Jasper v VWA
[2018] VCC 568
•1 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-17-04936
| PHILLIP JASPER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April-1 May 2018 | |
DATE OF JUDGMENT: | 1 May 2018 | |
CASE MAY BE CITED AS: | Jasper v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 568 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – cervical spine
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted to commence proceedings for damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor with Ms N Crowe | Maurice Blackburn |
| For the Defendant | Ms M Tsikaris | Minter Ellison |
HIS HONOUR:
1 This 66 year old sawmiller issued an Originating Motion seeking leave to commence proceedings for a cervical spine impairment “… in the course of … employment with the defendant on or about 23 June 2014 and/or throughout the course of employment”. [1] The injury to his cervical spine is an admitted compensable injury. The employer was Powelltown Sawmills.
[1]Plaintiff’s Court Book(PCB)20
2 The plaintiff is a relatively uneducated man. He left school at fourteen and year eight was his final year. He then went into the sawmilling industry and worked at mills from Warburton to Powelltown and as far away as Wodonga. He spent half a century in sawmilling work and knows no other. His employment record is excellent. He loved his job. Mr Jasper worked with the Powelltown Sawmills from 17 January 2013 until they terminated him in August 2016. His intention was to work till sixty seven and there are workers older than him in the industry.[2]
[2]PCB15
3 He had suffered some minor neck symptoms before starting with the employer in January 2013. Some conservative treatment had been required but they were basically only intermittent pins and needle type symptoms in the left hand which had largely settled. There had been some neck pain but it had gone by the time he started with the employer.[3] A referral to a hospital had been made but consistent with having no real problems he did not follow it up. It is also informative that any past neck problems had not stopped him working full time in a heavy industry up till the 23 June 2014 incident nor in his life outside work.[4] On the evidence there was no pre-existing impairment of his neck prior to his being injured at Powelltown Sawmills. None of the medical opinions are flawed because of any misinformation or defective history regarding his neck before he started with the employer.
[3]Transcript(T)30-32,35
[4]PCB6-7
4 Things changed permanently from that date. He was lifting a very awkward and heavy circular saw off a cutting shaft. It was over a metre in diameter and there was some uncertainty about its precise weight. Whether in fact it weighed either 40 kg or 28kg it was clearly a large and heavy piece of equipment. After ceasing work altogether and then across a number of return to work trials, this worker never returned to full duties nor full hours up till the time when the employer terminated him.[5]
[5]Exhibit B(DCB 51-52)
5 As I understood the defendant’s position there were three issues for determination. Firstly it was said the plaintiff could not rely on a “course of employment” claim but was bound strictly to an incident on 23 June 2014 and the application could not go any wider than that. Secondly it was submitted that the plaintiff failed to discharge the onus on him as to retraining and rehabilitation for other employment following his termination by letter from the employer dated 25 August 2016.[6] Thirdly the defendant maintained that the plaintiff could not have worked beyond 65 years of age in his employment at the sawmill in any event because, in effect, having reached that age he had no real employment capacity .
[6]PCB93
6 I can deal with the first submission immediately. The Originating Motion made it perfectly clear, as did the affidavit material, that the plaintiff was relying on the whole course of employment with emphasis on a particular traumatic incident on 23 June 2014. The WorkCover claim form back in March 2015 had also relied on a course of employment situation together with the saw incident.[7] I reject the submission the plaintiff cannot rely on the whole of his employment.
[7]PCB82-83
7 It was useful to both hear and observe Mr Jasper giving evidence. This case did not involve any real attack on credit. He was a straightforward “no nonsense” man who was very unsophisticated. He was obviously a man with only limited education but he was both honest and reliable. It should be said that in this day and age, for an English speaking person native to this State, his education is about as limited as is ever seen in this court. He even had trouble following basic paperwork put in front of him in the witness box and I had to point out to counsel that he was not even on the correct page.
