Kassete v Transport Accident Commission
[2016] VCC 1416
•28 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-01155
| ABENET KASSETE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 July 2016 | |
DATE OF JUDGMENT: | 28 September 2016 | |
CASE MAY BE CITED AS: | Kassete v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1416 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to back, neck and right shoulder – nature and extent of injuries
Legislation Cited: Transport Accident Act 1986, s93(17)(a)
Cases Cited:Transport Accident Commission v Kamel [2011] VSCA 110; Humphries & Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr A Middleton | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 By way of Originating Motion dated 13 March 2013, Abenet Kassete (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986, as amended, (“the Act”), to bring common law proceedings to recover damages for injuries suffered by him arising out of two transport accidents which occurred on 8 August 2005 and 14 March 2007. Originally he had also claimed for injuries arising out of a motor vehicle accident on 26 June 2009, but that claim was abandoned prior to hearing. The plaintiff had also suffered injuries in a fourth motor vehicle accident in 2015, but such injuries were not pursued in this claim.
2 The plaintiff’s evidence before the Court consisted of three handwritten statements prepared by him dated 16 October 2015, 11 February 2016 and 24 July 2016 (exhibit “B”). The plaintiff also gave viva voce evidence-in-chief and was cross examined and, thereafter, gave further evidence in re-examination. The parties also tendered various other documents, all of which I have read.
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a serious injury within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See s93(6) of the Act.
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act which reads:
“In this section—
…
‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; … .”
5 In Transport Accident Commission v Kamel,[2] Kyrou AJA stated:
[2][2011] VSCA 110
“Paragraph (a) of the definition of ‘serious injury’ focuses on impairment or loss of body function, rather than on the injury resulting from a transport accident. A body function must not be equated with an injury, as the impairment of a person is not the same thing as the impairment of a person’s body function. Paragraph (a) of the definition focuses upon impairment or loss of body function and requires that the impairment or loss be both ‘serious’ and ‘long-term’.
The test for determining whether an applicant for leave under s 93(4)(d) of the Act has suffered serious long-term impairment or loss of a body function is subjective in the sense that it is the effect on the particular applicant’s body function that must be considered. That determination, however, must be objectively made: it is the judge’s opinion as to the seriousness of the impairment or loss — not that of the applicant or his or her medical practitioners — that is decisive.
In determining whether a [plaintiff] has suffered a serious long-term impairment or loss of a body function, it is impermissible to aggregate impairments or losses of different body functions. Each body function must be considered separately and a determination must be made as to whether that function has been impaired or lost and, if so, whether the impairment or loss is serious and long-term. A body function may be impaired or lost by reason of two or more injuries acting together to cause an impairment or loss.
The [plaintiff] has the burden of proving, on the balance of probabilities, that he … has suffered an impairment or loss of a body function that, as a result of the infliction of the injury complained of, is both serious and long-term. In order to be ‘serious’, the consequences of the injury must be serious to the particular [plaintiff] in relation to either pecuniary disadvantage or pain and suffering, or both. Moreover, it must be established that the injury, when judged by a comparison with other cases in the range of possible impairments or losses, can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.
…
A stoic [plaintiff] who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself … to the injury.”[3]
[3]Transport Accident Commission v Kamel (supra) at paragraphs [61]-[64] and [67]
6 The issues cited in the case by defence counsel were as follows:
(a)The plaintiff cannot aggregate impairments suffered in separate motor vehicle accidents;
(b)The plaintiff must disentangle consequences of non-compensable injuries from the compensable injuries, particularly with respect to:
(i) the plaintiff’s left shoulder; and
(ii) the plaintiff’s right shoulder;
(c)In any event, the plaintiff has not proved impairments that meet the statutory threshold of “very considerable” or “more than significant or marked”.
Background
7 The plaintiff was born in Ethiopia in 1968 or, perhaps, 1961. He left secondary school at the age of fifteen or sixteen. Thereafter, he performed office work in his native country for approximately four years.[4] He then resided in Sudan from approximately 1992 to 1996 and worked at a French humanitarian organisation attached to the French Embassy. He was performing security work. He married in 1996, travelled to New Zealand as a refugee and resided there until approximately 2000. He worked there part time for a Woolworths supermarket in various divisions of that organisation.
