Jasvir v Clamms Seafood Pty Ltd
[2013] VCC 1859
•3 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05430
| JASVIR JASVIR | Plaintiff |
| v | |
| CLAMMS SEAFOOD PTY LTD | First Defendant |
| and | |
| VICTORIA WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28 November 2013 | |
DATE OF JUDGMENT: | 3 December 2013 | |
CASE MAY BE CITED AS: | Jasvir v Clamms Seafood Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1859 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lumbar spine – pain and suffering only – whether consequences meet the statutory test
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave to the plaintiff to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C B Thomson | Victorian Compensation Lawyers |
| For the Defendants | Mr N Rattray | Thomsons Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff suffered injury to his lower spine on 25 September 2009 in the course of his work duties as he was lifting bins containing fish, weighing between 20 and 32 kilograms. He returned to work for a short period, and then was dismissed from his employment. He has not worked since. Despite a paucity of medical treatment, he claims a range of domestic, recreational and social activities have been lost or curtailed.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant on 25 September 2009. The body function said to be lost or impaired is the lumbar spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, medical and radiological reports, clinical notes and wage details were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well know and it is unnecessary for me to revisit the various relevant sections.
Relevant background
4 The plaintiff was born in India in 1987 and is now twenty-six years of age. He completed his secondary education, but did not obtain any other formal qualifications, nor undertake any study. He came to Australia in October 2008 on a Student Visa to study, and in February 2009, commenced a Certificate III in Food Processing (Retail Baking - Cake and Pastry) at Sunshine College of Management.
5 In January 2009, he commenced work with the first defendant, on a casual basis as a general labourer.[1] His work activities included handling seafood, lifting containers and bins, and scaling, deboning and filleting fish. He was also involved in cleaning duties on the factory floor.
[1]His Student Visa permitted him to work up to 20 hours per week
6 Prior to injury, he was a generally active young man, went to the gym and went running in the mornings. According to his affidavit,[2] he enjoyed visiting restaurants, watching movies, attending a variety of social functions and gatherings with friends and family. He was in good health, and in particular had no symptoms nor restrictions in his lower spine.
[2]Plaintiff’s Court Book (“PCB”) 18
The injury and its consequences
7 The injury occurred in the course of the plaintiff’s work duties on 25 September 2009. It is described in the plaintiff’s affidavit.[3] The defendants accept the plaintiff suffered an injury to his lower spine in the course of his work duties and there is no issue as to causation.
[3]PCB 14 – 15
8 He lifted a heavy container, weighing about 20 kilograms, when he felt sudden pain in his lower back. He was unable to keep working and returned home. On 27 September 2009, he went to see Dr Mai, although according to the history of that practitioner,[4] he complained of a three-week history of back pains, radiating down the left leg. There was tenderness in the lower spine and Dr Mai prescribed Voltaren and arranged a CT scan. That scan revealed broad-based bulging at L4-5 and L5‑S1 with some narrowing of the spinal canal.[5]
[4]PCB 35.1
[5]PCB 33
9 Dr Mai certified the plaintiff as unfit for duties from 28 September to 2 October 2009.[6]
[6]Part of Exhibit 2
10 On 13 January 2010, the plaintiff returned to Dr Mai complaining of ongoing lower back pain. Pain-relieving medication was prescribed, and the plaintiff was referred to Mr Bruce Love, orthopaedic surgeon, for review. There is no report from Mr Love.
11 On the plaintiff’s return to work on 3 October 2009, according to his affidavit,[7] he commenced on restricted duties, folding cardboard boxes. These duties progressed to lighter work, cleaning fish and, by early December, he had gradually increased to his normal duties. He persisted with these duties despite suffering ongoing pain caused by the more strenuous duties.
[7]PCB 14
12 On 22 December 2009, the plaintiff was dismissed from his employment. There is a dispute between the plaintiff and the defendants as to the circumstances of that dismissal; the defendants alleging the plaintiff was drunk, and the plaintiff saying that because he was not able to perform all of his duties at a pace required by the first defendant during the busy Christmas period, he was summarily dismissed.[8]
[8]Transcript (“T”) 40 – 42
13 At the time of the injury, the plaintiff was in the process of undertaking his Certificate III course in Food Processing. On 5 January 2010, he applied for leave of absence from the course because of his problem. Leave of absence was granted from 3 February 2010 to 30 April 2010.[9]
[9]Exhibit A
14 Prior to his injury, the plaintiff was generally working 20 hours per week, although according to payroll records,[10] he sometimes exceeded those hours. In evidence, he said he would work sometimes 38 or 40 hours a week, and obtain payment for the extra hours in cash. After he suffered injury, the records disclose that aside from the period away from work immediately after injury, he was generally working 20 hours per week. For the week ended 16 December 2009, he worked 29 hours, and in the week before he was dismissed, he worked 40 hours.[11]
[10]Exhibit 3
[11]Exhibit 3
15 In November 2009, he was referred to an osteopath, Dr Brohier, and was treated by that practitioner on a number of occasions in November 2009. According to his report,[12] the plaintiff found good relief from the treatment, and reported that the left leg pain from which he was previously suffering had resolved.
