Kennedy v Fulton Hogan Industries Pty Ltd (ABN 54 000 538 689)
[2018] VCC 2068
•18 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05961
| BYRON JAMES THOMAS KENNEDY | Plaintiff |
| v | |
| FULTON HOGAN INDUSTRIES PTY LTD (ABN 54 000 538 689) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2018 | |
DATE OF JUDGMENT: | 18 December 2018 | |
CASE MAY BE CITED AS: | Kennedy v Fulton Hogan Industries Pty Ltd (ABN 54 000 538 689) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2068 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the left shoulder – cervical spine – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Richter v Driscoll [2016] VSCA 142; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr N J Dunstan | Slater and Gordon |
| For the Defendant | Mr D McWilliams | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant during 2013 (“the said period”) and in particular on 6 February 2013 (“the first date”) and on 8 May 2013 (“the second date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325 (1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
4 The body function relied upon in this application is the spine, in particular the cervical spine and the left shoulder.[1]
[1]Transcript (“T”) 1
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By s325(1)of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Section 325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
15 The plaintiff relied upon three affidavits and gave viva voce evidence. In addition, the parties relied on medical reports and other material tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
16 The plaintiff is presently aged sixty, having been born in November 1958. He lives with his wife and has one adult child.
17 The plaintiff completed a mechanic apprenticeship having done Year 10. He then worked as a mechanic for a period on a subcontracting basis.
18 The plaintiff commenced work with the defendant in about 1979.
19 In about 1986, the plaintiff suffered a very serious left hand injury, losing all five fingers and having two re-attached (“the left hand injury”). He had three months off work and on his return to work, learned to use his right hand whereas, previously, he was left-hand dominant.
20 As a consequence of the left hand injury, the plaintiff became a plant operator with the defendant and worked at the asphalt plant in Dandenong.
21 In about 2008, the plaintiff was transferred to work at the Tynong quarry, where he worked as a laboratory technician. That work involved collecting samples and a significant amount of manual handling, with some samples collected weighing about 10 to 20 kilograms.
22 Over the course of his employment with the defendant, the plaintiff experienced low back problems from time to time. In the early 1980s or thereabouts, he had some lower back pain. He could not recall a lot about it now, but did recall that it settled after a relatively short period of time and that it was not a problem until when the injury occurred. He believed a reference by his doctor to some left shoulder pain and discomfort; might have been relating to his heart.[4]
[4]Second affidavit
23 Prior to the latter part of 2012, the plaintiff was bullied by his supervising manager, Phil Riley, and Yvonne, a colleague who was friendly with him.
24 On the first date, while assisting Phil and Yvonne attempting to move a heavy desk, the plaintiff experienced pain to his left shoulder, neck and back (“the first incident”).
25 It was not long after the first incident that the plaintiff told Phil he had hurt himself. It was not easy to tell him about those sorts of things because of the way he had been treating him. The next day, the plaintiff asked if he could see the company doctor as his pain had got worse. Phil did not want him to make an appointment and was obstructive about reporting the incident formally. At that stage, the plaintiff was very stressed, in fact, too stressed to go to his own doctor. If he went through the company doctor he felt there was some protection for him in that regard. Phil was totally unhelpful and ignored the situation.[5]
[5]Transcript “T” 5
26 The plaintiff disagreed his only complaint to Phil at that time was his groin. He could not remember if he had told Phil he hurt his neck and left shoulder. He injured his shoulder. He felt a twang in his neck –
“… When the ground gave away I felt my groin go and that was pretty well it at the time.”[6]
[6]T5
27 The plaintiff did not have time off at first. When the pain got really bad, he took holidays. He thought this was before the second incident.[7] At that time, he did not know his neck was also injured. The pain was right across his shoulder.[8]
[7]T5
[8]T6
28 After the first incident, and before the second, the plaintiff met with a number of the defendant’s employees. He was told by Kevin Embleton, the manager, he got good pay and a company car. When he saw Peter Curl, the plaintiff was transferred to Dandenong.[9]
[9]T11
29 The plaintiff was able to return to remain at work with a restricted capacity and initially did not get any treatment. There was a slight improvement over the next few months until about early May 2013, when he had to change a tyre on a work vehicle and re-aggravated his neck, shoulder and low back pain (“the second incident”).
30 Lifting the tyre in the second incident was a difficult and awkward task, and given the fact he was already injured, it was the straw that ended up flaring up the plaintiff’s injuries again.
31 Before the plaintiff picked up the wheel and aggravated his injuries in the second incident, he had been essentially doing his job one handed, using his right hand. Doing so was very unhelpful and it aggravated his lower back and neck, and his left shoulder at that stage was too sore to effectively use.
32 The plaintiff reported his difficulties to Peter Curl. The plaintiff told him it had been suggested by the insurer that he consult a solicitor. Mr Curl told him he did not need to do so. Mr Curl “cracked it” with the plaintiff fairly quickly and his tone changed. He told the plaintiff if he was to bring three witnesses, he would bring thirty.
33 In May 2013, the plaintiff lodged a WorkCover claim in relation to the second incident. That claim was accepted.
34 In that form, the plaintiff described recurrent lower back pain and left shoulder muscle and tendon pain, refitting tyre to four-wheel drive company ute. The incident occurred on 8 May 2013 and he reported it that day to Phil Riley.
35 On 10 July 2013, the plaintiff signed another Claim Form relating to the first incident. The listed injuries were groin (right), lower back and left shoulder –
“A female colleague, carrying an extremely heavy desk and backing out of door downstairs onto uneven ground, was losing grip and control of the desk and would have been injured, but to prevent this had to hold weight of desk on uneven ground.”
36 The plaintiff referred to his earlier claim. He stated this injury occurred on 6 February 2013, and he reported it to Phil Riley the following day.
37 The plaintiff attended Interhealth Medical Clinic in Dingley, where he was seen by Dr Nguyen on 13 May 2013. He also later received physiotherapy from Mr Wong at the Clinic.
38 The plaintiff could not remember what he told Dr Nguyen about the first incident when he first saw him thereafter on 25 February 2013.[10] He did not remember if he mentioned the incident to him then.[11]
[10]T6
[11]T8
39 The plaintiff was told the next visit to Dr Nguyen was on 22 April 2013, when it was noted his left hand was causing him problems. The plaintiff confirmed he had had problems with that hand since the accident in 1986.[12]
[12]T9
40 When suggested to the plaintiff these were the only two occasions he saw his general practitioner after the first incident, the plaintiff explained, most likely, he did not go for every little thing to a general practitioner. He went when he needed to and agreed he would go if there was some concern or discomfort he was experiencing. This would not necessarily be the type of pain or discomfort the plaintiff would tell his doctor about.[13]
[13]T9
41 The plaintiff wanted to see the company’s doctor. He did not need any more stress or hassles, until it finally got that bad, he went to see his own doctor and said “Look, this is what’s going on”. He agreed was getting grief at work. Going to see the company doctor was not going to stress him, it was going to probably relieve his stress, because “then it was the company doctor and going through it that way”. He agreed he wanted to get it all documented by the company doctor.[14]
[14]T10
42 Just before Christmas 2012, the plaintiff had complained to Dr Nguyen that he had been bullied at work. He also told Dr Kay the following February that he was stressed at work and he felt he was being disrespected. While the plaintiff had told his doctors of these problems, there was something stopping him telling them about the incident injury. He wanted to go through the company doctors so they had no come back on him to turn around and say that he was “just going to [his] doctor”.[15]
[15]T12
43 The plaintiff disagreed that he had not reported his neck, back and left shoulder to his doctor because it was not that sore.[16]
[16]T13
44 When the plaintiff first saw Dr Nguyen on 13 May 2013 after the second incident, he then complained of back pain, as Dr Nguyen recorded, but he was not entirely certain if that was his only complaint. He thought it was his back, but after seeing a shoulder specialist and Mr Drnda, worked out the pain was mainly coming from his neck, the shoulder, “but everything was sore”. The plaintiff had no idea what was going wrong.[17]
[17]T13
45 The plaintiff would not deny, as the clinical notes indicated, that in late May 2013, he had left shoulder pain. He was not really certain whether that had been ongoing for the previous three weeks, as Dr Nguyen recorded. He explained he was not really comfortable with Dr Nguyen after a time. If Dr Nguyen had written that, the plaintiff may have said it, but it could have been more, he did not really remember. He then denied that he told Dr Nguyen he had that pain for three weeks.[18]
[18]T14
46 The plaintiff had no idea if the reference to left neck pain on 7 June 2013 was the first time he had complained about that condition.[19]
[19]T13
47 The plaintiff agreed that from time to time, he had lower back pain dating back to the early 1980s.[20] He disagreed the aches and pains he was feeling in early 2013 were no more than what he had experienced from time to time throughout his working life.[21]
[20]T15
[21]T16
48 In about August 2013, the plaintiff was referred to Mr Pullen, orthopaedic surgeon, in relation to his upper limb problems. He sent the plaintiff for a left shoulder and cervical MRI scan. In about October 2013, the plaintiff was referred to neurosurgeon, Mr Drnda.