[4]Transcript (“T”) 10, Line (“L”) 10
8 In 2000, the plaintiff travelled to Australia and worked at Franklins Supermarkets in Sydney for almost a year. In 2001, he travelled to Melbourne to live with his brother and worked in Kyneton, for Yellow Pages, for approximately a year. Thereafter, he attended a TAFE college in 2002, studying business marketing for approximately six or seven months, but did not complete the course. Although he attended there for six or seven months, he found a job with his present employer, Firmex, which he commenced in 2004 at Dandenong South.
9 On 13 July 2004, the plaintiff suffered an injury to his left shoulder at work and put in a claim for WorkCover. Subsequently, he was removed from that area and placed on lighter duties in the packing room. After some time, the duties in the packing room were made lighter by provision of a robot. He has remained in that job up until the present time.[5]
[5]T37, L29 – T39, L5
10 In the financial year ending June 2015, the plaintiff earned $107,000 gross[6] and in the financial year ending June 2016, he earned $118,000 gross.[7]
[6]Exhibit 1
[7]Exhibit 2
11 On 7 June 2005, the plaintiff was examined by consultant physiotherapist, Mr Neil Sherburn, on behalf of a WorkCover insurer, with respect to an injury to his shoulder at work on 13 July 2004.[8] The plaintiff confirmed he injured his left shoulder on 13 July 2004 when he was closing a door on a machine. He felt immediate pain in the left shoulder and consulted his doctor, who referred him for x-rays, physiotherapy, prescribed medication and recommended light duties.[9] The plaintiff also reported that he injured his shoulder again about five months’ earlier, when he inadvertently lifted a 20-kilogram bag. At that time he was attending for physiotherapy once a week.[10] Further, the plaintiff reported he had pain when lifting his arm out to the side and in front of him and described it as a grabbing pain. He also stated he was aware of some right-sided shoulder pain, as he was using it more to compensate for his left shoulder injury. At that time, he was working normal hours, but remaining on light duties.[11] He further stated that he could look after himself but did not do much around the house and garden. He could not do anything above shoulder height. Also, the plaintiff stated he could not sleep on his left side and was often woken by pain in his shoulder.[12]
[8]Exhibit 7
[9]Exhibit 7, Joint Court Book (“JCB”) 13.1
[10]Exhibit 7, JCB 13.1 and T44, L3-5
[11]Exhibit 7, JCB 13.1
[12]Exhibit 7, JCB 13.2
12 On examination, there was pain to palpation of the acromioclavicular joints and areas posteriorly and anteriorly to the joint. He had a grabbing pain at 80 degrees of abduction and 95 degrees of elevation. He had very restricted internal and external rotation due to pain at the end of available range.[13] According to Mr Sherburn, the radiological evidence pointed to a supraspinatus tendonitis caused by the first injury. The condition had not stabilised at that stage.[14]
[13]Exhibit 7, JCB 13.2
[14]Exhibit 7, JCB 13.3
13 In cross-examination, the plaintiff admitted that when he changed to the packing room, probably at the start of 2005, at that time he was having problems with both his left and right shoulders as a result of the work in the previous area known as the dry room.[15]
[15]T19, L5-17
The motor vehicle accident on 8 August 2005
14 In his statement dated 16 October 2015, the plaintiff asserted he suffered injuries to his lower back, left hand and wrist.
15 The consequences relating to the plaintiff’s back were that he started to limp and could not walk normally on his right leg.[16] He took approximately six days off work after the accident and sometime thereafter, took another month off work. He also took odd days off here and there as a result of these injuries.[17] He was treated by his general practitioner, Dr Sam Auteri, of the Casey Medical Centre in Cranbourne who, in turn, referred him to orthopaedic surgeon, Mr Amiroel Razif. He also underwent physiotherapy and a swimming program for about three months. All these symptoms were subsisting up until the time of the second accident.
