Kitchen v P W Adams Pty Ltd and VWA

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-05340

GEOFFERY KITCHEN	Plaintiff
v
P W ADAMS PTY LTD	First Defendant
and
VICTORIA WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 January 2011
DATE OF JUDGMENT:	17 February 2011
CASE MAY BE CITED AS:	Kitchen v P W Adams Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2011] VCC 276

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – impairment of the cervical spine – headaches – non-organic factors – psychiatric impairment – pain and suffering – loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Hore Lacy QC and	Maurice Blackburn Lawyers
Mr B Hutchinson
For the Defendants	Mr J Batten and	Minter Ellison
Ms H Donmez
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff on 28 June 2004 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4 The plaintiff also brings this application pursuant to clause (c), claiming a permanent severe behavioural disturbance or disorder.
5 The body function relied upon in this case is the cervical spine and psychiatric impairment.

Outline of Section 134AB
(i)         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;
(ii)        The impairment of the body function must be permanent;
(iii)       The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity 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”;
(v)        The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”;
(vi)       Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.);
(vii)      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;
(viii)     Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(ix)       Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(x)        Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(xi)       Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(xii)      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.

6 The plaintiff relied upon one affidavit and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence
7          The plaintiff is aged thirty eight, having been born on 28 August 1972. He is married with three children under the age of fourteen.
8          The plaintiff left school before completing Year 11. He is an average reader and his writing skills are fair, although he is not good at spelling. He has no formal trade or professional qualifications.
9          Since leaving school, until starting work with the first defendant in October 2001, the plaintiff had the following work history:

•

Two years with ‘Australian Timber Windows’, including a year and a half of a glazing apprenticeship;
• Labouring in Scotland for seven months;
• Labouring with ‘Davis Plastering’ for about a year;
• A brickies’ labourer with ‘Geoff Morgan’ for two years;
• A mill hand with ‘Smiths Brothers Timbers’ for three years;
• A slaughterman with ‘Teys Brothers’ for about a year;
• Labouring with ‘Dean’s Bricklaying’ for two years;
• A forklift driver with ‘World of Wood’ for about a year;
• An installer with ‘Odour Out’ for six months; and
• A curator with ‘Nissan’ for two years.
10        The plaintiff’s job with the first defendant at its sawmill at Nowa Nowa involved work as a mill hand and yardsman. He worked a thirty-eight hour week with regular overtime and was paid $14 per hour.
11        The plaintiff’s duties with the first defendant included manually handling timber pieces, lifting and operating a heavy chainsaw repeatedly, cutting timber into specified lengths and unloading trucks using a frontend loader.
12        The plaintiff’s work duties required repeated and heavy lifting, pushing and pulling, overhead arm use and repeated bending and twisting of his spine. His duties required full and free use of his head, neck, left shoulder and arm.
13        On the said date, the plaintiff bent over to pick up a chainsaw which weighed between thirty and forty kilograms, and while doing so with his left hand, he felt a “pop” in the neck and developed a headache (“the incident”). In addition, the plaintiff developed left shoulder and arm pain (“the injuries”).
14        The plaintiff deposed that the day after the incident, he saw a chiropractor in Lakes Entrance, but that treatment increased his neck pain. The plaintiff later saw a general practitioner, Dr Bakewell, who suggested he undergo physiotherapy, but that treatment also caused the plaintiff pain.
15        In cross-examination, the plaintiff said he thought he saw Dr Bakewell before 25 August 2004, as her report indicated. The plaintiff was asked about an attendance with Dr Anderson on 6 July 2004. The plaintiff denied that he told Dr Anderson, as the clinical notes indicated, that he was not sure of how he injured his neck.
16        Dr Bakewell arranged x-rays and sent the plaintiff to Dr Wodak, a neurologist, whom he saw in early 2005. Dr Wodak injected the plaintiff’s neck and prescribed medication.
17        The plaintiff was later referred to Dr Vivian, musculoskeletal physician, whom he saw in late 2005. Dr Vivian injected the plaintiff’s neck; however, this treatment did not make much difference to the plaintiff’s pain. The plaintiff was eventually sent to a neurosurgeon, Mr McMahon, in 2007.
18        The plaintiff deposed that after the incident, he performed light duties for a couple of weeks but stopped work because of ongoing headaches and neck, left shoulder and arm pain.
19        In cross-examination, the plaintiff described that whilst he worked full time after the incident, he did not do any work on the chainsaw, with an arrangement to this effect having been reached with his foreman.
20        In cross-examination, the plaintiff agreed that on 28 October 2004, he left work, advising his neck was sore, and that the next day his wife advised the first defendant that the plaintiff was going to Melbourne to have an injection.
21        The plaintiff agreed that a return to work plan was drafted by Mr Ryan in early December 2004 which involved the plaintiff stacking pallets at his own pace, continuing to work on the frontend loader and no chainsaw duties. The plaintiff carried out these duties for about three months until he took further time off work because of his injuries.
22        Recovré helped the plaintiff get back to work, and in April 2005, he returned to light duties, which continued until August 2005.
23        At that time, the plaintiff had to stop work again because of his condition and he last worked for the first defendant in about March 2006. At that time, he was being prescribed MS Contin and Panadeine Forte for his headaches
24        During his attempts to return to work with the first defendant, the noisy workplace and light duties often aggravated the plaintiff’s pain. The work environment made his headaches worse and at times they were so severe he vomited. Light duties which aggravated his symptoms included operating the frontend loader and pushing timber pieces with his left hand.
25        The plaintiff was sacked by the first defendant in 2007.
26        Since March 2006, the plaintiff has not looked for work. He is currently in receipt of WorkCover payments. WorkCover has paid for all treatment save for the proposed surgery relating to the accessory nerve.
27        In cross-examination, the plaintiff said although he is not registered as seeking work, he intended to look for work but he had headaches and pain all the time. He thought that he would not be of much use to anybody. No job had been suggested to him by rehabilitation people or by his doctors.
28        The plaintiff has lived in the Wairewa area for the last eighteen years, a town of fifty people, with no industry. Fifteen kilometres away is Nowa Nowa, which has a population of about 200 people, with a sawmill, pub, café, general store and post office. That town is about thirty kilometres from Lakes Entrance.
29        The plaintiff’s wife works full time as the bar manager at the Metung Hotel. The plaintiff is effectively a house husband looking after the house and their children whilst she is at work
30        Given the plaintiff’s injury and reaction thereto and/or his changed mental state, his ability to work has been destroyed.
31        The plaintiff’s employment has been in manual unskilled work and he has never done office work, nor does he have any computer skills.
32        The plaintiff cannot return to manual work. He has not been involved in any rehabilitation, except in his attempts to go back to the first defendant, or retraining. The plaintiff believes he will not be able to work again.
33        In cross-examination, the plaintiff confirmed that his headaches and the problem with his accessory nerve stop him from looking for work.
34        The treatment for the plaintiff’s injuries has included osteopathic and chiropractic treatment, physiotherapy, injections, use of a neck collar, massage, painkillers (including Morphine-based medication) and anti-inflammatories. The plaintiff developed stomach problems at some stage from taking medication.
35        The plaintiff has undergone treatment from general practitioners at Nowa Nowa and the Lakes Entrance Community Health Centres. When it was suggested to the plaintiff in cross examination that he had not mentioned his neck condition to any doctors between late October 2008 and early 2010, the plaintiff explained that his doctors knew about his neck condition.
36        The plaintiff has had specialist treatment from Dr Wodak, Dr Vivian and Mr McMahon. Mr McMahon also referred him to Mr Davis, another neurologist. The plaintiff has also seen a rheumatologist, Professor Ryan, and Professor Sizeland, who removed lumps from his neck.
37        The plaintiff’s current medication includes 10 milligrams of MS Contin twice daily; Panadeine Forte; Epilim, up to ten tablets per day; Naprosyn, twice daily; Alodorm, to help him sleep; and an antidepressant, the name of which he cannot recall.
38        Dr Kinsella, the plaintiff’s current treating doctor, has not spoken to the plaintiff about reducing his medication intake and the plaintiff intends to continue with his present regime until his condition improves. The plaintiff agreed that he had not been told of a diagnosis and that he felt he was “on some sort of merry go round”. Dr Kinsella has discussed a pain management course with him.
39        The plaintiff had treatment from Dr Das at Lakes Entrance for his mental state. He was initially prescribed Zoloft in 2005. The plaintiff saw a psychiatric nurse, Steve Syer, at Orbost Hospital between 2005 and 2009. Mr Syer helped the plaintiff “get a lot of things out”. The plaintiff received counselling until his medication was “sorted out” by Dr Reddy, psychiatrist, at the Bairnsdale Hospital, whom he saw on one occasion.
40        The plaintiff’s antidepressant medication “has helped him think good thoughts, not bad thoughts”.
41        In cross-examination, the plaintiff said that the last time he was happy was before the incident. He did not gain any enjoyment from taking his children on a trip to Queensland in late 2009 and he required his medication during that time. The recent school holidays have not been happy ones for him.
42        In examination-in-chief, the plaintiff stated that his head, headaches, shoulders and neck pain had worsened since he swore his affidavit on 6 April 2009. He then deposed he continued to suffer non-stop headaches. The pain ranged from a dull ache to thumping and severe pain and was affected by sudden and/or repeated head movements, stress, exposure to noise or light, using his left arm, bending and running.
43        The plaintiff’s headaches start at the left side of the back of his neck and go over the top of his head into his forehead. MS Contin and Panadeine Forte ease the pain for a certain period.
44        In re-examination, the plaintiff said that he had about two headaches a week of greater severity but he had a headache all the time. When he has bad headaches he is not able to watch television. He described, “Like there’s a tolerance. I can tolerate some headache but then it will get worse as the day goes on””
45        The plaintiff suffers dizziness and on occasions vomits when in severe pain. His eyes hurt on and off. His left eye feels like it is about to pop out.
46        The plaintiff’s injuries disturb his sleep. Headaches, neck or shoulder pain wake him and keep him awake. He generally has a restless night’s sleep and rarely feels rested and usually lacks energy.
47        The plaintiff has continued to experience constant pain in his neck and left shoulder which sometimes goes down his left arm. He thought the problem was his accessory nerve just below his ear down his neck into his left elbow.
48        The plaintiff generally tries to avoid using that limb for physical tasks if possible. Strenuous repeated overhead use generally increases his pain.
49        Three years ago, the plaintiff had an ultrasound of his left shoulder organised by Mr Richardson.
50        Before the incident, the plaintiff led an active and enjoyable life and was fit and confident. He believed he had an easygoing nature and he loved his job with the first defendant. He enjoyed working outdoors doing physical work and operating the loader. His employer was the best he had ever worked for.
51        The plaintiff also enjoyed fishing, deer hunting, playing with his children, gardening and cutting firewood.
52        The plaintiff played cricket and football for the local Orbost Club but had stopped playing as of 2003.
53        The plaintiff did some football coaching at Bruthen Senior Club after the incident; however he could not show the players how to do things, such as drills, and he got fed up with the situation and gave up coaching.
54        Prior to the incident, the plaintiff enjoyed his relationship with his wife and children and enjoyed spending time with friends. He maintained the home and helped out with chores.
55        The injuries and change in the plaintiff’s temperament and behaviour have affected most aspects of his life.
56        The headaches and limited neck use and use of the upper left limb have restricted his ability to engage in usual activities and interests.
57        The plaintiff no longer enjoys the company of his children as he used to and has to turn down their requests to play because of his pain.
58        The injuries put a strain on the plaintiff’s marriage, including his sexual relationship. He gets frustrated and irritable “at the drop of a hat”, and often takes out his frustrations on his family.
59        The plaintiff’s wife often takes their children to his parents’ place to reduce this problem. The plaintiff feels he has lost his easygoing nature. He is intolerant and has lost interest in mixing with people. He has lost contact with friends and lost fitness.
60        The plaintiff has lost confidence. His memory has deteriorated since the incident.
61        The plaintiff’s injuries affect his ability to fish, cut wood, work in the garden, and hunt deer. The plaintiff would like to go surf fishing but is unable to do so as he cannot cast a rod.
62        As a result of his injuries, the plaintiff’s ability to do things around the house is limited and his wife has taken over many of the previous tasks, which is upsetting for him. The plaintiff no longer does any physical work around the house or any housework. He goes shopping with his wife but she lifts all the shopping.
63        The plaintiff spends his time watching television. He does not drink, bet or play pool. The injuries also affect his ability to go on long drives. The plaintiff walks to lose weight and is able to walk a couple of kilometres.
64        The plaintiff had not had problems of this nature prior to the incident. He was a jack of all trades and was capable of all sorts of activities.
65        The plaintiff was diagnosed with thyroid cancer in early 2008. He deposed in April 2009, he believed the cancer was in remission. The plaintiff was then receiving treatment, including radiation therapy and medication, but at the present time has no ongoing treatment, save for regular blood tests.
66        The plaintiff does not believe he has any problems associated with the cancer at the present time.
67        In cross-examination, the plaintiff said the cancer had “had a little bit of an affect on him”. He agreed the diagnosis of an abnormal node was made in 2005 and the condition progressed over a period until surgery in November 2007, and then further surgery and a diagnosis of thyroid cancer.