49 The plaintiff received weekly payments until June 2014. His employment was terminated in August that year. He has not worked since, and he is in receipt of a Disability Support Pension.
50 The plaintiff has continued to attend Dr Nguyen, who advised him, at that early stage, there was not much that could be done for him.
51 In 2013, the plaintiff had a heart attack. He continues to take medication for that condition.
52 As of July 2017,[22] the plaintiff could take up to eight Panadol about four to five days a week for his shoulder, neck and back pain, and very occasionally, he took Endone, which he got from his wife.
[22]First affidavit
53 The plaintiff then suffered from constant daily pain in his neck, left shoulder and back, and felt tingling in his fingers and referred pain to his legs on an intermittent basis.
54 The plaintiff’s neck pain was mainly across his shoulders and down his arms, and he had tingling in his fingers. Back pain was worse on the right and he had sciatic pain down that leg if he walked too long.
55 The plaintiff’s pain level fluctuated but he had flare-ups most days and had to lie on the couch or on the bed. On most days, he spent some time lying down to get comfortable.
56 The plaintiff’s neck and back pain was aggravated by any prolonged postures; therefore, he avoided any repetitive bending, twisting or heavy lifting. His left shoulder pain increased with repetitive use of that arm, particularly above shoulder height.
57 The plaintiff’s sleep was regularly impacted by his neck, left shoulder and back pain and, as a consequence, he normally had about four or five hours’ broken sleep and normally had to get up and move around during the night.
58 The plaintiff continued to do household chores, but it took him more time and it was a struggle, as a consequence of his injuries. He could no longer hang clothes on the clothesline because of his left shoulder, and did vacuuming a bit at the time. Painting around the house took him eighteen months.
59 Prior to the injuries, the plaintiff enjoyed gardening, which was a major interest, spending at least five hours a week in the garden, even though he had an injured left hand. As a consequence of his work injuries, he now did very little gardening at all.
60 Prior to his injuries, the plaintiff enjoyed fishing off the pier and surf fishing, mainly in the warmer months, once every two weeks. He was no longer able to enjoy fishing at all because of his injuries.
61 Prior to his injuries, the plaintiff enjoyed bike riding, living next door to Braeside Park. He went bike riding about two or three times a week for up to an hour in fine weather. It was a way of exercising and relaxation, but he no longer went bike riding because of his injuries.
62 As a consequence of his injuries, the plaintiff had problems dressing himself from time to time and sometimes had to get help from his wife.
63 Prior to his injuries, the plaintiff enjoyed walking his two terriers in the park twice daily. He could still do so, but was restricted by his pain and could now only manage to walk them once for a shorter time.
64 The plaintiff’s pain had affected him mentally. It had also impacted on his marital relationship. His wife suffered diabetes and had a stroke and a heart attack and he had to do a lot of caring for her.
65 Driving for long distances, aggravated the plaintiff’s neck and back pain. Prior to his injuries, he enjoyed working on cars but was no longer able to do so at all because of his injuries.
66 Prior to his injuries, the plaintiff was planning to keep working until at least seventy. He had worked for the defendant for thirty-four-and-a-half years before injury.
67 The plaintiff’s income was as follows:
Year Income 2010 $67,250.00 2011 $69,322.00 2012 $71,817.00 2013 $74,077.00
68 At the time of his injury, the plaintiff was earning $1,434.98 per week.[23]
[23]Employer Claim Form
69 In his second affidavit sworn in April 2018, the plaintiff confirmed he continued to suffer from the debilitating effects of his neck and lumbar spine injuries, as well as his left shoulder.
70 The plaintiff took Panadol as needed. That could be up to one or two tablets every four hours for days but at other times, he had a break for several days up to a week. He did not like taking too much medication. He had been prescribed a very strong opiate based medication, Tapentadol, for breakthrough pain. He was concerned about the addictive nature of this medication.
71 The plaintiff thought the description of his current symptoms referred to by Dr Horsley in her 2018 report was a pretty fair description of things.[24]
[24]See paragraphs [173]-[174] of my Judgment
72 The plaintiff’s sleeping problems remained the same, as did his limitations on housework. He paid someone to mow the front lawn but still tried to do the back, but unfortunately doing so aggravated his back.
73 The plaintiff’s fishing activities were drastically affected. Surf fishing was definitely out. The problem was with casting. His left shoulder and back, and probably his neck, independently of each other, would all cause him to be unable to cast without considerable pain.
74 The plaintiff now wore slip-on shoes so he did not have to bend and deal with the laces.
75 The plaintiff had still not returned to bike riding because of the pain from each of his injuries. He had ongoing problems walking the dog and his driving continued to be badly affected, particularly due to his neck.
76 Unfortunately, the plaintiff felt his working life had come to an end. The pain and discomfort from his neck injuries was such that with his level of training and experience, there was no way he could realistically do a job in the open market.
77 As it turned out, the defendant dismissed him, the plaintiff believed, for the reason he was not able to do the limited tasks he was doing. He had hung on doggedly to try and stay at work until his position was terminated. His pain was getting worse and worse each day at that stage, but he was determined to try and hold on.
78 As of April 2018, the plaintiff felt there was no way he could realistically do any type of job that was previously in his capacity or he could be retrained for. He just could not cope - with each of the injuries individually ruling it out on their own.
79 The plaintiff found it hard living on a Disability Support Pension. When his payments were terminated in 2014, he went to Centrelink to get Newstart. In fact, he was keen to try and get a job, to get anything; he was desperate. Consulting with the staff there, they soon made their opinion clear to him that they did not feel he had any prospect of obtaining work and that he was unemployable.
80 The plaintiff went through possible jobs with Centrelink. When they told him he was unemployable, he argued with them, and they put him straight on a disability pension. He said he should be able to do this, he should be able to do that, and their comeback was “You don’t know if you’re going to get there on time, you don’t know ... the pain levels, and ... you can’t do it without being in pain. If you can’t do the job without causing you any pain, then you ... cannot do the job.”[25]
[25]T34
81 The plaintiff thought this conversation was about the time his weekly payments ceased in about September 2014. He then was not willing to admit he was as injured as he was, the same as was the case when he injured his left hand.[26]
[26]T34
82 As it turned out, in the end, the plaintiff had little trouble in getting the pension, given his injuries.
83 The plaintiff’s medical and like expenses had been cut off back when his payments were terminated in June 2014, and since then it was too expensive for physiotherapy. More recently, he had received a letter from EML Insurance, whom he understood had taken over his case. That correspondence seemed to suggest funding is in place for medical treatment. If this is the case, he will seek further physiotherapy.
