Konukaldi v Victorian WorkCover Authority

[2024] VCC 2066

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

No.  CI-24-01340

MEHMET ERSIN KONUKALDI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and 30 September 2024
DATE OF JUDGMENT:	19 December 2024
CASE MAY BE CITED AS:	Konukaldi v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 2066

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – cervical spine impairment – pain and suffering and loss of earning capacity – range case

Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering & Anor v McKenzie [2014] VSCA 67

Judgment:                Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R H Stanley SC with Ms J Frederico	Zaparas Lawyers
For the Defendant	Mr B R McKenzie	Russell Kennedy

HER HONOUR:

1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Coast RV Pty Ltd (“the employer”) from around October 2016 to 22 June 2021 (“the period of employment”).

2The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.

3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:

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

4The application is in relation to the cervical spine, sub-paragraph (a) only.  A claim for psychiatric impairment did not proceed.[1]

[1]Transcript (“T”) 14

5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6The impairment of the body function must be permanent.

7The plaintiff bears an overall burden of proof upon the balance of probabilities.

8By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.

9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.

10I 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.

11In this application where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both as at the date of hearing and permanently thereafter.

12Subsections 2(e) and (f) recite the formula by which loss of earning capacity is to be measured.

13Subsection 2(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established. 

14I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Haden Engineering Pty Ltd v McKinnon[3] in reaching my conclusions.

[2] (2015) 14 VR 622

[3] (2010) 3 VR 1

15The plaintiff relied upon three affidavits, and 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.

16At the start of the hearing, the defendant added to its court book, correspondence dated 26 July 2021, rejecting the plaintiff’s claim for compensation on the basis he had not sustained an injury arising out of or in the course of his employment (“the rejection notice”).

17Given the claim for compensation had been denied, I raised with counsel for the defendant whether there was a factual dispute about something other than the serious injury issue.[4] Counsel for the defendant advised the Court the defendant would not take issue with the plaintiff’s evidence of the nature of his duties.[5] Later in the hearing, counsel advised the Court the issues were causation (both initial and ongoing), seriousness, and pecuniary loss.[6]

[4]See the Serious Injury Practice Note, at paragraph 4

[5]T6

[6]T14

Plaintiff’s evidence

18The plaintiff is fifty-six, having been born in July 1968 in Turkey.  When he was about seven, he and his family migrated to Australia. 

19He attended various schools around Victoria, as his parents moved around.  After completing Year 11, he returned to Turkey, where he completed the equivalent of Year 12 in around 1986.

20He was previously married but is now divorced, having separated from his wife around 2012.  He has three adult sons who live separately to him.

21He currently lives with his sister in Meadow Heights.  He has lived at that address for over 10 years.[7] 

[7]T16

22He receives a part Carer pension for looking after his mother.  Currently, he is paid $140 per fortnight.[8]  His sister receives the primary carer pension.  Sometimes he helps his mother with her shopping.  She has her own house but stays with him and his sister when her medical issues are worse so they can look after her.[9] 

[8]T59

[9]T30

23When asked how he could claim a Carer benefit for looking after his mother when he cannot work, the plaintiff said that he did not think the two things were related.  They were two different things:

“With Mum, it’s not like I have to do anything physical, but for employment I have to do physical things.  I can’t you know turn my neck around.  I have driving restrictions, I can’t cross a busy street when I have all these sorts of restrictions now.”[10] 

[10]T31

Qualifications and work history

24The plaintiff has certificates in warehousing and occupational health and safety, and a Diploma in Business Computing, obtained in 1990. 

25From around 1988 to 1990, he worked in production for the Ford Motor Company.  From around 1991 to 2002, he worked as a storeman for Tickfords, later known as Ford Performance Vehicles.  From around 2003 to 2004, he worked in pallet control for Thomas Transport.  From around 2005 to 2008, he worked as a fleet controller and import clerk for Toll Contract Logistics.  He then worked for Staff Australia, a labour-hire company, his longest position working for two years with Asahi.

26From about October 2016 to early August 2017, he worked as a warehouse hand at the employer’s warehouse and distribution centre in Metrolink Circuit, West Campbellfield as a labour-hire employee, hired through Staff Australia.      

27From early August 2017 to 22 June 2021, he worked as a direct employee of the employer as a warehouse hand, working 38 hours per week.  He has not worked since 22 June 2021.  His gross weekly pay was about $1,007.

28He compiled a résumé which was current when he started work with the employer.  The SHEP equipment referred to in the résumé were pallets.[11]

[11]T17

Medical history

29Prior to commencing with the employer in October 2016, the plaintiff had no problems with his neck and was generally in good health.

30He had no neck issues.   

31Around 2021, he was prescribed Nexium for ongoing problems with vomiting and bloody diarrhoea.

32After commencing with the employer on October 2016, he sustained a left shoulder injury whilst working around 24 and 25 July 2017.  An ultrasound demonstrated his left shoulder was swollen.  He reported this injury to his then-supervisor, Mr Osman Keskin, and was off work for about three days.

33The plaintiff sustained a further left shoulder injury whilst performing work duties on 6 June 2018.  Over the course of his employment, he also hurt his left elbow performing his work duties.  He submitted compensation claims for the left shoulder injury on 6 June 2018 and for the left elbow injury on 26 July 2018.  His left shoulder claim was accepted but his left elbow claim was rejected.  Both injuries resolved fully following physiotherapy and a period of lighter duties, and he no longer has any problems from these injuries.

34He experienced anxiety prior to working for the employer.  His anxiety increased due to a hostile work environment whilst working for the employer. 

Workplace injury

35During the period of employment, the plaintiff sustained injury to the cervical spine, including aggravation of cervical spondylosis causing neck pain and cervicogenic headaches (the cervical spinal injuries) and psychiatric injuries.

36His work duties required him to pick and pack a wide range of products such as caravan parts and accessories, including solar panels, awnings, fridges, washing machines and smaller parts and accessories and associated leisure products of varying shapes and weights (weighing up to 50 kilograms). 

37The work duties involved constant and repetitive manual handling including picking products from ground height to above his reach, as well as racking products (“the manual handling duties”).  He performed the manual handling duties on a full-time basis for approximately four years and nine months, prior to ceasing work on 22 June 2021. 

38He usually performed the manual handling duties alone.  He did not recall receiving manual handling training from the employer.  As a result of performing these duties, he sustained the injuries defined above. 

39He confirmed that he picked and packed a range of products of varying shapes and sizes weighing up to 50 kilograms.[12] He maintained this was the case, despite having been told that Dr Davison, whom he saw in July 2018, had a history that the items could weigh up to 30 kilograms,[13] Professor Bittar, in 2022, noted items weighed up to 30 to 40 kilograms,[14] and Dr Slesenger, in 2024, had a history items could weigh up to 25 kilograms.[15]

[12]T19

[13]T20

[14]T21

[15]T22

40The plaintiff agreed there was a variation in the weights he had described, but they were generally all over 25 kilograms and the Fiamma awnings weighed up to 50 kilograms and were handled by two people.  The weight was an estimation, there were no scales.  When asked by medical examiners about the weights, he just meant whatever product came into his mind.  He denied he was exaggerating the weights he lifted for the purposes of this case.[16]

[16]T23

41In re-examination, he was shown the record of picks he had done at work which included weights in excess of 25 kilograms and some around 50 kilograms.[17]  That was the particular one he was trying to say when he said 50 kilograms was the heaviest he lifted.[18] 

[17]T75

[18]T76

42In his Worker’s Injury Claim Form signed on 28 June 2021, the plaintiff set out he suffered a neck injury throughout the course of his employment, which included heavy and repetitive duties including lifting items, working above head height, lifting, pushing, pulling pallets, moving pallets, and wrapping.  It was noted he stopped work on 22 June 2021, reporting his injury the following day.  “Maria HR last complained 2 months ago.”

Treatment

43On 20 August 2020, during COVID, he had a telehealth appointment with his GP, Dr Baglar.  He complained to him of numbness and a burning sensation in the ulnar fingers of both hands which started when he flexed his neck. 

44On 8 September 2020, he again saw Dr Baglar.  The pain in his neck, both shoulders, and both elbows was getting worse.  Dr Baglar prescribed Mobic 15 (meloxicam 15mg) and Panadol Osteo (paracetamol 665mg) for pain relief. 

45On around August 2020, the plaintiff had an ultrasound of both elbows and a cervical CT scan which revealed mild degenerative changes at C4-5, C5-6 and C6-7.  He discussed the CT scan results with Dr Baglar, and told him that he thought the problems with his neck could be related to his physical tasks at work. 

46On 10 March 2021, the plaintiff complained to Dr Hajizadeh of neck pain.  The next day, he had a cervical CT scan which was reported to show "multi-level mild facet arthropathy".

47On 16 March 2021, he complained to Dr Hajizadeh of neck pain and pain and weakness in both hands.  Later that month, he started physiotherapy with Paul McCann for his neck.  Between March 2021 and August 2023, he had approximately 20 sessions on his neck.

48On 9 June 2021, he told Dr Baglar that his neck pain was getting much worse and that he did not think he could continue the physical work of his job.  He also took the day off work.

49On 21 June 2021, he took a day off work because of neck pain.  The following day, when working at the employer’s premises, his neck pain just got worse and worse.  After his lunch break, he changed to lighter duties to avoid placing more strain on his neck, and finished his shift in discomfort.  He has not worked since.

50On 21 August 2021, he had a cervical CT scan. 

51On 15 September 2021, he saw Dr Wijethilaka seeking a referral for physiotherapy for his neck.

52On 22 February 2022, he saw Dr Wijethilaka complaining of neck pain.  He saw Dr Wijethilaka again in May 2022, complaining of pain over the right temple, pain over the right eye for two days, and blurring of vision.

53The plaintiff continued under the care of his general practitioners and physiotherapist.

54On 19 March 2024, Dr Samarakoon arranged for him to have a cervical MRI scan. 

55With Workcover’s approval, the plaintiff was referred to Mr Thien spinal surgeon in June 2024.  In his referral letter the plaintiff’s GP advised Mr Thien the plaintiff was suffering neck pain with cervical spondylosis. 

56However, Mr Thien does not consult WorkCover patients.  The plaintiff did not follow up a referral to another surgeon because he does not wish to have, nor would he even contemplate, surgery.  He is simply too scared to go down that path because his friend's father passed away from neck surgery. 