68 The plaintiff has been discharged from Professor Sizeland’s care. The plaintiff requires ongoing medication, Thyroxin, for this condition. On occasion he forgets to take the medication but when this occurs, it makes no difference to how the plaintiff feels.
69 In cross-examination, the plaintiff denied that his left arm pain came on after the thyroid surgery, saying it had been present since the incident.

The Plaintiff’s Treating Doctors
70        The plaintiff was seen by Dr Anderson at the Lakes Entrance Community Health Centre on 6 July 2004. He was then prescribed Voltaren, referred to physiotherapy and a CT scan was ordered.
71        The plaintiff was seen at the Lakes Entrance Community Health Centre on 6 August 2004 by Dr Filbeck, who ordered a CT scan. The scan was carried out on 11 August 2004 and was normal. Dr Bakewell at that clinic ordered a second CT scan, which was carried out on 30 August 2004, which again was normal.
72        Dr Bakewell referred the plaintiff to Dr Ryan, Clinical Associate Professor of Medicine at Cabrini, in September 2004. The plaintiff told Dr Ryan that two months earlier, whilst picking up a chainsaw, he suddenly noticed left occipital neuralgic pain with associated headaches, which had persisted despite various therapies.
73        Dr Ryan noted that rheumatological examination did not reveal a lot. The plaintiff had a few bouts of clonus in both ankles, but otherwise there was nothing remarkable and his plantars were downgoing. There were no cranial nerve abnormalities.
74        Dr Ryan advised Dr Bakewell that he thought she was right when she suggested the plaintiff had occipital neuralgia. Dr Ryan noted that the plaintiff had no other focal neurological symptoms or signs. Dr Ryan commented how this exactly related to lifting chainsaws was unclear. However, he advised that the most important thing was to be pragmatic.
75        With that in mind, he arranged for an ultrasound-guided occipital nerve steroid injection.
76        Following the injection, Dr Ryan advised Dr Bakewell that the plaintiff’s left occipital neuralgia had not improved and he also had continuing symptoms with intermittent vomiting. This gave Dr Ryan concern and he arranged for an MRI scan of the brain and upper cervical spine. That MRI scan did not show anything in respect of a cervical cord abnormality.
77        Dr Ryan advised Dr Bakewell that he could not explain what was going on. He noted the plaintiff described pain as only occurring when he lifted things up, and also the pain seemed to go through to his frontal sinus region.
78        Dr Ryan prescribed Clonazepam to take at night and advised that if the plaintiff did not improve, he intended to refer him to the neurologist, Mr Wodak.
79        In March 2005, Dr Ryan requested that Allianz fund a CT scan of the plaintiff’s cervical spine.
80        Dr Bakewell first saw the plaintiff at the Nowa Nowa Community Health Centre on 25 August 2004. She noted he had picked up a chainsaw with his left hand at work some six weeks earlier and felt a sudden sharp pain in his neck and something go pop. The plaintiff had suffered daily headaches and neck pain since then and had sometimes vomited with the headaches.
81        Dr Bakewell noted the plaintiff had already seen other doctors who had ordered an x-ray and CT scan on 11 August 2004 which had been normal. He had been prescribed anti-inflammatory medication and had been advised to see a physiotherapist.
82        On examination, rotation of the neck was full but the plaintiff was tender along the base of his skull.
83        Dr Bakewell then thought that although the most likely diagnosis was a sprained neck, the pain was more severe than usual and, because of vomiting with the neck sprain, which was unusual, she recommended a second CT scan. She tentatively diagnosed occipital neuralgia and referred the plaintiff to a rheumatologist after the second CT showed no abnormality.
84        Having been given a steroid injection by Dr Ryan in late October 2004, the plaintiff saw Dr Bakewell on 3 November 2004, when she noted, unfortunately, he was no better. The plaintiff was also then complaining of pain in his shoulder and between his shoulder blades. He told her he was driving a forklift at work which he described was like having his head bouncing around on a trampoline.
85        At that stage, the plaintiff had not had any time off work, so Dr Bakewell suggested a period of time to rest his neck muscles and ligaments.
86        The plaintiff was no better two weeks later. Dr Bakewell noted he had been offered a lighter job, using the docker, which involved the plaintiff using his left hand to push the timber off. Dr Bakewell suggested further time off work until the plaintiff saw a specialist again the next week.
87        Dr Bakewell began to wonder if there was a tumour in the plaintiff’s brain stem or cervical spinal cord. She noted Dr Ryan was also concerned about persistent vomiting and had referred the plaintiff for an MRI scan which was carried out on 18 December 2004 and was essentially normal.
88        On 29 December 2004, Dr Bakewell suggested to the plaintiff, in the absence of any serious pathology, that he should start doing normal activities again at home with a view to returning to work at the mill when it reopened in the new year, and she recommended he should wear a brace when working.
89        Dr Bakewell stated that lifting a chainsaw would raise intracranial pressure slightly which could cause an intracranial bleed in the presence of some underlying abnormality such as might follow a skull fracture.
90        Dr Bakewell could not predict the likely cause of the plaintiff’s injury, noting it had not been a simple sprain. She thought several factors might impede his recovery, noting mill work was not light and that members of the plaintiff’s family were all suffering work-related injuries which did not provide a helpful environment for the plaintiff to recover.
91        Dr Bakewell reported on 22 April 2005 that the plaintiff had developed a chronic strain of the trapezius muscle. She thought that he was increasing his work from two half days a week to five half days, and in two weeks she hoped he could return to fulltime duties.
92        The plaintiff told her that the factors causing major problems were jolting of the neck and head on the loader and lifting heavy objects. He told her that at first he found the loader to be a major problem but he found that work caused less pain than lifting and she advised him to avoid lifting heavy timber.
93        Dr Bakewell referred the plaintiff to Dr Rosenfeld at the Neurosurgical Outpatients on 5 October 2005.
94        The plaintiff returned to fulltime work on 27 June 2005, a return described by Dr Bakewell as always tentative. The plaintiff continued to have almost daily headaches but was doing work that required no lifting which he thought he could manage.
95        In mid August 2005, when the plaintiff was stacking light timber, he developed a headache which continued relentlessly until he was seen by Dr Bakewell on 22 August 2005.
96        Because of the very specific pattern of the plaintiff’s pain, Dr Bakewell referred him to a sports physician in Melbourne who in turn referred the plaintiff to Dr Vivian.
97        Dr Bakewell put the plaintiff off work in September, at which time he told her he could not get rid of the pain and could not cope with it, and it seemed to be getting worse. She started him on antidepressants and also used narcotic analgesia injections and oral liquid and tablets. As of December 2005, the plaintiff was no better. He was not sleeping because the pain was bad when lying down, he was very emotional and could not tolerate any noise or activity. Dr Bakewell was then agreeable to increasing the plaintiff’s antidepressant medication as Dr Jackson recommended.
98        Dr Bakewell thought that the proposed return to work plan in late 2005 seemed reasonable. However, she thought four hours a day would be excessive to start with and that the plaintiff would need considerable support and encouragement to return to work.
99        In February 2006, Dr Bakewell advised the Accident Compensation Conciliation Service that the plaintiff’s exact diagnosis was difficult. For want of a better one, she labelled it as chronic pain, noting Dr Vivian’s diagnosis was cervicogenic pain possibly from the C2-3 and C3-4 areas.
100       Dr Bakewell noted that the plaintiff’s attempt to return to work in a graduated fashion ended when he started stacking light timber again and the pain intensified to the point where he needed morphine.
101       She noted he returned to very restrictive work conditions but was unable to tolerate noise at the mill as it made his headaches flare up badly.
102       On 20 March 2006, the plaintiff went off work and Dr Bakewell placed him on the waiting list at the Pain Management Clinic at Traralgon.
103       At the suggestion of a masseur, Dr Bakewell arranged a neck ultrasound on 27 February 2006 which showed two abnormal lymph nodes. The local surgeon, Mr Irungu, saw the plaintiff on 14 March 2006 and referred him to Professor Sizeland, ENT/HN surgeon, who arranged a fine needle aspirate on 18 May 2006. It showed there were features of a possible metastasis from a thyroid capillary carcinoma.
104       A thyroid ultrasound and a CT scan were carried out on 6 June 2006. The latter did not show any abnormality of either the thyroid gland or the lymph nodes.
105       Dr Bakewell thought the question of the pressure and nature of a work-related injury was problematic. She was sure an injury occurred in the incident. From the earliest appointment, the plaintiff’s neck had been exquisitely tender in the posterior triangle and above the clavicle. She did not at that stage feel a mass, though in later times she had not palpated the plaintiff’s neck because it was tender. She noted that none of the specialists to whom she had referred the plaintiff had reported a mass.
106       In her view, the protracted severe nature of the plaintiff’s pain was unusual but not unheard of for an injury. She presumed at that stage the problem was cancer. Dr Bakewell reported the mass eventually was excised and found to be just normal glands, and the thyroid was also normal.
107       Dr Bakewell last advised in August 2006 that the cause of the plaintiff’s pain remained the sprain sustained in the incident. She then felt the plaintiff was not fit to work at all and that it would take him a very long time to work through the stress and develop a program that enabled him to cope with his pain. She had referred the plaintiff to the local psychiatric services and she thought he may need long term counselling. She also sent the plaintiff to Dr Vivian for steroid injections to the medial branches of his cervical nerve roots. If that did not help, she intended to send the plaintiff for pain management.
108       Following a flare-up of the plaintiff’s pain after Dr Vivian’s injection, on 14 May 2007, Dr Bakewell requested a further MRI scan and admitted the plaintiff to the local hospital for acute management.
109       Dr Bakewell reported in June 2007 that the whole history of lifting at work and the plaintiff’s continuing symptoms were baffling. She thought the plaintiff’s symptoms seemed much worse than expected from the injury. She was questioning whether a nerve root had been torn and developed a neuroma to account for the tenderness, sensory loss and loss of power, or whether a nerve had been cut during the excision of the lymph gland, or indeed there was another pathology that could explain why the injury caused prolonged pain.
110       Dr Jack Wodak, neurologist, saw the plaintiff at Dr Bakewell’s request in February 2005.
111       Dr Wodak noted there were no significant abnormalities in the MRI scan of the plaintiff’s brain or neck. He wondered if the plaintiff’s pain arose from facet joint disease and arranged a CT scan and radioisotope scan of the cervical spine.
112       On examination by Dr Wodak, the plaintiff had a full range of neck movement and there was no wasting or weakness, and there were no sensory signs. The plaintiff pointed to an area posteriorly in the cervical area just to the left of the midline as a site of maximal discomfort.
113       Dr Wodak advised Allianz on 1 March 2005 that he was not certain of the cause of the plaintiff’s pain. In the absence of a clear diagnosis, he was not able to comment further and noted that, so far, there had not been clinical or radiological evidence of any injury, whether that resulted from the incident or any other cause. Unless a cause could be defined, Dr Wodak considered that the plaintiff’s management should consist of pain-relieving medications and possibly physiotherapy.
114       On review on 8 March 2005, the plaintiff continued to complain of constant left sided neck pain in the left suprascapular region. He had a throbbing occipital headache every day. He was then working half a day, two days per week.
115       Dr Wodak then still did not have an adequate explanation for the plaintiff’s symptoms and thought the plaintiff might benefit from an intensive period of inpatient physiotherapy. He was unable also to provide an adequate explanation for the plaintiff’s headaches or their relationship to his neck pain, but noted that these complaints commenced after the incident.
116       Dr Bakewell referred the plaintiff to Dr James, sports physician, in August 2005.
117       On examination, Dr James found there was pain reproduction with cervical rotation to the left, combined with extension and cervical rotation to the right. There was marked tenderness present over the left supraclavicular fossa, and tenderness along the levator scapulae splenius capitis musculature.