84 The plaintiff was determined to keep working as long as he could. He was keen to build up his superannuation, working until seventy. He had worked hard all his life and considered he had a strong work ethic and loyalty to the defendant.
85 In his third affidavit, sworn 7 November 2018, the plaintiff commented on the Recovre report of 19 March 2018. He was not interviewed for the purposes of that report.
86 The author of the report had not considered the left hand injury and disability the plaintiff had before February 2013, and the plaintiff wanted to say something about that separate from the problems that he would have doing these jobs because of his neck, lower back and shoulder pain.
87 Both of the packing jobs in the report showed workers using both their hands to do fast-paced things like packing or quality control, and to handle small and delicate objects like test tubes. The plaintiff just cannot do this sort of job. He has very little use of his injured left hand at all and it is not good for that sort of work.
88 The other warehouse clerk sort of job shows someone working on a computer all day. The plaintiff’s computer skills are very basic. He can find ’60s music on YouTube and browse the internet a little, and that is about it. He is no good with typing spreadsheets, or things like that. He does not consider himself to have good enough computer skills for an office.
89 Also, effectively, the plaintiff is a one-handed typist, since he can make very little use of his injured left hand, using only one finger to type. As a result, he is very, very slow when he uses a computer. There is no way he could be fast enough with typing to keep up in a computer-based job.
90 Again, these things are in addition to problems the plaintiff would have with his neck, lower back and shoulder pain doing the job described in that report. They result in problems with reaching, pushing and pulling, lifting, sitting and standing for long periods, and things like that.
91 The plaintiff essentially agreed with the tolerances recorded by Dr Horsley on examination early this year;[27] however, he always has problems with his neck whilst driving.[28]
[27]T17; see paragraph [176] of my Judgment
[28]T18
92 The plaintiff agreed that he worked for the defendant for over thirty years and was a reliable worker, a trustworthy man and someone who could be relied upon. It was very hard to answer the question whether he was keen to work. He was, but he was keen to do a good job, not just a token job:
“If you're going to go to work and just sit back with your feet up and do nothing what’s the point? You know, if you’re not making a contribution to the company, it’s – what’s the point? If you can’t be reliable and get there every day and be there every day, you know, and if you have to take one of the painkillers, they’ve got to get your (sic) home or something like that. That’s – the keen is good but you’ve got to be able to do the job. It’s not good being keen and not doing the job. … .”[29]
[29]T20
93 The plaintiff confirmed he wants to be reliable. To get to Court that day, he got up during the night and took two Panadol. He took another two at 6.00am, and another two at 10.00am. That was just to get there. Tomorrow, after having been sitting on the train to get to Court, he was not going to be able to do anything. He will probably sit and lie down most likely tonight, and he will take some strong painkillers. So he cannot turn around and say he could get to his job in the morning and be reliable.[30]
[30]T21
94 If there was something the plaintiff could cope with physically from a work perspective, he would be keen to do it.[31]
[31]T22
95 The plaintiff put data in the computer. He did not operate a computer as such.[32] He would hardly describe himself as having computer skills now. He entered data at work. He is able to basically use a computer, and can turn it on. He learnt a bit when computers first came out when he was doing dispatch at work.[33]
[32]T22
[33]T28
96 The plaintiff explained he would have difficulty driving in peak hour traffic to get from Dingley to Mulgrave.[34] There would be something stopping him on a regular basis driving that distance. If he had had a bad night, if he had had to get up and take painkillers, he would not be getting there on time. It all comes down to being reliable. Everything concerned him: just doing the job, being reliable, being able to perform.[35]
[34]T24
[35]T25
97 The plaintiff confirmed his left hand injury was separate from his injuries the subject of this claim in terms of his ability to do the job that he described in his affidavit. It was not just an absence of dexterity that meant packing jobs were out.[36]
[36]T26
98 The plaintiff would have the mental aptitude to do a job of that nature. There would be issues if he had to sit down for long enough and be in the one spot and be bent over doing dispatch.[37]
[37]T28
99 If he had a job with the ability to sit and stand, the plaintiff still had the same problem of getting there, making certain he could get there in the morning, particularly if he had had a bad night as then, he might not get up until 8.00 or 9.00am. If he had had to take strong painkillers, he could not drive there. If he was at work and had to take strong painkillers, someone would have to drive him home.[38]
[38]T29
100 The plaintiff agreed that an office-type job was the type of job for him if one was out there. He understood the job description of the warehouse administrator/ pallet controller. It would be the kind of work he would be able to cope with physically if he could get through without the pain.[39]
[39]T31
101 The plaintiff agreed the computer work involved in that job would be within his capabilities.[40]
[40]T33
102 Mid-morning, the plaintiff asked to have a break because he was having difficulty whilst being cross-examined.[41]
[41]T30
103 Even in the witness box, the plaintiff explained that he was starting to struggle on what counsel was saying all the time. He was not feeling good now, because he was in a lot of pain, so “how the hell” would he be able to do a job if he could not concentrate all the time. He had then just taken some more painkillers.
104 The plaintiff was saying if he could get to work, which he did not know from day to day, would he get through the day? He did not know. If he would have to take strong painkillers, he did not know. Nobody is going to employ somebody like that, and he would not be able to turn around and guarantee an employer that he will be there at 7.00am every morning and finish at 3.30pm that afternoon. That is the problem, even at home he does not know what he is going to do the next day.[42]
[42]T32
105 When suggested to him he could do this job part time, the plaintiff could not guarantee if he was going to be there on time.[43]
[43]T32
106 When it was suggested that he could alternate between sitting and standing, and that that would manage his pain and discomfort, the plaintiff said sometimes it quite possibly would, but at other times sitting would not help him at all – and that was even if he got to work. He confirmed this was the position and the answer was still the same:
“If I could get there, if I wasn't in pain. I don't know if I'm going to be in pain, so yes, I could stand or I could sit but if I am in pain, I am taking painkillers anew.” [44]
[44]T33
Current medication
107 The plaintiff continues to take Tapentadol, which is opium based. He could take it a couple of times a week, on average, one every couple of weeks maybe. They relieve the pain, but not to the extent where it allows him to go about his everyday activities. It makes him dozy. He has told his doctor that is one of the side effects. Every time the plaintiff’s neck is bad he does not take such a strong painkiller because it is too addictive.[45]
[45]T18
108 The plaintiff has had morphine patches, but they made him sick after a while. He has taken Lyrica, but the side effects were horrendous. Endone made him nauseous but it was balanced by the fact it helped him sleep.[46]
[46]T19
109 The plaintiff is taking medication for a “crook neck, shoulder and back”. Usually when he takes it, “it’s got to the stage that everything’s aching and then I’ve taken them. I try not to take too much otherwise it stops working.”[47]
[47]T19
110 The plaintiff explained that despite his problems sleeping, he had never taken sleeping tablets for this pain. He takes painkillers all the time, strong painkillers, and they can help him sleep. They sometimes make him sleep in the wrong position, and then he wakes with pain. The only time he has taken sleeping tablets was eighteen years ago, after his son died, and they “didn’t work all that good”.[48]
[48]T29
111 There was no re‑examination.
Lay evidence
112 The plaintiff’s wife, Dawn, swore an affidavit on 3 May 2018.
113 Dawn was aware of the plaintiff’s work injuries. Prior thereto, she would generally have described him as “fit as a bull”. He is now more like a man of ninety, with his walking affected, and he seems to limp and be in constant pain, which is mostly bad.
