Karaiskos v VWA
[2011] VCC 1489
•1 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-06116
| ANTONIOS KARAISKOS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 and 25 August 2011 |
| DATE OF JUDGMENT: | 1 September 2011 |
| CASE MAY BE CITED AS: | Karaiskos v VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1489 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Section 134AB Accident Compensation Act 1985 – injury to cervical spine – credibility of the plaintiff – injuries to other body functions – disentangling – whether the consequences achieve the “very considerable” level.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC with | Zaparas Lawyers |
| Mr R H Stanley | ||
| For the Defendant | Mr A W Middleton | Lander & Rogers |
| HIS HONOUR: |
Preliminary
1 The plaintiff suffered a head injury, injury to his cervical spine, injury to his right shoulder and a consequent psychological reaction, when he was struck by the boom of a crane in the course of his employment on 11 May 2007. As a result, he claims to have suffered a range of consequences, particularly in respect of the injury to his cervical spine. He has not worked since 11 May 2007.
2 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of the plaintiff’s employment on 11 May 2007.
3 Mr Moore, on behalf of the plaintiff, identified the body function said to be lost or impaired as the cervical spine. At the outset, the plaintiff also submitted he had suffered a permanent severe mental disorder, but this aspect of the application was abandoned.
4 The application is thus brought under sub-section (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, and leave is sought in respect of both pain and suffering and loss of earning capacity.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function.
6 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, he must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f) of the Act that, as a result of injury, he has suffered a loss of earning capacity of forty per cent or more, when a comparison is made between his without injury earnings in that part of the three-year period before and after injury as best reflects his earning capacity, with his earning capacity at the present time from suitable employment.
7 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, medical reports, radiological reports, two affidavits of the plaintiff, certificates as to work capacity, video surveillance and vocational assessments were tendered into evidence. I have read all the tendered material.
Relevant Background
8 The plaintiff was born in 1952 in Greece. He is married with two adult children. He came to Australia in 1965, having had modest schooling in Greece. He attended Collingwood Technical School, but left after Form 3.
9 At an early age, he commenced work as a builder’s labourer. He became a steel fixer and worked for large construction companies from that time until his injury. He commenced work with the employer, Formpro Pty Ltd, in 2004.
10 Before his injury, he was a man of significant physical strength and, because of his experience in the building industry, was able to do a range of work at his house, including concrete paving, the building of an extension, and undertook all the maintenance work in his garden. Before the Court, he bragged of being able to lift large weights at work, and said he was regarded as one of the strongest steel fixers in the industry.
11 He had had injuries from time to time, but nothing of significance. In particular, he had no prior problems with his cervical spine.
The Injury and Its Consequences
12 On 11 May 2007, he was working at a residential site in Toorak. A truck carrying steel reinforcement arrived at the premises, and he was assisting in the unloading of the steel. As he was proceeding to undo a chain, the boom of the crane being used swung in the wrong direction and struck him across the side of the head, knocking him to the ground. It is uncertain whether he lost consciousness, but according to the report of St Vincent’s Hospital where he was taken afterwards,[1] he was described as confused, with left-sided headache and left blurred vision. The hospital report records that he had some tenderness over the middle cervical spine with no obvious limitation of neck movement. A CT scan of the brain and cervical spine were said to be normal.[2] The plaintiff remained in hospital for a short period of time and was discharged that day.
[1] Defendant’s Court Book (“DCB”) 16
[2] although the report of the cervical spine at DCB 6 records mild degenerative changes throughout the cervical spine.
13 About a week later, he attended his general practitioner, Dr Andrianakis, complaining of right shoulder pain and stiffness, and tenderness in the cervical spine. He was prescribed Panadeine Forte and anti-inflammatory medication which was later ceased due to gastric upset. He was referred for physiotherapy. X-rays of the cervical spine noted narrowing at C5-C6 and C6-C7 disc spaces.[3] The plaintiff was certified as unfit for work, and has not returned to work since.
[3] Plaintiff’s Court Book (“PCB”) 54
14 He was referred to Mr John Owen, orthopaedic surgeon, by his general practitioner on 1 August 2007. At that time, he was complaining of dizziness, soreness in the right shoulder and an inability to move his neck freely. Mr Owen observed that the range of movement in the cervical spine was restricted but he found physical examination was “quite affected by what I described as theatrical behaviour”.[4] Mr Owen referred the plaintiff for an MRI scan[5] which showed degenerative disc space narrowing at C5-6 and C6-7. It was said that at C6-7 osteophyte complex contacted but did not compress the cord. Mr Owen said the MRI scan basically showed degenerative changes in the cervical spine.