118 Dr James believed the plaintiff’s symptoms were real and had a musculoskeletal basis, but could not be more precise about the diagnosis. He thought the best course was a referral to a musculoskeletal specialist, Dr Vivian.
119       Dr Vivian first saw the plaintiff on 27 September 2005
120       On examination, movements of extension, right rotation and right sided bending were the most painful, and movements were close to full.
121       Dr Vivian then noted that the plaintiff had a significant problem with his neck and there was a possibility he had facet joint pain. Accordingly, he injected the deep paravertebral structures with one cortisone injection but the plaintiff did not obtain any relief.
122       Dr Vivian noted that the films to date were not helpful in establishing the source of the plaintiff’s pain. Dr Vivian initially diagnosed cervicogenic pain, possibly posterior joint, from the C2-3 and C3-4 areas.
123       Dr Vivian thought the plaintiff’s pain was consistent with injury to an upper or mid cervical structure, including the possibility of the pain being primary facet joint pain.
124       After the unsuccessful injection, Dr Vivian sought permission to perform some medial branch blocks to ascertain whether or not the plaintiff’s pain derived from the facet joints.
125       In his January 2007 report, Dr Vivian noted the procedures the plaintiff had undergone in 2006 to see if he had cancer. He noted that since the operation in mid 2006, the plaintiff’s left lateral lymph nodes had been more painful and he could not lift his arm up actively because of left neck and scapular pain. The pain was about nine out of ten all the time and worse in the left occipital area.
126       Dr Vivian advised Dr Bakewell the neck and shoulder area were allodynic: light touch produced pain and tingling down to the fingers. Dr Vivian noted this had only been like that since the lymphatic procedures.
127       In his view, on balance, Dr Vivian considered any shoulder pathology was mild compared to the plaintiff’s overall problem. At that stage, he diagnosed neuropathic pain, including C8 thoracic outlet ulnar nerve pain and perhaps a local joint injury such as C1-2.
128       Dr Vivian thought, as the neuropathic features were so bad, he was not sure if target specific treatment directed at the facet joints would help. However, as the initial pain was in the C1-2 area, he thought one injection was worth a go.
129       He wondered whether a nerve conduction study could be organised to look at the ulnar C8 nerve function as, since the lymph operation, the neuropathic features had been present. Dr Vivian suggested that those features probably existed to some extent prior to the operation, but the incisions had made it a lot worse.
130       Further, Dr Vivian noted that perhaps some active methods of anger management were required.
131       In January 2007, Dr Vivian requested permission to perform a combined left C1-2 joint injection with a sympathetic block. On 19 February 2007, Dr Vivian reporting that he considered the plaintiff’s condition was work-related. He thought there now appeared to be an element of neuropathic pain with Complex Regional Pain Syndrome. He then thought the plaintiff was not fit for work.
132       On 16 April 2007, Dr Vivian advised Dr Bakewell that nerve conduction studies carried out by Dr Peppard were normal and that Dr Peppard thought the plaintiff might have a cervical disc problem causing C8 type radicular symptoms and that this could be a relative thoracic outlet problem as well.
133       Following the C1-2 injection, the plaintiff had a substantial exacerbation of pain. Accordingly, the block was not carried out on that day, and Dr Vivian then thought that further injections were contraindicated.
134       The plaintiff was hospitalised at Orbost from 30 April until 4 May 2007 with an aggravation of his neck pain secondary to this steroid injection.
135       On 10 May 2007, Dr Vivian advised the plaintiff, given the lack of success of opioids, their use could be significantly reduced. In response to the enquiry by the plaintiff whether there was any surgery that might help the lesion in his neck, Dr Vivian suggested a referral to Mr McMahon, neurosurgeon.
136       The plaintiff was referred to Mr Irungu by Dr Bakewell in March 2006 in relation to persistent headaches due to left neck pathology.
137       Mr Irungu noted that the ultrasound picked up masses. During the course of examination, he could feel there was a vague mass which caused the plaintiff severe pain to the extent he felt like fainting.
138       From the examination, Mr Irungu thought that the cause of the plaintiff’s headaches was due to the masses which were in very close proximity to the major nerves. In those circumstances, he referred the plaintiff to Professor Sizeland, who saw the plaintiff in May 2006.
139       On examination, Professor Sizeland found the plaintiff’s neck showed a mass within the apex of the posterior triangle on his left side, resulting in the same radicular type pain.
140       Given the longstanding nature of the plaintiff’s pain and the fact that the lesion was hypovascular with some cystic change, Professor Sizeland felt some tissue should be obtained for a more definite analysis and, in the first instance, he recommended there should be an ultrasound fine needle aspirate.
141       At that stage, Professor Sizeland thought it was possible there was a lesion pressing on the occipital nerve causing the plaintiff’s pain. He considered the other option would be a lesion of the nerve itself, such as a neuroma.
142       Pathology carried out in June 2006 showed normal lymph nodes. Professor Sizeland advised Dr Bakewell it seemed likely the original fine needle aspirate was misleading as the definitive histology did not confirm any suggestion of capillary thyroid cancer.
143       Professor Sizeland also advised Dr Bakewell that it was unlikely the radicular pain from the sub-occipital area was related to any lymphadenopathy. He noted that certainly at the time of the surgery, there was no obvious lymphadenopathy, apart from the node that was removed which was just above the accessory nerve in the region of the apex of the posterior triangle.