114 The plaintiff’s walking style is now more of a shuffling-type nature. He wobbles when he gets up after being seated and struggles to straighten his back and start walking if he has stiffened up.
115 Dawn confirmed that she helped the plaintiff to dress. He could do limited tasks around the house, but needed breaks. Mowing aggravated his back but he liked doing it, but did it at a slower pace.
116 The plaintiff used to be a pretty good walker, but he often tells her when they are walking that he cannot not keep going, as he seems to be in agony. He, however, feels better after a short walk, simply for having gotten out and done something.
117 The plaintiff’s sleep is shocking and he will be in and out of bed three times a night on average.
118 The plaintiff enjoys cooking and as long as it did not involve standing for too long, he is okay.
119 The plaintiff no longer goes fishing. His back and neck are bad when driving and she, at times, has to take over in the middle of a journey.
120 The plaintiff no longer rides his bike ride around Braeside Park because doing so is too painful. They used to do a two-hour bike ride at least weekly. Sometimes she rides slowly and he attempts to walk along with her, but they do not get very far, just around the block, then home again.
121 Before his later career, the plaintiff had been a mechanic and he loved working on cars. A mate of his still comes over occasionally and will do most of the work. The plaintiff might assist him in tinkering with bits and pieces but really will not be doing much at all.
122 Dawn has seen the plaintiff try to rest on the floor, thinking this might be good for his back. In reality, he struggles to get up and, to be honest, seeing him there reminds her of a “beached whale”.
The Plaintiff’s medical evidence
Treaters
Dr Nguyen, general practitioner, Interhealth Medical Clinic, Dingley
123 Dr Nguyen most recently reported on 26 March 2018.
124 Dr Nguyen first saw the plaintiff on 13 May 2013 because of back pain after lifting a heavy tyre at work. It was complicated by neck and left shoulder pain. The plaintiff was seen by specialists and his case was terminated in July 2014.
125 The plaintiff still suffers from a Pain Syndrome from a very severe accident in 1986 requiring multiple surgical interventions.
126 The plaintiff’s condition remained unchanged with time, with episodes of unpredictable exacerbations that eventually needed specialist review for the best management.
127 Pain has been the most important factor affecting the plaintiff’s working capacity. It is understandable that with time, he will be less likely to be able to work as expected.
128 In an earlier more detailed report of January 2015, Dr Nguyen noted the first attendance on 13 May 2013 and that the plaintiff had just recovered from back pain on 29 April 2013.
129 Dr Nguyen detailed the plaintiff’s treatment during 2013 and referral for investigations and physiotherapy. He also noted the specialist examinations by Mr Pullen and Mr Drnda that year, and the fact the plaintiff was put under a waiting list for elective surgery at the Austin on Mr Drnda’s suggestion.
130 Dr Nguyen noted the plaintiff worked as a laboratory technician and was exposed to constant repetitive bending, twisting of the spine and heavy lifting. He thought those working conditions definitely affected the plaintiff’s work capacity and general health. The plaintiff had also mentioned episodes of being bullied at work. His pain level fluctuated with time and he needed special working hours to be able to continue work. While waiting for surgery, pain control was obtained through oral medications and physiotherapy.
131 As of January 2015, Dr Nguyen thought the prognosis of the plaintiff’s condition was difficult to delineate. He hoped that with time and appropriate intervention, he should be able to have near-normal activities.
Mr Christopher Pullen, orthopaedic surgeon
132 Mr Pullen saw the plaintiff on referral from Dr Nguyen in August 2013, presenting with left upper limb problems.
133 The plaintiff told Mr Pullen of the first incident.
134 On examination of the left shoulder, there was a restriction in active range of motion because of pain and there was reduced strength in the rotator cuff. There was no obvious restriction in movement. The x-ray showed a small subacromial spur.
135 Mr Pullen noted the plaintiff had features typical of shoulder problems, but also some that suggested, perhaps, a neurological basis. He organised a left shoulder and cervical MRI scan.
136 On examination following the receipt of those investigations, Mr Pullen noted the shoulder MRI scan showed AC joint arthropathy and subacromial spurring. There was thinning of the supraspinatus tendon. He thought it possible some of the plaintiff’s symptoms were related to his shoulder and impingement. Interestingly, however, the cervical MRI scan had shown evidence of a disc bulge with mild to moderate C7 nerve root compression.
137 Given the plaintiff had some features consistent with neurological symptoms, he suggested he talk to Dr Nguyen about getting an opinion from a spinal specialist. If a neck aetiology is ruled out for the plaintiff’s symptoms, then Mr Pullen offered to review him again and discuss a shoulder arthroscopy and decompression.
Mr Armin Drnda, neurosurgeon
138 The plaintiff was referred to Mr Drnda by Dr Nguyen in October 2013. In the referral letter, it was noted that the plaintiff injured himself in the first incident, triggering symptoms - neck pain with severe headaches, left shoulder pain and tingling. Lower back pain was aggravated on that occasion.
139 Mr Drnda provided a number of reports, the most recent in July 2014.
140 Mr Drnda diagnosed C6-7 foraminal stenosis with left C7 radiculopathy. On top of that, the plaintiff had a left shoulder injury, which was beyond his specialty. He also had chronic lower back pain based on advanced lumbosacral spondylosis.
141 Mr Drnda noted the history of the two incidents and subsequent treatment.
142 In Mr Drnda’s opinion, the plaintiff’s condition was related closely to his employment, which was a significant contributing factor in the development of accelerated degenerative changes in his neck, which ended up giving him symptoms of bilateral C7 radiculopathy, worse on the left side.
143 Not having worked since May, the plaintiff’s condition had improved. He still had occasional pain, tingling and pins and needles, depending on activity. Mr Drnda thought the plaintiff continued to be incapacitated for his pre-injury employment, but would be capable of returning to suitable duties which should be assessed by an occupational therapist.
144 In Mr Drnda’s view, the plaintiff’s possible work should exclude any work with outstretched arms, prolonged postures, especially with flexion of his neck, work bent forward, work overhead and lifting and carrying items heavier than 5 to 6 kilograms.
145 Mr Drnda noted the plaintiff was planning to have an anterior cervical discectomy at C6-7 as treatment for his spinal injury. Given that he had improved, that may not be necessary, and it would be better if he did not go on with surgery if his symptoms were minimal; however, should these flare up further and symptoms return with continuous pain, then he would probably require surgery. At that stage, treatment could consist of regular self-pacing exercise and the most important thing was that if the plaintiff returned to work, he was not involved in any strenuous activity.
Bob Wong, physiotherapist
146 In his April 2014 report, Mr Wong noted the plaintiff first presented in May 2013. Initial treatment focussed on trying to reduce the pain and improve mobility in the lumbar spine and the left cervical and thoracic spine for his lumbar arthropathy and SIJ dysfunction.
147 Mr Wong noted the plaintiff was initially able to continue working on modified duties and hours for around four to five hours a day. As his condition deteriorated, he found it increasingly difficult to complete his work duties over the past few months. As a result, he was certified by his treating doctor, Dr Nguyen, as unfit for any duties. Since ceasing work, the plaintiff’s pain had eased but each time he attempted to return to work his pain significantly increased.
148 In his report of January 2015, Mr Wong noted that when last seen in April 2014, the plaintiff had been reviewed by Mr Drnda, who suggested that if he had ongoing physiotherapy and managed his condition, he could be able to return to work if more appropriate duties were to be found. Mr Drnda had noted that when the plaintiff previously returned to work on modified duties, they were inappropriate, as there, the job tasks required repetitive movement with his shoulders.