[16]T14, L27-31
[17]T15, L6-28
16 The plaintiff said he was also suffering from headaches at that time.[18] He stated he was waking up at least fifteen to twenty times at night because he could not sleep, which was being caused by lower back and right shoulder pain. When asked if he had injured his right shoulder in the first accident, he replied:
“I think after that, it’s coming, I don’t know … but the worse is coming with the right shoulder after the second accident.”[19]
[18]T17, L9
[19]T17, L27-31
17 The plaintiff was working fulltime just prior to the second accident.
18 Finally, under cross-examination, the plaintiff conceded that in the week after the motor vehicle accident, from 11 August to 17 August, he worked 10.25 hours time-and-a-half and 5.25 hours double time in addition to his normal eighty hours.[20]
[20]T64, L8-15
19 Further, at or about the same time, the plaintiff said he was having problems with his right shoulder just prior to the accident.[21]
[21]T65, L22-25
The motor vehicle accident on 14 March 2007
20 In his statement dated 16 October 2015, the plaintiff said he suffered from headache, whiplash injury to the neck, left-sided earache, lower back pain and right shoulder pain.
21 In viva voce evidence, he said this accident made his right shoulder worse, such that he could not “pull [his] right arm up”.[22] Dr Auteri referred him back to Mr Razif. He also underwent physiotherapy and went to the Dandenong Hospital. At that time he was complaining of pain in the back and the right shoulder. They gave him a certificate to be off work for three days. The plaintiff estimated that he had used up approximately 80 to 100 hours of sick leave on account of the first accident and approximately 350 to 400 hours of sick leave for the second accident.[23]
[22]T20, L22-25
[23]T22, L31-T23, L20
22 Under cross-examination, the plaintiff stated that the pain from his back and right shoulder, both from the transport accident, prevents him from sleeping properly at night. He denied that there was ongoing left shoulder pain, but admitted that it affected his sleep at the time of seeing Mr Sherburn in June 2015.[24] He did admit, however, that the left shoulder would sometimes give him pain if the weather is cold.[25] However, when he sleeps on his left shoulder it causes pain in that shoulder, but the main problem is the back and the right shoulder.[26]
[24]T45, L28-T46, L4
[25]T47, L17-18
[26]T49, L1-12
The motor vehicle accident on 26 June 2009
23 In his viva voce evidence, the plaintiff said that the third motor vehicle accident worsened the limping in his right leg and, also, his headaches and his sleeping became worse.[27]
[27]T25, L24-27
The motor vehicle accident in May 2015
24 The plaintiff conceded he was involved in a motor vehicle accident in May 2015 and he put in a claim with the Transport Accident Commission (“TAC”) in respect of same, but did not give any evidence of any injuries on account thereof.[28]
[28]T37, L4-15
Treating medical practitioners
25 The plaintiff tendered four medical reports from his treating general practitioner, Dr Auteri, dated 23 May 2006, 12 September 2006, 7 September 2015 and 24 August 2015.[29] In the first report, Dr Auteri related the plaintiff had suffered lower back pain following the first motor vehicle accident, which was interfering with his work and normal home duties. X-rays had shown no pathology and he had been referred to Mr Razif, orthopaedic specialist. He was currently doing light duties at work.[30]
[29]Exhibit “C”
[30]Exhibit “C”, JCB 14
26 In the second report, Dr Auteri related that, on examination, there was some tenderness of the lower back with mild restriction in his movements. He was also complaining of a painful left wrist, which had apparently hit the dashboard during the accident. A CT scan of the lumbar sacral spine was reported as normal. Despite physiotherapy and anti-inflammatory treatment, his condition had not improved.[31]
[31]Exhibit “C”, JCB 15
27 In the third report, Dr Auteri recited a history that the plaintiff stated he was unable to drive for longer than ten minutes, sleep comfortably at night or manage his garden at home. It would appear that these restrictions were related to lower back pain.[32]
[32]JCB 82.16
28 In the fourth report, Dr Auteri related that the plaintiff was now suffering from worsening lower back pain which was related to his motor vehicle accident in 2007. He considered he would benefit from physiotherapy to help him control his pain, which was disrupting his sleep and making driving difficult.[33]
[33]JCB 82.25