8 He has a very good motivation to work. He loved work and would still be working except his neck impairment makes that out of the question. That position will remain for the foreseeable future. I found the plaintiff was a compliant patient. I accept his evidence he attended meetings and appointments when he was able to. [8]
[8]T51-52
9 I accept his evidence that after he was put off work JRJ, the rehabilitation provider, stopped contacting him. Given his background, work experience and the fact that he could not even cope with twelve hours per week spread over three days on restricted duties it is not unreasonable that he has not looked for other work. He has no computer skills and with limited reading and writing capacity the reality of his predicament is there is just nowhere to go. He has realistically accepted the fact that an employer, who has provided no evidence of any fault in his attitude or performance about his job, put him off so he probably has no capacity for any real job and none for retraining.
10 Reasonableness is the standard under the relevant sub section of the Act. He has acted reasonably in the circumstances. No rehabilitation or retraining options are reasonably open in Mr Jasper’s case. In particular I am satisfied there is no rehabilitation or retraining that would have any impact on his capacity for any “suitable employment” when the factors section 5 speaks of are considered realistically in the context of any residual earning capacity.
11 There is no need to go into a lot of detail about the radiology reports. It is sufficient to say there is clear radiological evidence of disc protrusion pathology at several levels of the cervical spine and nerve root impingement was noted.[9]
[9]PCB25-29c,31a
12 His regular local doctor in recent years has been Dr S Akhtar. As to work he thought his patient could not return to his old job because repeated neck movements were required.[10] He had not been able to cope with even restricted duties of only twelve hours per week when he was put off by the mill.
[10]PCB30
13 The doctor said “In my opinion, Philip would not be fit to return to his previous role as per his condition today as his job involves repeated neck movements, resulting in aggravation to injury. He describes neck pain as well as right arm pain in radicular pattern as well as left-arm paraesthesias. He also has significant restriction to neck movement and gets frequent headaches. Several attempts have been made in the past for RTW, but no success due to the nature of job involving right and left movements of neck and aggravating the injury.”[11]
[11]PCB30
14 This local practitioner knows Mr Jasper well. I read this as tantamount to saying there was no capacity for any work for this 66-year-old unskilled manual worker and the probabilities were that position would remain for the foreseeable future.
15 The neurologist, Dr J Seneviratne, reported to the insurer but it was back in February 2015. It is well out of date in assessing an impairment in May 2018. Even then he saw restrictions but he thought a review in 12 months was warranted. It does not appear that he was engaged again to see Mr Jasper.[12]
[12]PCB34-37
16 Mr C Timms, neurosurgeon, provided one very out of date report also. It followed a general practitioner’s referral back in 2014. Mr Timms seemed doubtful about surgery being warranted and conservative treatment was the better option in his view. He said little else that helps an assessment now.[13]
[13]PCB42-43
17 Dr J Slesenger, specialist occupational physician, supplied a very up-to-date report in March 2018. He diagnosed soft tissue injury to the cervical spine and aggravation of degenerative disease with radiating features. That degeneration had become symptomatic because of the 23 June 2014 work incident.[14] The prognosis was guarded. Due to the time that the impairment had been ongoing and the lack of response to treatment, he felt the condition would remain as it was for the foreseeable future.
[14]PCB71
18 Regarding work, in effect he described a total incapacity. Taking into account the various factors section 5 speaks of he said “I do not anticipate him returning to work in a role for which he has suitable training and experience on a consistent and reliable basis.”[15]
[15]PCB71
19 Dr A Aliashkevich, neurosurgeon and spinal surgeon, also reported recently and that was in February 2018. With a diagnosis of “multilevel cervical spondylosis” he stated “I consider his condition consistent with the stated organic work-related injury on 23/6/2014 and in the course of his employment. In my opinion, his employment and work-related injury on 23/6/2014 contributed materially to a significant deterioration of a pre-existing degenerative cervical spine disease, in particular affecting segments C5/6 and C6/7. As there was no significant change in your client’s clinical condition and MRI results over the past few years, I consider his condition has stabilised.”[16] He did not make any comments about work capacity.
[16]PCB79
20 I accept that save for the impairment of his neck suffered in the course of employment with Powelltown Sawmills he would have worked to age sixty seven. The medical material tendered by the plaintiff supports my finding that he has suffered a permanent loss of earning capacity and looked at realistically he has no capacity for any suitable employment.