144       The plaintiff was reviewed by Professor Sizeland on 5 November 2007, at which stage cervical adenopathy was diagnosed. Professor Sizeland noted recent MRI showed two mid jugular lymph nodes which were enhancing and suspicious. In light of those findings, he would proceed to an immediate excisional node biopsy of the mid jugular nodes. He noted that the large lymph node on ultrasound was not visible on CT and that a fine needle aspirate under ultrasound control revealed a diagnosis of capillary cancer of the thyroid.
145       On review on 3 December 2007, Professor Sizeland diagnosed capillary cancer of the thyroid with metastatic disease to left neck. He noted the node he removed from that area was consistent with metastatic thyroid cancer. In such circumstances, he advised the plaintiff would need a thyroidectomy and left neck dissection with a central node nodule dissection as well.
146       Dr Peppard, neurologist, arranged a nerve conduction test and examined the plaintiff in April 2007. He thought the plaintiff’s pain was more suggestive of a cervical radicular problem, but he understood investigations did not show any major disc prolapse. Dr Peppard could not find any evidence of a local compressive neuropathy of either the median nerve or the left ulnar nerve.
147       The plaintiff was referred to Mr John McMahon, neurosurgeon, by Dr Bakewell in June 2007. Having told him of the incident, the plaintiff advised he had had ongoing left paraspinal pain which radiated to his occipital region, as well as his left scapular, suprascapular and shoulder region. The pain also radiated to the plaintiff’s elbow and had been associated with paresthesis involving his two ulnar fingers. Mr McMahon noted the history of a left-sided neck lump which was excised and found to be reactive lymph nodes.
148       On examination, the plaintiff had wasting of the neck and left shoulder muscles which Mr McMahon thought may represent a neuropathic origin or just due to disuse. The plaintiff had significant decreased shoulder abduction. Neurological examination of his upper limbs revealed generalized decreased power involving the left upper limb due to pain. There was also sensory loss involving the ulnar nerve distribution on the left.
149       Mr McMahon initially thought the exact cause for the plaintiff’s ongoing severe symptoms was uncertain. He noted certainly the possibilities included facet joint arthropathy. However, Dr Vivian had addressed that likely origin. Mr McMahon noted the plaintiff did have significant muscle wasting involving his left shoulder, which raised the possibility of a brachial plexus injury. Mr McMahon thought rotator cuff tears were also possible and an ulnar neuropathy should also be excluded.
150       Mr McMahon ordered a number of investigations, including an MRI scan of the brachial plexus and left shoulder, bone scan of the cervical spine and left shoulder, and also a nerve conduction test.
151       On review on 19 September 2007, Mr McMahon noted that the nerve conduction test had revealed severe reduction of the left trapezius muscle motor response. He thought this was consistent with an isolated severe left accessory nerve neuropathy distal to the branches of the sternocleidomastoid.
152       The cervical MRI scan did not reveal any significant spondylosis or evidence of nerve root compression. The MRI scan of the shoulder revealed only minor degenerative changes.
153       Mr McMahon noted, importantly, there was evidence of lymphadenopathy adjacent to the left common carotid artery which he thought probably represented reactive change. However, he suggested that the plaintiff be seen by Professor Sizeland for his opinion.
154       The bone scan did not reveal any significant facet joint or shoulder joint pathology. However, it did reveal a hot spot involving the right temporal bone. In relation to that finding, Mr McMahon wished to carry out a head CT scan. He referred the plaintiff back to Professor Sizeland in relation to the lymphadenopathy problem. Mr McMahon also referred the plaintiff to his neurosurgery colleague, Mr Davis, for his opinion regarding the accessory nerve neuropathy in the plaintiff’s current symptoms which mainly involved the left paraspinal, suprascapular and shoulder region. Mr McMahon thought that may well be due to trapezius muscle atrophy and some instability.
155       Mr McMahon advised Allianz on 20 September 2007 that the accessory nerve neuropathy revealed on nerve conduction tests may well be related to the plaintiff’s previous work-related injury.
156       On review on 3 October 2007, Mr McMahon advised Dr Bakewell a recent bone scan revealed the hot spot and that the subsequent CT scan was consistent with fibrous dysplasia, and he suggested a repeat CT scan in six months. Mr McMahon concluded that the plaintiff presented with a very complex presentation following being involved in the incident.
157       Mr McMahon felt at the time of the incident, the plaintiff may well have sustained an accessory nerve stretch injury of the left spinal accessory nerve. He thought that the plaintiff may also have sustained an injury to the left acromioclavicular joint and a mild shoulder capsulitis.
158       Mr McMahon did not feel the findings of cervical lymphadenopathy were related to the work injury.
159       As far as the plaintiff’s left shoulder joint was concerned, Mr McMahon thought the ongoing symptoms related to the shoulder joint instability secondary to trapezius muscle atrophy, also related to the stretch injury of the spinal accessory nerve.
160       As of November 2007, Mr McMahon did not feel the plaintiff had any ability to return to his previous work commitments and he was therefore totally incapacitated on the basis of ongoing neck, left suprascapular and left shoulder and upper limb pain directly attributable to an accessory nerve stretch injury and shoulder joint degeneration. Mr McMahon thought, as Mr Davis had suggested, the plaintiff may require accessory nerve neurolysis.
161       Mr McMahon felt that the plaintiff’s long term prognosis would depend on his response to chronic pain management as well the decompression surgery. Should his condition tend to improve, he thought the plaintiff may be able to do office work. However, he did not feel the plaintiff should be involved in any work requiring lifting greater than five kilograms, or repetitively bending below waist height or reaching above head height. He thought the plaintiff may be able to return to those light activities over the next few months, depending on his progress. He thought the plaintiff’s pain management would be best addressed by Dr Vivian.
162       Mr McMahon requested a subsequent CT scan of the plaintiff’s brain due to the incidental finding of a left petrous temporal lesion.
163       Having recently seen the plaintiff, Mr McMahon advised Allianz on 1 May 2009, that the plaintiff had ongoing left-sided neck and shoulder pain with a decreased range of shoulder abduction, all related to the WorkCover injury. He recommended the plaintiff be seen by Mr Richardson, orthopaedic surgeon, for an assessment of his left shoulder.
164       Mr Gavin Davis, neurosurgeon, reported in October 2007 that focussing on the left spinal accessory nerve injury based on the information provided to him, it was most likely that it represented a stretch injury.
165       Mr Davis thought there was a possibility that neurolysis of the spinal accessory nerve may improve trapezius muscle function somewhat. However, he explained to the plaintiff there was a risk of injuring the nerve further with surgery. He noted in addition, the plaintiff had numerous other complaints, particularly headache, not due to the spinal accessory nerve injury.
166       Mr Davis advised Mr McMahon on 16 October 2007, therefore there was no guarantee surgical exploration of the nerve would produce any significant discernable improvement in the plaintiff’s quality of life. Approval was sought from Allianz for this procedure on 17 October 2007.
167       Dr Wearne from the Nowa Nowa Community Health Centre has provided a number of reports, having taken over the plaintiff’s care in early March 2008.
168       When Dr Wearne first reported on 3 March 2008, she noted that the plaintiff was recently diagnosed with metastatic thyroid (papillary) cancer, and had undergone surgery in 2007 and was then undergoing radioactive iodine treatment at The Alfred Hospital.
169       Dr Wearne noted the plaintiff’s limited education and work history. At that time, she thought his future prognosis was uncertain with respect to his cancer treatment. Until that was dealt with, she thought the plaintiff was not currently fit to work in his old capacity or any other capacity within his training or experience.
170       Dr Wearne did not believe the plaintiff would ever be able to work in a job requiring manual labour. A decision as to the plaintiff doing non physical work could not be able to be made until after he had finished his cancer treatment.
171       Dr Wearne advised Allianz, from the plaintiff’s history and the paucity of such symptoms prior to the incident, the injury would appear to be related to his work activity. However, she noted the severity of the plaintiff’s persistent symptoms did not seem in keeping with the nature of the original injury, and that remained under investigation.
172       Dr Wearne noted the only pathology revealed on investigation thus far was a left accessory nerve neuropathy. As such, she noted the plaintiff “had a Regional Pain Syndrome that was still under investigation” with his current symptoms including neck and shoulder pain and restricted movement as of April 2008.
173       At that stage, Dr Wearne thought the plaintiff was not fit for any duties. She noted, of significance, he had been diagnosed with thyroid cancer, which had impacted on his mood and coping, but noted he was dealing with that remarkably well considering his co-morbidities. She thought that given the delay that the cancer had caused for any further investigations, the plaintiff’s inability to work due to chronic pain and immobility continued and he remained significantly debilitated by his symptoms.
174       Dr Kinsella at the Gippsland Lakes Community Health Centre in Lakes Entrance took over the plaintiff’s care in February 2009.
175       Since then, her involvement has been mainly related to treating the plaintiff’s chronic headaches, neck pain and some psychological issues relating to his changed life circumstances.
176       Dr Kinsella noted during the time that she had been looking after the plaintiff, he had suffered chronic ongoing headaches and neck pain since the initial presentation in 2004. He had also had periods when he became quite angry and agitated and required medication. She diagnosed mechanical neck pain related to a work injury with a secondary diagnosis of thyroid cancer.
177       Because of the complex nature of the plaintiff’s diagnoses and the stormy course he had had so far, Dr Kinsella was very guarded about his ability to return to any work, especially manual work.
178       Dr Kinsella thought the plaintiff would need lifetime follow up for his thyroid cancer and she believed him to have a Chronic Pain Syndrome based on her observations and clinical notes.
179       Dr Kinsella reported on 28 November 2010 that because of the close anatomical location of the plaintiff’s neck problem and his thyroid cancer, she found it difficult to attribute which disability caused which percentage of his disability. She thought because the plaintiff was on WorkCover for chronic neck pain well before his cancer diagnosis, she felt it reasonable to attribute the plaintiff’s main disability to his work-related injury.
180       On 23 September 2008, the Medical Panel found that the plaintiff continued to suffer from an unresolved soft tissue injury to his neck when asked to consider what was the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury.