57The plaintiff did not want to see a neurosurgeon; he just wanted to find out more information about his conditions.  He was confused about the next steps and “the whole topic.”  He had read bits and pieces about it.[19]  He did not see someone else because he did not want to see a surgeon; he wanted to see a pain management specialist.  He had not asked his GP to be referred to one.  He could not remember discussing pain management with Professor Bittar in 2022 and 2024 or Dr Sullivan suggesting a chronic pain management unit.  He also could not remember Dr Sullivan talking about a structural spinal surgeon.[20]

[19]T36

[20]T37

58The plaintiff was not sure why he had not discussed pain management with his doctor.  He will be seeking “subtle therapies like acupuncture, some sort of plan of swimming or something nonsurgical like that”.  He had not done those things; they were just an example.  There could be something he did know, or there might be new technology – he was “more seeking that sort of stuff”.  He just has pain management in his mind, and he was not really sure why he has not actually made enquiries about it.[21] 

[21]T38

59When it was suggested to him that if he had a serious neck problem, he would have followed up on subtle things like acupuncture or swimming, he replied that he had had physiotherapy and taken painkillers, “so that’s pain management”.[22]

[22]T38

60He did not go further with treatment because he did not need it as he was “pain treating” himself already with medication, physiotherapy, ergonomic posture correction, and a lot of resting.  Leaning against the wall was something he decided to do himself, and it made him feel better.[23]

[23]T58

61The plaintiff continues to receive treatment from his GP Dr Samarakoon who certifies him totally unfit for work.  He requires Centrelink certificates every three months for unemployment benefits.[24]

[24]T67

62The plaintiff typically takes Panadol Osteo once a day and Nurofen one to two times a day.  He does not like taking stronger medication.[25]   

[25]T39

63He no longer takes prescription medication with codeine.  He rejected the proposition he did not take prescription medication because he does not need it: “If I wait it out most times the issue settles down and until next time it flares up again sort of thing.”  The pain does not always go away.[26]  There are no periods where he has no pain, he just has lower-level pain.[27]

[26]T39

[27]T40

64He continues to see Paul McCann, physiotherapist, weekly.  The treatment helps free up better movement in his neck, but the benefit wears off quickly.  He tries to do the exercises at home three times per day, but it is difficult.[28] 

[28]T79

65He has got a neck brace.  It is a soft neck brace you can buy from the chemist. This was not an exaggeration at all.  [29]

[29]T71

66He has never refused a treatment option for his neck which his GP has advanced.[30] 

[30]T79

Cessation of employment

67He agreed that on his last day of work he was called into a meeting by his manager and “they put a few things together”.[31]  He had told the boss about his neck pain before this meeting.[32]

[31]T24

[32]T77

68On 21 August 2019, he had emailed the employer’s human resources department advising:

“I’ve had a nagging ache in the neck which seems to be much better now.  I would like to go back to my normal duties.  Going forward to avoid a reoccurrence, I believe we should look at the following -benches, computers and printers are too high, risk assessment for batteries, awnings, trailer, manual handling the shrink wrapper- Other “ availability of equipment like waves and forklift, availability of manual (correct height trollies and risk assessment for moving equipment (shrink wrappers).” 

69It was accurate, as he had told CoWork:

“I was having issues and I was taking days off, I was leaving messages, I have a sore neck I can’t come to work.  Management wasn’t too happy about all this.  I became a bit of a target.  I had arguments with the manager, he kept on showing me the door.”[33]

[33]T24

70“They” had said to him he was travelling with his tynes on the forklift too high.  He had also made two mistakes in six months, and “it was typical of what they do if you slow down work”.  It was not that he had made two mistakes, but that he had not picked up on mistakes made by others.[34]

[34]T25

71He might have been told in that meeting there might be a further, more formal, meeting.[35]

[35]T26

72Because of his neck pain, headache and stiffness, he did not look for any work or apply when he left the employer. He had numbness in his hands:

“… how would you be able to focus on any job … it just puts you at a disadvantage at a workplace, getting things, putting your focals on.”[36]

[36]T28

73He could not recall telling Dr Love in July 2021 that if he was offered restricted duties he could return to work.  He “was hopeful of getting back to work obviously at that time“.[37]  His employer never offered him restricted duties.[38] 

[37]T27

[38]        T77

74He rejected the proposition that he would not look for work until this case was over, saying:

“I won’t work at all.  I just know I’ll struggle with day to day just personal issues like hygiene you know all those sorts of things like dishes, I’ll struggle with these things, I can’t be employed anywhere.”[39] 

[39]T29

75He confirmed he would not go back to work once the case had settled because day to day, he could not work due to neck pain: “It’s not good.”[40] He did not tell Dr Ghan he was not looking for work because he had a Common Law settlement afoot.[41]

[40]T78

[41]T28; Dr Ghan’s report dated March 2024

76He did not have any ability to work.  He could not even do a part-time job.  It was not a matter of not attempting it, “it is just you know you cannot do it.”  His issue is neck pain and headaches and that is what is stopping him, it is not anything else, he wants to work: “Any skill is good enough, provided you’re injury free”.[42]  He cannot do any of the jobs that were suggested by CoWork.[43]

[42]T72

[43]T73

77He told CoWork about the unsuitability of their job suggestions due to his difficulties having to change positions, change the angle of his neck so he could not be sitting in one position.[44]

[44]T68

78Whilst he completed an Associate Diploma in Business Computing in 1990, his computer skills remain very limited.  Obviously, a lot has changed in the world of computers over the last 34 years, and he has not kept up to date.  He is able to use email from his phone to send and receive emails and can use Microsoft Word and Excel to a basic level, but he is by no means a computer whizz.  He does not even own a home computer.

79While he has previously had jobs for logistics companies where he did data entry, that was only ever just a part of his job and involved ‘in house’ systems specific to each workplace.  Even without his neck problems, he doubts he has the skills to get a computer-based job.  It was for this very reason that he was, for the many years before his injury, performing low paid warehouse work, relying solely on his physicality.

80He has not done any computer work since working for Toll, and had done pretty much seven years of pure labouring work since then.  In that period, he did not do a job in computer-based work because he had fallen behind the technology.[45]

[45]T83

81While he had described his computer skills as “proficient” in his 2017 résumé, he does not have the capacity to do office type work because he is not able to lie down at a workplace, he cannot take medication and he would not be able to focus on the given tasks.[46] 

[46]T68

82He does not work and cannot work.  He does not live his life like he used to.  He is not happy and is afraid of what the future holds for him.

83Not having been able to return to work really upsets him.  He had worked solidly for thirty years until this injury.  His father, who worked as a production worker at Ford for over twenty years, instilled in him the importance of work and he feels guilty that he is not showing his three boys that example. 

84Prior to his injury, he provided financially for his boys.  Eray, his oldest, who is twenty-eight, has autism and cannot work.  Evren is twenty-two and works in a warehouse and Oskay is seventeen and in Year 12.  He is not able to support them financially as he used to.  This is very upsetting for him. 

85In the past when he had injuries, for example to his knee, back, and left shoulder, he always returned to work.  He enjoyed working; he liked the order it brought his life and the banter with workmates.  He was a good worker and took pride in his work.  The boss told him that he regularly broke records for the number of products shipped and he was proud of his work performance. 

86Unfortunately, because of his neck injury, he does not believe he is capable of returning to any form of employment.  Doing a light, sedentary job was not realistic.  It remains difficult for him to sit for long periods due to his neck pain.  It is painful to move his neck up and down and to both sides.  It is also painful to hold his neck in a flexed position for any period.  Even when sitting down at home to watch the television, he needs to lie down after a while.

87As his pain also affects his ability to concentrate, this would also reduce his ability to hold down a job.  His concentration worsens if he has a bad night.  His neck pain continues to interfere terribly with his ability to sleep.  Some nights he is woken with pain after just a couple of hours and he struggles to get back to sleep.

88Even if an employer was to take him on, the unpredictability of his pain and his headaches is such that he could not reliably hold down a job. 

89Further, as his neck pain and restricted movement continues to affect his ability to drive, it is hard to keep his head steady to concentrate, perform head checks and reverse park.  He would have difficulty driving to and from work.

90He worries about what the future holds from a work perspective as he has many years left in his working life.  He is concerned that he will be unable to return to any form of employment in the future.  His inability to work and the relentless pain have caused him to get down in the dumps.

Neck pain

91Before commencing work with the employer in October 2016, he had no neck pain, full range of movement in his neck, and good strength in his neck. 

92In his August 2023 affidavit, he deposed that due to his neck pain, it was often difficult for him to sit in one position for long periods of time.  Not being able to sit for long times ruled out many social situations.  Because he could not lift anything say anything over 5 kilograms, that ruled out many day-to-day activities.  Also, turning his head could often cause neck pain, as did looking down; pretty much any looking down often hurt.  Looking down could be one of his most painful positions and often made any kind of sitting at a desk or a computer very painful.

93He continues to suffer constant neck pain which is aggravated by activity. The pain is dull at times but it often escalates into a sharp, burning sensation.  When it gets bad it gets really bad and all he can do is lie down to get relief.

94When his neck flares up, it is just general soreness every time he moves, every time he picks up something, even a simple task like getting milk out of the fridge.[47]

[47]T78

95During his evidence in chief, he swivelled around in his chair to talk to answer my question because it was more comfortable for his neck than moving his head.[48]  While sitting in the witness box, he had some neck pain, but he did not have headaches.  He then had some pains around the sides and back of his skull.[49]

[48]T31

[49]T32

96He has problems sitting; sometimes it is worse than at other times and he has to get up.[50]  He has to move around and watch the television from a different angle or sit straight.  He is able to sit but he has to move say after half an hour or maybe 10 minutes.[51] 

[50]T31

[51]T32

97He swapped positions when he was seeing CoWork, as they reported.  He massaged his neck during that interview because it was just a natural reaction to being very sore.[52] 

[52]T78

98His worst pain is in his neck and that is the one that interferes with his life the most.[53]

[53]T81

99Vomiting comes on with neck ache.  He sometimes felt like throwing up when he is having physiotherapy “pushes”.[54]   

[54]T82

Headaches

100Before commencing work with the employer, he never had any significant headaches, save for the usual occasional headaches most people get.  Because his neck pain radiates to his head, he now experiences regular headaches, which worsen when his neck pain increases.  He feels these headaches at the front of his head. 

101He occasionally got nausea with his headaches.  The headaches could last for days at a time.  As at August 2023, typically, the pain from the headaches was about a 7 out of 10.  When the headaches got bad, the only thing he could do was take Panadol and Nurofen, and lie down.

102He continues to suffer headaches which run up the back of his head from his neck. They come on about once or twice a week.  They are a migraine type headache which are unbearable.  He becomes sensitive to light and even, at times, nauseous.  When he is struck by this type of headache, he needs to retreat to bed in a dark room to let it pass.  He also has a constant surface type headache which is on the right of side of his head and travels up over his skull and into his forehead.