29 The plaintiff also tendered reports of the treating orthopaedic specialist, Mr Razif, dated 20 June 2006, 27 September 2006 and 7 October 2008.[34] In the first report he related he examined the plaintiff on 18 April 2006 with respect to the first motor vehicle accident. He continued to complain of persisting back ache without radiation to the lower limbs, aggravated by prolonged sitting and walking. Lumbosacral spine x-rays had revealed changes of mild Scheuermann's disease in the upper lumbar area. A CT scan had revealed no abnormality and a thoracic and lumbosacral bone scan revealed no abnormality.[35]
[34]Exhibit “D”
[35]Exhibit “D”, JCB 16
30 In his second report, he related that, on examination, there was vague tenderness on palpating the lower lumbar region. Mobility of the lower back revealed a 25 per cent restriction in flexion movements, with a significant restriction in extension. Bilateral straight leg raising was possible to 90 degrees with tightness elicited.[36] Arrangements were made for an MRI scan as a public patient at the Dandenong Hospital for 9 August 2006 and 15 September 2006 which, apparently, the plaintiff did not attend. Mr Razif considered there had possibly been aggravation of the pre-existing mild Scheuermann's disease changes in the upper lumbar region, which would have been present since he was a teenager. He considered the significant restriction in extension movement could be explained as a result of the underlying Scheuermann's disease with the result of his thoracolumbar back becoming stiffer.[37]
[36]Exhibit “D”, JCB 17
[37]Exhibit “D”, JCB 18
31 In his third report, dated 7 October 2008, Mr Razif now related the two motor vehicle accidents of 7 August 2005 and 14 March 2007, leading to a referral to him on 9 October 2007. The plaintiff was still complaining of persisting lower back ache which radiated up the spine and into both shoulders. Examination revealed bilateral straight leg raising of 90 degrees. Follow-up appointments for 30 October 2007 and 10 December 2007 were not kept.
32 When he presented again on 7 January 2008, the plaintiff said his backache had worsened. There was no apparent change in the formal examination. He was to be reviewed on 21 January 2008, but failed to attend. A subsequent arrangement for 14 February 2008 was cancelled.
33 When the plaintiff presented on 11 March 2008, Mr Razif stated the pathology tests were normal and the lumbosacral x-rays revealed lipping of the fifth lumbar vertebra with mild narrowing of the L5-S1 disc. No other abnormality was present.[38] A CT scan was reviewed on 8 April 2008. This revealed slight bulging of the disc at L2-3 level and L4-5 level. There was also a small central protrusion at the L5-S1 disc. There was no convincing evidence of any post traumatic change.[39]
[38]Exhibit “D”, JCB 21
[39]Exhibit “D”, JCB 21
34 He was again to be reviewed on 3 June 2008, but did not attend. A similar situation occurred for 22 July 2008.
35 In any event, Mr Razif considered that the degenerative changes noted in his lower back appeared likely to be due to underlying wear of his lower back rather than to any previous injury or, “for that matter the more recent injury in 2007”[40]
[40]Exhibit “D”, JCB 22
36 Further, Mr Razif considered there were signs of psychological overlay with anxiety and overreaction and he thought it would be more appropriate for the plaintiff to see a psychiatrist for appropriate counselling and treatment.[41] In any event, Mr Razif thought the plaintiff should persevere with conservative treatment involving appropriate physiotherapy, including hydrotherapy, as well as avoiding activities that would tend to stretch his lower back, as in frequent bending and lifting. He stated:
“One would expect that with his present underlying back problem with appropriate conservative management and time as well as restricting his physical activities as mentioned earlier [the plaintiff’s] back complaint should stabilise enabling him to return to coping with most normal activities.”[42]
[41]Exhibit “D”, JCB 22
[42]Exhibit “D”, JCB 22
The general practitioner’s clinical notes: the first motor vehicle accident
37 The plaintiff attended his general practitioner on 11 August 2005 with a history of being involved in a motor vehicle accident two days ago and complaining of lower back pain. He was prescribed Voltaren and Panamax and given a “sick certificate”.[43]
[43]Exhibit “D”, JCB 106
38 The plaintiff attended again on 29 August 2005 with a history of increasing lumbar pain and complaining of left hand and wrist pain radiating to the left elbow.[44]
[44]Exhibit “D”, JCB 106
39 On 2 September 2005, the back pain was still very painful and the left wrist also tender. Prescription was given for Feldene and Tramal.