The Plaintiff’s Medico-Legal Evidence
181       The plaintiff was examined for medico-legal purposes by Mr Jonathon Rush, orthopaedic surgeon, on 14 September 2006. The plaintiff told him that a major issue over the past two years had been headaches, as well as neck pain and stiffness and pain in the top of the left shoulder and over the left shoulder lade posteriorly.
182       Mr Rush noted that the plaintiff also apparently had some swollen nodes on the side of his neck and there was some concern about thyroid cancer. After surgery two months earlier removed some of the nodes, there was no evidence of cancer seen.
183       The plaintiff told Mr Rush that perhaps his biggest problem was ongoing headache. Further, there was pain on the left side of his neck and he complained of pain radiating down the medial aspect of the left arm to involve the little and ring fingers. Mr Rush noted that this pain and paresthesia had been present for a long time but had increased in recent months.
184       Examination of the cervical spine revealed marked tenderness over the left trapezius muscle and along the left side of the neck up to the region of the external occipital protuberance, which was very tender. There was marked restriction of cervical spine movement and there was global weakness in the left arm.
185       Mr Rush thought the diagnosis was not clear and that the precise cause of the plaintiff’s symptoms remained uncertain. He noted the plaintiff did have brachial neuralgia down the distribution of the C8 nerve root with no objective sign of radiculopathy. Given the lack of precise diagnosis and the fact the MRI scan had been done two years earlier, Mr Rush thought there should be a repeat scan.
186       Mr Rush considered there was no evidence of any abnormal illness behaviour. He regarded the plaintiff’s work as a significant contributing factor. At that stage, because of the plaintiff’s ongoing severe headache, neck pain and stiffness and left arm pain, he believed the plaintiff did not have a current work capacity.

187 The plaintiff was examined by Associate Professor Maurice Wallin, occupational rehabilitation specialist, on 5 October 2010.
188       On examination, there was very diminished movement of the cervical spine. There was restriction of left shoulder movement and a reduction of left hand grip strength. Professor Wallin commented that the plaintiff definitely did not engage in any abnormal illness behaviour.
189       Having perused various medical reports that had been provided to him, Professor Wallin confirmed that a very significant number of treating medical specialists had not been able to obtain an exact diagnosis. However, they definitely did record the plaintiff had very active ongoing neck pain, left arm and shoulder disability and significant headaches.
190       Professor Wallin confirmed the plaintiff had been diagnosed as likely having cervicogenic pain, some neuropathic pain and also some degree of Chronic Regional Pain Syndrome.
191       Professor Wallin noted that at the time of examination, the plaintiff obviously still had active ongoing disability involving his left upper arm, and that he had constant cervical spine pain, daily headaches and a significant diminished ability to use his left arm consequent upon the significant pain in his neck.
192       From a clinical point of view, he considered the plaintiff had significant active ongoing symptoms and he appeared to be diagnosable as having chronic cervicogenic pain and some neuropathic pain and some Chronic Pain Syndrome. However, he thought the plaintiff obviously did not have a sole psychogenic pain and there was no doubt, in his view, that the plaintiff’s ongoing pain in that area of his body was organic in nature.
193       Given there was no history of problems in this area prior to the incident, Professor Wallin thought there appeared to be no doubt whatsoever that the disability which the plaintiff developed following the incident in these areas was consistent with the incident.
194       Professor Wallin thought unless, or until the plaintiff was able to be significantly treated, he appeared to be assessable as permanently unfit for any form of suitable employment. Professor Wallin considered that it was not possible to be confident the plaintiff would improve in future to the point of being able to return to work.
195       Professor Wallin thought that the plaintiff had a poor prognosis and that he then did not appear to be assessable as having any current capacity for suitable employment on the basis of the requirement for strong analgesic medication for significantly persistent headaches.
196       Professor Wallin was subsequently asked if the plaintiff’s current diminished capacity would be assessable as consequent upon his thyroid cancer two years after his work injury or would be assessable due to the incident.
197       Professor Wallin thought the plaintiff’s incapacity for employment definitely related to his ongoing disability consequent upon the incident. He advised it was grossly unlikely that the plaintiff’s obviously fully remedied thyroid cancer could be assessable as having any impact on his current or future work capacity.
198       The plaintiff was examined by a psychiatrist, Dr Gill, on 9 November 2010. The plaintiff told him that since the incident, he was in constant pain in his neck with associated severe headaches. Such pain was worsened by lifting movements involving his left arm, and exposure to light and noise. The plaintiff was particularly limited in his capacity to lift any items with his left arm.
199       The plaintiff told Dr Gill, in more recent times his pain symptoms had become more severe and the pain now spread into his back and shoulder region. The plaintiff told Dr Gill he spent much of his time lying in bed all day in a darkened room. He experienced suicidal thoughts which occurred persistently. He was unable to enjoy life because of his condition. He suffered a loss of libido and his relationship with his wife had been affected. He continued to suffer insomnia. It took him two or three hours to get to sleep at night and he had interrupted sleep.
200       The plaintiff told Dr Gill that, despite having a diagnosis of cancer, his anxiety and depression in that regard were temporary and had subsided when it became apparent the cancer was in remission.
201       On mental state examination, the plaintiff did not display any cognitive impairment. He appeared to have reasonable insight and judgment. His affect was quite depressed and somewhat blunted. At times during the interview, he became tearful and he described intermittent suicidal thoughts.
202       Dr Gill noted the plaintiff’s physical injury had posed a diagnostic dilemma.
203       On clinical assessment of the plaintiff and collateral information available, Dr Gill considered the plaintiff’s psychiatric diagnosis was one of a severe Adjustment Disorder with Mixed Anxiety and Depressed Mood which, in association with chronic pain, had led to marked development of a Major Depressive Disorder.
204       Dr Gill noted that with treatment, the plaintiff’s depressive symptoms had been moderated but still remained significant. Dr Gill considered, on psychiatric grounds, the plaintiff had no current work capacity. Unless there was to be a dramatic improvement in his pain symptoms and physical capacity, Dr Gill considered it very unlikely the plaintiff would regain future work capacity. The question of permanency, in Dr Gill’s view, was mainly dependent upon the plaintiff’s physical condition.

Investigations
205 A CT scan of the plaintiff’s brain was undertaken on 11 August 2004. The brain parenchyma was normal in appearance for age. No intracranial collection, lesion or hydrocephalus was seen.

206       A CT scan of the cervical spine also carried out on that date showed cervical vertebral bony alignment was satisfactory. There was no focal bony lesion or significant degenerative change detected.
207       A cerebral CT scan taken on 30 August 2004 was normal with no evidence of increased intracranial pressure.
208       It was reported that a CT scan of the thoracic inlet carried out on 23 May 2005 showed no evidence of a posterior disc protrusion, nor evidence of canal stenosis. The exit foramina at all levels were normal. A CT scan of the cervical spine was normal.
209       An ultrasound of the left lateral neck was performed on 27 February 2006.
210       There were two oval shaped heterogeneous structures with some cystic degeneration in the posterior triangle of the left neck. These structures were hyper vascular and hyper-reactive. One measured 3.2 centimetres and the other 2.2 centimetres, and it was thought they may represent abnormal lymph nodes.
211       The right lateral neck showed multiple slightly enlarged lymph nodes, the longest measuring 1.7 centimetres. These were not as hyperactive as on the left and there was no evidence of torn muscles.
212       A thyroid ultrasound was carried out on 6 June 2006. The left lobe of the thyroid measured 1.6 by 4.4 by 1.2 centimetres and there was a single nodule in the upper pole measuring 0.5 by 0.3 centimetres transversely and 0.56 centimetres sagittally.
213       It was advised the thyroid should be subject to nuclear medical assessment. Further, it was noted there were two large lymph nodes on the left side of the neck and that the texture of those nodes was heterogeneous.
214       A CT scan of the neck taken on 6 June 2006 showed mucosal thickening in both maxillary antrum. No lymphadenopathy was demonstrated.
215       The lymph nodes identified on the ultrasound were not seen on the CT scan. The CT scan of the thyroid was normal and there was no marked asymmetry or evidence of soft tissue masses.
216       A chest investigation of 28 June 2006 showed the cardiomediastinal contour was normal and no significant bony lesion was evident.
217       The report of a CT scan of the neck carried out on 15 December 2006 noted the CT scan in June 2006 was normal. An ultrasound of the neck on 9 November 2006 showed some cervical lymph node enlargement. The present CT scan following injection of contrast was normal, with no evidence of significant lymphadenopathy.

