued in that employment full-time ever since. It is (so far as is possible) a permanent position, and the employer has been amenable to making modifications to his duties and to his work environment such as chairs, so that he can sit at a bench serving customers, and relieve his back symptoms by moving between standing or sitting and, in particular, minimising the requirement to stoop forward over a desk or bench. I accept his evidence that he is not pain free when performing this work, but was determined enough to find suitable alternative work and intends to maintain it. He was very fortunate to find alternative employment with much higher pay than his previous employment with the defendant. He makes no claim for loss of earning capacity.
Evidence of ongoing symptoms and consequences
16 Much of the evidence of current and ongoing symptoms and their consequences depends on Mr Hovenden’s own evidence. Overall I accept Mr Hovenden as a witness of truth. While his attitude as a witness was at times antagonistic to cross-examination, as he attempted to fight his own case, that is understandable. At times he was “knit-picking” to use his own description of some of Mr Middleton’s questions. Overall, however, I found his evidence to be credible and reliable. It was not my impression that he is exaggerating his symptoms and, on the contrary, he made a number of concessions that he was capable of performing various activities and does so. I am satisfied that he has tried his best to get on with his life and supporting his family’s needs, despite his injury.
17 The defendants point to the lack of ongoing significant attendance on doctors for medication or other invasive treatment. In my view, a plaintiff who resolves to avoid medication and its side effects should not be penalised through underuse of the medical resources available. Of course, in some instances, lack of treatment reflects lack of significant ongoing symptoms, and in this case whether there are ongoing symptoms and their extent depends almost entirely on Mr Hovenden’s personal evidence because he seeks treatment so rarely. Further, there is no affidavit material from his wife or any work colleague to corroborate his version of such symptoms and their consequences for him.
18 There is also no substantive report from Dr Thompson who has been his only treating doctor since March 2002 – the main active ongoing, albeit intermittent, treatment having been at his referral by an osteopath. I accept the evidence of the plaintiff’s solicitor, Mr Dallas, that he requested reports from Dr Thompson several times from 2003 to 2005 without success, and eventually obtained the doctor’s patient file instead. I cannot speculate on what the doctor might have said, but I am not prepared to draw any adverse inference from the absence of a report from this doctor.
Medico-legal Opinion
19 Medico-legal opinion was obtained by both sides within the first twelve to 18 months after the injury – and then more in the last few months. The defendant argues that the early reports are now irrelevant as the court must assess the plaintiff’s condition and circumstances at the time of the hearing. The reports of Dr McIntosh and Mr Scott and Mr King are out of date, and cannot simply be taken as representing the plaintiff’s condition in 2009. Nor can Dr Togno’s. Mr Battlay’s is irrelevant as addressed to a different issue. These reports are certainly all several years old, and the opinions are not current, but I take into account that they are overall consistent with the plaintiff’s own account of the history of his injury. As to their prognoses, those of Drs McIntosh, Scott and King are consistent with what the plaintiff describes as his present condition.
20 Dr David McIntosh, consultant orthopaedic surgeon, examined Mr Hovenden in December 2002 when he was working at the defendant’s at the labelling job, taking anti-inflammatory medication every few days, and said he had given up working in the garden. Dr McIntosh found him co-operative. On examination he found flexion in the lumbar spine limited. His opinion was that the plaintiff had sustained an acute back injury with evidence of an acute disc prolapse at L5/S1, probably occurring on 27 November 2001 consistent with the work activities described. He considered that the injury had resulted in an incapacity for employment in that the plaintiff was no longer capable of his normal pre-injury employment and although capable at the time of full-time work at the labelling job, he would remain unfit to undertake heavy work or work involving repetitive bending, lifting, sitting or standing for extended periods, and was likely to have a permanent impairment materially contributed to by the injury.[7]
[7] Exhibit M
21 Mr Peter Battlay examined the plaintiff in October 2003 when he was on alternative duties working 6 hours a day on alternative duties labelling containers. He complained of continuous pain in the lower back which radiated to the lower thoracic spine, and that there was leg pain only on “bad days”. Mr Battlay confirmed a clinical correlation with the disc bulging shown on CT scan.[8]
[8] Exhibit K
22 Mr Peter Scott, consultant surgeon examined the plaintiff in June 2002 and September 2003. He diagnosed soft tissue injury and probable aggravation of underlying pre-existing degenerative changes at the L4/5 and L5/S1 levels, as a result of his work on 27 November 2001, believed that his weight was retarding his progress, but that he had capacity for light work but not his pre- injury employment. He considered that he should avoid all actions which he believes aggravate his problem, and in September 2003 recommended an up to date CT scan for consideration of possible epidural injection. He considered there may well be some permanent impairment but its extent could not be addressed as the injury had not then stabilized.