149 Mr Wong noted Mr Drnda had suggested work duties should exclude any work with outstretched hands, prolonged postures – especially with flexion of his neck – working in a flexed position, work overhead and lifting and carrying items heavier than 5 to 6 kilograms.
150 Mr Wong was then unaware of any suitable job offer with reference to any work restrictions that had been made available to the plaintiff which did not significantly increase his pain.
Investigations
151 The plaintiff had a left shoulder x-ray on 10 May 2011. It was reported the AC joint showed mild degenerative change. There was also a left ultrasound that day which was normal.
152 There was a further left shoulder ultrasound on 29 May 2013. It was reported there was anterior cuff inflammatory change with associated bursitis and impingement and that the plaintiff should benefit from an ultrasound-guided injection of steroid.
153 That injection took place on 2 July 2013.
154 There was an x-ray and ultrasound of the left shoulder on 24 July 2013. It was reported, since the prior study performed two months earlier, there has been a significant restriction in both active abduction and external rotation. These appearances suggest the presence of capsulitis. There was minor inflammatory change persisting in the anterior cuff. It was noted if the patient has a clinical history consistent with capsulitis, a shoulder hydrodilatation would now be recommended.
155 There was an MRI scan of the plaintiff’s left shoulder in October 2013. It was reported there was moderate AC arthropathy with osteophyte causing impingement on the supraspinatus. The supraspinatus tendon itself was a little thin, but otherwise intact. There was no rotator cuff tendon tear or specific feature of instability.
156 There was an MRI scan of the cervical spine on that date. It was reported there was mild disc bulging at C6-7, extending posterolaterally into the exit foramina, causing mild to moderate bilateral C7 nerve root compression. There was no other specific cause for the patient’s symptoms.
Medico-legal evidence
Mr Peter Kudelka, orthopaedic surgeon
157 Mr Kudelka examined the plaintiff in February 2015.
158 The plaintiff then complained of pain in his neck, left shoulder and lower back, along with pain shooting into his legs from his back.
159 Mr Kudelka thought the plaintiff had C6-7 foraminal stenosis with left C7 radiculopathy. He had neck pain, left shoulder pain, pain down the left arm and tingling in both arms, along with lower back pain.
160 Mr Kudelka considered physiotherapy and analgesics will have to continue on a long-term basis. In his view, the plaintiff will have ongoing pain, weakness and stiffness in his neck, left shoulder and back.
161 Mr Kudelka considered the plaintiff will always be unable to carry out his pre-injury employment. He noted the plaintiff carried out alternative duties until April 2014, when his employment was terminated.
162 Mr Kudelka thought the plaintiff was strongly motivated; however, and if suitable duties could be found for him, accommodating the limited use of his left hand, he thought those could be attempted. He thought the plaintiff’s condition would preclude and restrict him in relation to social, domestic and recreational activities, and will be of a long-term basis.
Dr Graeme Doig, orthopaedic surgeon
163 Dr Doig examined the plaintiff in March 2017.
164 The plaintiff then continued to complain of left shoulder pain and weakness, previously his dominant side, until he injured his hand. He also had right-sided neck pain with intermittent dysesthesia in the arm. He had ongoing right lumbosacral back discomfort. His symptoms changed from day to day and he appeared to be able to self manage them.
165 Dr Doig diagnosed intervertebral disc herniation at C6-7, with intermittent nerve root impingement, soft tissue injury to the left shoulder with ongoing impingement, an aggravation of a degenerative acromial clavicular joint and soft tissue injury to the lumbosacral spine, with no imaging available to clarify any underlying pathology.
166 Dr Doig considered the plaintiff’s condition had stabilised and had reached maximum medical improvement.
167 Dr Doig thought the plaintiff was restricted in relation to employment activities. He will have a less than 10 kilogram lifting, pushing, pulling restriction, with limited bending, twisting and squatting. He will need breaks from prolonged sitting, standing and driving. He has poor lifting capacities with his left arm due to his previous severe hand injury, but will have limited use of the left arm overhead.
168 Dr Doig noted the plaintiff was not fit for pre-injury duties with the above restrictions in place. He was not able to upgrade to pre-injury status, and his position was therefore terminated. He is able to work on a restricted basis. He may be able to work normal hours depending on the position. This situation will be permanent.
169 In view of his age, education and previous work experience being a mechanic, Dr Doig thought it is unlikely the plaintiff will return to this job in the future and he will require retraining into the workforce into a permanently sedentary position. He also thought the plaintiff was restricted with respect to recreational activities.
170 Dr Doig noted the plaintiff suffers intermittent pain affecting the various anatomical sites injured and he seems to be able to self-manage this and takes Panadol intermittently. He considered the plaintiff’s prognosis must be guarded and the conditions have the potential of future deterioration. The plaintiff required ongoing Panadol and stronger analgesics if there was a deterioration in his symptoms.
Dr Robyn Horsley, occupational physician
171 Dr Horsley examined the plaintiff initially in February 2018 and re-examined him on 22 August 2018.
172 On re-examination, the plaintiff described ongoing intermittent left shoulder discomfort. One pain was a sharp stabbing pain, which was intermittent and could be 3 to 7 out of 10 and could last for seconds to ten minutes. He also had a background aching pain which comes and goes, and occurs once to twice a day and can last from to forty-five minutes.
173 The plaintiff experiences separate neck pain, which was intermittent. It varied from 2 out of 10, up to 5 to 6 out of 10, and could last for several hours and can occur most days. He experiences chronic back pain, 2 to 3 out of 10 up to 5 to 6 out of 10.
174 The plaintiff’s functional tolerances were similar to the earlier assessment. His sitting tolerance depends upon the day and varies from ten minutes to an hour. His static standing tolerance is five to ten minutes. His dynamic standing tolerance is up to an hour. His walking tolerance is up to an hour, and his driving tolerance is thirty to sixty minutes in an automatic vehicle.
175 Dr Horsley believed the following work restrictions appear to be appropriate for the plaintiff’s left shoulder and neck:
·avoidance of repetitive over-reaching
·avoidance of repetitive pushing and pulling
·avoidance of above-shoulder activities
·avoidance of forceful activities involving both arms
·avoidance of lifting items greater than 10 kilograms, except on an occasional basis
·avoidance of lifting items up to 5 to 8 kilograms on a repetitive basis
·avoidance of using tools with a vibratory component on the left.
176 Dr Horsley noted these restrictions did not take account of the plaintiff’s significant left hand disability.
177 Dr Horsley also imposed a range of work restrictions with respect to the plaintiff’s lumbar spine.
178 Dr Horsley noted the plaintiff will be sixty soon and had been out of the workforce for four years. He had worked in a manual role with the same company for thirty-four years. His transferable skills were in the manual area. In addition, she noted his very significant left hand disability, with which he commendably worked right handed throughout his manual working life.
179 Dr Horsley noted the plaintiff was granted a Disability Support Pension in 2014. Considering the multiple barriers in his current presentation, she did not believe he is a realistic or reliable redeployment or retraining candidate. She thought the plaintiff had come to the end of his working life and one would have to agree he is totally and permanently disabled.
Mr Thomas Kossmann, orthopaedic surgeon
180 Mr Kossmann originally examined the plaintiff in February 2018. On that occasion, the plaintiff complained of pain in his cervical and lumbar spine and left shoulder, with difficulties with prolonged postures.
181 Mr Kossmann diagnosed inflammation of the rotator cuff left shoulder, and subacromial bursitis, cervical spondylosis and pain in the lumbar spine of unknown reason.
182 As a consequence of the plaintiff’s physical injury, Mr Kossmann thought he was restricted in relation to employment or activities involving bending, lifting, twisting, stooping, pushing, pulling or lifting, repetitive pushing, pulling, lifting, overhead activities involving the left shoulder and back, kneeling, squatting and crouching, prolonged sitting, walking or standing, walking up inclines or down declines, using steps or ladders, fine manipulative use of his left upper extremity and his left manual dexterity.
