Jeffery, Simon v Victorian WorkCover Authority
[2012] VCC 1522
•15 October 2012
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00434
| SIMON JEFFERY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 3 October 2012 | |
DATE OF JUDGMENT: | 15 October 2012 | |
CASE MAY BE CITED AS: | Jeffery, Simon v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1522 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: injury to the lower back – whether the pain and suffering consequences meet the statutory test
LEGISLATION: Accident Compensation Act 1985, s134AB(38)(c); Guardianship and Administration Act 1986
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
JUDGMENT: the plaintiff's originating motion is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas & McPherson |
| For the Defendant | Mr A Moulds SC with Ms S Manova | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 30 January 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr J Mighell SC appeared with Mr D Purcell of counsel for the plaintiff and Mr A Moulds SC appeared with Ms Manova of counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 15-86: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 1-36 and 45-55: Exhibit 1;
· The defendant tendered CCTV footage of the plaintiff recorded on 18 April 2009: Exhibit 2.
6 The application is brought under the definition of “serious injury” contained ss(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being at least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622, at paragraph 11
8 I am required by s134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
Background
9 The plaintiff was born on in 1967. He is just short of his forty-fifth year. He is a single man who lives on his own. He was married, but I assume now divorced, or at least permanently separated.
10 The plaintiff was diagnosed with epilepsy when he was two years of age. The report of Associate Professor Collins, neurologist, dated 23 June 2006[2] describes the types of seizures which the plaintiff has previously suffered, and the treatment he has been afforded in an attempt to control his epilepsy. Associate Professor Collins described the plaintiff's condition in 2006 as a primary generalised epileptic syndrome. He considered that it was likely that if the plaintiff remained on his anticonvulsant regime of medication, that he would enjoy complete seizure suppression.
[2]PCB 72-73
11 The plaintiff's affairs are administered by the State Trustees Ltd. They have been since 8 October 2010. I assume that an order was made in favour of the State Trustees Ltd pursuant to the provisions of the Guardianship and Administration Act 1986.
12 The plaintiff described himself as being intellectually handicapped. His mother, Laurel Jeffrey, swore an affidavit on 3 October 2012 in which she describes the plaintiff suffering scarlet fever, which resulted in him suffering a brain injury, epilepsy, and reliance upon medication to control his generalised epileptic syndrome.
13 The plaintiff completed Year 10. He subsequently worked as a handyman. He completed a four-year apprenticeship in horticulture. In about 1990, the plaintiff commenced worked for the City of Castlemaine as a gardener. He held this position for about seven years before being made redundant in about 1998. The plaintiff commenced work with Northwest Supermarkets Pty Ltd in about 1999 as a storeman, and more recently, as something akin to a general hand.[3] Northwest Supermarkets Pty Ltd conducts an IGA supermarket in Castlemaine.
[3]PCB 16-18
The Incident
14 On 11 April 2006, the plaintiff suffered injury to his lower back. He and another worker were manoeuvring a grundy bin. It is a large bin filled with waste. Once it is filled with waste it is collected by a truck. The plaintiff and the other worker were manoeuvring the bin so that the truck could pick it up. They undertook the manoeuvring manually.
15 As the plaintiff and the other worker were undertaking the manoeuvring, the plaintiff felt a popping sensation in his lower back, followed by immediate pain in his lower back and pain going down into his right leg.
The Plaintiff's Medical Treatment
16 The plaintiff attended the Botanical Gardens Health clinic in Castlemaine. He saw Dr Kerr, general practitioner. Dr Kerr no longer works from that clinic. The plaintiff’s treatment was subsequently taken over by Dr Dewhurst, general practitioner. Dr Dewhurst first treated the plaintiff on 21 January 2010.[4]
[4]PCB 28
17 Dr Dewhurst provided a report dated 7 November 2008 in which she described the plaintiff's attendance on Dr Kerr on 11 April 2006. She noted that the plaintiff suffered acute lower back pain and was barely able to move. His condition was managed with rest, physiotherapy, analgesics and anti-inflammatory medication. He made a slow recovery, but was able to make a graduated return to work on 10 May 2006.