[4] PCB 34
[5] DCB 7
15 When he reviewed the plaintiff in November 2007, the main complaint was of dizziness and tinnitus. Mr Owen considered the plaintiff had quite significant psycho-social problems which far outweighed any problem he may have had with his right shoulder. He said that he had ongoing disability in the cervical spine with pain and stiffness in the neck. He said the nature of this was impossible to delineate because of non-organic features. He thought most of the plaintiff’s pathology in the shoulder was psycho-social.
16 He continued to receive physiotherapy treatment from Mr Nando Giovannucci, but was discharged from treatment on 31 October 2007. He was again referred to the physiotherapist in February 2010, reporting dizziness, cervical and right shoulder pain and dysfunction. That treatment ceased in August 2010 when funding was refused. Mr Giovannucci considered the plaintiff was totally incapacitated for his pre-injury work as a result of his cervical spine and right shoulder problems.
17 The plaintiff has continued to be treated by Dr Andrianakis. Because of ongoing psychological symptoms, Dr Andrianakis referred the plaintiff to Mr George Tsironis, psychologist, who has treated him from November 2007 to the present time. According to his report,[6] he has diagnosed the plaintiff as suffering a Chronic Adjustment Disorder, amounting to Major Depressive Disorder, and acute Post Traumatic Stress Disorder. He said the plaintiff was genuinely traumatised by his predicament.
[6] PCB 42
18 According to the recent report of Dr Andrianakis,[7] the plaintiff continued to complain of neck pain and stiffness, with headaches and right shoulder pain. As a result of favouring his right shoulder, he commenced to suffer pain in his left shoulder and on 6 April 2009, an ultrasound confirmed a partial tear of the supraspinatus tendon. This was treated with cortisone injection. A further MRI scan of the cervical spine was undertaken on 13 August 2009,[8] which concluded widespread and severe spondylosis with multilevel disc desiccation at C4-5 and C5-6, widespread facet arthrosis and intervertebral bony foraminal narrowing with the finding severe at C3-4 and C6-7, but without disc prolapse.
[7] PCB 32.1 – 32.5
[8] PCB 55
19 Because of ongoing complaints of dizziness and vertigo, Dr Andrianakis referred the plaintiff to Associate Professor John Drago, neurologist, in December 2010. Professor Drago noted a history of headaches, shoulder and neck pain arising out of the workplace incident, and, in addition, unpredictable episodes of transient vertigo on occasions, associated with falls. He noted that earlier in 2010, the plaintiff had been assessed at the Eye & Ear Hospital by an ophthalmologist for vision impairment and uveitis was diagnosed. Professor Drago organised an MRI scan of the brain and cervical spine[9] which noted an old left frontoparietal infarct with encephalomalacia at the site. He determined the plaintiff had suffered a cerebral infarct which was unlikely to be related to the workplace accident, but probably occurred at some time after 2007. He noted the degenerative change at C3-4 to C6-7. Professor Drago said the plaintiff had carotid artery disease, suggested he cease smoking and prescribed low-dose aspirin. He concluded the plaintiff’s neck pain was likely to be related to the C6-7 disc pathology.
[9] PCB 57
20 The plaintiff has not worked since the incident. According to his affidavit,[10] he says that he can do no work. He cannot hold more than approximately 10 kilograms in his right arm because of neck and shoulder pain, can only lift 5 kilograms with the right hand and only 2 kilograms above chest height.
[10] PCB 10
21 In February 2008, the plaintiff was assessed by Ayres Management Services and a vocational assessment report prepared. That report identified a number of areas of potential suitable employment, including:
ƒ machine operator/light process worker/product assembler ƒ hand packer/product grader/food trades assistant ƒ school crossing supervisor/ticket collector and usher ƒ traffic management and control. 22 At the present time, the plaintiff continues to see Dr Andrianakis, and is treated by Mr Tsironis, the psychologist, on a regular basis. The plaintiff takes two to eight Panadeine Forte tablets about three days per week, depending upon the pain in his neck and shoulder. He takes Imovane for sleep and an anti-depressant. He takes Paracetamol/Codeine tablets on an as needs basis.