40 On 23 September 2005, the general practitioner noted that his condition was generally good and the plan was to continue with the medication and review, and also for him to stop work so he could heal. Physiotherapy was also ordered.[45]
[45]Exhibit “D”, JCB 105
41 On 20 October 2005, the general practitioner noted that his back was still sore, as was his left wrist. Also, it was noted that his left shoulder pain was worsening due to an old WorkCover injury. The history recorded was that it happened the previous year while at work when a large window fell on it. The plan was for light duties and physiotherapy.[46]
[46]Exhibit “D”, JCB 105
42 Thereafter, Transport Accident Commission medical certificates were issued for 23 September 2005, 2 October 2005 and 20 October 2005. A WorkCover Certificate was issued, also, on 20 October 2005, presumably for the left shoulder.[47]
[47]Exhibit “D”, JCB 104
43 On 17 November 2005, the history taken was that the lower back is worse with increasing pain, together with difficulty sitting. The left wrist was also very painful. There was a review of his left shoulder problem and a query whether it was a rotator cuff injury. The plan was for light duties at work, together with physiotherapy. Radiology requested consisted of a CT scan of the lumbar spine and an ultrasound of the left shoulder.[48]
[48]Exhibit “D”, JCB 104
44 Thereafter, left shoulder consultations took place on 18 November 2005, 18 January 2006 and 16 January 2006. Within those dates there was only one consultation with respect to the plaintiff’s lower back pain, being on 22 December 2005.[49]
[49]Exhibit “D”, JCB 102-103
45 Thereafter, there were lower back consultations and TAC medical certificates issued between 13 February 2006 and 23 March 2006. On the latter date, a physiotherapy report was received from a Mr John Shannon dated 11 March 2006, which has not been the subject of evidence in this case.
46 However, Mr Shannon reported to the plaintiff’s then solicitors, Ryan Carlisle Thomas, on 4 September 2006.[50] The plaintiff had first attended at the practice on 9 September 2005, with symptoms of general lumbar and thoracic pain and left wrist pain. He noted an inconsistent pattern of attendance and had reported short-term relief with physiotherapy but, overall, apparently the improvements had been minor. His diagnosis was one of a chronic pain condition of the lumbar spine and left wrist.[51] However, he noted he was working forty-five to fifty hours per week, performing repetitive lifting and packing duties, lifting a maximum of between 5 to 8 kilograms.[52]
[50]Exhibit “F”
[51]Exhibit “F”, JCB 38
[52]Exhibit “F”, JCB 39
47 In any event, there were WorkCover consultations for Rotator Cuff Syndrome on 24 March 2006, 7 April 2006, 23 May 2006, 24 May 2006, 27 July 2006, 26 September 2006, 27 December 2006, 29 December 2006, 28 January 2007, 21 February 2007 and 21 March 2007.[53] The tenor of these consultations was that there was ongoing pain with the left shoulder and the plaintiff was being certified for light duties. In this period, the only note with respect to the back was on 23 October 2006 to the effect:
“L back has become worse. has been lifting at work. no leg radiation … .”[54]
[53]Exhibit “F”, JCB 100, 99 and 98
[54]Exhibit “F”, JCB 99
48 That consultation also involved the left shoulder.
49 Further consultation had taken place on 27 July 2006, where it was recorded that he had been:
“…having continuing problems wi[t]h lower back pain rad to R but are, awaiting mri … unable to sleep and walk well.
also L rotator cuff injury not improving. plan cont light duties. L shoulder movements restricted and painful.”[55]
[55]Exhibit “F”, JCB 99-100
50 It would appear, shortly prior to the second motor vehicle accident, the plaintiff was suffering from ongoing back pain and left rotator cuff pain, a combination of which had interfered with his sleep and walking, at least as noted on 27 July 2006. There was no other complaint of sleeplessness recorded prior to the second motor vehicle accident.
The general practitioner’s clinical notes: the second motor vehicle accident 14 March 2007
51 On 21 March 2007, the plaintiff’s general practitioner recorded another motor vehicle accident on 15 May 2007 (scil 15 March 2007):
“… tboned. now has increasing pains over head, L neck and lower back.. o/e muscular and whiplash… cont light duties + physio …
also cont prob with L rotator cuf[f] injury at work.”[56]
[56]Exhibit “F”, JCB 98
52 On 18 April 2007, the history was the plaintiff still had pain over his neck which was stopping him from sleeping. On examination, there was moderate pain on neck movements, query whiplash injury, there was a plan for a trial of Endep tablets. It was also noted that the upper back had continued to ache and there was a referral for physiotherapy.[57]
[57]Exhibit “F”, JCB 97
53 On 11 May 2007, it was recorded:
“TAC LOWER BACK NECK INJURY
RECURRENT PAIN
FLARE-UP LAST 2/7
UNABLE TO GO WORK TODAY
OE NECK MILD MUSCULAR STRAIN INJURY
NO FOCAL NEURO SIGNS …
Script Written – Indocid (Capsules) 25 mg
Script Written - Panadeine Forte ..