[12]Defendant’s Court Book (“DCB”) 40(a)
16 In March 2010, the plaintiff returned to India for treatment and to be with his family. While in Australia, he had not had the benefit of medical treatment under the Medicare system, as it was a requirement of his visa that he secure private health insurance. He had originally done this when he came to Australia, but had not continued with it. He said, as he was not earning any income (his initial WorkCover claim was rejected), he was unable to afford any such treatment. In India, an MRI scan was undertaken[13] which revealed diffuse bulging at L4-5 and L5-S1, again with narrowing of the spinal canal at L4-5. He said he received treatment in India from a medical practitioner, which included traction. He also had massage from members of his family.
[13]PCB 34
17 He returned to Australia towards the end of April 2010, although said that he was unable to continue with his course as he found it difficult to sit at the computer for extended periods of time. In addition, for him to start the next semester, he was required to pay a fee of $6,000 which he could not afford, given he was unemployed. In evidence, he said it had been his intention to complete the Certificate III, and go on to undertake Certificate IV and at some time start his own restaurant.
18 He has not resumed any employment, save for a short period assisting a friend with some computer work, nor has he resumed any study. He has applied for a ‘protection’ visa.
19 The pain in his lower back has persisted. The pain has also radiated down his left leg to the calf, and sometimes the ankle.
20 In August 2012, the plaintiff came under the care of another general practitioner, Dr Sheriff. That practitioner prescribed anti-inflammatory medication and referred him to Mr Khan, orthopaedic surgeon. The plaintiff saw Mr Khan in August 2012 and complained of pain in his lower back with referred pain into his right leg.[14] Mr Khan could find no neurological signs. An MRI scan of August 2011, obtained at the request of Mr Mangos, who saw the plaintiff at the request of his solicitors, showed a small disc protrusion and mild facet joint arthropathy at L4-L5 with mild compression of bilateral L5 nerves. Mr Khan referred the plaintiff for pain management at St Vincent’s Hospital, but the plaintiff said he was unable to afford the treatment and did not attend.
[14]In the course of addresses, counsel conceded that there may be a mistake in Mr Khan’s report, and the pain may be to the plaintiff’s left leg.
21 According to his affidavit and evidence, he claims that he has suffered the following consequences as a result of his physical injury:
·Ongoing persistent pain in his lower spine radiating down his left leg into the calf and sometimes the ankle. The pain is exacerbated depending upon the activities in which he is involved.
·The pain prevented him from properly performing his employment duties, as a result of which he was terminated. He believes he is at the present time unable to perform any of his pre-injury work duties. He claims that he misses his work and the social contact he enjoyed.
·The pain interrupts his sleep and he finds it difficult to find a comfortable position in bed. He wakes regularly during the night and is tired during the day.
·He has trouble with a number of activities of daily living including bending to put on shoes or socks.
·Any activity involving carrying, lifting, standing or sitting for prolonged periods or reclining in one position causes difficulties. He is unable to walk as he did before and walking up and down stairs, stooping, squatting and bending all cause pain. Generally his mobility is restricted.
·He is unable to attend to domestic duties in the shared house in which he lives. He depends upon his housemates to perform, in particular, the heavier household activities.
·He is no longer able to go the gym nor run as he did before.
·His social life is affected and he does not attend the social activities as he did before. Consequently, his self esteem and self confidence are affected.
·He was forced to indefinitely postpone his course at the Sunshine College of Management and at the present time feels unable to resume that or any similar course. Without some form of tertiary qualification, his prospects of resumption of employment are not good.
·Although his treatment has been sparse, he now attends a physiotherapist twice a week[15] and in the past has taken a range of medication. At the present time, he takes Panadol, one to two per day, and does some exercises recommended by the physiotherapist.
[15]PCB 41.1
Medical opinions
22 The plaintiff was examined at the request of his solicitors by Mr Peter Mangos, general surgeon, in November 2011 and October 2013. On the latter occasion, he complained of ongoing pain in his lower spine, radiating to the left sacroiliac area which, in particular, worried him at night. He also complained of referred pain radiating into his left leg, into the calf and sometimes with cramps. There was difficulty walking because of weakness in the leg. Further, the plaintiff said that he had difficulty bending, lifting, straining, pushing, pulling and climbing.
23 On examination, there was a generally reduced range of movement in the lower spine. Mr Mangos concluded the plaintiff suffered intervertebral disc damage at L4-5 and an aggravation of joint arthropathy. He also found left-sided sciatica. He said the injury was related to the plaintiff’s heavy work. He said the plaintiff was not capable of full-time unrestricted manual or pre-injury employment which he said was permanent. He could not work in employment which required significant physical effort. He said the plaintiff’s injury affected his ability in a range of social, recreational and domestic activities.