18 Dr Dewhurst noted that the plaintiff aggravated his lower back injury on 23 January 2007. He was off work again, and subsequently, was able to make a graduated return to work. He presented again on 11 May 2007 with worsening lower back symptoms. The plaintiff was referred to have a CT scan, which was taken on 14 May 2007. The radiologist reported that it demonstrated a central to right-sided disc abnormality at L5-S1.[5]
[5]PCB 56 and PCB 26, in which Dr Dewhurst appears to have agreed with the radiologist's conclusions
19 The plaintiff was treated with physiotherapy. He made a steady recovery and was able to return to modified duties in November 2007, eventually returning to work on full hours, undertaking modified duties. Dr Dewhurst commented that by November 2007, the plaintiff was pain free for much of the time.
20 Dr Dewhurst noted that the plaintiff’s symptoms were caused by the original injury which occurred on 11 April 2006. She noted that the plaintiff would continue to require restrictions placed upon the duties he can perform in the long term. She noted those restrictions to be no lifting greater than 5 kilograms; no pushing loads greater than 10 kilograms; no pushing more than two trolleys at a time; avoiding bending; needing to change posture regularly, and needing to do regular exercises.[6]
[6]PCB 27
21 Dr Dewhurst provided a second report dated 17 February 2010.[7] In that report she referred to seeing the plaintiff on 21 January 2010 for pain in his mid back.
[7]PCB 28-29. Dr Dewhurst provided a third report dated 29 June 2012 which is similar to her second report. The clinical notes of the Botanical Gardens Health clinic were included in the plaintiff's Court Book, and included in the clinical notes are letters and reports of Dr Kerr and Dr Dewhurst, at PCB 63-67 and 85-86. They do not appear to add anything not contained in Dr Dewhurst's reports and the clinical notes
22 The clinical notes of the Botanical Gardens Health clinic[8] reveal that by the consultation of 4 February 2008, the plaintiff was working full hours. His return to work was the subject of a return to work plan. He was having physiotherapy at that time. The subsequent entries in the clinical notes indicate that from 4 February 2008 to November/December 2008, the plaintiff was working. He was having physiotherapy, but relatively infrequently.
[8]PCB 31-54
23 Mr Lee, physiotherapist, provided a report dated 31 October 2008[9] in which he described his diagnosis of the plaintiff’s injury and the treatment he provided the plaintiff. It would appear that at the time when he wrote his report, the plaintiff had regained a full range of motion in his lower back and was working 38 hours per week on what Mr Lee described as “slight modified duties”. The plaintiff told Mr Lee that he was performing basically all of his pre-injury duties.
[9]PCB 74-79
24 On 8 December 2008, the plaintiff attended the Botanical Gardens Health clinic complaining of his lower back troubling him more in recent times due to having to work harder with extra work over the Christmas period. The plaintiff appears to have been troubled by lower back pain, and at some stage was put off work, because the entry for 16 February 2009 reveals that he was on a graduated return to work, and that his lower back was improving. Subsequently, he continued having physiotherapy. The clinical note for 14 April 2009 reveals that the plaintiff was working full time on modified duties and was coping.
25 According to the Botanical Gardens Health clinical notes, the plaintiff did not see any medical practitioners at the clinic between 14 April 2009 and 21 January 2010. On 21 January 2010, he reported pain in his mid-back. He was having some physiotherapy. The last entry in the clinical notes is 9 February 2010. It reveals that the plaintiff’s lower back was improving. He was not taking Panadol very often, but it was noted that his pain was aggravated by sitting in chairs in the surgery, the pain appeared to be in the lower thoracic area, and he was walking quite stiffly.
26 In Dr Dewhurst’s report dated 17 February 2010, it would appear that the reason that the plaintiff saw her on 21 January 2010 was for what she described as back pain maximally in the upper lumbar/lower thoracic area. She considered that pain to be related to underlying weakness in the plaintiff’s lower back.
27 Dr Dewhurst was ultimately of the opinion that the plaintiff's prognosis was good. She considered that he needed to continue with regular back exercises and to avoid lifting to avoid re-injuring his lower back. She noted that the plaintiff was doing all of his normal duties with restrictions referred to in her third report dated 29 June 2012, which were: no lifting greater than 5 kilograms above shoulder level; no lifting greater than 15 kilograms to waist level; no pushing of heavily loaded trolleys greater than 40 kilograms, and all lifting to be done close to the body with bent knees, with the plaintiff to wear his back support while working.