Document Sent – 2. Sick Certificate.”[58]
[58]Exhibit “F”, JCB 97
54 On 7 June 2007, it was recorded:
“Unable to work today as lifting something yesterday at work and hurt shoulder more also hard to sleep at night with pain in back and neck.”[59]
[59]Exhibit “F”, JCB 96
55 On 12 June 2007, the consultation referred to headaches, neck movements being restricted and, also, a left rotator cuff injury leading to a continuation of light duties. An x-ray of the cervical spine was ordered.[60]
[60]Exhibit “F”, JCB 96
56 On 5 July 2007, the general practitioner recorded:
“2 years – left shoulder pain.
Clinically – typical supraspinatus tendonitis.
Plan:
Same duties
Radiology requested (VIG) X-RAY AND US – LEFT SHOULDER [PAIN IN THE LEFT SHOULDER, WORSE ON ABDUCTION. ??SUPRASPINUTUS TENDONITIS]
Script written - Panadeine Forte … .”[61]
(sic)
[61]Exhibit “F”, JCB 96
57 On 17 July 2007, the general practitioner noted :
“Sprain;neck
has been having increasing pain in lower back, when sitting, bending, and sleeping. L shoulder also has had an increase in pain and limited movements. the lower back has been worse since 2nd mca. slos complaining of neck and headaches …
Document Sent – 2. Sick Certificate
… .”[62]
[62]Exhibit “F”, JCB 95-96
58 On 7 August 2007, it was noted there was persistent pain in the left shoulder on abduction – work-related injury. Further, the plaintiff had not undergone an ultrasound and it had never been done. There was no specific treatment for the shoulder injury. It was recorded:
“Patient strongly encouraged to do tests and RV after.
WITHOUT US AND X-RAY – WE DO NOT HAVE HARD EVIDENCE OF INJURY.”[63]
[63]Exhibit “F”, JCB 95
59 Thereafter, TAC letters were issued on 30 August 2007 and on 6 September 2007 it was recorded:
“states he has increasing lower back pain, unable to sit for long periods, poor sleep. plan to see … Mr Amir (sic) Razif
L shoulder still sore plan light work.”[64]
[64]Exhibit “F”, JCB 95
60 On 11 November 2007, it is recorded the plaintiff was asked “to come back for w/cover consult re shoulder as now well o/due”.[65]
[65]Exhibit “F”, JCB 94
61 There were further left shoulder consultations on 29 November 2007, 7 January 2008, 31 January 2008 and 5 February 2008.
62 On 22 April 2008, the consultation is headed “Rotator cuff syndrome” but the history taken is:
“says lower back is worse again… to await mr Raz letter. L shoulder isq, +, plan cont light duties.”[66]
[66]Exhibit “F”, JCB 92
63 On 13 May 2008, it was recorded as follows:
“Discussed with raz. has had hyperextension .. whiplash injury last year still has pain and stiffness. tac has rejected claim. is also depressed ++, may need psych refer[r]al. his lawyer needs to talk to me detailing clear problems with regard to this matter.”[67]
[67]Exhibit “F”, JCB 92
64 This appears to be the first note of the whiplash injury since 17 July 2007.
65 In any event, WorkCover certificates for the left shoulder were issued on 30 May 2008, 7 August 2008 and 16 October 2008.