23 Mr Kevin King, consultant orthopaedic surgeon, examined the plaintiff in December 2003[9], when Mr Hovenden’s complaints were of constant aching pain in his low back, always present, fluctuating in intensity and usually of moderate severity, intermittent radiation of back ache up to the back of his neck (described as a lesser problem), persistent nagging ache in the back of the right buttock, thigh and calf of moderate severity, and similar milder symptoms in the left lower leg. Mr King noted the radiology of 2002, and on examination found mild but definite (about one third) limitation of lower back movement by spasm and discomfort. His thought it reasonable to assume that Mr Hovenden did sustain some damage to lumbar discs and associated ligamentous structures after prolonged and rapidly repeated bending and lifting stresses on 27/11/01, superimposed on degenerative changes consistent with his age and heavy occupation, but accepting his statement had not previously been symptomatic. He thought Mr Hovenden had been left with a mild but definite long term impairment of lower back function equivalent on clinical grounds to a 20% impairment of the thoraco-lumbar spinal function and a 10% impairment of the right lower limb due to mild persisting sciatic pain. He thought him capable of continuing in his then light duty job (with the defendant) provided it remained available, but not with his pre-injury repetitive heavy lifting duties.
[9] Exhibit F
24 Mr Michael Dooley examined the plaintiff in September 2008[10] and noted complaints of ongoing intermittent low back and pain radiating into both legs. He reports that Mr Hovenden was walking each morning, had decided not to take analgesic medication, and overall coped at home but after carrying out any heavy chores he had to rest. On examination Mr Dooley noted tenderness of the lower lumbar region, found flexion and extension limited and complaint of pain in the buttocks and back on straight leg raising reduced with flexed hip and knee. He found the lower leg reflexes symmetrically reduced. It is unclear whether Mr Dooley saw the CT scan – he does not mention it and says under “Radiology” that x-rays were not available, but the CT report is listed as enclosed to him. He noted the description in other reports of a transitional lumbosacral vertebra and some degenerative change, but does not describe the disc bulge abutting the L5 nerve root.
[10] Exhibit 1
25 Mr Dooley diagnosed degenerative disc disease of the lumbar spine previously asymptomatic aggravated by work in November 2001 which he believed would account for ongoing intermittent low back pain and for intermittent lower limb pain. He thought it imperative for Mr Hovenden to lose weight but said this will not relieve his back pain but help make it more manageable. Asked for the impairment or loss of body function but not an AMA table assessment[11] he stated that Mr Hovenden has lost 10% of the function of the lower spine. He believed that intermittent pain in the low back and legs was likely to continue and that Mr Hovenden will be unfit to perform regular heavy physical work in the future.
[11] Question 4 in letter of instruction- Exhibit 1
26 Dr David Murphy, consultant physician in rehabilitative medicine examined Mr Hovenden in February 2009. He reports complaint of continued mild to moderate back pain which was generally manageable, but susceptible to exacerbation of pain if he sits in the wrong position for too long or attempts any significant degree of bending, lifting or twisting. Mr Hovenden said he did not take medication but saw the osteopath when he had significant exacerbation of his pain. Pain was mainly in the low back, radiating down the legs to the heels during the exacerbations. On examination there was some limitation of flexion and straight leg raising.
27 Dr Murphy’ diagnosis was degenerative disease of the lumbar spine with L4-5 disc prolapse on a background of more widespread degenerative disease. He said that the sacralisation of the S! vertebra was likely to have predisposed Mr Hovenden to the development of his current chronic back problem but was not the direct cause of it. He considered that the repetitive lifting at Pasta Master and the particular incidents of 26 and 27 November 2001 were responsible for his ongoing problems, the culminating event being prolonged exposure to the duties over a two-day period. Te prognosis was reasonably good, Mr Hovenden having been able to cease the employment likely to aggravate his problems and obtain alternative employment. He considered he appeared fairly sensible about managing his ongoing back problem and was likely to continue in his current situation indefinitely[12]
[12] Exhibit G
28 Professor Peter Disler, specialist in internal medicine, rehabilitation medicine and geriatrics[13]examined Mr Hovenden in March 2009. He noted activities which the plaintiff said he was capable of doing – including vacuuming which Mr Hovenden said in court that he could do but did not in fact do, and mowing the lawns and cleaning the yard on occasions. Professor Disler’s opinion was that the plaintiff’s condition was aggravation of degenerative disease of his lumbo-sacral spine, from the claimed injury in November 2001, causing continued lower back pain with occasional sciatica, and that the prognosis was for continued intermittent back pain aggravated by repeated bending or heavy lifting, and it is unlikely that this pain will go away entirely[14].
[13] Specialties the relevance of which the defendants query. I infer that he was consulted for medic-legal opinion because he is a specialist in multiple medical fields based in Bendigo.
[14] Exhibit H
29 Taken individually, I accept the defendant’s argument that the most recent medical opinions are not sufficient to establish the level of seriousness of consequences for a “serious injury”. However, they are all supportive of the plaintiff’s complaints of ongoing symptoms being entirely consistent with the pathology in his lumbar spine and its being materially caused by the work duties of 27 November 2001 and possibly the previous day or weeks. That leads to assessment of the plaintiff’s evidence as to the extent of ongoing symptoms and their consequences.
Conclusions
30 I accept Mr Hovenden’s evidence as truthful and not embellished or exaggerated when he says that he has, for the last few years, felt some level of constant pain in his low back, albeit able to be described as mild to moderate pain, and which he bears without medication. I accept that if he engages in activity which puts stress on his back, such as bending or lifting or repeated exertion, he suffers flare-ups – which he calls “inflammations” - of the pain in his lower back and experiences pain running up into his neck and pain radiating into both legs.