28 The plaintiff's treatment by Dr Dewhurst, and from any other medical practitioner for that matter, appears to have ceased after 9 February 2010.
The Medico-Legal Opinions
29 Mr Kossmann, orthopaedic surgeon, examined the plaintiff in July 2012. He provided a report dated 17 July 2012.[10] He diagnosed the plaintiff as suffering from discogenic back pain as a result of an L5-S1 disc bulge. He was of the opinion that the plaintiff was managing his modified duties, working 38 hours per week with restrictions. He did not consider that the plaintiff’s situation would improve.
[10]PCB 68-71
30 The medical opinions of a number of medical practitioners who examined the plaintiff for the defendant seemed to me to accept that the plaintiff suffered a discal injury similar to the diagnosis made by Dr Kerr, Dr Dewhurst and Mr Kossmann.
31 Professor Marshall, surgeon, examined the plaintiff on 12 June 2007 and 16 December 2008.[11] Initially, he diagnosed a soft tissue lumbar strain with persisting mechanical low-back pain and possibly L5 radiculopathy.[12] On the second occasion, he diagnosed mechanical low-back pain following a work strain injury.[13]
[11]DCB 6-16
[12]DCB 10
[13]DCB 14
32 Mr Bourke, orthopaedic surgeon, who examined the plaintiff on 12 February 2008, diagnosed lumbar spinal dysfunction at L5-S1 with sciatic-like symptoms which had settled.[14]
[14]DCB 18-21, and in particular, at 20
33 Mr Marshall, surgeon, examined the plaintiff on 28 January 2009. He diagnosed that the plaintiff had suffered a disc lesion at L5-S1.[15]
[15]DCB 23-28, and in particular, at 25
34 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 4 March 2010. He diagnosed that the plaintiff had suffered a prolapse of a degenerate lumbosacral disc causing right-sided sciatica.[16]
[16]PCB 81-84
35 Dr Baker and Ms Wyatt, occupational physicians, disagreed with the diagnoses made by the medical practitioners whose opinions I have just reviewed. Dr Baker examined the plaintiff on 13 April 2007. He diagnosed that the plaintiff suffered a minor soft-tissue injury of a muscular ligamentous nature.[17] Ms Wyatt examined the plaintiff on 11 February 2010. She diagnosed that the plaintiff was suffering from chronic lower back pain, but did not consider she had clinical features of a disc protrusion or sciatica.[18]
[17]DCB 1-5, and in particular, at 4
[18]DCB 31-36, and in particular, at 34
36 There are obvious differences in the opinions of the surgeons who examined the plaintiff; however, there seems to be a common enough theme that radiologically and clinically, the plaintiff suffered from a discal injury at L5-S1, and at one time had right-sided sciatica. I reject the opinions of Dr Baker and Ms Wyatt. Firstly, because the opinions I prefer are those of surgeons, some of whom are orthopaedic surgeons, and secondly, because the opinions of Dr Baker and Ms Wyatt are said to be so out of keeping with the radiology and the clinical examinations of the surgeons.
Serious Injury
37 Before the plaintiff suffered the injury he was employed as a storeman by the supermarket. The tasks he performed were as follows:
· He would collect shopping baskets. He would place the shopping baskets on to a “flat top” and would take them to a point in the supermarket.[19] He has reduced the number of baskets he would collect at any one time.
[19]Transcript 10
· He would collect shopping trolleys from the car park and push them into a trolley bay.[20] He has reduced the number of trolleys he collects at one time.