Other Documents
218 By letter dated 13 July 2006, Allianz advised the plaintiff that his claim pursuant to s.98C of the Act was received on 26 October 2005 in relation to the incident. It was noted the claim was amended on 7 February 2006 to include anxiety and depression.
219 The plaintiff was advised that liability was accepted for his neck and psychiatric condition.
220 By letter dated 5 June 2007, the plaintiff was advised that his employment was to be terminated on the basis that his incapacity was not temporary and he was unable to carry out the inherent requirements of his pre-injury job, as confirmed recently by medical advice.

The Defendants’ Medical Evidence
221       Mr Peter Scott, orthopaedic surgeon, first examined the plaintiff on 2 February 2005.
222       The plaintiff then complained of neck ache and stiffness, particularly in the mornings, with radiation towards the left shoulder blade and thoracic spine, and occasional radiation towards the elbow. He also complained of recurring and sometimes severe left-sided headaches with nausea and occasional vomiting, but there was no suggestion of any left upper limb radiculopathy.
223       On examination, there was a full range of painless movements of the cervical spine but the plaintiff complained of tenderness over the left side of the neck over most of the length.
224       At that stage, Mr Scott thought that, in view of the history given by the plaintiff, that on the said date, the sudden development of his neck symptoms were probably related to an intervertebral disc lesion causing left cervical nerve root irritation which was yet to be clearly determined.
225       Mr Scott then thought the plaintiff was fit for light work and unfit for any work which required repetitive bending or lifting. He considered the plaintiff was genuine, well motivated and not exaggerating his symptoms.
226       When he reported further in April 2005, Mr Scott confirmed he was not able to identify a diagnosis or relate the plaintiff’s ongoing symptoms to the incident, having been given Dr Wodak’s report and copies of various investigations which showed no evidence of any abnormality or suggestion of any intervertebral disc lesion in the CT scan.
227       Mr Scott re-examined the plaintiff on 3 October 2005, at which time the plaintiff told him he believed his symptoms were worsening.
228       The only positive finding upon examination was that of tenderness to the cervical spine or musculature posteriorly in its upper third in the region of the left sub occipital triangle.
229       At that stage, Mr Scott accepted, in the absence of any past history of a similar problem, that the plaintiff’s symptoms were related to the injury in question.
230       Mr Scott thought that the plaintiff had developed an anxious or nervous response, which Mr Scott assumed had resulted from the headaches and neck ache.
231       Following a further re-examination on 24 May 2006, Mr Scott commented ongoing symptoms appeared to be related to non work-related factors, namely, metastatic carcinoma.
232       On examination, the plaintiff now complained of tenderness at the left side of the neck at the site of the nodule aspiration biopsy. Mr Scott noted, on careful scrutiny of the left cervical lymph node, one gained the impression there were some small nodes in the region of the posterior triangle.
233       Mr Scott then thought the plaintiff was suitable for very light work only in a part time capacity. He noted the plaintiff required no particular therapy for his pre- existing soft tissue injury to the neck which Mr Scott thought may have occurred in the incident and from which there had been a good recovery.
234       Mr Scott reported on 4 November 2006, having been provided with additional information indicating there was no evidence in various cytological studies of any cancer present in the neck.
235       Mr Scott accepted that the plaintiff’s neck symptoms were related to the incident and noted that investigations showed very minor changes apart from some disc bulging. He believed the plaintiff was perfectly fit for light work.
236       Mr Scott also suspected that anxiety and frustration, which probably developed with the suspicion of cancer, may have magnified the plaintiff’s symptom complex.
237       Mr Scott accepted there was a minor ongoing incapacity as a result of aggravated early disc changes in the plaintiff’s neck which occurred under compensable circumstances.
238       Following a further examination on 19 December 2006, Mr Scott diagnosed the development of a Chronic Regional Pain Syndrome with a lot of anxiety, frustration and depression “following a simple incident in June 2004”. He then thought the plaintiff was fit for light work only if one was considering this organic problem alone, but in view of the chronic pain which appeared to be regional in type, Mr Scott thought the plaintiff appeared to be totally unfit for work.
239       Upon receipt of the results of the recent MRI scan of the cervical spine, Mr Scott reported in June 2007 that the plaintiff was not suffering from any ongoing significant work-related organic disability to his neck/arm region.
240       Mr Scott last saw the plaintiff on 15 September 2009. At that time, he noted over the past few years the plaintiff had been complaining of pain and stiffness in the left shoulder.
241       Mr Scott noted that when he examined the plaintiff in 2006, the plaintiff had a full range of movement but because of his left shoulder problems, on 3 August 2007, he had an MRI scan of the left shoulder, and on 9 July 2009, he had a further investigation of his left shoulder.
242       Mr Scott considered the plaintiff’s left shoulder problems more likely to be related to his neck surgery than to any other reason. Accordingly, Mr Scott was unable to accept that the proposed surgery to the plaintiff’s left shoulder was related to the incident.
243       Mr Nye, neurosurgeon, examined the plaintiff on 23 November 2005.
244       Neurological examination proved normal and there was no wasting or weakness of the upper limb musculature. There was no spasm and there was some claimed limitation of cervical movement.
245       Mr Nye concluded that in all probability the plaintiff suffered a strain injury to the spine in the incident. He believed the plaintiff had developed a functional state with chronic pain without organic basis.
246       On re-examination in February 2007, the plaintiff claimed stiffness in the left side of the neck. Flexion was restricted and other movements were well achieved but accompanied by pain behaviour. The plaintiff claimed an impairment of pinprick sensation affecting the whole of the left arm.
247       Mr Nye thought the plaintiff had developed a Chronic Pain Syndrome for which an organic cause could not be identified, and clearly he thought the plaintiff suffered from a psychological condition.
248       Mr Nye did not consider the plaintiff had a capacity for employment, a consequence of continuing symptoms, which did not appear to have a physical basis, and the accompanying psychological aspects of presentation.
249       Mr Nye noted that subsequent to the excision in July 2006, the plaintiff claimed the experience of pain in the left shoulder region and noted a sensation of tingling in the left arm.
250       In a letter dated 15 February 2008, Mr Nye advised that he was at a loss to understand the recommendation for surgical treatment (repair of the left spinal accessory nerve) or possible relationship to the incident.
251       Mr Nye last saw the plaintiff on 3 July 2008.
252       Mr Nye concluded that the impairment of the accessory nerve function and other abnormalities identified which had led to a diagnosis of thyroid cancer for which surgery and radiotherapy had been undergone, represented new conditions and were not related to the incident injury.
253       Mr Nye thought there was no indication to explore or repair the left spinal accessory nerve, which thought had been subject to compromise related to the diagnosed malignant condition.
254       Mr Huygens, specialist surgeon, examined the plaintiff in March 2006. He thought it would be unlikely that the lymph node found in the plaintiff’s neck which unfortunately appeared to contain capillary carcinoma of the thyroid, would cause the symptoms of which he complained. He thought there was no problem with the plaintiff’s cervical spine. It appeared to Mr Huygens to be a soft tissue injury to the left posterior triangle of the neck.
255       Mr Huygen’s clinical observation led him to believe there was a musculature injury with some impingement of sensory nerve leading from the occiput towards the frontal region of the skull, noting there was no objective evidence in any investigations. At that stage, he did not feel the plaintiff could go back to meaningful employment.
256       Having been provided with further material, Mr Huygens reported on 29 June 2006, that his view was still that the initial injury sustained in the incident was related to a soft tissue injury involving muscle and/or ligaments of the para cervical area on the left hand side, but he noted it was difficult to explain why those symptoms had not improved and he suspected the answer may not be entirely apparent until the plaintiff had thyroid surgery.
257       Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 4 May 2010.
258       On examination, there was wasting of the left shoulder girdle musculature and there was tenderness along the dorsum of the cervical spine. There was some restriction of cervical movement.
259       Mr Dooley thought that based on the history available to him and the clinical findings, in the incident the plaintiff sustained a soft tissue injury to the cervical spine which probably involved some musculoligamentous damage and may have involved some aggravation of underlying degenerative disc disease.
260       Mr Dooley commented that the history and subsequent clinical course became somewhat blurred by the diagnosis of carcinoma, noting that the cervical lymph nodes had been either excised or biopsied on two occasions.
261       Mr Dooley noted that the relevance of that was that with the dissection required, no matter how carefully that was done, there was the risk of traction injury to the accessory nerve.
262       Mr Dooley noted the current clinical examination revealed wasting and weakness of the trapezius muscle.
263       In his view, it was far more likely that an accessory nerve lesion related to the lymph node involvement with carcinoma of the thyroid or the surgery required to obtain node clearance.
264       Mr Dooley considered the so-called stretch injury to the accessory nerve would be a somewhat vague diagnosis, and certainly he had not encountered that in clinical practice.
265       Mr Dooley noted clearly traction injuries to the brachial plexus do occur. He explained a traction type injury to the accessory nerve could occur with dislocation of the shoulder. He could not envisage how the plaintiff’s regular mill work or him lifting a chainsaw could cause a true traction injury to the accessory nerve.
266       Mr Dooley thought the plaintiff required no further treatment to help his symptoms. He thought the intensity of the plaintiff’s ongoing neck pain and headaches were out of proportion to what he would expect for the soft tissue cervical spine injury. He thought it was appropriate for the plaintiff to increase his activity and exercise regularly and whilst it was reasonable for the plaintiff to take analgesic medication, Mr Dooley thought that he should try to avoid potentially dependent medication.
267       Mr Dooley considered the accessory nerve was not the cause of the plaintiff’s pain and headaches and there was no evidence to suggest that any exploration of the nerve would improve the plaintiff’s situation in any way.
268       Mr Dooley concluded he would support Mr Nye’s diagnosis that the plaintiff was suffering from a Chronic Pain Syndrome in which there had been a significant psychological reaction to his situation.
269       Professor Fox, consultant in oncology, provided a report on 4 August 2010, having been forwarded reports from Mr Irungu, Professor Sizeland and the results of various investigations.
270       Professor Fox was asked to comment on Professor Sizeland’s conclusion that: “It was possible there was a lesion pressing on the accessory nerve causing the pain, or the option would be a lesion of the nerve itself, such as neuroma.”
271       Professor Fox believed, given the later findings that lymph nodes were involved with metastatic cancer, that the lymph nodes involved with cancer were pressing or involving accessory nerves and this was the cause of the plaintiff’s pain.
272       Professor Fox noted the other possibility which, in his opinion was not probable, was that there was a traumatic injury of the accessory nerve induced by lifting the chainsaw and that the plaintiff coincidentally had developed thyroid cancer involving nodes that were close to the damaged nerve.
273       However, Professor Fox believed this was unlikely, as pressure on the enlarged lymph nodes (due to the thyroid cancer) caused the pain symptoms to exacerbate, a finding of both Dr Irungu and Professor Sizeland.
274       Professor Fox thought that the plaintiff’s pain was due to the metastatic lymph nodes in proximity to the accessory nerve causing left sided radicular type pain. He thought the plaintiff’s continuing pain presumably reflected the original nerve injury.
275       Dr Jackson, psychiatrist, examined the plaintiff on 23 November 2005.
276       The plaintiff told him that he was a football coach to try and take his mind off his pain but at a recent trophy presentation the noise of the band caused him such severe pain he had to be driven home and taken to the local clinic where he received a morphine injection. The plaintiff told Dr Jackson his sleep was affected by pain.
277       Dr Jackson could not make a diagnosis of primary depression or of any psychiatric condition contributing to the plaintiff’s chronic pain and poor rehabilitation. He thought the plaintiff had depressive symptoms entirely secondary to his chronic pain and the consequences of that pain.
278       Dr Douglas, psychiatrist, examined the plaintiff on 23 May 2006.
279       The plaintiff told him he had no sense of pleasure and he was fatigued and tired because he could not sleep due to pain.
280       On mental state examination, the plaintiff’s mood appeared normal and reactive. His talk was fluent and coherent and there were no disorders of perception apparent, such as illusions or hallucinations. The plaintiff was focussed on his pain and sense of loss.
281       Dr Douglas diagnosed an Adjustment Disorder with Depressed Mood, noting the plaintiff had developed emotional and behavioural symptoms in response to ongoing pain and disability.
282       Dr Botvinik, psychiatrist, examined the plaintiff on 9 February 2007.
283       On mental status examination, Dr Botvinik could not find any form of thought disorder or disorder of thought content. There were no psychotic features and the plaintiff’s cognitive functions were totally intact. He demonstrated good attention, concentration and memory.
284       Dr Botvinik thought the plaintiff had developed a Regional Pain Syndrome and his neck injury was persistent with frequent and severe headaches.
285       From a purely psychiatric point of view, Dr Botvinik thought the plaintiff suffered from an Adjustment Disorder with emotional components in the form of anxiety and mild depression. From such a viewpoint, Dr Botvinik thought the plaintiff was not totally and permanently incapacitated for suitable employment and that his incapacity for work related only to his physical injury.
286       Dr Botvinik considered that the plaintiff’s injury was work-related and that his employment should be considered to be a contributing factor to his continuing incapacity.
287       Professor Sizeland reported to Dr Bakewell on 28 December 2006 that the plaintiff had neck pain, posterior most likely, and inflammatory in origin.
288       Professor Sizeland advised once again that the ultrasound had been reported as showing a three centimetre neck node he considered was not related to where the pain was present. He could not feel the neck node and therefore organised a CT scan of the neck but did not think that the pain was related to any lymphadenopathy in the plaintiff’s neck.
289       On 9 November 2007, surgery was performed in relation to abnormally enlarged left cervical lymph nodes.
290       The plaintiff attended at the Endocrinology Clinic at the Western Hospital from November 2008.
291       Professor Eveling of that Unit reported to Dr Wearne on 17 April 2009, advising that it was decided at the thyroid cancer meeting that the plaintiff should have annual globulin and radioactive iodine scans. On 23 September 2008, the Medical Panel found the plaintiff to be suffering from an unresolved soft tissue injury to the neck, relevant to the claimed injury.
292       The Panel considered that the proposed surgery relating to the accessory nerve was not appropriate or adequate for the plaintiff’s injury and or condition.