24 The plaintiff was examined by Dr Helen Sutcliffe, occupational physician, in October 2013. He complained to Dr Sutcliffe of a range of symptoms, in particular constant pain in the back referred into the left thigh. The pain affected his sleep and capacity to walk and sit beyond 30 minutes. She was of the opinion the plaintiff had suffered disc derangement at several levels, in particular at L4-5, with a degree of central canal stenosis and evidence of compression of the L5 exiting nerve root. This, she said, provided a basis for pain and weakness in the left leg. As a result of injury, she said the plaintiff had no capacity to work as a baker and no capacity for manual occupations. She said the plaintiff required retraining. He may be able to undertake limited employment for four hours a day, avoiding heavy manual handling. She said the prognosis was moderate only and that he required physical and vocational rehabilitation.
25 On behalf of the defendants, the plaintiff was examined by Dr Gary Davison, occupational physician, in February 2010. He found the plaintiff a poor historian and was not able to objectively determine whether or not the plaintiff had suffered a workplace injury. The plaintiff was unable to point to any specific incident or accident giving rise to injury and he concluded that employment was not the cause if there was an injury.
26 The plaintiff was examined by Mr Peter Kudelka, orthopaedic surgeon, in August 2011. He noted the CT scan of September 2009 showed a broad-based disc bulge at a number of levels, in particular L4-5, with some spinal canal narrowing. The MRI scan taken in India showed a small posterior disc protrusion and mild compression of the L5 nerves. He described these changes as degenerative and responsible for the plaintiff’s persistent back pain. He concluded that the plaintiff had suffered a mechanical injury to his lower spine in September 2009 which accounted for the persistent back pain and restricted movements. He diagnosed age-related degenerative change in the lumbar spine and thought the plaintiff had a favourable prognosis.
27 In terms of treatment, he suggested the plaintiff take simple analgesics and anti-inflammatory medication and undergo a physiotherapy program. He said he thought the plaintiff had a work capacity for pre-injury employment providing it was in light duties; that is, no lifting above 10 kilograms and with rotating duties.
Conclusions
28 There is no issue the plaintiff suffered an aggravation of underlying degenerative disease in his lower spine, in particular at L4-5. There is radiological evidence of some nerve root compression and spinal canal stenosis.
29 It is accepted the injury is employment related. The real issue contended by the defendants is that the consequences of injury do not meet the “very significant” level as prescribed by the legislation. In addresses, Mr Rattray, for the defendants, said that the plaintiff complained of a range of subjective symptoms for which there was little objective confirmation.
30 In relation to the plaintiff’s termination from work, he said that whatever the reason, at the time of termination, the plaintiff was working in normal duties, and in the week prior to 22 December 2009, had worked 40 hours. He pointed to the fact that the plaintiff had only very modest treatment over the years and even at the present time, his medication was only one to two Panadol per day. He said the plaintiff had made no real attempt to find alternative employment, nor any alternative tertiary study or course to assist in obtaining employment.
31 There was nothing sinister in the pathology, nor in the opinions of the various doctors as to the plaintiff’s condition and he said the plaintiff was suffering only age-related degenerative pathology in his lower spine. The records of the treating practitioners, Doctors Mai and Brohier, showed only modest treatment and relatively good relief after treatment, in particular at the hands of Dr Brohier. He noted the opinions of Mr Kudelka, who said the plaintiff had a favourable prognosis and a capacity for lighter duties.
32 I had the opportunity in the course of the plaintiff’s cross-examination to assess his credibility. Although he had difficulties with language, he struck me as a generally honest witness, giving a fair account of the injury he sustained to his lower spine and the consequences of that injury. There were no major credit issues put to him.
33 I accept his explanation as to the circumstances under which his employment was terminated. I accept that although in the last week prior to termination he had worked a full week, that in previous weeks he was working generally only 20 hours per week. I accept that he had particular difficulties with more arduous aspects of the work and when he was required to sit and stand for long periods. Generally I accept that he has no capacity for his pre-injury employment.
34 I further accept his explanation as to the circumstances under which he was forced to indefinitely postpone his course. I accept that he found difficulty sitting at the computer, and that his concentration was affected by his lower back pain. I accept this made it difficult to continue his course.
35 Generally I accept his complaints of pain in the lower spine, and referred pain into the left leg. True it is he has had little in the way of treatment and rehabilitation; however, I accept that he has only limited finances, and cannot afford any such treatment, absent the assistance of the Medicare system. It is unfortunate that the Victorian WorkCover Authority, with its extensive resources, has not seen fit to provide funding for the plaintiff to undertake a comprehensive pain management and rehabilitation program which, in the opinion of Dr Sutcliffe, would significantly assist the prospects of re-entry into the workforce.
36 While it does appear there was generally some improvement in his condition, in particular at the hands of Dr Brohier, that improvement did not continue and at the present time, the plaintiff stills suffers significant pain and restriction. I accept that that pain affects his sleep, a range of activities of daily living, and restricts the social and recreational interests he enjoyed before injury.
37 In my view, the consequences described do attain the “very considerable” level as the legislation requires.
38 In those circumstances, I will grant leave to the plaintiff to institute common law proceedings, and make appropriate consequent orders.
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