[20]Transcript 11
· He would replace price stripping on the aisles where goods were displayed.[21]
[21]Transcript 11
· He would clean up spillages in the aisles using a mop.[22]
[22]Transcript 11
· He would collect cardboard from supermarket shelves and place it in a cardboard press with assistance. He would then place the cardboard bundles on pallets. He no longer does that.[23]
[23]Transcript 12
· He would re-stock shelves.[24]
[24]Transcript 12
· He would tidy up the meat display by arranging meat packs and displaying them properly.[25]
[25]Transcript 12
· He would re-stock bread. He now does this occasionally when asked.[26]
[26]Transcript 12
· He would answer grocery calls by pricing items.[27]
[27]Transcript 12
· He would help customers wheel their shopping to their cars in a trolley.[28]
· He used to make up orange juice. He no longer does that.[29]
[28]Transcript 12
[29]Transcript 13
38 Additionally, as a storeman he would receive deliveries from vehicles. He would move the grundy bin so that the grundy truck could pick it up. He would clean out the loading dock.[30]
[30]Transcript 13
39 The plaintiff said that he wears a back brace. He said that he wears it from time to time. He most recently wore it two and a half weeks before the trial, and the time before that was probably a month before. He would wear it under his jumper. He estimated that he would wear it about once a month.[31]
[31]Transcript 14
40 I accept the plaintiff's evidence that he was a storeman before he suffered the injury to his lower back. I also accept his evidence that he continues to do most of the work that he did before he was injured, but there are now tasks he either does not do or does in a different way.[32] I accept that he works a full week on duties which are correctly to be described as modified duties. He has been undertaking those modified duties since Dr Dewhurst placed restrictions on his work two or three years ago.[33]
[32]Transcript 8-9
[33]Transcript 8
41 I accept the plaintiff's evidence that he suffers variable pain, but about every two or three weeks or so he might have two or three days without pain.[34] I accept the plaintiff's evidence that he takes a Panadol reasonably frequently. He may take one or two each day, and sometimes every two days. He also lies down on the floor after returning from work.[35]
[34]Transcript 7
[35]Transcript 7-8 and 21
42 The plaintiff said that he does some cooking; vacuums his home one room at a time over a week or so; cleans the shower one day and the bath and the vanity another day; performs light home maintenance, such as changing light globes, and uses a ride-on mower to mow his lawns. He cannot use the sprayer because of the bag attached to it and because of the swing action he needs to undertake with the pump on the sprayer.[36]
[36]Transcript 16-19
43 I accept the evidence of the plaintiff's mother that the plaintiff is restricted in what he can do domestically. She said that the plaintiff finds heavier domestic tasks such as sweeping, vacuuming, cleaning the shower recess and stove difficult and refrains from doing them for as long as possible. She helps him complete them. She purchased the plaintiff a ride-on mower because of the difficulties he had using a push mower. She has arranged for someone to do the brush cutting because the plaintiff cannot do it. She has observed him lying on the floor complaining of being in pain and being unable to move.[37]
[37]PCB 25B-25C
44 The plaintiff described the social, domestic and recreational activities he used to engage in before he was injured in his affidavits sworn 26 September 2011 and 10 September 2012. He has given up indoor bowls, and pool in a pub competition.[38] He no longer goes camping, which he did twice a year. He stopped riding his pushbike, but has been recommended to do so at a modest level. He was a keen gardener, but is less able to do gardening now.[39]
[38]Transcript 21-22
[39]PCB 19-21 and 22-25
The CCTV Recording
45 The supermarket has CCTV cameras at its premises. On 18 April 2009, a CCTV recording was made of the plaintiff. The recording is very short.[40]
[40]Exhibit 2
46 The recording is of the loading bay. A man is shown standing on the loading bay beside what appears to be a trolley on which there were trays of sausages and bread. The plaintiff is seen below the loading bay. He approached the man on the loading bay who handed him one tray at a time. The plaintiff reached out, took hold of a tray and in one motion turned towards the rear of his station wagon into which he then deposited the tray. He then repeated the task until all of the trays were loaded into his car.
47 The plaintiff admitted that the trays probably weighed something under 10 kilograms. He admitted that he took twelve trays from the man on the loading bay which he then handled in the manner just described.[41]
[41]Transcript 24-26
48 The bread and sausages were acquired by the plaintiff for a Lions Club function. The plaintiff was the president of the Lions Club prior to July 2009.