103He has never had stronger medication for migraines.  He takes two Nurofen and Panadol Osteo, and he gets through the pain and lies down in the dark and has a rest.[55]

[55]T40

104He rejected the suggestion that the headaches or migraines were separate to his neck.  He was not sure, he believed they were all related.[56] 

[56]T40

105He confirmed lying down in the dark when he had headaches.  He agreed he spent at least two days per week in bed because of headaches as Dr Slesenger noted. When it was suggested the surveillance film was inconsistent with this evidence, he explained it was movement related: the more he moved, the more the pain started to intensify, until he had no option but to end up in bed.[57]

[57]T57

106The “lower-level pain” he experiences feels like general soreness around the temples, surface sort of pain on his skull.  He does not have any warning for the migraine headaches.  He did not have any migraines before his neck injury.[58] 

[58]T80

Left upper limb

107As of August 2023, he also experienced pins and needles in his left fifth finger.  This happened a handful of times a year and usually lasted for around one to two minutes.

108In August this year, he deposed he continues to experience on and off pain in to his left hand. It is a weird numb sensation that affects his little finger and sometimes into his forearm.  It is a particularly uncomfortable sensation and it makes it hard for him to use his left hand.

109In his viva voce evidence, initially, he described the issues with his left arm come from his elbow and he gets numbness in his little finger and soreness in the other fingers (pointing down to his forearm and below).[59]  This started about the time of his left shoulder injury.[60]

[59]T33

[60]T34

110He had been having issues with his left arm soreness in certain spots, radiating down to his fingers.  He is aware that tests he has had in relation to his elbows have been normal.[61]

[61]T33

111He agreed he massaged his left elbow during the CoWork interview.[62]

[62]T78

112He agreed he had an ultrasound of his left shoulder in mid-2018.  Those problems never went away: “I suspect it’s all coming from my neck, all those issues.”  He agreed he had just said it started from the elbow and went down, but he had some issues with the shoulder, it is out the side of his neck (pointing from his neck down his arm).[63]

[63]T34

113When this apparent inconsistency was pointed out to him, he said:  “It’s all the way, it’s all his arm, it’s his shoulder and the side of his neck along the back.”  He denied he was making up those symptoms – he was telling the truth.[64] 

[64]T35

Right shoulder

114Before he commenced work with the employer, he had no problems with his right shoulder.  As at August 2023, his neck pain now radiated to his right shoulder, and as a result, he experienced intermittent pain.  On a normal day, the pain was about 2 or 3 out of 10, but if he had been using his arm much during the day, the pain reliably climbed to about a 5 or 6 out of 10. 

115He could pick up things weighing up to about 5 kilograms without setting off neck pain, if he used both hands.  If he picked something up with his right hand, then any amount of weight at all could cause significant pain, depending on how he lifted or carried the object.  If his right arm was by his side, then he could hold hanging weights.  He could carry the shopping.  If he had to bend his right arm and lift an object above his waist, then even just picking up the milk out of the fridge, or picking up the kettle to make coffee, often hurt.  Regardless of whether he was carrying anything or not, he generally could not lift his right arm above shoulder height. 

116While his GP did not mention problems with the plaintiff’s right arm, the problem was generally his left which was the issue as his physiotherapist noted.[65]  He has had some issues with his right shoulder, but the left is worse than the right.[66]

[65]T49

[66]T50

117When told Dr Wyatt noted he told her that if he moved his right arm across his body he could feel some slight soreness, he said initially it was his right shoulder with his neck that was really painful.  He had problems putting on his seatbelt when he stopped work.  His right shoulder has improved a lot but his neck obviously has not.[67]

[67]T50

118There was no mention of any right shoulder issue in his August 2024 affidavit.

119His right arm pain was bad at first, but it has got better and improved.[68]

[68]T81

Side effects of medication

120He does not like to take stronger medication than Panadol Osteo and Nurofen because of the side effects.[69]

[69]August 2024 affidavit

121Anti-inflammatories like Celebrex cause indigestion.  Nurofen and Panadol Osteo would not affect him so much at work, but if he was at home and uncomfortable he could lie down – how could he do that at work?  While those tablets don’t have issues, “it is just these other issues, like vomiting issues and those sorts of things”.[70]

[70]T70

Sleep and lifestyle consequences

122Before he commenced work with the employer, he enjoyed good quality sleep. 

123As at August 2023, due to his injuries, he experienced poorer sleep.  He often felt tired during the day from not getting proper sleep and had to take regular naps throughout the day.

124Typically, he needed to take Panadol and Nurofen in order to get to sleep.  Once asleep, he only got  at most two or three hours of sleep before his neck pain woke him.  He then spent about an hour walking around and moving to try to get his neck to relax.  Only after that could he go back to sleep.  This cycle happened three or four times per night, depending on how bad his neck was.  One night, he went to bed at 1.00am and woke at 4.00am, and did not go back to sleep.   Around once a month, he did not get any sleep at all.

125These sleep issues continue.[71]

[71]August 2024 affidavit

Domestic activities

126Before he started working with the employer, he was responsible for doing most of the gardening and yard work around the house.  From time to time, he also vacuumed and took out the rubbish.  He especially loved gardening.  His family had a back lawn that was maybe 20 metres by 10 metres, which he would mow.  He also did the planting and the watering.  He really enjoyed maintaining a vegetable garden.  He liked watching it grow, and took a lot of pride in knowing that he had grown something that the family could eat and enjoy.  He could not do much gardening because it was a lot of arm work and looking down which really  hurt his neck.[72]

[72]August 2023 affidavit

127The plaintiff was taken to the history he gave Dr Davison in 2018, when he was living at his current address, that there were no lawns or gardens to maintain.[73]  He agreed “there’s not much there and his sister does it and [he] does not have to do it”.  She mowed the lawn two days ago.[74] 

[73]T60

[74]T61

128Since his injuries occurred, he generally could not vacuum due to pain.  Carrying rubbish could also be really challenging.  He generally did not do much gardening at all because it was a lot of arm work and a lot of looking downwards, which really hurt his neck.[75]

[75]August 2023 affidavit

129Basically, the only housework he now does is washing the dishes which is still hard because of his neck posture.  He typically gets about halfway through and needs to take a break and lie down before finishing the rest.[76]  

[76]T60

130He rejected the suggestion he could do vacuuming and various other tasks at home.  It is not like he has not tried; he has tried and he cannot do it.[77] 

[77]T59

131Since the injury, he struggles with eating and has his first meal in the afternoon.  He is constantly anxious about his life.  This affects him being able to take any anti-inflammatory medication as it must be taken with food. 

Hobbies

132Before he commenced work with the employer, he really enjoyed fishing.  It was his major hobby.  He went on a fishing trip with friends every couple of months.  He loved the atmosphere.  He also really liked catching a fish, and being able to bring it home, cook and eat it.  They would head out with friends to a place near Geelong right next to the water.  He and his friends really liked that spot, because it meant they did not have to carry heavy things at all far.  Sometimes he took his kids with him, and they loved it too.  It was a really nice bonding time.[78]

[78]August 2023 affidavit

133As at August 2023, due to his injuries, he rarely went fishing.  Due to his neck pain, managing the fishing rod was often too uncomfortable.

134He last went fishing four years ago.  He was then still working [79] He denied he stopped fishing because of his left shoulder.  He was still fishing after he had shoulder problems in 2017-2018.[80]

[79]T62

[80]T63

135He used to enjoy long walks; however, due to his neck injury he has not been able to do the same long walks he used to.  He also struggles to stand for long periods, and gets relief when he lies flat.

Social and family

136Due to his injuries, he had isolated himself from his friends to a degree.  His situation has strained his social and family relationships.  At times, he found it hard to cope with the physical pain from his injuries, his loss of employment, and the guilt he felt about imposing on his family.  He was concerned about his financial future, and worried about being able to help his kids financially.  He now found he got anxious and depressed.  He did not know what was going to become of his life.  He had lost a lot of confidence, and he was not optimistic about his future.[81]

[81]August 2023 affidavit

137His inability to work and his relentless pain have caused him to get down in the dumps.  In December 2023 and early this year he had four sessions with Ms Monique Toohey, Psychologist, for his mood issues.  He stopped this treatment as he did not see any benefit.

138He remains upset by his limitations and is insular.  He spends a lot of time now at home.  This was not what he was like before the injury.  Whilst he had some bouts of anxiety in the past, he had a general love for life.  Beyond enjoying the company of his workmates, he also enjoyed socialising and was a regular at the Glenroy RSL most weekends where his Turkish background was a source of good-natured teasing.

139He no longer goes out at night. He finds the pain just too great. He no longer fishing with his friends or his sons. 

140His social life was affected because he could not focus on things, he could not listen to people when he had pain “in the background”.  Pain affected his ability to concentrate.[82]   While his GP set out on the most recent certificate that he had no problems with concentration, the plaintiff disagreed.[83]

[82]T64

[83]T65

141He then said he “didn’t have anything with concentration wise, but it’s impacted with [my] temper and grumpiness and mood swings and these sorts of things”.  He agreed he did not socialise because of those issues.[84] 

[84]T66

142He then said it was his neck injury that prevented him socialising because he could not sit amongst people, citing the example of having gone to a funeral where he could not sit, could not stand for too long and had to wait in the car.[85] 

[85]T66

143He has not travelled at all since his injury.[86]   He used to travel overseas to Thailand and interstate but would not be able to do so now because he could not sit for long on a plane.[87] 

[86]T67

[87]T82

June 2024 motor vehicle accident

144He was involved in a motor vehicle accident in June 2024 when his car was written off.  His physiotherapist’s note of 27 June 2024 was correct: “Some slight increase in pain … he has settled back to normal pain levels now.”[88]

[88]T81

145He mentioned this accident to CoWork but did not report any injuries because he really did not have any.  It was only a temporary injury.[89]  It was not a deliberate omission, it was not a significant injury, he was okay two days later and the “temporary stiff neck and headaches went away”.[90]

[89]T53

[90]T54

146He made a claim on TAC for the ambulance cost only.  He could not remember having any medication for any injury.[91]

[91]T55

147He denied he withheld the circumstances of this accident from the Court or that it was a significant injury. It was not significant, and he was not deliberately withholding information from the Judge.[92]

[92]T56

148He settled back to normal after this accident.[93] 

[93]T81

Surveillance film

149He confirmed his neck movements were very restricted when he saw Dr Wyatt in February this year, tucking his chin just a bit when asked to flex and bending his head about half of normal and he could not turn his head all the way around.[94] 

[94]T41

150His gait was slow and tentative when he saw CoWork in August this year. Hi gait was tentative then because he had been a passenger in a car for an hour and a half to get there.[95]  It was not true the way he presented when he saw doctors was not how he was outside an examination room.[96] 

[95]T46

[96]T42

151Eight minutes of film of the plaintiff taken on 24 September at around 5.00pm was shown. 