183 Mr Kossmann then thought the plaintiff had no capacity to return to his pre-injury duties and believed his incapacity would continue for the foreseeable future.
184 Mr Kossmann thought the plaintiff had a capacity to perform suitable employment; however, he should avoid working permanently with his upper extremities, working above shoulder or head height, or lifting heavy items weighing more than 2 to 5 kilograms. He should also avoid walking distances, walking on uneven grounds, walking up stairs and down stairs on inclines and declines, climbing up and down ladders, kneeling or squatting, or carrying heavy items weighing more than 5 kilograms.
185 Mr Kossmann thought this incapacity will continue for the foreseeable future.
186 Mr Kossmann considered the plaintiff’s prognosis regarding his cervical spine was guarded and he would require further treatment with pain medication and anti-inflammatories. The prognosis was similar in relation to the left shoulder.
187 At that stage, Mr Kossmann thought the plaintiff had a very limited work capacity. He was at risk he may develop arthritis in his cervical and lumbar spine and left shoulder joint, but Mr Kossmann could not anticipate a timeframe if and when that would occur.
188 On re-examination in October 2018, the plaintiff had similar complaints.
189 Following that examination, Mr Kossmann thought the plaintiff had no work capacity. He is not able to use his upper extremities on a constant basis, work above shoulder or head height, or lift heavy items weighing more than 2 to 5 kilograms.
190 Mr Kossman advised that the plaintiff should also avoid long distances, walking on uneven grounds, walking up and down stairs on inclines and declines, climbing up and down ladders, kneeling or squatting, or carrying heavy items weighing more than 5 kilograms.
191 Mr Kossmann did not explain why he now thought the plaintiff no longer had any work capacity.
Dr Gary Davison, occupational physician
192 Dr Davison examined the plaintiff in March 2017.
193 The plaintiff then reported pain, stiffness and restricted movement in his left shoulder. He had persistent pain extending from the lower cervical to the upper thoracic spinal region, radiating to the left shoulder girdle laterally. He had pain and restricted movement in his lower back.
194 As a consequence of the plaintiff’s physical injuries, Dr Davison thought he was likely to be restricted in respect of employment or activities involving pushing, pulling, lifting and carrying. He was also likely to be restricted in terms of bending, stooping, using of the left arm above chest height or away from the body, prolonged sitting, prolonged standing or walking, kneeling, squatting or crouching, use of ladders and excessive use of steps or stairs.
195 Dr Davison considered the plaintiff does not have a capacity for his pre-injury duties, either full or part time. He thought the plaintiff does have the capacity to undertake suitable employment, taking into account the above factors and that he could undertake such employment on a part-time basis up to twenty hours a week.
196 Dr Davison considered the plaintiff had the capacity to undertake sedentary or light work, and this would include computer work, light bench space prepare work, console operation and ticket seller.
197 Dr Davison thought the plaintiff’s condition has been stable and he is likely to continue to experience symptoms indefinitely. He did not think the plaintiff was at an increased risk of developing arthritis in the spine in the future.
The Defendant’s medical evidence
198 The plaintiff’s clinical notes from Interhealth Medical Clinic in Dingley were tendered.
Medico-legal evidence
Mr Ian Jones, orthopaedic surgeon
199 Mr Jones examined the plaintiff initially in February 2015 and more recently in November 2017.
200 On the first visit, the plaintiff told him of the injury on 6 February 2013 when helping move a desk. Thereafter, he rested for a short period, then resumed his laboratory work.
201 The plaintiff requested the defendant make an appointment with the company doctor. There was reportedly some delay in his boss submitting an incident report, during which time the plaintiff’s back symptoms settled to a degree, but his left shoulder remained painful and movements were restricted. His right groin symptoms had recovered.
202 On 8 March 2013, the plaintiff stated that during the course of his work, he had to change a tyre on a 4‑wheel drive, following which he noticed an increase in his level of pain.
203 The plaintiff described pain in his left shoulder and some lower back and right groin pain from the first incident.
204 The plaintiff was off work for two days after the second incident, and returned to work in a different section of the company. That work aggravated both his back and left shoulder, and his hours were reduced to four hour a day. His condition deteriorated, and he was referred to specialist, Mr Cullen. He remained on part-time work for four hours a day.
205 The plaintiff was referred to Mr Drnda, neurosurgeon, who put him on a waiting list for neck fusion surgery. The plaintiff continued to work until April 2014, when he stated he could not tolerate the pain any more. He requested alternative employment, but this was denied, and he went to his general practitioner and was put off until June 2014, then deemed fit for restricted duties. His employment was terminated in August 2014.
206 On the first examination, the plaintiff described symptoms of pain extending over the whole length of his cervical spine and into the upper segments of his thoracic spine. There was tingling affecting all fingers in the right hand. He had symptoms of pain in the left shoulder most of the time. He reported varying degrees of lumbar back pain, most notable when attempting to bend. There was variable stiffness.
207 Mr Jones noted that in the cervical spine, the plaintiff had radiographic evidence of bulging at the C6‑7 disc, possibly compressing or irritating that nerve root. In the left shoulder, he had clinical and radiographic evidence of mild rotator cuff syndrome, together with possibly a mild degree of adhesive capsulitis. In the lumbar spine, he had clinical symptoms and signs of degenerative lumbar spinal disease.
208 Mr Jones thought the left shoulder condition could be considered to be work related in terms of the mild adhesive capsulitis. Rotator cuff degenerative disease, as well as some arthritis, he did not believe related to the work or injury described. He thought it possible that the disc bulge could have been caused or at least aggravated by the first incident. He did not think the plaintiff’s lower back complaint was work related.
209 Mr Jones noted the principal complaint was the left shoulder, which was painful and stiff. That would prevent the plaintiff from returning to some of his former duties with the defendant.
210 As of 2015, Mr Jones thought suitable employment would be that of a sedentary or semi-sedentary nature, where there was no requirement to engage in repeated lifting or bending, and the plaintiff had the capacity to get up from a seated position or move from a standing position from time to time.
211 Mr Jones concluded it is possible the plaintiff’s ongoing symptoms in relation to his neck and left shoulder reflect some ongoing, albeit minor, contribution caused by the work injuries.
212 On re‑examination on 6 November 2017, the plaintiff reported ongoing problems in his neck, left shoulder and lower back.
213 The plaintiff reported symptoms of pain in his neck extending from the upper thoracic spine proximally over the whole of the posterior aspect of his neck. He complained of an occipital headache at the back of his head, and that neck movements were restricted. He reported continuing to experience intermittent tingling in the fingers on his right hand.
214 The plaintiff reported a constant ache in his left shoulder, with a stabbing pain on active movement lifting his arm from the side or in the front of it. He also reported symptoms of a back pain most of the time, and movement of the lumbar spine was said to be restricted.
215 Mr Jones concluded that as a consequence of the plaintiff’s neck, lower back and left shoulder complaint, he reported he was restricted in terms of being able to work at his normal job, with varying incapacity in terms of day-to-day activities, including walking, sitting and standing. He had been forced to give up fishing and bike riding, and his ability to tend to his garden was reduced.
216 In Mr Jones’ view, there were no functional symptoms in the plaintiff’s presentation.
Dr Phillip Mutton, occupational physician
217 Dr Mutton examined the plaintiff in October 2017, noting the two incidents and subsequent history.
218 On examination, cervical rotation was 50 per cent of normal, and the plaintiff was a little tender over the right lower back.
219 Dr Mutton noted emphasis had been placed on the plaintiff’s left shoulder and neck, but he stressed also his back was injured, although from a clinical viewpoint, there appeared to be no significant functional loss in the lower back.