23 According to a Certificate of Capacity dated 2 August 2011, the plaintiff was certified as being unfit for any duties at the present time by a Dr Chronas.
24 He complains currently of constant pain in the neck, referred along the right shoulder to the point of the shoulder. He gets headaches from time to time and regularly feels dizzy, depending on the posture he adopts. He says he has become forgetful. Sometimes he suffers an exacerbation of pain in his neck which is severe. According to his affidavit sworn 30 June 2009,[11] he says:
“My neck pain is worse if I turn my neck too quickly particularly looking down. It also seems to come on if I place stress on the right arm. Sometimes the neck pain can get worse for no apparent reason. When driving I have to be careful with my neck movements. It is painful to turn my neck too far or too fast. When turning to look for traffic I try to turn my whole upper body as well as my neck to limit neck movements.”
[11] PCB 9
25 He claims difficulty with sleep which has affected his relationship with his wife. He is unable to undertake the same handyman tasks around his house as he used to do. Notwithstanding the statement in his affidavit that he was unable to mow the lawn,[12] he said in evidence that he does now mow the lawn and does light work in his garden. He says he spends his time going to coffee shops. He travelled overseas to Greece in July 2010 to see his son. He feels that in relation to his neck, the symptoms are worsening. The pain in his shoulder remains constant. The plaintiff said he was capable of doing work at home, but would suffer the next day for it and have to go to bed.[13] He said both the dizziness that he suffers and the pain currently prevent him from working.[14]
[12] PCB 10
[13] Transcript (“T”) 18
[14] T 27
Medical Opinions
26 In addition to the opinions of the treating practitioners to which I have referred, the plaintiff was examined by a number of doctors to provide an opinion for the purpose of this application. He was examined by Professor Stephen Davis, consultant neurologist, in January 2008.[15] The plaintiff reported pain in his neck which became very severe from time to time, pain in his right shoulder and dizziness which Professor Davis described as “true vertigo”. He also described symptoms of anxiety. Professor Davis considered the plaintiff had suffered a minor head injury without neuronal damage. He thought that the plaintiff’s complaints of dizziness and vertigo indicated he had sustained a vestibular injury. Further, he had sustained soft-tissue injuries to his cervical spine and right shoulder. He said:
“He [the plaintiff] considers that he is unable to return to work because of a constellation of symptoms, including headaches, neck pain, right shoulder pain, dizziness and psychiatric symptoms. I would see his report of some memory disturbance as being explained by these psychiatric aspects, rather than any brain injury.”
[15] PCB 60
27 Professor Davis considered the plaintiff had some work capacity, but not at heights, and said there would be some physical restrictions given the ongoing symptoms in the neck and right shoulder.
28 The plaintiff saw Associate Professor Afif Hadj, surgeon, in December 2008. Professor Hadj received complaints of constant pain in the neck, worse upon sharp rotation, or carrying heavy objects. The plaintiff said there was intermittent pain in the right shoulder and that he was unable to lift objects heavier than 10 kilograms. Associate Professor Hadj considered the plaintiff had suffered a head injury with soft-tissue injury to the neck and shoulder. When considering work options, the plaintiff said the dizzy spells made it very difficult for him to drive a car and the constant pain and lack of strength in his right arm would preclude him from performing any work into the future. He considered the plaintiff unfit for pre-injury employment.
29 The plaintiff was examined by Mr Charles Flanc, general surgeon, in January 2009.[16] He told Mr Flanc that the main reason he was unable to return to work was because of dizziness. He complained of pain to the right side of his neck and across the top of the right shoulder. Lifting of loads greater than 5 to 10 kilograms aggravated the pain. He complained of dizziness every two or three days and some low-back pain. He said his main worry was that he could injure someone if he became dizzy and fell, if he were to return to work. According to Mr Flanc, the plaintiff said that he could do some aspects of the job of a traffic crossing controller but was concerned he would become dizzy. He said he thought he could work in a fruit shop grading fruit. His concern about undertaking work as a “billy boy”[17] was that he might fall if he became dizzy. Upon examination, Mr Flanc noted that there was significant restriction of movement in the cervical spine in extension and lateral flexion. Having examined the radiology, Mr Flanc concluded that the plaintiff’s dominant symptom was dizziness and suggested he be assessed by a neurologist. As to the cervical spine, he thought he had suffered an injury following being struck by the boom of the crane. He noted the radiology showed very significant disc degeneration and osteoarthritis in the lower half of the cervical spine which had become significantly aggravated by the incident. He noted referred pain to the right shoulder. He said some of the pain in the right shoulder was referred from the neck but that the plaintiff had also suffered aggravation of osteoarthritis to the right acromioclavicular joint. He said it was difficult to separate the two sources of the shoulder pain. He said that the pain in the cervical spine and right shoulder was not very severe, but was likely to persist with occasional flare-ups. Mr Flanc concluded the plaintiff was not fit for pre-injury work but was able to cope with light suitable work. He said, in relation to the jobs referred to, that the plaintiff had the capacity to undertake this work but that he expressed concern about dizziness.