293 The notes of the plaintiff’s general practitioner were relied upon on the basis that between October 2008 and January 2010, there were no complaints of neck pain recorded.

Investigations
294       An MRI scan of the plaintiff’s head and cervical spine was carried out on 20 December 2004. It was reported there was no significant abnormality seen to suggest a central cause for the plaintiff’s vomiting. There were very minor disc degenerative changes involving portions of the cervical spine with minor posterior disc bulging at C5-6 and C6-7. The central canal remained adequate and the cord was unaffected.
295       A radionuclide bone scan carried out on 9 February 2005 showed there had been a good uptake of isotopes in all three phases and no focal abnormality was seen to indicate the presence of arthropathy or any other abnormality.
296       A fine needle aspirate was carried out on 18 May 2006. The left cervical node aspirate was positive. There was papillary carcinoma with features suspicious for a metastatic thyroid papillary carcinoma. An ultrasound-guided fine needle aspirate of the left sided lymph node was performed and slides were fixed and sent for cytology.
297       An MRI scan of the cervical spine and neck was carried out at Dr Bakewell’s request on 23 May 2007. It was normal and the cervical and upper thoracic cord appeared normal. There was no abnormality seen to the brachial plexus on the left. No T-1 mass was seen. There were multiple small nodes in the jugular chain and also in the posterior triangle.

Rehabilitation Documents
298       A vocational assessment report was carried by the Victorian WorkCover Authority on 15 May 2007. It was recommended at that stage that a report be sought concerning the upcoming neurosurgeon’s assessment. It was thought at that time there were no suitable employment options available for the plaintiff.
299       Recovré provided a vocational assessment report on 5 December 2006, at which time no suitable employment options were identified.
300       A further assessment was carried out by Recovré on 26 November 2008. It was recommended to consider re-education needs for the plaintiff after completion of his cancer treatment and resolution of his pain syndrome after the expected treatment by his neurosurgeon. It was felt at that time there were no suitable employment options available for the plaintiff.

Overview
301       I accept the plaintiff suffered a compensable injury to his neck in the incident, when he picked up a heavy chainsaw on the said date.
302       As was conceded by counsel for the defendants, it is accepted that an injury to the plaintiff’s neck and head occurred in such circumstances in the course of the plaintiff’s employment giving rise to an entitlement to statutory benefits, payment of which continues to date.
303       Whilst the initial injury was conceded, it was submitted by counsel for the defendants that the plaintiff suffered a trivial soft tissue injury in the incident and that a diagnosis of the plaintiff’s unremitting complaints of left sided neck pain had not been established.
304       Clearly there has been no consistent diagnosis of the plaintiff’s injury in this case. However, this lack of diagnosis is not fatal to the plaintiff’s application if it can be established that the plaintiff has suffered an injury resulting in impairment which is organically based, of which the consequences are serious.

305 Pursuant to s.134AB(38)(h) of the Act, psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
306 As the Court of Appeal said in Barwon Spinners & Ors v Podolak (supra), at page 664, para 117:
“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin … requires that any psychological or psychiatric overlay be stripped aside. …”

307 Thus, the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.
308 It was said by Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, at 652-3, that:
“So far as the evidence allows, the court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or a physical basis…. Where the court is unable to disentangle the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion. …“

309 What may be viewed as a slightly different approach to this issue was taken by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, where his Honour said, at p.19:
“A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”

310 Redlich JA expressed a not dissimilar view to Ashley JA in the case of Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, at p.19-20. In Redlich JA’s view, where there was evidence –
“… consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”

311 I accept, having considered these authorities, as Judge Morrow said in Gorgiev v Healthscope Ltd (2008) VCC 1443, at para 50:
“…if one can say that the plaintiff has suffered a ‘serious injury’ on evidence other than the psychological and psychiatric consequences of the injury, then that is all that is required. The mere fact that these latter factors intrude does not mean that an otherwise sound organically based case is to be dismissed.”

312       The original diagnosis by Dr Bakewell was of a neck sprain and occipital neuralgia, a view shared by Dr Ryan. Dr Vivian treated the plaintiff for what he described as cervicogenic pain, possibly related to the facet joints. Dr James thought the plaintiff’s pain was real and had a musculoligamentous basis. Mr McMahon considered facet joint arthropathy was a possibility, as was brachial plexus injury. Dr Wodak was not certain of the cause of the plaintiff’s pain.
313       Views of medico-legal examiners also differ as to the plaintiff’s diagnosis. Whilst Mr Rush thought the diagnosis was not clear and the precise pathology remained uncertain, he thought there was no evidence of any abnormal illness behaviour.
314       Professor Wallin diagnosed chronic cervicogenic pain, some neuropathic pain and some Chronic Pain Syndrome which he had no doubt was organic.
315       Mr Huygens diagnosed a soft tissue injury, a view shared by the Medical Panel in September 2008, which accepted that the plaintiff continued to suffer from an unresolved soft tissue injury to his neck relevant to the claimed injury.
316       Mr Dooley also thought the plaintiff suffered a soft tissue injury probably involving some musculoligamentous damage and may have involved some aggravation of underlying degenerative change. Further, he thought the plaintiff was suffering from a Chronic Pain Syndrome in which there had been a significant psychological reaction. Mr Nye diagnosed a strain injury to the cervical region, following which the plaintiff had developed a functional state with chronic pain without an organic basis.
317       Counsel for the plaintiff also submitted there was a Chronic Regional Pain Syndrome as diagnosed by Dr Vivian in February 2007, who found an element of neuropathic pain with Chronic Regional Pain Syndrome – a diagnosis ultimately shared by Mr Scott in 2008 and described by Dr Wearne in 2008 as Regional Pain Syndrome.
318       Though there is this support for the Chronic Regional Pain Syndrome diagnosis, there have not been any objective findings such as sweatiness, discoloration or temperature changes. As indicated to counsel for the plaintiff during the hearing, in the absence of such findings, I have difficulty accepting the plaintiff suffers from this particular condition.
319       Whilst Mr Dooley shared Mr Nye’s view that there was a Chronic Pain Syndrome in which there had been a significant psychological reaction, he did not go as far as Mr Nye to say that there was no organic basis for the plaintiff’s complaints – Mr Nye is the only medical practitioner who expressed