152In the film, the plaintiff was shown driving his car; opening the car door with his right hand; filling his car with petrol using his right hand; and grocery shopping, holding the grocery basket with his right hand and on occasion, putting the basket on the ground.  In my view, the plaintiff was not shown during these short bursts of film engaging in any activity involving any significant neck movement.

153He agreed he could move his neck to 45 degrees most times.  The film was not conclusive: it did not show someone who could look from the left to the right.  He has limited movement: “it’s not totally not movable”.[97] 

[97]T44

154He agreed he had bent his head slightly while in the supermarket looking at a display.  When it was suggested that that was more than the “tuck” he had showed Dr Wyatt, he explained it is not as much bending his neck forward, it is more when he tilts it up and down is the motion that he has an issue with.  When it was suggested he had deposed that pretty much any looking down often hurts, he said he goes past a certain point and “it feels like it is going to break, that is how bad it is”.[98]

[98]T45

155He disagreed the film showed someone able to bend their neck without any sign of a problem.[99] 

[99]T46

156He can carry two litres of milk in his left hand.  The shopping basket he was shown carrying in the film in his right hand was only light and he had to leave it on the ground at times.  His neck caused that problem, not his right arm.[100]

[100]T47

157When it was suggested the film showed no sign of problems with his left hand, he explained what he was carrying weighed only 3 or 4 kilograms.[101]  He could carry up to 5 kilograms, as he has told various people.[102] 

[101]T48

[102]T51

158He could not remember telling Dr Slesenger he had problems doing up buttons and zips.  He denied he exaggerated any problem he had with arm weakness or numbness in his finger.[103]

[103]T49

159He did not recall seeing on the film that he looked hard over his left shoulder on two occasions while driving.[104] “It is not true” that the film showed that he did not have a problem at all with his neck.[105]

[104]T51

[105]T52

Plaintiff’s medical evidence

Treaters

Dr Hakan Baglar, Clinique Mediterranean

160The plaintiff first attended this clinic in 2011.

161In his August 2021 report, Dr Baglar noted the plaintiff attended for his current problem on 20 August 2020 on Telehealth complaining of numbness and burning sensation on the ulnar fingers of both hands, symptoms he had more when he flexed his neck.

162A cervical CT scan was carried out in March 2021.  When the results were discussed with the plaintiff, he had the impression it could be related to his physical tasks at work.

163The plaintiff represented in June 2021, stating his neck pain was escalating and he was unable to continue with his employment.  He lodged a claim, but it was rejected.

164Dr Baglar agreed with Dr Love, that the plaintiff was just having age related degenerative changes rendered symptomatic by his employment. 

Paul McCann, Dallas Physiotherapy

165The plaintiff presented on 22 March 2021 after suffering an injury to his neck in the process of his employment back in 2018.

166When first seen, the plaintiff reported pain in his cervical spine and left arm radiating distally towards his left wrist and hand.  The plaintiff had stated he had never suffered neck issues prior to this. 

167Given the plaintiff's description of his injury and the type of work in which he was involved, he had no reason to doubt that the plaintiff’s employment played a major significant role in the development of this injury and continued to be a cause of his current problems.

168The plaintiff’s major symptoms related to stiffness and pain in his neck and persistent headaches as a result of the stiffness.  The pain was predominantly left-sided with intermittent pain now radiating into his left arm, and also predominantly left-sided headaches.  In addition, there continued to be reports of pain on both sides of the neck with further radiation to the trapezius and upper thoracic spine muscles.

169Treatment to date (July 2024) had included massage, heat, and various forms of passive mobilisation and stretching to the cervical and upper thoracic spine levels.  The plaintiff had also been provided with a set of exercises to perform regularly.

170Progress to date had been extremely slow with intermittent improvements in both range of movement and strength, along with the reduction in pain, but unfortunately these had failed to be permanent gains with large variations in pain and symptoms occurring regularly.

171Given the duration of the injuries, he did not see any major substantial gains in the short to medium term, but remained hopeful there could be some improvement in the longer term.

172Mr McCann’s note of 17 June 2024 read: “complaining of mca two weeks ago, some slight increase in pain.  Has settled back to normal pain levels now.”

Dr Samarakoon Mudiyanselage, Well Street Medical Clinic

173Dr Mudiyanselage reported in July 2024.

174He diagnosed cervical spondylosis with radiculopathy, the nature of the plaintiff’s employment being the main cause of the neck injury.

175Symptoms included worsening neck pain and headaches to the lower back of the skull, with radiating pain along the left forearm and hand.  The plaintiff also experienced numbness in the tip of his left small finger.

176The plaintiff was not fit for unrestricted preinjury duties with respect to his neck injury.  He suffers from neck pain on bending, moving, and rotating his neck and he cannot operate at a desk level job for many hours.  He can only drive for 10 minutes at a given time and can only walk for 20 minutes.  He can move his arm at desk level for short periods only and he cannot sit for long hours.

177In view of his persistent incapacity, the plaintiff does not have any capacity for his preinjury duties in the foreseeable future.  He has limited skills for any other employment and has limited education to be employed in other jobs. 

178On 20 June 2024, Dr Mudiyanselage certified the plaintiff as having no capacity for employment from 21 June to 19 July 2024 due to multilevel facet joint arthropathy, aggravation of degenerative changes in the cervical spine due to vocational activities at work. 

179He also noted that the plaintiff had the capacity to sit, stand, walk, bend, squat, kneel, reach above shoulders, lift with modifications and move his neck with modifications.  The plaintiff’s memory, concentration, and judgement were not affected.

180On that June attendance, Dr Mudiyanselage also noted “been in car accident three weeks somebody hit from behind at colour lights neck was sore getting better”. The reason for visit was noted to be Workcover. 

Mr Christopher Thien, spinal surgeon

181By letter dated 27 May 2024, DXC Claims Management advised the plaintiff that they had approved a request for a specialist consultation.

182In the GP’s referral letter to Mr Thien, he advised that the plaintiff was suffering from pain in the neck and headaches and numbness in fingers due to cervical spondylosis. The specialist was asked to authorise spinal surgery under WorkCover.

Investigations

183There was an x-ray of the left shoulder and ultrasound in July 2017 with the only relevant finding being minimal effusion in the subacromial bursa.

184Ultrasounds of the left shoulder and left elbow in June 2018 were reported to show no abnormalities. 

185Following ultrasounds of both elbows in February 2018, it was reported there was possible neuritis of the left ulnar nerve.  No evidence of medial epicondylitis.

186Following an ultrasound of the left shoulder in June 2018, it was reported there was no significant abnormality demonstrated.

187There as a normal ultrasound of both shoulders in September 2020.  The clinical data read “repetitive manual work? Tear.  Pain.”

188A cervical spine CT scan carried out in August 2020 was reported to show moderate degenerative change right C2-3 facet joint.  Otherwise, unremarkable with no nerve root compression seen. 

189A cervical spine CT scan carried out in March 2021 was reported to show no bony narrowing of the neural foramens.  Multi-level mild facet arthropathy.  It was noted disc herniation cannot be included on CT scan due to its inherent poor soft tissue sensitivity in this area.  An MRI scan was recommended.

190Dr Samarakoon organised an MRI of the cervical spine on 19 March 2024.  The scan was reported to show moderate left C4-5 exit foraminal narrowing secondary to a disc osteophyte complex. 

Medico-legal evidence

Dr David Barton occupational physician

191Dr Barton saw the plaintiff on behalf of GCU in December 2003.

192The plaintiff reported that several months ago he had an increase in lower back pain and developed pain in both legs having started a new job pushing a trolley (at Ford Performance Vehicles P/L). 

193The plaintiff was then working 8 hours per day on restricted duties.  He reported at that stage, he was about 50% better.  He was hoping to recover and return to his normal duties. 

Dr Gary Davison, occupational physician   

194Dr Davison examined the plaintiff in July 2018 on behalf of CGU Workers Compensation.

195The plaintiff told him that his job involved manual handling with items that could weigh up to 30 kilograms; for example, a battery.

196The plaintiff reported ongoing left shoulder pain associated with restricted movement.  He also described a burning sensation affecting the left elbow, together with sensory disturbance affecting the fourth and fifth little finger.

197The history was acute onset of left shoulder pain while undertaking manual handling on 6 June 2018.

198As at July 2018, the plaintiff remained at work on restricted duties.  Clinical examination was in keeping with a diagnosis of supraspinatus tendinopathy, noting the plaintiff’s employment involved heavy manual lifting which could be undertaken in the medium to heavy range at times.  In those circumstances, it was reasonable to accept manual handling in the workplace that either precipitated or aggravated the condition which still needed to be fully evaluated.

Professor Richard Bittar, neurosurgeon

199Professor Bittar first saw the plaintiff in May 2022.

200The plaintiff’s complaint was then of constant neck pain which varied in character between sharp, burning, throbbing, and aching, with the right side of his neck more painful than the left.  Neck pain radiated to the right shoulder, right retro scapular region and to the back of the head, and was of an average severity of 7 or 8 out of 10 and maximum 9 out of 10. 

201Pain was exacerbated by sudden or repetitive neck movements, pushing or pulling, coughing, sneezing or straining, repetitive arm movements using his head above shoulder height, neck flexion or rotation, lifting more than about two kilograms, walking for more than about 10 minutes and driving more than around half an hour.  It improved with recumbency, frequent postural changes, heat packs and medications.

202The plaintiff also had right shoulder pain and restricted movement.

203The plaintiff experienced fairly constant headaches which tended to flare up when his neck pain increased radiating from the back of his head to his temple, his forehead and behind his eyes and associated with nausea and blurred vision.

204There was also intermittent tingling and pins and needles in the left fifth finger every couple of months, which lasted for a minute or two and did not cause any significant functional impairment.

205The plaintiff was then taking Panadol Osteo and Nurofen.

206On examination, the plaintiff walked with a normal gait.  He had moderate restriction of cervical flexion and mild restriction of extension and rotation to the left and moderate restriction to the right.  He had minimal cervical spine tenderness with no muscle spasm.  He had mild restriction of right shoulder movement which was also painful.  There were no neurological deficits.

207The plaintiff most likely presented with aggravation of cervical spondylosis causing neck pain and cervicogenic headaches.[106]

[106]He had not been provided with any investigations

208The plaintiff’s employment had been a significant contributing factor.  Specifically, his repetitive and often heavy physical tasks, as well as the requirement to maintain his neck in a flexed position for lengthy periods had contributed to the development of a gradually worsening cervical spine condition which reached the point in mid-2020 where he was unable to continue working.