21 There was also a lengthy vocational assessment from Mr Paul Hartley in March 2018. It is a thorough and well-reasoned report. He effectively stated Mr Jasper has no capacity for his old job, nor for any suitable employment and he is not a realistic retraining prospect.[17]
[17]PCB44-63
22 The defendant’s materials do not really take this case anywhere in assessing an impairment now. The defendant has not tendered any vocational assessment report even though Dr Brown who was engaged by the defendant was apparently sent one in 2016.[18] More to the point it has not had the plaintiff medically examined for close to two years. The last examination was by Dr M Brown in July 2016. Even that is well out of date.
[18]Defendant’s Court Book(DCB)30
23 Dealing with Dr M Brown, occupational physician, he saw the plaintiff in 2016 when the worker was still on one of his 12 hours per week with reduced duties work trials. The doctor said then “He has capacity to continue with his current pre-injury duties on reduced hours. He does not have capacity to increase his hours at present.”[19] The condition was stable. At its highest for the defendant, even if this situation applied now in May 2018, which evidence proves it does not, the plaintiff’s permanent loss of capacity is 40% or more.
[19]DCB32
24 Dr M Baynes, occupational medicine specialist, in 2014 stated “I believe the worker’s injury was caused by the grabbing of the heavy circular saw as it slipped out of a collar. This aggravated a pre-existing degenerative change in the cervical spine. I also note that the method of work involved repetitive twisting and rotation of the neck to the left side. I believe this is an aggravation of a previous asymptomatic pre-existing injury.”[20]
[20]DCB36
25 Even in such early days Dr Baynes saw only a limited earning capacity and said that Mr Jasper was not fit for his pre-injury duties. He was fit back then for alternative duties where there was no heavy lifting greater than 5kg and where there was no work with constrained postures of the neck. He believed Mr Jasper had a capacity for alternative duties only and he considered four hours/five days a week as being the extent of it. Time has proved of course that this four-year-old opinion from Dr Baynes was optimistic as Mr Jasper could not even continue working on at a more reduced level than that.
26 When he was seen by Professor P Teddy, neurosurgeon, back in February 2016, the plaintiff was still of course working on his restricted duties and limited hours at the sawmill. The neurosurgeon stated he was not fit for his old job. He said “Examination would suggest that he is capable of continuing his current practice of working three hours per day, four days per week and with the judiciously applied rehabilitation measures as described, possibly extending this to a limited degree.”[21] He was not asked to examine the worker again.
[21]DCB17
27 Dr B Gilbert, public health physician, also reported back in February 2016. He diagnosed a severe work aggravation of cervical degenerative change at C5/6 and C6/7 with C7 nerve root impingement. He said “This aggravation is entirely consistent with the mechanism of injury as described in the history above. Given the worker’s current symptoms and level of function, I do not think that he can return to work on his pre-injury duties and hours and this is likely to be permanent.”[22]
[22]DCB20
28 Back then when Mr Jasper was still working his reduced hours and restricted duties, the opinion of Dr Gilbert was “I am of the impression that he is currently probably working his maximum at three hours per day, four days per week.”[23] This also proved in time to be somewhat optimistic as in spite of trying over many months the worker could not continue on that regime and was terminated by the employer. Even back then it was a “maximum” that reflected a very impaired earning capacity.
[23]DCB21
29 Looked at carefully even these now quite dated opinions from doctors engaged on behalf of the defendant support my finding that this motivated manual worker, with very little skills and no qualifications, has effectively been put permanently out of the workforce. He has permanently lost his earning capacity and has no realistic capacity for any suitable employment. This is as a result of his neck impairment suffered at Powelltown Sawmills in the frank incident on 23 June 2014.
30 If I am wrong on that single incident causing the impairment that satisfies the “serious injury” test, then it needs to be said that he has proved that he has suffered this permanent loss due to neck impairment suffered in the course of his employment with Powelltown Sawmills from January 2013 to August 2016.
31 For the reasons mentioned I grant leave to commence proceedings for damages for pecuniary loss and it follows leave is also granted for pain and suffering damages.
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