31 The course of his originally reporting only right sided sciatica symptoms, then by the time he saw Mr King that there were some but more minimal on the left, and now that when he experiences flare-ups he experiences them on both sides is, in my view, consistent with his overall presentation and I believe him as he describes these. The only doctor to query the right leg symptoms in the face of a left-sided disc bulge was Mr Dooley and this did not lead him to question the plaintiff’s credibility.
32 Far from exaggerating, in my view, Mr Hovenden has honestly conceded that over the last couple of years he has not suffered flare-ups frequently, only perhaps about four times last year and only once so far this year. On experiencing those flare-ups he seeks treatment from his osteopath.
33 I accept that without exacerbations, he has a constant if relatively low level of back pain and that this, and the anticipation of potential flare-ups, is a constant reminder to him to adapt his movements to avoid worse pain. This is a constant suppressant of spontaneous activities because he has learnt to manage his condition by thinking ahead and avoiding movements likely to precipitate more pain.
34 I also accept his evidence that although always of heavy build, he put on considerable weight in the year after his injury due to being unable to exercise, especially as he found cycling too painful. In an effort to reduce his weight and gain some fitness he now does a daily “power walk” for at least a half hour, and also deliberately parks a distance from his work to enforce a further 15 minute walk each way to his car. I accept that he finds these walks painful to his back, but he now walks for up to an hour a day because of medical advice that it is essential to prevent worse consequences.
35 I accept that he finds driving long distances – such as to Melbourne- painful, that he performs fewer maintenance or housekeeping tasks because of his back injury, no longer rides a bicycle as he used to do, nor does significant maintenance on his car, and is inhibited in playing with his children or lifting the youngest of them.
36 I also consider relevant as a consequence of his injury that although he is now earning more in alternative employment than at the time of his injury and cannot claim damages for loss of earning capacity, he is according to every medico-legal opinion permanently incapable of the full range of heavy activities he used to be able to perform if required in employment, and is therefore more restricted in future employment options were he to lose his present job or seek a change. In my view that limitation on his employment flexibility is relevant as a consequence to him of his injury even though it will not sound in a calculation of damages for loss of earning capacity.
37 I note the comment of Chernov JA in Sumbul v Melbourne All Toya Wreckers PtyLtd[15] that if one accepts that the plaintiff has been able to return to alternative employment then unless there was some other evidence that showed that he experienced significant pain or other consequences of the injury it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable”. In that case there was a significant issue as to the plaintiff’s credit, and that was decided by the trial judge adversely to the plaintiff. I am satisfied that there is such other evidence in this case from the plaintiff, whom I accept as credible and not exaggerating, as to his ongoing symptoms and their impact on his life, and the medical and like evidence which supports that his complaints are consistent with his injury and its pathology.
[15] [2006] VSCA 292 para 24
38 In my view, for Mr Hovenden as a man still not 40 years of age, with a young family, his level of ongoing symptoms and their consequences on his daily life with intermittent exacerbations making them worse is a level which can be fairly described as “more than significant” and “at least very considerable” in the circumstances of his life, and judged in comparison with other possible impairments of a body function.
39 I am satisfied that he suffered a lower lumbar disc injury or aggravation of disc damage during his employment duties culminating on 27 November 2001, and that this injury amounts to a “serious injury” under the applicable definitions. I propose to grant him leave to bring a claim for damages for pain and suffering as a result of that injury.
SCHEDULE OF EXHIBITS
HOVENDEN v. VWA and PASTA MASTER PTY LTD
Number and
| Identifying Mark | Short Description of Exhibit |
on Exhibit
A Plaintiff's affidavit sworn 11/06/08 (PCB 17-21)
Reports of Melanie O'Shea, osteopath, dated 29/08/03 and 09/12/03B (PCB 23-4) C Report of Dr Simon Thompson dated 11/09/03 (PCB 25) D Report of Dr John Togno, dated 17/06/03 (PCB 26-7)
Report of Paul Bennett, physiotherapist, dated 16/06/03 (PCB 28-E 9) F Report of Mr Kevin King, 15/12/03 (PCB 30-4) G Report of Dr David Murphy, dated 10/03/09 (PCB 35-8) H Report of Professor Disler, dated 17/03/09 (PCB 39-41) J CT scan report of Dr Benson, dated 10/05/02 (PCB 42) K Report of Mr Peter Battlay, dated 24/10/03 (PCB 48-51)
Reports of Mr Peter Scott, dated 04/06/02 and 01/09/03 (PCB 52-L 63) M Report of Mr David MacIntosh, dated 21/12/02 (PCB 64-70)
Bundle of WorkCover certificates of capacity by Dr SimonN Thompson from 05/03/02 to 18/05/04
Reports of Mr Michael Dooley dated 22/09/08 and 29/9/08 with1 letter of instructions from defendant's solicitors dated 11/7/08.
2 Copy of worker's claim form dated 21/01/02 (PCB 43-5)
0
1
0