209The plaintiff’s employment remained a significant contributing factor to his ongoing pain, disability, and requirement for treatment.  The plaintiff should undergo an MRI and nerve conduction studies and be reviewed by a pain specialist and spinal surgeon.

210Taking into account the plaintiff’s age, education, training skills, and work experience, as well as the nature and severity of his work-related cervical spine condition, he did not have any realistic capacity for suitable employment on a permanent basis.

211After having seen the August 2020 cervical CT scan, while his views in relation to the plaintiff generally were unchanged, he thought in addition to previous recommendations the plaintiff should be considered for diagnostic blocks targeting the right C2-3 facet joint as this may be implicated in his neck pain.  If these blocks were positive the plaintiff should be considered for radio frequency denervation.

212When re-examined in May 2024, the plaintiff’s complaints of neck pain were similar to previous examination.  He continued to experience headaches which were now intermittent and occurred with variable frequency.  They tended to occur when neck pain flared up and radiated from the back of his head to involve his entire cranium.  They were often associated with light sensitivity, nausea, and blurred vision.  Tingling continued.

213On examination, the plaintiff walked with a non-antalgic gait.  He had moderate to severe restriction of cervical flexion with fairly normal range of extension.  There was moderate restriction of rotation to the right, which was painful.  He had a full range of shoulder motion on each side without any pain.  He had right-sided cervical paravertebral tenderness without muscle spasm.  He had altered sensation to light touch in the ulnar distribution of the left hand.  There were no motor deficits.  There was no abnormal illness behaviour.

214The diagnosis was aggravation of cervical spondylosis and cervicogenic headaches to which employment had been a significant contributing factor.

215The plaintiff should be assessed by a pain specialist and considered for a series of diagnostic blocks.  Spinal surgery was unlikely to be of benefit.

216The plaintiff was likely to continue to experience significant pain and disability into the foreseeable future.

217On balance, the nature of the plaintiff's employment is a cause and continues to be a cause of the neck injury.

218Having regard to the plaintiff's cervical spine injury alone, he does not have any realistic capacity for suitable employment on a permanent, reliable and consistent basis as a settled member of the wage-earning workforce without risk of reinjuring and deterioration of his injury.  His current symptoms and postural intolerances would prevent him from being able to undertake any type of work reliably and consistently.

Dr Joseph Slesenger, occupational physician

219Dr Slesenger saw the plaintiff in April 2024.

220The plaintiff then complained of residual neck pain, which was severe, and centred in the base of the neck with radiating pain into both shoulders.  There was also pain into his occiput.  He had had residual headaches over the occipital area with associated blurred vision. The headaches were occasionally associated with photophobia.

221The pain was constant, severe, and aggravated by activity and cold weather.  The plaintiff had difficulty flexing and rotating his neck.

222On examination of the cervical spine, flexion was to 20 degrees and all other movements to 10 degrees.

223The plaintiff also had residual pain in the superior and anterior aspects of the right shoulder with restricted range of motion and difficulty with shoulder movement.

224The plaintiff told him in his work in the production of caravans he was required to pick orders in which many of the items were large and awkward.  Some parts could weigh in excess of 25 kilograms, and the awnings could measure in excess of three metres.  The parts were delivered on pallets and containers, and these had to be unpacked.  The job demands were repetitive and paced, and he was required to meet key performance indicators. 

225The diagnosis was soft tissue injury, aggravation of degenerative disease of the cervical spine with radiating symptoms into the right upper limb with no confirmed evidence of radiculopathy, and also cervicogenic headaches.

226Dr Slesenger was satisfied that the preinjury job demands, in particular the manual handling and the postural tasks associated with that role, are a plausible cause of the plaintiff's impairment.

227Taking the evidence as a whole, he was satisfied that the work tasks performed were a plausible cause of the aggravation of degenerative disease of the cervical spine and symptoms remain causally linked to the workplace exposure.

228The plaintiff should have no push-pull-carry-lift over 5 kilograms, no over shoulder reaching and no sustained forward reaching, and no exposure to whole body vibration.

229The plaintiff cannot return to his pre-injury duties, as the job demands lay outside his capacity limits.  With regard to the impairment, taking into account the plaintiff’s current symptoms and function limitation, his past employment history, his literacy skills, his computer skills, his residential location and driving capacity, he thought the plaintiff is unlikely to be able to return to work performing suitable alternative duties on a consistent and reliable basis.

230Dr Slesenger was provided with the August 2024 CoWork vocational assessment report.  He made the following comments in relation to the suggested roles:

·     Warehouse operator, equipment hire controller and security officer, gatehouse – given the light physical demands associated with these roles, these tasks lie outside the plaintiff’s capacity limits and he is unlikely to be able to return to work on a reliable and consistent basis

·     Despatch and receiving clerk – given the sedentary to light physical demands associated with this role, these tasks lie outside the plaintiff’s capacity limits and he is unlikely to be able to return to work on a reliable and consistent basis

·     Alarm, security surveillance monitor and control room officer – advised against the plaintiff returning to work in this role as he is unlikely to be able to return to work on a consistent and reliable basis

Dr Richard Sullivan, pain specialist

231Dr Sullivan saw the plaintiff in May this year.

232The plaintiff told him of posterior cervical pain on both sides though tending to predominate somewhat on the left.  The pain ranged between 7 and 9 or more out of 10.  Characteristics included sharp, dull, stabbing, and aching pain, which was provoked through repetitive or sudden movements of the neck, including flexion, extension, and rotation, pushing or pulling forcibly with the upper limbs, undertaking overhead activities, and any form of straining. 

233Significantly, the pain also extended into the occiput of the plaintiff’s skull and could provoke a significant headache which can include the entire head and would often be accompanied with photophobia.

234The plaintiff said he was limited to walking and standing for no longer than 10 minutes, and sitting for no longer than 30 minutes.  He found it very difficult to utilise a computer or tablet without provocation of pain because of neck positioning.  His neck pain became problematic after driving for more than 10 minutes, and if he tried to lift weights in excess of 5 kilograms.

235On examination, the plaintiff had restriction of cervical movement with no more than 30 degrees of flexion and extension, left rotation limited to 45 degrees and right rotation limited to 40 degrees.  Lateral flexion to the left and right was to 20 degrees.  He had an appropriate range of shoulder movement.  He did have slight attenuation of punctate pressure affecting fourth and fifth digits of the left hand.

236The plaintiff had aggravated cervical spondylosis and precipitated post-traumatic chronic pain in this region.  On balance, employment was a significant contributing factor to the clinical diagnosis and presentation.

237The plaintiff presented with an organic basis to his diagnosable condition and associated symptoms.

238The plaintiff cannot return to unrestricted pre-injury duties now and into the foreseeable future.

239On a hypothetical basis, as a consequence of his cervical spinal injury in isolation, the plaintiff would theoretically have the capacity for sedentary work that was able to accommodate his condition, likely of a part-time nature anticipated to be no more than 10 to 12 hours per week. 

240From a practical perspective, considering the totality of his presentation including transferable job skills, his age, the severity of his condition, and the propensity of his pain to be aggravated with rather modest or trivial increases in activity and loading, the plaintiff’s realistic prospects for re-employment were negligible.

241The plaintiff’s prognosis is poor, and his chronic pain condition is expected to continue into the foreseeable future.

Defendant’s medico-legal

Associate Professor Bruce Love, orthopaedic surgeon

242Dr Love examined the plaintiff in July 2021.

243He was unable to be provided with a reliable description of the timing of onset, other than the plaintiff stated that symptoms came on gradually over some weeks.

244Presenting symptoms were then of upper cervical spine discomfort, more on the left side, with symptoms radiating through the left of the scalp to the left eye socket.

245The plaintiff said he had a history of a left shoulder condition, which had recovered spontaneously four years earlier.

246The plaintiff’s GP had diagnosed arthritis as the underlying condition.  The plaintiff also described a left-sided headache with pain passing to what he described as his eye socket.

247An examination of the range of cervical movement was moderately restricted in terms of flexion and extension, and particularly restricted with rotation to the right.

248He thought that the plaintiff had age-related degenerative changes in the cervical spine, and the nature of employment had contributed to the onset and continuum of symptoms.

249At that stage, he thought it may be necessary for the plaintiff to be given permanent alternative duties where he is not expected to work in postures requiring his neck extended to an extreme degree.

250The cause of the plaintiff's injury can reasonably be accepted as the nature of employment.

251The plaintiff then did not have the capacity for preinjury duties, but when questioned did feel if he was given restricted duties, return to work would be achievable.  He thought that duration of the plaintiff’s incapacity was likely to extend over a number of months.

Dr Mary Wyatt, occupational physician

252Dr Wyatt saw the plaintiff in February 2024.

253She noted he worked as a warehouse worker for Warehouse Caravan Accessories doing order picking and loading the truck.  There were a variety of items handled, from light to awkward items such as awnings and washing machines.

254The plaintiff described his job as physically demanding, referring to the requirement to manhandle boxes of one to twenty-one coolant, and that he would need to pack 100 boxes into the truck at times.  He referred to needing to use a manual pallet jack and manually wrap pallets.  He said loading the truck was the hardest part of his job.

255In his work role, he developed neck pain, as there was repeated and significant lifting with the need to lift heavy items at times, with repeated use of both upper limbs and overhead reaching.  There was a described need to repeatedly lift boxes of coolant.

256The plaintiff reported that early on in 2021 he started to get neck soreness, and his pain gradually worsened over the year.

257The plaintiff did not see himself as capable of doing anything.  His application for a Disability Support Pension was not accepted.

258The plaintiff advised he had ongoing soreness at the back of his neck particularly towards the upper cervical spine.  This then radiated into the back of his head, and he described a funny feeling in the top of his head.

259He reported that the pain was present constantly, and that he took Nurofen at times to take the edge off.

260He had no real ongoing problems in relation to the right shoulder, though if he moved his arm across his body into certain positions he could feel some slight soreness at the front of his shoulder.  The pain in his neck can occasionally radiate to around his shoulder blades.

261He reported very limited activities and said his sleep was poor.

262On examination, the plaintiff demonstrated reduced neck movement.  He flexed to a chin tap rather than full flexion.  He demonstrated about a third normal extension, indicating that there was pain that limited his movement.  He demonstrated about a half normal lateral flexion and rotation bilaterally.  There was tenderness over the cervical spine and the paraspinal region extending up and to the occipital ridge.  There was tenderness through the trapezius muscles.

263The plaintiff demonstrated grossly limited neck movement.  He reported generalised tenderness.  The general presentation suggested functional findings.