220 In view of the plaintiff’s ongoing neck and shoulder problems, Dr Mutton thought he should avoid repetitive overhead work, and that would protect the neck and shoulder. He should not lift more than 7.5 kilograms above mid-chest height. He should avoid rotating the neck and flexing and extending it more than once or twice an hour at most.
221 Within those restrictions, Dr Mutton would expect the plaintiff could work full time. He noted there were no particular issues with medication or ongoing treatments that would suggest a lack of capacity for full-time work, particularly if the plaintiff worked strictly to the restrictions.
222 Therefore, Dr Mutton thought the plaintiff could do some light work such as light container filling, light packing and light machine operation. He could do a range of clerical tasks. He quite clearly has a skill base. He can perhaps do some parts sorting or work in a spare-parts facility. A work situation where he is not controlled by machine pacing would be indicated. Emphasis should be on working at bench level with a good ergonomic setup. Specific training will be required for the task to be undertaken.
223 Dr Mutton noted the plaintiff had computing capacity, having used computers in the course of his employment doing some data input, and he could use a computer at home for emails and internet searches.
224 On re‑examination on 27 March 2018, the plaintiff advised he continued to be managed conservatively and there had been no significant change in his condition.
225 The plaintiff then walked with a limp, and there was quite marked loss of right rotation in the cervical spine.
226 Dr Mutton reviewed the Recovre Suitable Employment Report dated 19 March 2018 with the plaintiff.
227 In terms of the job of machine operator/packer at Braeside with a plastics manufacturing company, Dr Mutton noted the tasks suggested required repetitive upper body function and also good neck and lower back function, which may be a barrier for the plaintiff.
228 Dr Mutton thought there might also be a problem with the plaintiff doing the packer job in Dandenong South which was light weight packing distribution in a healthcare setting. He thought that job may be an issue, given the previous traumatic injury to the plaintiff’s left hand.
229 Dr Mutton thought the only appropriate job suggested was warehouse administrator/pallet controller, which involved clerical administration tasks or administration tasks in a large distribution warehouse in Mulgrave. He noted the duties were administrative ones associated with tracking of pallet movements within the business, and between the business and its suppliers. It was primarily computer based, with some telephone use. He thought that task was less physically demanding and more appropriate, incorporating a range of office related tasks including computer work, phone work, and filing, noting light weights were involved.
230 Dr Mutton’s opinion at that time was that the plaintiff was fit for appropriate employment but required some restrictions. He should not lift more 7.5 kilograms above mid-chest height and should avoid rotating his neck and flexing and extending the neck more than once or twice an hour. He suggested some light container filling, light packing and light machine operation, and a range of clerical administration tasks. He thought a workstation not controlled by machine pacing would be more appropriate.
231 Accordingly, Dr Mutton though the most appropriate task was pallet stock clerk, with less physical demands and no machine pacing. He thought the packing duties as identified may be an issue, in terms of requiring good use of both upper limbs and the actual weights and the type of work undertaken; however, the tasks were consistent with his recommendations, and he expected that his concerns could be overcome following a work trial.
232 Dr Mutton noted the difficulties relate to low back pain, neck pain and shoulder pain, and the plaintiff’s previous left hand injury, which may have some impact in terms of manipulative function, although the plaintiff denied any significant loss of dexterity. Dr Mutton noted the plaintiff had raised issues; however, Dr Mutton believed the work was within the plaintiff’s current capability. There were no issues with travel.
233 Dr Mutton thought the plaintiff would have to learn the appropriate skills for the tasks to be undertaken, noting he had completed an apprenticeship and therefore should have no difficulties learning new skills.
Vocational evidence
234 Recovre provided a Suitable Employment Report on 19 March 2018 in which it identified three suitable jobs.
235 Two packing jobs were suggested, the first, with a manufacturing business in Braeside and the second at a distribution warehouse in Dandenong South.
236 A job as a warehouse administrator-pallet controller, with a salary of nearly $30 an hour was also suggested.
237 This was a specific job in an office-type environment, located on the first floor above a warehouse. The business operated a large distribution at their Mulgrave site. Hundreds of staff on the site performed a range of tasks associated with receiving, pick/packing, truck loading and despatching.
238 The pallet controller required workers to perform administrative duties associated with tracking of pallet movement within the business, and between the business and its suppliers and customers. Workers were to ensure that adequate pallet supplies were available to packing staff, order new pallets as required and track pallets that had been returned for repairs. The role was primarily computer based with some requirement for telephone use, but with no requirement to enter the warehouse site.
Overview
239 In opening, counsel for the defendant indicated the defendant’s focus was on the loss of earning capacity application:
“There’s no concession made with respect to pain and suffering, but that’s the target in the application essentially from the defendant’s point of view.”[49]
[49]T1
240 Counsel for the defendant agreed there was no suggestion by any medical examiner of any functional component in the plaintiff’s presentation or exaggeration.[50]
[50]T41
241 There is no dispute the plaintiff suffered a spinal injury and an injury to the left shoulder in the second incident. The claim was accepted and the plaintiff was paid 39 weeks of compensation. His entitlement to weekly payments was terminated by letter dated 7 March 2014.
242 The claim in relation to the first incident was lodged later and was denied, as there was already a claim form which had been submitted in relation to the later injury. There has been no s98C application.[51]
[51]T36
243 In general terms, the plaintiff’s neck condition has been diagnosed as C6-7 foraminal stenosis and left C7 radiculopathy; his back condition - degeneration or spondylosis of the lumbar spine and a soft tissue injury or inflammation of the rotator cuff of the left shoulder.
244 Mr Jones was the only practitioner who had concerns as to whether the plaintiff’s injuries were work related. He thought the lumbar spine was not related but with the neck and left shoulder injury but there might be a work connection, but, if so, it was only minor.[52]
[52]T41
Credit
245 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[53]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[53](2010) 31 VR 1 at paragraph [12]
246 Counsel for the defendant submitted the plaintiff’s explanation why he cannot work “smacked of recent invention”, the plaintiff not having commented on his unreliability in his affidavits or told any doctors about it.[54]
[54]T42
247 Further, it was submitted the Court should be slow to accept the plaintiff’s reasons for not complaining of injury for some time to his doctor after the first incident and seeking examination by the company doctor. It was submitted it was not a plausible conclusion to draw.[55]
[55]T42
248 In those circumstances, in the absence of any complaint in his affidavits and the fact that the plaintiff protested to an extreme degree about his unreliability when he was silent about it previously, also in light of the absence of any complaint, without any reasonable explanation, to his general practitioner, it was submitted the plaintiff’s evidence ought to be approached with some caution.[56]
[56]T43
249 Counsel for the plaintiff submitted the suggestion of recent invention was never put to the plaintiff. Indeed, the plaintiff had a discussion years ago with Centrelink when he wanted to work, and they told him “no”, one of the reasons being his lack of reliability. Further, he very tellingly said that then he would not face up to the reality that he was as injured as he was.[57]
[57]T45
250 It was submitted, on any view, the plaintiff was a very well-motivated man with an extremely good work record. He had worked faithfully for one employer for all of his working life until he was “thrown on the scrap heap” by them after he was injured, presumably when he was not able to do the light work that he was given to their satisfaction and was dismissed.[58]
[58]T45
251 Further, it was suggested by all medical practitioners that the plaintiff is genuine. No one suggested there was a functional component to his presentation, and in those circumstances, it was submitted the Court ought to accept the plaintiff as a creditworthy witness who gave his evidence entirely plausibly.[59]
[59]T45
252 Further, it was entirely plausible, the reasons why the plaintiff wanted to go to the company doctor in relation to his injuries – so it could be documented. Further, he had explained what happened when he told Mr Curl and his supervisor about his desire to see the company doctor. The plaintiff was transferred to Dandenong after speaking to Mr Curl, and the other supervisor did not accede to his request.[60]
[60]T46
253 As indicated during the hearing, I considered the plaintiff was a very credible witness. He is a hardworking man who had spent thirty-four years with the defendant until his employment was terminated as it had no duties available for him. He sought work through Centrelink only to be advised of his unsuitability and has been in receipt of the Disability pension ever since.[61]
[61]T42
254 I accept the plaintiff as an entirely creditworthy witness and that it was plain from his demeanour in the witness box that he was struggling and needed a break and had to take painkillers.[62]
[62]T47
255 Further, I totally accept the plaintiff’s explanation why he did not complain to his own doctor and instead wanted to involve the company doctor in his injury claim given his problems with the defendant in the past.