[16] PCB 68
[17] A person responsible for cleaning areas of a building site, obtaining lunch for the workers and other light tasks.
30 The plaintiff was assessed by Mr Mangos, general surgeon, on 10 May 2010.[18] He noted the complaints of tinnitus and dizziness, painful right shoulder and neck. He noted the multilevel disc desiccation in the cervical spine. He considered that the plaintiff had suffered an injury to his neck which had aggravated the underlying cervical spondylosis. Further, the plaintiff had injured his right shoulder with an acromioclavicular strain and early arthritis. He also noted dizziness, anxiety and frustration. In terms of his capacity for work, Mr Mangos thought that that depended entirely upon his cerebral symptoms of headaches, dizziness, vertigo and ringing in his left ear. In terms of the injury to his neck and right shoulder, he said that the plaintiff was not fit for his pre-injury employment in heavy work but was fit to return to lighter duties where heavy lifting and straining were avoided.
[18] PCB 76
31 The plaintiff was examined by Associate Professor Warren Boling, neurosurgeon, in May 2011.[19] At that point, the plaintiff complained primarily of pain in his right shoulder, made worse by movement and activity. He noted a decline in vision of his left eye, difficulty with memory and headaches. According to the history obtained:
“Mr Karaiskos describes that since his injury, he has been unable to participate in activities around his home that he previously enjoyed such as maintaining the home with small renovation jobs as well as inability to maintain his lawn and garden. He is able to continue with a small amount of gardening but not to the extent he previously enjoyed.”[20]
[19] PCB 83
[20] PCB 85
32 Associate Professor Boling considered that the plaintiff had suffered symptoms consistent with a post-traumatic head injury, including memory difficulty, emotional lability and chronic headaches. He noted the findings on the MRI scan of the brain of 21 January 2011. In addition, he noted a restricted range of movement and pain in the right shoulder which he thought was consistent with adhesive capsulitis which had not been adequately evaluated. He further said the plaintiff had chronic neck pain due to discogenic disease and facet arthropathy which had been aggravated by the work injury. He thought the plaintiff’s psychological and emotional difficulties were related to his head injury. He said the plaintiff would be unable to return to his pre-injury employment and would not be able to undertake physical labouring activity in the future. He noted the plaintiff had no additional training skills to enable him to work in a non-physical area.
33 The plaintiff was examined by Mr Daryl Nye, neurosurgeon, on behalf of the defendant in July 2007.[21] At that time, he complained of pain and limitation of use of the right shoulder and some low-back pain, and dizziness related to postural change. Mr Nye noted a modest restriction of movement of the cervical spine and concluded that he had sustained a minor head injury and possible aggravation of pre-existing degenerative change in the cervical and lumbar spines. He said that the major injury appeared to be the right shoulder. At that point, he said the plaintiff did not have a current work capacity because of his right shoulder problem.
[21] DCB 8
34 The plaintiff was examined by Dr Mary Wyatt, occupational physician, in September 2007.[22] He described to Dr Wyatt ongoing soreness in the base of the neck and into the right trapezius area, on occasions severe, and associated with dizziness. She noted no wasting of the muscles of the neck or shoulder girdle. She considered the plaintiff had suffered an injury to his neck with pain radiating into the right shoulder girdle. She noted the degenerative change as shown on x-ray, but said that the plaintiff’s symptoms were not in the area which correlated with foraminal narrowing. She thought the condition would settle within a year or two. She said that the plaintiff was in an age group where neck problems were common and that he had worked in a physically demanding occupation. He said his general presentation did not indicate a strong focus on return to work. He was fit to return upon modified duties providing that he was not required to undertake tasks in awkward positions or for prolonged periods. He was not fit to return to pre- injury duties.