that view.
320       Although the plaintiff’s current treating doctor, Dr Kinsella, believed he had a Chronic Pain Syndrome, she also diagnosed mechanical neck pain related to a work injury to which she felt it reasonable to attribute the plaintiff’s main disability.
321       Whilst there is no consistent diagnosis of the plaintiff’s condition, taking into account the preponderance of medical evidence and also the following factors, I am satisfied that the plaintiff’s neck condition and headaches are organically based.
322       I found the plaintiff a credible and truthful witness. He did not embellish his symptoms in any way, giving evidence in a sensible manner.
323       His work history is strong, having worked for the first defendant for three years at the time of the incident and he had been in full time employment prior thereto.
324       The plaintiff has undergone a number of painful procedures and numerous investigations in an attempt to discover the cause of his symptoms and also to treat his pain.
325       There was no surveillance film or lay evidence challenging the plaintiff’s evidence as to his significant level of pain and disability.
326       Whilst Mr Dooley commented that the plaintiff’s complaints were out of proportion to a soft tissue injury, and Mr Nye noted some pain behaviour, there is no mention by any medical examiners of any exaggeration or inconsistencies on examination.
327       Dr Botvinik, psychiatrist, thought that the plaintiff’s incapacity for employment related only to his physical injury and not from an Adjustment Disorder which he diagnosed.

Thyroid Cancer Surgery and the Accessory Nerve
328       It was submitted by counsel for the defendants that treatment for thyroid cancer resulted in an accessory nerve problem which has played a central and significant role in the case and has taken over from any earlier soft tissue injury suffered by the plaintiff in the incident. It was submitted that the accessory nerve was the plaintiff’s main problem in terms of pain and restriction and it was the reason he could not work.
329       The issue of the accessory nerve problem arose after nerve conduction studies were carried out in 2007. Mr McMahon thought the severe loss of trapezius muscle responses shown on the studies was consistent with an isolated severe left accessory nerve neuropathy which may well be related to the incident when the plaintiff may very well have sustained an accessory nerve stretch injury.
330       When Mr Davis, neurologist, saw the plaintiff on referral from Mr McMahon in October 2007, he, too, thought this problem most likely represented a stretch injury dating back to the incident.
331       This view was not shared by medico-legal examiners, Mr Dooley, Mr Nye and Mr Scott, who thought this problem was a result of damage to the accessory nerve resulting from the biopsies that had been carried out to treat the thyroid cancer. Further, for reasons of which I am not aware, the Medical Panel did not accept that the accessory nerve surgery which was suggested was adequate or appropriate for the plaintiff’s injury.
332       In his viva voce evidence, the plaintiff explained what he thought was the accessory nerve problems was pain on the left side from just below his ear, going down into his shoulder to his elbow - pain he said that had experienced since the time of the incident.
333       The plaintiff initially said that he could not work because he had a headache and was in pain all the time. He then agreed it was this problem with the nerve that stopped him working as well as headaches.
334       Whether or not the plaintiff’s accessory nerve problem is the cause of his left sided condition, I accept the plaintiff’s evidence that he has experienced pain of this nature since the incident, as confirmed by Dr Bakewell. From the earliest appointment with her, the plaintiff complained to her of exquisite tenderness in the posterior triangle and above the clavicle
335       If the accessory nerve is unrelated to the incident injury, it comes within the category of a supervening event which, as Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), held goes to the question of damages if it can be established that the plaintiff has a serious injury in relation to the claimed compensable condition.
336       If on the other hand the accessory nerve problem is related to the incident injury, as suggested by Mr McMahon and Mr Davis, it can be taken into account when considering the consequences of the claimed compensable condition.
337       Leaving to one side the issue as to whether or not the accessory nerve injury was sustained in the incident, I am of the view that the impairment relating to the plaintiff’s neck injury and headaches alone is serious. As Mr Dooley explained, the nerve injury is not related to the plaintiff’s headaches or neck pain.
338       Taking into account all the evidence, I am satisfied that the neck injury suffered in the incident materially contributes to the plaintiff’s current impairment and its consequences.

Lymph Nodes
339       Relying on Professor Fox’s views, it was submitted by counsel for the defendant that the plaintiff’s pain was due to the metastatic lymph nodes in proximity to the accessory nerve causing left sided radicular type pain
340       However this is not a view shared by the plaintiff’s treaters and also other medico legal examiners. In early examinations, Dr Bakewell did not feel a mass on the plaintiff’s neck nor had the presence of a mass been reported by a rheumatogist, neurologist, sports physician and pain management specialist to whom she had sent the plaintiff. In her view, the cause of the plaintiff’s pain remained the sprain suffered in the incident.
341       In late 2006, Professor Sizeland however, did not think the plaintiff’s pain was related to any lymphadenopathy in his neck and that it was highly unlikely that the radicular pain from the suboccipital area was related thereto.
342       In 2006, Mr Huygens thought it would be unlikely that the lymph node found in the plaintiff’s neck would cause the symptoms of which he complained. His clinical observation led him to believe there was a musculature injury with some impingement of sensory nerve leading from the occiput towards the frontal region of the skull.
343       When Mr Rush examined the plaintiff in September 2006, noting some swollen nodes on the plaintiff’s neck had been removed, he thought that due to ongoing severe headaches, neck pain and stiffness and left arm pain, the plaintiff did not have a current work capacity.
344       Taking into account this medical evidence I am not satisfied that the lymph nodes contribute to the plaintiff’s pain.
345       Further, it was not suggested by counsel for the defendant that the cancer itself played a continuing role in the plaintiff’s presentation. The only treatment required by the plaintiff in that regard is medication and regular blood tests.

Consequences
346       The consequences of the plaintiff’s impairment were not really addressed in cross-examination which focussed on the role of the accessory nerve and the thyroid cancer.
347       The provisions of Section 134AB(38) set out the narrative test for determining whether a plaintiff may make a claim for damages for pain and suffering and or loss of earning capacity. In relation to the latter, additional tests are imposed.
348       The narrative test requires that the consequences of the plaintiff’s impairment when judged by comparison with other cases in the range of possible impairments may be fairly described as being more than significant or marked and as being at least very considerable.
349       The test requires a judgment based on an evaluation of all the evidence. The relevant consideration is the impairment not injury.
350       I accept that the plaintiff continues to experience left sided neck and shoulder pain and frequent headaches. He requires a range of quite significant medication, including MS Contin for pain relief on an ongoing basis.
351       I accept, as a result of the injury to his neck and headaches, the plaintiff no longer has the capacity to perform the only work in relation to which he has had experience, namely, manual work.
352       The plaintiff tried to keep working after the incident but was unable to do so after March 2006, because the noisy work environment gave him headaches which at times were so severe he vomited and he also had difficulty with manual tasks involving his left arm. At that time, his headaches were such that he was being prescribed MS Contin and Panadeine Forte.
353       The plaintiff had such problems with work before any mass was detected in his neck.
354       In cross-examination, the plaintiff said although he is not registered seeking work, he intended to look for work but he had headaches and pain all the time. He thought that he would not be of much use to anybody.
355       Further, in the letter of termination dated 5 June 2007, the defendants accepted the plaintiff’s incapacity was not temporary and that he was unable to carry out his work duties on medical advice.
356       The plaintiff was not cross-examined about his ability to engage in suitable employment.
357       Medical practitioners who have expressed a view as to the plaintiff’s employment capacity have suggested he has no current capacity and no suitable jobs have been suggested by them.
358       I am satisfied that the interference with the plaintiff’s work is a consequence that, 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 more than “significant” or “marked” and “at least very considerable”.
359       Having satisfied the narrative test, in order 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 forty per cent or more – s.134AB(38)(e)(i); and also

(b)

after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
360       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.
361       The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
362       “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.

363       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.
364       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.
365       I am therefore required to determine a “without injury” earnings figure. The onus is on the plaintiff in this regard -see Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
366       Counsel for the plaintiff simply submitted the loss of earning capacity was total. Written calculations of the loss of earnings relied upon by the plaintiff set out a “without injury” earnings figure of not less than $700 per week.
367       There has been no job suggested as suitable for the plaintiff by either rehabilitation services or any medical practitioner who has provided an opinion in this matter.
368       Counsel for the defendants conceded there was no specific evidence absent the thyroid and accessory nerve issues that the plaintiff could work and that the whole issue had been consumed by these factors.
369       However, the plaintiff’s successfully treated thyroid cancer is not playing a role in his present neck condition and, in my view, the neck condition and headaches materially contribute to his loss of earning capacity.
370 I am satisfied that as a result of his neck condition and headaches, the plaintiff has established that he has a loss of earning capacity of forty per cent or more within the meaning of s.134AB(38)(e) of the Act.
371       Given the duration of the plaintiff’s complaints, I am satisfied his impairment and loss of earning capacity is permanent.
372       I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
373       In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
374       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, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
375       Accordingly, I grant leave to the plaintiff to bring proceeding for damages for loss of earning capacity and pain and suffering.
376       Having made this finding I am not required to consider the plaintiff’s application pursuant to subsection (c).

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[2011] VCC 276

17 February 2011