49 The plaintiff also admitted lifting and carrying a 25-litre bag of potting mix which weighed about 13.5 kilograms.[42] He admitted that he lifted it above his head height to about 6 feet and put it on top of lockers.[43]
[42]Transcript 26. The transcript reveals that the plaintiff made no audible response when asked about the weight of the potting mix. I observed him nod and utter something which I took to be an acknowledgement that the weight alleged was correct
[43]Transcript 26
The Other Evidence of Capacity
50 Mr Moulds referred me to the affidavits of Ms Sandra Grant, sworn 13 August 2012,[44] and Ms Dawn Miller, sworn 17 August 2012,[45] and a statement of Mr Ray Rice made on 20 February 2010.[46]
[44]DCB 45-48
[45]DCB 49-55
[46]DCB 41-42
51 Ms Grant described the work which the plaintiff presently undertakes at the supermarket. Ms Miller described much the same and also the CCTV recording. Mr Rice referred to a minor defalcation by the plaintiff from the coffers of the Lions Club, which led to the plaintiff’s resignation as president of the Lions Club and the club.
Findings
52 The plaintiff is a man of forty-four years who labours under an intellectual disability which has left him with a capacity to perform simple routine work at a supermarket.
53 He suffered an injury to his lower back which, on balance, is an injury to the L5-S1 disc which at one time produced sciatic symptoms affecting his right leg.
54 The plaintiff required minimal treatment which is evidenced by the reports, letters, radiology and clinical notes of the Botanical Gardens Health clinic. At one time he was prescribed painkilling medication and referred to physiotherapy, but in the main he has used Panadol and rest to maintain control over the level of lower back pain he experiences.
55 The plaintiff has had short periods off work due to the initial injury and to subsequent flare-ups, but in recent years he appears to have worked well on modified duties working 38 hours per week.
56 At present, the plaintiff is working on modified duties. He takes one or two Panadol per day. About every two or three weeks he is pain free for two or three days. When he has less tolerable lower back pain he lies on the floor at his home at the end of the working day.
57 The plaintiff is capable of undertaking his domestic chores and levels of gardening. His mother helped him before he suffered injury, and it would appear she helps him more since he suffered the injury. The plaintiff is slower in undertaking his domestic chores, but he is able to complete them all.
58 The plaintiff was the president of the Lions Club. He ceased his association with it because of a minor defalcation and not because of his injury. The CCTV recording shows the plaintiff at the loading bay of the supermarket loading the rear of his car was sausages and bread which he subsequently took to a Lions Club function.
59 The plaintiff's social and recreational pursuits had been affected; namely, indoor bowls; a weekly pool competition at pubs; gardening, and association with people involved in those activities. Domestically, he can look after his garden at his house, but less effectively.
60 The plaintiff takes very little medication save for Panadol. He has not seen a medical practitioner for some years. Whilst he has pain, it is variable and absent for about two or three days every two or three weeks. It is not pain which prevents him from working nor engaging in the level of social, domestic and recreational activities which he has retained.
Conclusion
61 I am not persuaded that the pain and suffering consequences experienced by the plaintiff are serious.
62 I am very conscious that a determination of this kind requires me to look at what the plaintiff has lost, but I can inform myself of that by what he has retained.
63 There is little doubt that the plaintiff has a discal injury which is presently under control, and that would appear to be the case in the absence of any active medical treatment over the last two years, and that he has some level of vulnerability to flare-ups, but again, there does not seem to be much evidence of that over the last two years.
64 The plaintiff has lost his ability to do heavier work with the supermarket, but otherwise is doing nearly all of what he did previously with modifications. He is working full time.
65 He is able to undertake all of his domestic tasks, but is slower in what he does, and has modified how he goes about those tasks, for example, he has a ride-on mower and no longer uses a push mower.
66 He was a member of the Lions Club. He was obviously able to organise events and collect such things as bread and sausages, as was seen in the CCTV recording. His real loss is that he has not been able to play indoor bowls and play in a weekly pub pool competition. His camping expeditions were only twice a year, but are nonetheless now lost to him. He has returned to some bike riding.
67 Whilst the foregoing is not intended to be an exhaustive analysis of each and every aspect of the plaintiff's life which he has lost and retained, they are simply repeated for the purpose of the exercise I am obliged to undertake of creating some balance. On balance, the losses experienced by the plaintiff might be described as significant and perhaps marked, but not at least very considerable.
Orders
68 On the basis of the foregoing reasons, findings and conclusions, I order that the plaintiff's originating motion be dismissed.
69 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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