[22] DCB 18
35 The plaintiff was examined by Dr Clark, on 16 January 2008.[23] I am not aware whether Dr Clark is a specialist, or a general practitioner. He noted a history of dizziness, particularly when the plaintiff bent over, and that the plaintiff complained of neck and shoulder pain and stiffness. Examination of the neck showed mild but inconsistent restriction in movement to the right. Dr Clark thought that the plaintiff’s injury had resolved and he did not require further treatment. He said the plaintiff was fit for pre-injury duties. According to the report:
“He has not returned to work and said he has no intention of doing so. He said that after forty years as a steel fixer he no longer wishes to work as he did for long hours and does not need to do so.”
[23] DCB 32
36 This aspect of the plaintiff’s history was not put to him in cross-examination and I have reservations about accepting it for that reason.
37 The plaintiff was examined by Mr Russell, general and trauma surgeon, in March 2008.[24] The plaintiff complained of right shoulder pain and pain into the neck. According to the report:
“He has pain and cannot sleep at all, awakening every five minutes he
said.”[25]
[24] DCB 43
[25] DCB 43
38 Mr Russell noted the radiology available at the time showed some mild/minimal arthritis of the AC joint, together with degenerative change from C5 to C7. He said that there were features suggestive of non-physical overlay in the presentation. He found no limitation of cervical spine movement. He had significant reservations about the severity of the plaintiff’s shoulder problems given non-anatomical sensory disturbance. He said he was fit for work in duties providing he was not required to use his right hand above shoulder height and without lifting heavier weights.
39 Finally, the plaintiff was examined in April 2009 and July 2011 by Mr David Brownbill, neurosurgeon.[26] He told Mr Brownbill that he attended a club and passed his time drinking coffee. He complained of dizziness, which he said was getting worse, poor memory and neck pain present every day, sometimes severe. He also complained of right shoulder pain. Mr Brownbill noted that active cervical spinal movements were full in extension and flexion but half in other directions. In the initial report, he could not find any objective neurological abnormality and noted the degenerative changes on radiology. He said that he considered the plaintiff had suffered an aggravation of his pre- existing cervical spine degenerative changes which gave rise to pain and that that had acted as a basis for an emotional reaction with likely anxiety and depression which was then the dominant clinical picture. He said the plaintiff’s demeanour suggested the presence of an emotional reaction component to the pain with maybe some conscious elaboration. He did not think the plaintiff had a current work capacity for pre-injury employment but did have a capacity providing he avoided heavy lifting, forced cervical spine mobility or holding his neck in a fixed position.
[26] DCB 53, 67
40 In his second report, again Mr Brownbill obtained complaints of dizziness, neck pain extending to the top of the shoulder, and pain in the right shoulder blade area. He noted the MRI scan of the cervical spine of 21 January 2011. Again, there was slight restriction of cervical spine movement and no objective neurological abnormality. He said the radiological investigations demonstrated widespread advanced cervical spine degenerative changes which he thought had been aggravated in the subject workplace accident. He said it was likely that once rendered symptomatic, the resulting pain would continue to fluctuate into the future. He said the plaintiff had suffered an emotional reaction to the initial pain which was part of the clinical picture. He said that the plaintiff should avoid activities involving heavy lifting, forced spinal mobility or holding his neck in a fixed position. He would not be able to return to his pre-injury employment. He said:
“Noting his age of fifty six years, his education being limited to Year 6, his restricted use of English, his work experience having been limited to that requiring heavy physical activity and his demonstrated widespread cervical spine degenerative changes, I consider that on probability he would have difficulty performing any employment for which he is fitted in a full time or reliable fashion.”[27]
[27] DCB 70
41 Mr Brownbill said he expected the pain would continue in a fluctuating manner indefinitely.
The Credibility of the Plaintiff
42 A significant attack was mounted as to the plaintiff’s credibility, relying upon activities performed in the course of video surveillance. The defendant conceded by way of admission that the plaintiff had been under surveillance for a total of sixteen days and 100 hours of video surveillance had been taken. The film produced 3 hours and 36 minutes of video, of which one hour and 41 minutes was shown to the court in the course of this application.