Pain and suffering
256 Counsel for the plaintiff submitted the plaintiff should succeed in terms of pain and suffering, listing a number of serious consequences.[63]
[63]T48
257 The plaintiff is not sleeping at night. He is taking significant medication. He has given up his hobbies such as fishing and bike riding, and he has lost his ability to work in the field that he has trained for as a motor mechanic. He has also lost his ability to perform the work he had done for the defendant in various roles over the years, including the role he applied for and was found unsuitable for.[64]
[64]T48
258 In all those circumstances, it was submitted the plaintiff had lost the ability to do any meaningful work. Any “drudge-like” job would not be something which would bring him the work satisfaction he no doubt derived from being a valued employee of the defendant or a skilled motor mechanic. In all those circumstances, it was submitted the plaintiff readily reached the threshold in respect of pain and suffering.[65]
[65]T49
259 Having indicated at the outset that pain and suffering was not the defendant’s focus in this application, when asked whether these employment consequences in this case were “serious”, counsel responded:
“I can't shrink from the suggestion that – and the plaintiff made comment about that in his answers in cross-examination, he wants to do something meaningful in that regard. That would be explicable that that would be a consequence Your Honour could consider. It's the gravity and the extent of it.” [66]
[66]T44
260 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
261 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
262 The former must be calculated by reference to the six-year period specified in s325(2)(f).
263 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
264 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
265 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
266 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
267 I am therefore required to determine a “without injury” earnings figure, There was no dispute in this regard. The agreed figure was based on the plaintiff’s 2013 earnings of $74,077, or $1,425 a week. Sixty per cent thereof is $855 a week.[67]
[67]T2
268 After the second incident, the plaintiff persevered with light duties until his employment was terminated in August 2014. As Dr Davison noted, with the plaintiff’s inability to do the physical tasks of the position available his employment was terminated.[68]
[68]T46
269 The report of Mr Wong , physiotherapist, indicates that the plaintiff was certified as unfit for any duties by his general practitioner, Dr Nguyen, by April 2014. At that time, the plaintiff was awaiting neck surgery. He subsequently attempted a return to work but had difficulty with work tasks and his employment was terminated.
270 The plaintiff’s attempts at obtaining work thereafter were unsuccessful, with him going onto the Disability pension after Centrelink was unable to provide him with any job assistance.
271 The plaintiff’s evidence about his current work capacity is clear.
272 The pain and discomfort from his neck injury in particular is such that with his level of training and experience, there is no way he can realistically do a job in the open market. His other injuries would also, of themselves alone, preclude a return to reliable, regular employment
273 The plaintiff confirmed many times in the witness box the significant extent of his pain and restrictions, difficulty with prolonged positions, including driving, problems sleeping and the need for strong medication, all factors which make attending work reliably, even on a part-time basis, very difficult for him.
274 Further, as the plaintiff described to Dr Horsley earlier this year, his tolerances are limited. His sitting tolerance depends upon the day and varies from ten minutes to an hour. His static standing tolerance is five to ten minutes. His dynamic standing tolerance is up to an hour. His walking tolerance is up to an hour; however, his driving tolerance is very limited.
275 Counsel for the defendant submitted, job number 2 in the Recovre report of warehouse administrator/control, was certainly within, in Dr Mutton’s opinion, the type of work that the plaintiff should be able to do, he having rejected the two packer roles.[69]
[69]T41
276 As counsel for the defendant noted, Dr Horsley was the high point in terms of the plaintiff’s case, of the view the plaintiff is totally and permanently incapacitated.
277 Mr Kossmann ultimately came to a similar view in his second report, having earlier, on examination in 2017, indicated he thought the plaintiff had a capacity for restricted employment, not specifying any particular hours.
278 As counsel for the defendant submitted, there was no explanation for this apparent change in view, with Mr Kossmann providing the same reasons for both conclusions. It was submitted the suggested job fitted into what Mr Kossmann thought was appropriate.[70]
[70]T39
279 Whilst Dr Nguyen’s view in his most recent report is somewhat unclear, as counsel for the defendant conceded, that practitioner appears to conclude the plaintiff presently has no capacity for suitable employment.[71]
[71]T38
280 Dr Doig, however, seemed to think the plaintiff might be able to do normal hours but needed retraining.[72]
[72]T40
281 It was submitted by counsel for the defendant there was some consistency within the plaintiff’s camp that the plaintiff is not to be thrown on “the occupational scrap heap”. There is work for him to do, and he has the capacity to do it. So Dr Horsley then sits on her own to a great degree apart from the most recent shift by Mr Kossmann to suggest that the plaintiff is totally incapacitated for work.[73]
[73]T40
282 It was submitted it ought to be concluded that the plaintiff most definitely has a capacity to at least undertake the tasks set out in the Recovre role.[74]
[74]T43
283 Counsel for the plaintiff submitted the opinions of those practitioners who considered the plaintiff had no capacity for suitable employment should be accepted.[75]
[75]T46
284 It was submitted the suggested job is primarily computer based, with some requirement for telephone use, so it is obviously going to require the plaintiff to be seated for much of the time with his neck in a flexed position. That meant that it was absolutely unrealistic for him to perform that job full time.[76]
[76]T47
285 It was also “credible” that the plaintiff was not a candidate for driving to Mulgrave in peak hour in those circumstances for a job sitting down.[77] Driving in these circumstances to work in a full-time role was not reasonable.[78]
[77]T47
[78]Richter v Driscoll [2016] VSCA 142
286 At best, if the plaintiff is found to have any work capacity, it was submitted the “medium” position was that of Dr Davison, who thought the plaintiff might be able to manage 20 hours a week in part-time work if suitable sedentary or light work could be found. At 20 hours, the plaintiff did not get within a “bull’s roar” of earning 60 per cent of his pre-injury earnings.[79]
[79]T47
287 It was submitted there was no way the plaintiff could work full time. Dr Horsley, and Mr Kossmann’s most recent view, is to the same effect.[80]
[80]T48
288 In my view, as a result of his neck injury in particular, and the significant consequences thereof as he has repeatedly described, the plaintiff has a very limited work capacity. At most, this would be no more than 20 hours per week in light work as suggested by Dr Davison but more likely the plaintiff would be unable to attend work for more than a few hours a day on alternate days.
289 In these circumstances, I am satisfied the plaintiff has suffered the requisite loss of 40 per cent, being unable to earn in excess of $855 per week in the suggested role or in other employment.
290 As there has been no improvement in the plaintiff’s condition for over four years, I consider this situation is likely to be permanent.
291 Accordingly, I grant leave to bring proceedings for damages for loss of earning capacity.
292 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity: see Forrest J in Acir v Frosster Pty Ltd[81] and Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle.[82]
[81][2009] VSC 454 at paragraph [147]
[82][2009] VSCA 170
293 Accordingly, I also grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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