264The plaintiff’s overall picture suggested that non-physical factors were playing a significant role.  His reported symptoms and limitations, his examination findings, and the overall clinical picture was that his reported symptoms are not matched by objective clinical findings.  His clinical diagnosis of cervical spondylosis is a condition that would not be expected to cause his described substantial inabilities in and of itself.

265The plaintiff’s cervical investigations are consistent with a degree of cervical spondylosis.  Age-related changes in the spine are common and unremarkable in the plaintiff’s age group.  There is no evidence of a disc protrusion causing nerve root compression and no evidence of foraminal stenosis.

266The diagnosis is chronic neck pain.

267She was not of the view the plaintiff’s work activities in the period of employment had materially contributed to his neck complaints.

268In making that statement, she took into account his description of the job and the employer’s description of the job.  However, even accepting the plaintiff’s advice about the nature of the work in his role of packing, she did not think those activities would aggravate or contribute to a cervical spondylitic (sic) or chronic neck pain problem.  Repeated heavy demand in lifting such as repeated lifting of over 15 to 20 kilograms over a decade may contribute to neck problems.  The evidence on this is quite limited and there is a fair degree of evidence to suggest that manual work does not actually increase the likelihood of neck problems.  The research on this is not conclusive.

269The type of work done by the plaintiff with the weights handled and postures he has generally worked in over that period are not the type of duties expected to contribute to his neck complaints/cervical spondylosis.

270The plaintiff’s overall presentation suggests that nonphysical factors are playing a dominant role in his condition.  There is a pattern of lack of improvement over time, when one would expect if duties were contributing, there would be improvement away from those duties.  There is a substantial disability that is out of proportion to the nature of the problem, lack of focus on reengaging with work and passive treatment that is not helping.

271The issue is one of tolerance.  The plaintiff has withdrawn from activities and, as is not uncommon in those circumstances, reports that pain prevents him from active exercise rehabilitation.  His exercises are not meaningful in terms of physical exercise rehabilitation.

272Based on his reported capacity, the plaintiff would not being able to return to his normal job, though with respect to his physical organic neck problem she saw him as fit for his usual job.  His organic physical problem should allow him to work in suitable employment full time as well as his normal duties.

273The plaintiff had indicated that he felt unhappy about how he was treated at work and there are reasonable prospects this has contributed to his current presentation.

274Dr Wyatt provided a supplementary report in September 2024, having been provided with the report of the March 2024 cervical MRI scan (the first MRI scan).  It showed a disc osteophytes complex at C4-5 which was not previously reported.  It was expected CT scans would have shown such an abnormality if present at the time.

275It is a new finding that was not present when the plaintiff first developed pain.  Secondly, he does not have pain in line with a cervical nerve root compression; on history or noted on the pain drawing completed for the consultation two weeks prior to the MRI scan.

276She thought the jobs suggested by CoWork on 19 August 2014 were all ones the plaintiff was fit to do, noting the requirement for security training was Certificate III for the control room and gatehouse duties.  All of the roles were not physically demanding on the neck and she considered they were suitable for full-time hours of work for the plaintiff.

Dr Francis Ghan, orthopaedic surgeon

277Dr Ghan examined the plaintiff on 27 February 2024.

278In terms of the mechanism of injury, the claim form set out that the plaintiff reported experiencing right-sided neck injury which he attributed to lifting whilst at work with Caravan Accessories.

279Dr Ghan noted: “[He] has not been working.  He said he had Common Law settlement.” 

280A physical examination of the plaintiff’s cervical spine demonstrated essentially normal examination with no radiculopathy.

281Cervical spine flexion was three quarter normal range, extension a quarter, lateral flexion and lateral rotation three quarters normal range bilaterally.  He detected no evidence of cervical radiculopathy in the upper limb.  Reflexes were equal and symmetrical, and motor power was Grade 5 in the upper limbs.

282In summary, the plaintiff was a fifty-five-year-old storeman who reported onset of neck ache in June 2021 which he attributed to a lot of heavy lifting at work.

283The CT scan essentially demonstrated age-related constitutional cervical spondylosis especially facet joint arthrosis.  There was no disc protrusion or spinal stenosis.

284A normal examination of the cervical spine with only mild stiffness accords with the diagnosis of cervical spine spondylosis confirmed by multiple imaging especially the March 2021 CT scan.  There was no evidence on the imaging of any work injury.  The plaintiff’s ongoing symptoms were consistent with symptoms of cervical spondylosis; that is, mild stiffness of the cervical spine.  There is nothing over and above that could be constituted as work contribution or work related.

285The prognosis was that of degenerative cervical spine condition and its normal course natural history is of slow deterioration with age.  He did not think work the plaintiff did was in any way causing significant aggravation to his preexisting cervical spondylosis.

286The findings on x-ray, CT and MRI scan all point to the diagnosis of constitutional age-related cervical spine spondylosis.  The right upper limb, including shoulder and elbow, are all normal.

287The clinical findings of the cervical spine examination were mild stiffness consistent with spondylosis as outlined in the imaging.

288The diagnosis is cervical spondylosis. He was not of the opinion that employment in the work period materially contributed to the condition.

289The plaintiff does not have any pain disorder or chronic pain, and his degree of pain can be in accordance with his degree of cervical spine spondylosis.  That was not due to any work-related aggravation.

290The plaintiff was fit to return to normal pre-injury duties and hours.  He was certainly suitable for suitable employment on a full-time basis.

Vocational evidence

291Holly Ross from CoWork Pty Ltd conducted a vocational assessment and labour market analysis in August 2024.

292The plaintiff remained seated throughout the 130-minute interview, asking “Can I change position?” and moving the position of his chair midway through to face the author directly, and at around an hour to the original chair position.  His arms rested either on the chair or across his chest, gently massaging his left elbow three times and his neck once.  She observed his gait to be slow and tentative.

293When asked to demonstrate his active cervical range of movement, the plaintiff displayed very limited movement ranges in neck flexion extension and rotation to both sides.  He reported that pain prevented him from moving his neck beyond these ranges: “I can go about 45, but when I keep doing that at 45 I’m going to get [a] headache.”  He told Ms Ross he tried to twist at the trunk rather than moving his head independently.  With regard to symptom relief, he advised that lying down was the most comfortable.

294The plaintiff reported no issue with bending, “as long as I don’t bend my neck”.  He advised he adhered to a five kilogram lifting restriction.  He said he could walk for half an hour, and stand and sit for about an hour.

295Having considered the available information, including the plaintiff’s vocational profile, the medical information, his interview presentation, and his self-reported activities and physical tolerances, she concluded he was capable of transition to suitable employment in the open labour market.

296She proposed the following potentially suitable employment options and enclosed a labour market analysis in relation thereto:

·        Warehouse administrator, $1,708 per week ($44.94 per hour)

·        Transport scheduler, $1,692 per week ($44.52 per hour)

·        Equipment hire controller-coordinator, $2,104 per week ($55.36 per hour)

·        Control room operator, security, $1,563 per week ($41.13 per hour)

·        Security officer gatehouse concierge, $1,410 per week ($37.10 per hour)

·        Picker packer light items, $1,190 per week ($31.31 per hour).

297In response to the suggestion he could work fleet scheduling, the plaintiff said: “I’ve thought about that and I thought my ergonomics was going to be compromised sitting in front of a desk and at a computer.”

298In terms of administrative roles in warehousing, transport or logistics, he responded: “There’s a lot of challenges for me to get to that position.  Like, how do I manage my pain?  How do I manage my medication at work?”

299When asked if he could see himself working again, the plaintiff said: “I don’t think I will.”  As to whether he considered retraining, he said:  “Not really, look, I’m 57 years old, I can’t see myself getting over the problems I’ve got.”  He cited ongoing pain and associated restrictions, a concern about the likelihood of requiring frequent time off work due to his symptoms, an inability to function on a job, and having difficulty with travelling to a potential workplace.

300The plaintiff appeared heavily disabled and barrier focussed, noting he had applied for a Disability Support Pension unsuccessfully, which demonstrated his intention to secure a passive income.

301The plaintiff failed to convince her that he was in any way motivated to re-enter the workforce or participate in retraining in the short and longer term.

Overview

302The consensus of medical opinion is that the plaintiff presently suffers cervical spondylosis without radiculopathy. There has also been the additional diagnosis of cervicogenic headaches.[107]

[107]See the reports of Dr Slesenger, Professor Bittar and Dr Sullivan

303The only medical examiner who has commented on the 2024 MRI, describing a “new” finding, is Dr Wyatt, who is an occupational physician, not a surgeon.[108]

[108]T115

304Counsel for the plaintiff conceded that the lack of evidence of radiculopathy is such that neither upper limb was implicated in the neck, consistent with the plaintiff’s evidence that what troubled him most was his neck.[109] The defendant took a similar approach arguing that the left shoulder and elbow should not be considered because they had not been implicated medically in the neck anyway.[110]

[109]T116

[110]T87

305The defendant’s case is that the plaintiff’s cervical spine condition is constitutional in nature.  Dr Wyatt went further, noting the lack of literature supporting a connection between lifting and neck injury.[111]

[111]T88

306The claim was initially denied on the basis the plaintiff had not sustained an injury arising out of or in the course of his employment.

307The plaintiff was cross examined about the weights he lifted at work although counsel for the defendant had indicated at the outset that it was not the defendant’s case that the plaintiff was not engaged in heavy lifting.[112]  

[112]T6

308Having heard all the evidence, I am satisfied the plaintiff engaged in heavy manual handling during the course of his employment – lifting and or handling of objects weighing up to 50 kilograms – with his affidavit and viva voce evidence in this regard being confirmed by the employer’s pick lists which were shown to him in re-examination.[113]

[113]T89

309Further the plaintiff had advised the employer of his neck issues involving a number of work tasks in his August 2019 email.  It was not a situation where the plaintiff first complained of these difficulties after the work performance meeting in June 2021.   

310As counsel for the plaintiff submitted, there is “zero” evidence the plaintiff suffered any neck pain before this employment.  His claim form was signed very early, a week after the injury.  The nature of his work duties was such that he was involved in routine heavy lifting of cumbersome items. Clearly, lifting of heavy weights was a significant feature.[114]

[114]T120

311The medical opinion relied on by the plaintiff is that his cervical condition was aggravated by the performance of these heavy manual handling duties.

312Dr Love, who examined the plaintiff on the defendant’s behalf on 22 July 2021, diagnosed aggravation of age-related degenerative changes of the cervical spine. In his view, the cause of the plaintiff’s injury could reasonably be accepted as the nature of his employment.