43 The plaintiff was seen on 16 January 2008 walking in a relatively free and unencumbered manner with a shopping bag which he described subsequently as containing only papers. At one point he placed his forearm against the side of a tram stop area and appeared to rest his head on his forearm.
44 On 31 January 2008, the plaintiff was seen to run a short distance and walk briskly without apparent impairment. He was seen talking to friends in a shopping centre, and of note was that he was able to move his neck in an apparently completely unrestricted fashion. He turned fully 90 degrees to the left and to the right without apparent pain. At times he became animated, and moved his neck quite quickly. Later that day he was seen to change a tyre on a neighbour’s car. During the procedure he was on his haunches, or kneeling on one leg, placed the jack under the rear of the car and at one time placed his head near the ground and looked up to see that the jack was properly positioned. At that point, his neck was turned at an angle beyond 90 degrees. He used his right arm in a turning motion to jack up the car, remove the damaged wheel and replaced it with another. The procedure took twenty minutes or half an hour. Again throughout, the plaintiff was seen to move his neck in an unrestricted manner.
45 Further film was shown of 19 and 29 December 2009. On the first occasion, the plaintiff was seen in the front yard of his house carrying pieces of plastic pipe and loading them into a van. He further carried a long piece of aluminium guttering and placed it on the roof of the van. He admitted in evidence that he has owned the van for a considerable period. He was then seen at a relative’s house unloading various items from the van, including the guttering, a ladder, extension leads, a pinch bar and various other tools. He accepted that the purpose for being at this house was to assist a relative to unblock a stormwater drain and replace some guttering. Initially he was seen bent down, again with his head near the ground, pushing a hose into an outlet. He pushed and pulled the hose with his left arm in an active manner. At one point he released the hose from the drain and shook it using his right arm. At a later time in the day, he was seen again bent over the drain placing a larger pipe into it, which he accepted was a piece of machinery he had hired from a building supply premises which was forced up the drain and designed to clear tree roots. The plaintiff was seen to move without restriction in respect of both his neck or shoulder, and undertake generally vigorous activities. At one point he was seen to forcefully push and pull a large piece of machinery which is partially obscured. On 29 December 2009, he was shown to pull a wheelie bin inside his premises.
46 In the course of cross-examination after the video was shown, the plaintiff admitted that he attended at his relative’s house to assist in the unblocking of a drain. He said he removed existing guttering with a pinch bar and replaced it. It was about 8 or 9 feet in length and was at about head height. He laid a pipe across ground and agreed that he had used the mechanical device to clear the storm water outlet at the premises. He agreed that he worked for four or five hours on that day doing physical work. He described it as a relatively simple job.
47 The plaintiff accepted that he has a range of tools at home but that he had had these for many years. He said that from time to time he went to other relatives’ houses to do jobs for people. He said this would occur five or six times a year.[28] He said despite what was shown in the film, that he did not think he could work as a handyman because he would have problems if he worked regularly. In the course of his responses to these questions, I formed the view the plaintiff was being less than frank and not answering questions directly[29].
[28] T 51
[29] See in particular T51
48 Video surveillance must be seen as a snapshot in time. Further, it is clear that the plaintiff had been under surveillance for a considerable period and that must be borne in mind when assessing the video evidence. However, I formed the view that the plaintiff was involved in relatively strenuous physical activities on the occasions under consideration in an unrestricted and apparently pain-free manner. He said in the course of his evidence that if he were to undertake heavier activities, he would pay for it by having to take medication, or rest the next day. Despite this explanation, I find it difficult to accept that someone who is able to move in the manner shown would do so if he faced the prospect of severe pain either at that time or later. I am satisfied from the surveillance video that the plaintiff indeed has the capacity to undertake activities to an extent far greater than the material in his affidavit disclosed, or the histories given to many of the doctors. The plaintiff’s description in his affidavit,[30] of significantly restricted neck movements and pain, particularly upon fast movement, was wholly inconsistent with what was displayed in the film. The plaintiff was seen to move his neck vigorously and regularly, particularly when talking to friends. It is inconsistent with the restriction of movement claimed in the course of examination before many of the doctors.
[30] PCB 9
49 As a result, I am satisfied that the credibility of the plaintiff is affected, and I should have significant reservations accepting his complaints of pain, particularly to the cervical region.