66 On 21 November 2008, it was noted:
“… lower back continues to ache especially sitting, sleeping and pain on defecation. plan for continuing physio, and letter for TAC.”[68]
[68]Exhibit “F”, JCB 90-91
67 The first record of a right shoulder injury occurs on 13 April 2010. The notation reads:
“Hit a sharp edge of a steel machine, while work, on 8/4/10, scratched his right shoulder, and very painful since, with difficulty moving his R arm, he is still working as a packer and using Panadol PRN, cann’t (sic) sleep on the right side
limited ROM …
? Rotator Cuff
…
Radiology Requested (VIG) - Right Shoulder Ultrasound … .”[69]
[69]Exhibit “F”, JCB 89-90
68 It should be noted there was a gap in the clinical notes between 6 January 2009 and 7 July 2009. It was in this period, being 26 June 2009, that the plaintiff was involved in his third motor vehicle accident. Thereafter, there is no complaint of injury arising out of that accident. There is, then, another gap in the clinical notes from 7 July 2009 until 26 February 2010. On the latter date, there is an attendance for the left Rotator Cuff Syndrome.
69 The next reference to a compensable injury is on 12 July 2010, when there is a history of increasing pain in the back over the right loin, which the plaintiff stated was due to his first motor vehicle accident. No specific treatment seems to have been prescribed.[70]
[70]Exhibit “F”, JCB 88
70 Thereafter, there is a history of back pain persisting, together with the left hand and wrist continuing to ache, on 19 August 2010. There was also a complaint of painful left shoulder.[71]
[71]Exhibit “F”, JCB 88
71 On 17 September 2010 there was an attendance for the purposes of a medical certificate with a history of:
“had 3 day history of worsening neck/back pain and headaches occipital and left temporal
had accident x 2 in past - …
Examination
tenderness in cervical area more laterally, and lower back pain, …
Management
analgesia, recommend physio.”[72]
[72]Exhibit “F”, JCB 87
72 Later, on 1 October 2010, there was a history of:
“flare up lower back pain and headache related to long term issues post car accident
planning to return to physiotherapy
unable to work today and also for Monday off work
TAC Certificate provided.”[73]
[73]Exhibit “F”, JCB 87
73 There was a further attendance on 12 October 2010, with a history:
“Exac of back for 1 week
not radiating into LL.”[74]
[74]Exhibit “F”, JCB 86
74 On 5 November 2010, the plaintiff’s general practitioner records that there have been three motor vehicle accidents, but the main one was 14 March 2007, from which he is suffering chronic lower back pain and recurrent headaches, but is still working.[75]
[75]Exhibit “F”, JCB 86
75 The pattern for 2011 is fairly similar with, on occasions, there being exacerbations of back pain, left shoulder pain and headaches. On 6 October 2011, there is a history taken of the three TAC injuries, being 2005, 2006 and 2009. Specifically, it was recorded that the 2009 incident caused a worsening of back pain. Further, it “hurts when sleeps, works, drives, and uses bowels”.[76]
[76]Exhibit “F”, JCB 85.10
76 The general practitioner’s records also include an entry on 22 June 2012 to the effect that there was a new right shoulder injury at work. The doctor noted:
“Has continued to work, but now has painful arc.
Otherwise well.”[77]
[77]Exhibit “F”, JCB 85.6
77 On 11 September 2012, it is recorded that the plaintiff has suffered a back strain and:
“1. Needs W/C cert
MVA 2007 –>
agg by sleep and walking, sitting for more than 20 min
States no change in back pain overall, but a little more pain than usual, … .”[78]
[78]Exhibit “F”, JCB 85.6
78 There is no record as to why he would require a WorkCover Certificate.
79 On 26 October 2012, it is recorded:
“2 days of L shoulder pain
prev work injury
worse when walking and sleeping on L
…
still working at the same place
does not recall injury
o/e well.”[79]
[79]Exhibit “F”, JCB 85.5
80 There are continuing complaints of back pain in 2013. On 22 November 2013, it is recorded:
“Issues:
1.Back pain
-acute on chronic
-Hx noted
-no recent trauma/aggravating activity
-consistent with previous
-worst when turning in bed
-coping with pain
-working full duties (production line work)
-financial stress.”[80]
[80]Exhibit “F”, JCB 85.3
81 There was a prescription of Mersyndol Forte. There were also occasional complications for his left shoulder.
82 In 2014, there were only five consultations, one for his back on 4 March and one for a TAC certificate on 20 March. Otherwise the consultations were either for his left shoulder or the Royal Eye and Ear Hospital.