313I reject the opinion of Dr Wyatt that heavy work would not aggravate or contribute to cervical spondylitis or neck problems based on her reliance on literature which she acknowledged was not conclusive.[115]

[115]T118

314As counsel for the plaintiff submitted: “The Court should take judicial notice that her opinion really goes against the flavour of the wealth of medical evidence that has been in this Court now for decades saying the opposite.”[116]

[116]T119

315In my view, Dr Wyatt’s view was simplistic and lacking in detail, failing to identify what research she relied on. She also failed to explain, how somewhat inconsistent with her opinion, heavy lifting over a decade “may” contribute to neck problems.[117]

[117]T119

316I also reject the opinion of the other “outlier”, Dr Ghan, relied on by the defendant in terms of the causation issue.   

317As counsel for the plaintiff submitted, Dr Ghan’s opinion lacked a path of reasoning which totally ignored the question “did the work aggravate the condition; did it make it become symptomatic?”  Dr Ghan remained silent on that question and jumped straight to his conclusion that the plaintiff’s cervical condition was age related. It appeared that he was looking for radiological evidence to identify injury rather than his medical knowledge.  Further, there was no indication in his report that he appreciated the duties the plaintiff was performing.[118] 

[118]T117

318I prefer the opinion of the plaintiff’s treaters and medico-legal examiners that the plaintiff’s cervical condition was aggravated by his heavy work duties and the nature of his employment continues to be a cause of his neck condition.

319The plaintiff’s GP, Dr Mudiyanselage, continues to certify the plaintiff as having no capacity for employment due to multi facet joint arthropathy, aggravation of degenerative changes in the cervical spine due to vocational activities at work. 

320As Professor Bittar opined, the plaintiff’s repetitive and often heavy physical tasks, as well as the requirement to maintain his neck in a flexed position for lengthy periods had contributed to the development of a gradually worsening cervical spine condition which reached the point in mid-2020 where he was unable to continue working.  The plaintiff’s employment remains a significant contributing factor to his ongoing pain, disability, and requirement for treatment.

321The plaintiff had no problems with his neck before performing the heavy manual handling duties with the employer.  He first complained of his difficulties in August 2019. He sought treatment from Dr Baglar in August 2020 and has received treatment from his GP on an ongoing basis since then, starting physiotherapy in March 2021.   

322There is a compensable injury arising out of or in the course of the plaintiff’s employment, which continues to be a cause of his cervical condition.

Credit

323As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[119]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[119](2010) 31 VR 1 at paragraph [12]

324The defendant submitted that on balance, this is a case where there are significant credibility issues and the Court has to have reservations in relation to the plaintiff’s complaints.[120] Credit is of particular significance, given the nature of the radiological investigations which, it was said, really did not show much.[121] 

[120]T101

[121]T92

325In summary, the main credit issues raised by the defendant were as follows:[122]

[122]T92-101

·        Despite the fact the plaintiff lives with his sister, there was no affidavit from her;

·        The plaintiff did not give examiners a consistent history of the weights he lifted at work;

·        The lack of reference in his affidavits to the June 2021 meeting or the disciplinary action that was foreshadowed;

·        The plaintiff’s motivation was in issue, relying on what it was said to be his comments to Dr Ghan along the lines of there was no thought about going back to work until the settlement of his case;

·        How the plaintiff can receive a pension for caring for his mother whilst not at least attempting to return to work;

·        None of his treaters refer to any right upper limb issue at all, and the plaintiff ultimately resiled from any problem with it;

·        The recent motor vehicle accident only really came out in cross examination when the plaintiff was pressed, when this was a dramatic event involving his going to hospital in an ambulance.

·        He deposed to having to lie down for a couple of hours when he had a headache when his viva voce evidence was he would sometimes have to lie down for one or two days;

·        Claiming he had difficulty gardening because of his neck having told Dr Davison in 2018, when he was living at the same address, there was no garden or lawn;

·        His evidence that problems with concentration was the reason he had difficulties with work and social activities, when his GP had recently certified in June 2024 that his concentration and attention were not affected;

·        The neck brace was not referred to in any of the affidavits.

326The defendant placed some significance on the surveillance film submitting the level of neck movement shown on the film was greater than the plaintiff demonstrated on examination by Dr Wyatt when he was only able to flex to a chin tap, compared to looking down at the petrol bowser, looking at items in the supermarket.  The film of his driving showed him looking over both shoulders quite freely and that he could move his neck greater than 45 degrees as he described.[123]  He was able to turn his head freely when walking in the film – unlike having to swivel on his chair in the witness box to look at the bench.[124]  There was no issue with numbness in the ring finger of his left hand seen on the film.[125]

[123]T94

[124]T95

[125]      T49

327On balance, this is a case where there are significant credibility issues in relation to the plaintiff and the Court must have reservations in relation to his complaints.[126]

[126]T101

328Further, insofar as the plaintiff complains of neck pain or headaches, those complaints are exaggerated, as was put to him fairly and squarely.[127]  If it was as bad as he said, he would have followed up with the neurosurgeon or pain management.  He has not even gone ahead with more subtle processes, such as swimming and acupuncture.[128] While he deposed to suffering constant pain, in his viva voce evidence, he described variations and sometimes low-level pain.[129]

[127]T102

[128]T102

[129]T102

329The defendant highlighted those issues and, insofar as the plaintiff’s credit was impugned, then his complaints in relation to his neck and headaches are impugned in the lack of objective evidence verifying them.

330Further, there was no evidence of a deterioration in the plaintiff’s condition since seen by Dr Love in July 2021. This was not borne out in the affidavit material or the plaintiff’s evidence.  Professor Bittar, who saw the plaintiff in 2022 and 2024, thought the condition was stable.[130]

[130]T127

331For these reasons, the defendant submitted the application in relation to pain and suffering must fail.[131] 

[131]T103

Plaintiff’s submissions

332While the defendant was putting a good deal on findings with respect to credit, the Court was urged to conclude that the plaintiff was a man of credit. He demonstrated a very strong work history, and the defendant has accepted a very impressive résumé, spanning back 30 years of largely unbroken work.[132] 

[132]T108

333His work ethic was demonstrated by his hope in 2003, when he saw Dr Barton for a workplace injury to his back, to return to work, and he did go back to work.[133]  In 2018, Dr Davison noted the plaintiff continued to work on restricted duties because of his shoulder, admitting he was unrestricted in matters other than lifting – another example of not a compensation focus, as was the case of the email of August 2019 evidencing a determination to work despite pain.[134]

[133]T108

[134]      T108

334On the basis of these factors, the plaintiff’s evidence about being most upset at not being able to work and that he feels guilty about not working should be accepted.  He enjoyed himself at work, took pride in his work, and believed himself to be a good worker. The pause was “palpable” when asked how it makes him feel not working, and he said “it is not good”.[135] 

[135]T109

335From a 30 plus year work history and the recovery from earlier accepted WorkCover claims it should be taken he would work if he could.  The history was a good predictor.[136] 

[136]T109

336Beyond that, the plaintiff gave evidence in a forthright, honest, and straightforward manner, making appropriate concessions, like he did not have headaches in the witness box and about his right shoulder having got better not mentioning it at all in his third affidavit.[137]

[137]T110

337The plaintiff was prepared to say it had taken 90 minutes nonstop as a passenger to get to CoWork interview, consistent with a man of credit.[138]

[138]T110

338His credit remained intact despite quite forceful cross-examination on various topics, and indeed at times corroborated the challenge he was being confronted with in that cross-examination.[139]

[139]T110

339The plaintiff did report the recent motor vehicle accident to his GP.  CoWork was the only non-treater whom he saw after the accident and he told the interviewer about it.  In any event, there was the physiotherapist’s note that the plaintiff was back to normal pain levels. The accident was not necessarily significant. The ambulance was called by a concerned nurse who was nearby.   A TAC claim was made to obtain reimbursement for the ambulance cost only.[140]

[140]T111

340The plaintiff’s failure to describe this non-consequential motor vehicle accident in his third affidavit, “went nowhere” particularly as he was upfront with CoWork.

341The film did not impeach the plaintiff’s credit.  Surveillance of 45 hours spanning  eleven days ultimately produced just 8 minutes of footage.  The plaintiff had always said he could do light shopping. The film showed minimal neck movements, consistent with the plaintiff’s presentation to doctors.  It was not as if he was demonstrating no movement on examination, with most doctors speaking about half normal movement.[141]  When reversing his car, he was not turning his head in any normal way but using the side mirrors in a very tentative way.[142]

[141]T112

[142]T112

342There was nothing to his failure to mention the meeting of the disciplinary issues, because the employer was on notice well prior to that time from the 2019 email, and the claim form sets out the plaintiff notified the employer two months prior to ceasing work.  The employer is not on affidavit.

343The plaintiff clearly described because of his neck injury, the employer used two small incidents as a means to perhaps foreshadow getting rid of him but it had nothing to do with him stopping work.  The plaintiff had clear and identifiable pain well prior to his conclusion of work.[143] 

[143]T113

344Any criticism about not being forthcoming about a brace was met with the plaintiff actually telling Dr Sullivan he occasionally wore it, and he was not wearing it on that visit anyway.[144]

[144]T114

345Submissions about the failure to get various treatment totally ignore the very fact the plaintiff is attending a physiotherapist and has done so weekly for the last three or four years, and his evidence that he has not rejected any treatment that had been proposed by his GP.[145] 

[145]T115

346The attacks on the plaintiff’s credit are not founded, and the Court should take from his evidence a man with a good record who would be working if he could and is not prone to exaggeration, and therefore “move forward on the basis that what the plaintiff says is consistent with how he is”.[146] 

[146]T115

Credit – Findings

347While the defendant made much of the plaintiff’s credit, I did not have any real concern in this regard.

348In general, I found the plaintiff to be a truthful witness, a man with a strong work ethic who in my view would be working now if he was physically capable of doing so.   

349The strongest attack in cross examination related to the weight of items the plaintiff lifted at work with the employer. When challenged, the plaintiff consistently maintained he lifted items weighing up to 50 kilograms and what he told examiners about weights, depended on the activity he was undertaking. This challenge fell flat when his evidence was confirmed upon production of the employer’s pick sheets.

350The plaintiff was under surveillance for 45 hours over eleven days and there was only 8 minutes of disjointed film, during which the plaintiff was shown doing very little – in particular, he was not shown engaged in any strenuous or prolonged activity requiring significant neck movement. To the contrary, at times he moved rather slowly and was very tentative in his neck movement when reversing his car. 

351The 2024 transport accident was a minor one as the plaintiff’s GP and physiotherapist’s notes confirm.  In any event, the plaintiff did tell CoWork about the accident.