Conclusions
50 The major aspects of this application for consideration are, firstly, the credibility of the plaintiff and the extent to which I ought to accept his complaints of pain and restriction of movement in the neck, and secondly the disentangling of the consequences of the various injuries and conditions suffered as a result of the workplace accident, from the consequences of his cervical spine injury.
51 I accept the plaintiff had significant underlying degenerative disease in his neck before 11 May 2007. I accept that in the course of the incident on that day, he suffered an aggravation of that degenerative change when struck by the boom of the crane. In addition to an injury to his neck, I accept that he suffered a soft-tissue injury to his shoulder, in the nature of an acromioclavicular strain and aggravation of underlying arthritis, and a moderate head injury. To a number of doctors, the injury to the right shoulder was described as the most significant. There are various conflicting medical reports as to the aetiology of the dizziness and tinnitus which he claims to suffer but I accept that in particular his dizziness is a significant problem for him, particularly in relation to his work capacity.
52 I accept that as a result of the neck injury, the plaintiff has suffered pain in the cervical spine although given what is seen on the video surveillance, the pain and restriction of movement is not as significant as the plaintiff would have the Court believe. I accept that the plaintiff has had episodic physiotherapy, and medication, although it appears that the medication is prescribed for not only his neck injury but also his right shoulder injury. In addition, he also has the later onset of a left shoulder injury with a partial tear of the supraspinatus tendon.
53 There are various assessments as to the plaintiff’s work capacity. Dr Andrianakis, the general practitioner, assesses the plaintiff as being totally and permanently incapacitated for any work, although this assessment apparently is made upon the basis of all the various injuries and consequences. Most of the other practitioners, including those who have seen the plaintiff of recent times, including Mr Mangos and Mr Brownbill, assess the plaintiff has having a capacity for restricted duties, not including his pre-injury work.[31] Despite these opinions, and in particular the report of Mr Flanc,[32] where he records the plaintiff considered he had some work capacity, the plaintiff has not applied for any employment or even searched for any jobs. I gained the impression that the plaintiff has decided not to seek employment now or in the future.
[31] See further, opinions of Professor Davis at PCB 63 and Dr Wyatt at DCB 231
[32] PCB 70
54 Further, according to some practitioners, in particular Mr Flanc,[33] a significant, if not the main reason for the plaintiff’s reduced work capacity is his dizziness.
[33] PCB 69
55 From the video surveillance, I am of the view the plaintiff has a capacity for a range of activities, even work in a variety of areas, including those referred to in Mr Flanc’s report, and the vocational report.[34] Given the manner of his activities as shown in the video surveillance, I am of the view the plaintiff would have the capacity for light handyman activities, at which he is clearly competent. The definition of “suitable employment” as contained in the Act, requires me to relevantly take into consideration:
[34] DCB 81
ƒ The plaintiff’s age ƒ His education, training and experience ƒ The injury sustained ƒ The restriction of communication in English. 56 Even taking these factors into consideration, in my view, the plaintiff does have a work capacity. There is no issue he would be unable to return to his previous heavy work as a steel fixer, or in any other form of employment requiring significant manual labour but nonetheless, in my view, he does have the capacity for lighter duties, even taking the matters referred to into account. Further, the onus is on the plaintiff to disentangle the consequences of the other injuries from that of his cervical spine. Even accepting there is referred pain to the right shoulder from the neck injury, there is little medical evidence which focuses on the right shoulder on its own as a source of the plaintiff’s work incapacity. I am not satisfied the plaintiff has discharged his onus to prove that he has suffered a forty per cent loss of earning capacity as a result of his cervical spine injury.
57 The plaintiff’s application in respect of economic loss fails.
58 I am further not satisfied that the plaintiff has proven, the onus being upon him, that as a result of his neck injury alone, he has suffered consequences which achieve the “very considerable” level. As stated, I accept the plaintiff does have some pain and restriction in his neck, but do not accept that it is as significant as he would have it. From the video surveillance, I have concluded he has a capacity for activities of a recreational and domestic nature significantly in excess of what he portrays. According to his affidavit, his neck movement is significantly restricted, and aside from some modest work in his garden, he spends most of his time either resting or taking coffee with friends. There is no reference in his affidavit to his capacity to work in the manner shown in the video surveillance and I do not accept his explanation that on each occasion he does more strenuous activities he is required to take more medication and rest the next day.
59 The plaintiff’s application in respect of pain and suffering also fails.
60 I shall make orders consequent upon these findings.
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