83 In 2015, there were only two consultations, one on 1 May, with the history:
“Unspecified - Strain;back
has strained L back and shoulder o/e muscle strain. plan
Script Written – Feldene … .”[81]
[81]Exhibit “F”, JCB 85.2
84 On 24 August 2015, it was noted:
“has been having increase in lower back pain radiating to T upper bu and leg area.plan for physio.”[82]
[82]Exhibit “F”, JCB 85.1
85 Thereafter, there are no clinical notes tendered by either party.
86 The most recent clinical assessment is contained in the report of Associate Professor Bruce Love dated 8 October 2015.[83] This report was prepared on behalf of the defendant. Associate Professor Love recorded a history of three motor vehicle accidents, and he opined:
“He appeared to suffer low back and neck injuries with each of these accidents and the pain has essentially persisted since the first of these accidents in 2005. He was, however, only off work for a few days following that accident. The most severe of the accidents was the accident of 2007 which principally aggravated his back. The most recent accident of 2009 also aggravated his back and neck and in the immediate post-accident period, he had some right shoulder and right knee symptoms which are no longer a feature.”[84]
[83]Exhibit “A”
[84]Exhibit “A”, JCB 82.12
87 On examination, there was tenderness in the midline of the lumbar spine and to the right of the lumbar spine in the general paraspinal area. However, there was no restriction of straight leg raising and there were no abnormal neurological signs in the lower ribs. Further, there was no specific abnormality on examining his neck or shoulders.[85] Associate Professor Love also noted:
“I note from accompanying reports, there is a suggestion of a small central disc protrusion at the L5/S1 level. In the absence of recent radiology, the significance of this finding is most uncertain.”[86]
[85]Exhibit “A”, JCB 82.12
[86]Exhibit “A”, JCB 82.13
88 His conclusion was that the three accidents appeared to have been cumulative in nature, whereby the second of the three accidents produced the most significant aggravation of his symptoms. Associate Professor Love believed that the plaintiff was suffering from a soft-tissue injury of the lumbar spine and that he had not made a recovery to that point.[87] He considered that he was working full time, at that stage, in a light job and believed he would be able to continue working fulltime into the foreseeable future. The prognosis was that there was unlikely to be significant change.[88]
[87]Exhibit “A”, JCB 82.13
[88]Exhibit “A”, JCB 82.14
89 The only other contemporary document was a medical certificate tendered by the plaintiff in a bundle of miscellaneous medical certificates[89] from his treating general practitioner, Dr Peter Williams, dated 11 February 2016. It recites as follows:
“This man injured his back and legs in car accidents on several occasions.
He has had sleeping problem but he does not use tablets. He has minimal tenderness and exaggerated signs of pathology and a ct lumbosacral scan to investigate his back pain he has not gone for In my opinion he has a moderate chronic muscular soft-tissue injury Strain.”[90]
(sic)
[89]Exhibit “E”
[90]Exhibit “E”, JCB 82.28
Conclusions
90 On the medical material tendered, it is difficult to separate out the consequences of the three motor vehicle accidents, one from the other. It is also difficult to separate out the consequences flowing from the left shoulder and right shoulder injuries which have been caused by work duties. There does not appear to be a case made out for continuing serious consequences with respect to a neck injury.
91 Despite Dr Williams’ assertion that the plaintiff does not use tablets, I am not prepared to dismiss the plaintiff’s claims that he takes Panadeine on a regular basis on account of his symptoms. He presents as a gentleman who has suffered a left shoulder injury in the course of his employment which led to a change in that employment onto lighter duties. He has essentially remained in that employment since his left shoulder injury in 2014, despite an ongoing plethora of symptoms, as documented above. He has managed to increase his earnings from $105,000 to $118,000 per annum, largely by partaking in overtime.
92 The plaintiff has been a hardworking member of the community since he arrived in Australia and there is much to admire about his preparedness to overcome the various pains from which he suffers and remain at work, all the while increasing his amount of overtime.
93 That said, I do not doubt that the evidence referred to discloses pain and suffering consequences which are both marked and significant but, in addition to the problem of separating the impairments from the various injuries, I am nonetheless not persuaded that the consequences can be fairly described as being more than significant or marked, or as being at least very considerable.[91] Further, I take into account that in reaching the conclusion whether a plaintiff has established serious injury:
“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[92]
[91]Humphries & Anor v Poljak [1992] 2 VR 129
[92]Dwyer & Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
94 In all the circumstances, the application must be dismissed.
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