352The plaintiff’s failure to mention the work performance meeting in his affidavits does not damage his credit as I accept he ceased work because of neck pain- not because of any potential disciplinary action.  

353The plaintiff is only receiving a part carer pension of $70 per week to look after his mother. He sometimes helps her with her shopping. His sister plays is the main carer. 

354My reading of Dr Ghan’s report is not that the plaintiff told him he was waiting for settlement of his common law claim before returning to work. The plaintiff consistently denied this was the case.  

Consequences

Pain

355In Haden Engineering v McKinnon,[147] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).

[147]      Supra at paragraph [11]

356The plaintiff continues to experience constant neck pain, which varies in character between sharp, dull, stabbing and aching.  The pain is aggravated by activity. 

357As a result of neck stiffness, he suffers persistent headaches, at times of a migrainous quality, severe enough that he has to lie down and rest.

358Because of his neck pain and stiffness, his neck movements are restricted with particular difficulty with flexion and rotation.  It is painful for him to hold his head in a flexed position.  Prolonged sitting and driving causes increased neck pain.

Treatment

359The plaintiff has been treated by his general practitioners for neck pain since August 2020.  At various times, investigations of his cervical spine have been arranged and painkilling medication prescribed.

360The plaintiff takes Panadol Osteo and Nurofen daily, not liking to take stronger medication because of the side effects.

361He has been having regularly physiotherapy with Mr McCann since March 2021, currently seeing him weekly.

362There was recent specialist referral to Mr Thien neurosurgeon, approved by Workcover. This visit did not go ahead as Mr Then does not see Workcover patients.  Pain management has been suggested by various examiners but the plaintiff has yet to engage in any program.

Sleep

363Neck pain interferes significantly with the plaintiff’s sleep, getting at most two to three hours’ sleep before being woken by pain. As a result, he is often fatigued and has to take regular naps during the day.

Work

364Loss of ability to undertake previously enjoyed activities including work and frustration at that loss are relevant to assessing pain and suffering.[148] 

[148]See Haden Engineering at paragraph [51]; Ellis Management Services Pty Ltd v Taylor (2013) VSCA 326 at paragraph [35]; and Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38]

365As early as July 2021, having found the nature of the plaintiff’s employment had contributed to the onset and continuum of his symptoms, Dr Love thought it may be necessary for him to be given “permanent alternative duties where he is not expected to work in postures requiring his neck extended to an extreme degree”.

366I accept that as a result of his neck symptoms and postural intolerance, the plaintiff is no longer able to engage in unrestricted, physical work and has very little, if any, capacity for work.

367Before his injury, as the medicolegal examiners relied on by the plaintiff opined, he had worked solidly for thirty years. He enjoyed his work and derived personal satisfaction from being part of the workforce and the contact with workmates. It is very upsetting for him to have lost this part of his life – as was apparent by his demeanour in the witness box when asked about this issue – feeling guilty that he is not setting an example for his sons.

Other activities

368The plaintiff socialises less because of his neck pain and resultant difficulties sitting. He no longer goes on regular fishing trips with his friends – an activity he continued to enjoy before his neck injury, even with his left shoulder issues.

369Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s spinal impairment are serious. 

370As the plaintiff has experienced ongoing neck pain for over three years without any real improvement, I am satisfied his spinal impairment is permanent.[149]

[149]T116

371Accordingly, I grant leave to the plaintiff to being proceedings for damages for pain and suffering. 

Loss of earning capacity

372Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:

(a)   at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also

(b)   after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).

373The 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. 

374The former must be calculated by reference to the six-year period specified in s325(2)(f).

375“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.

376It 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.

377The 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. 

378The parties agreed on the “without injury” earnings figure based on the plaintiff’s earnings in the 2020/21 financial year of $52,269 ($1,005 gross per week).  60 per cent thereof is $603 per week.[150] 

[150]T103

Defendant’s submissions

379The plaintiff has not made any attempt to return to work, and carrying the onus cannot persuade the Court he has tried and failed.  He has not tried at all.[151]

[151]T106

380There has been no satisfactory explanation for the plaintiff’s failure to attempt to return to work since June 2021.  He has an impressive résumé which he complied, including proficiency in Microsoft.  There was no evidence from him that he had moved from the data sort of work at Toll to more labouring because he was unsuited to computer work.[152]

[152]T104; the plaintiff undertook low paid warehousing work after leaving Toll because he had fallen behind with technology – T83   

381The case is one of someone who has a significant body of skills and experience, which the plaintiff has agreed with, and the jobs suggested by CoWork coincide with that type of work history.[153]

[153]T105

382There is no retraining required in the jobs suggested save for a Certificate III in Security Operations.  There is no medical reason why the plaintiff cannot undergo rehabilitation and retraining, and the other positions do not require it.[154] 

[154]T105

383Dr Wyatt provided some analysis of the suggested jobs in addition to her one-line sentence about non-physical factors in her later report.[155]

[155]T106

384The medico legal examiners relied on by the plaintiff make sweeping comments as to total incapacity without any apparent regard or being aware of the plaintiff’s significant skills and experience.[156] 

[156]T107

385Dr Slesenger dealt with the suggested jobs in just one line without any analysis,  providing a two-line answer in relation to each position, the “punchline” being that the plaintiff is unlikely to return to this role in a consistent and reliable basis.[157]

[157]T105

386It is not a case of the defendant dealing with a process worker trying to “shoehorn” him into some sort of office job.  This is a case where the plaintiff has demonstrated the capacity for administrative type job for many years prior to working for this employer, and he retains that capacity.[158]

[158]      T107

387While the plaintiff is fit for full-time work, he still would not suffer the requisite loss even if he was working half-time in the suggested jobs.[159]

[159]T104

Plaintiff’s submissions

388While there is a criticism that the plaintiff did not go and try to find another job, the defendant did not see it appropriate to have him back on light duties, so that criticism should fall flat.[160]

[160]T123

389The weight of medical evidence supports the finding the plaintiff has no capacity.[161] 

[161]T121

390Dr Slesenger properly identified the requirements of each of the jobs and why they were inappropriate. 

391Dr Wyatt’s view was infected with the notion that manual work does not cause neck pain.[162]  By implication, her view was such that even if duties involved manual work, “even if you have got a neck injury, go back and you will be right”.  More importantly, she described the suggested jobs described as non-physically demanding, and when one looks at the CoWork report, in particular the job of security officer, physical force was required.[163]

[162]T123

[163]T124

392Dr Wyatt’s view was simplistic and it was not nuanced in any form.  It was not considered, and it should not be accepted.[164]

[164]      T119

393A similar criticism was made in relation to Dr Ghan’s opinion where he simply made a bold statement that the plaintiff was fit to return to normal duties and hours.[165] 

[165]T124

394While the defendant argued that the plaintiff had maintained skills in logistics and computers, that was perhaps overstating it.  His last job in that field was in 2014 and he then did seven years of pure labouring.  One would think it would be preferable for a man in his fifties to do logistics work rather than physical work.  The plaintiff was indeed asked about the change of career and said he had got a labouring job because he had “just fallen behind in technology”.[166]

[166]T125

395While the plaintiff described being “proficient” in computers, a résumé is always putting yourself forward at your best.[167]  In any event, the plaintiff does not even own a home computer.[168] 

[167]T125

[168]T126

396While the plaintiff told Dr Love in July 2021 that if he was given restricted duties, a return to work would be achievable, Dr Love did not seemingly agree at that stage that the plaintiff had a capacity for restricted duties.  It should not be accepted the plaintiff is in a static position.  It is not for him to make his own call on his capacity. The Court should accept the plaintiff’s evidence he has not got any better, he has got worse, and that is why he is not trying to look for work. That should be considered “through the filter of his previous work history and return to work efforts, and through the prism of exactly what he says four weeks into injury”.[169]

[169]T122

397The plaintiff was in receipt of the part carer pension before his neck injury.  It is only a partial pension, and he did not do anything physical for his mother.  The correlation between being a carer and working cannot be made in any form. 

398The Court should be comfortable the plaintiff has no capacity for employment, and if he does, at its highest, there is a theoretical capacity of 10 to 12 hours per week, as Dr Sullivan opined. Working these hours, the plaintiff still suffers the requisite loss.[170]

[170]      T126

Findings

399Taking into account all the evidence, I am satisfied the plaintiff has suffered the requisite loss having little or no capacity for suitable employment.

400I accept the plaintiff’s evidence that he had a strong work ethic and that he would still be working if he could, as evidenced by many attempts and returns to work in the past having suffered injuries, some of which were compensable.

401The minor level of activity shown on eight minutes of disjointed film does not demonstrate a capacity to attend work on a reliable and consistent basis.  

402The plaintiff does little in his carer role for which he receives only $70 per week.

403Because of constant neck pain, flare ups and headaches and their unpredictability, the plaintiff would not be able to attend work on a reliable, consistent basis, currently being certified as totally unfit by his GP.

404As the plaintiff’s medico-legal examiners explained, the plaintiff would have difficulty with duties involving bending and lifting and prolonged neck posture/ sitting. His condition, worsened by activity, is subject to flare ups where he can do nothing more than lie down and rest. His cervicogenic headaches cause further difficulties at work. 

405I accept the analysis of Dr Slesenger, Professor Bittar, and Dr Sullivan that the plaintiff is unsuitable for the jobs suggested.  It is not the situation that they have reached this conclusion ignorant of the plaintiff having a wider skill set as the defendant submitted.

406The plaintiff’s computer training is outdated (a diploma in 1990).  As he explained, having left Toll, he has undertaken low paying warehouse manual work because he had fallen behind changes in technology.[171]

[171]T124-126

407Dr Wyatt’s view that the plaintiff is fit for the suggested jobs is obviously coloured by her view that “there is a fair degree of evidence to suggest that manual work does not actually increase the likelihood of neck problems”.  A number of the jobs she considers suitable clearly have a physical component demanding on the plaintiff’s neck, which the plaintiff would have difficulty performing.

408Dr Ghan gave no analysis or explanation for his conclusion the plaintiff is fit for all work.  He makes no mention of the heavy lifting undertaken by the plaintiff and knows little of the true nature of the plaintiff’s job. Interestingly, he did accept the plaintiff’s degree of pain can be in accordance with his degree of cervical spine spondylosis but made no comment on how the plaintiff could work full-time with this pain. 

409Taking into account all the evidence, I am satisfied the plaintiff does not have a capacity for any work and this situation is likely to continue for the foreseeable future.

410In those circumstances he has suffered the requisite loss of earning capacity, being unable to earn in excess of $603 per week.

411I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

412In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied 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 permanent loss of earning capacity of 40 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 ss(g). 

413Accordingly, I also grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.

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