Leng v Victorian WorkCover Authority
[2013] VCC 1614
•15 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-05283
| JUSTIN LENG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 October 2013 | |
DATE OF JUDGMENT: | 15 November 2013 | |
CASE MAY BE CITED AS: | Leng v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1614 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to the lumbar spine – whether the consequences are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell | Slater & Gordon Ltd Lawyers |
| For the Defendant | Ms M Tsikaris | Herbert Geer |
HIS HONOUR:
1 Justin Leng alleges that he suffered injuries to his low back in the course of his employment with Visy Board Recycling Pty Ltd in about June 2008. He seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Mr Leng’s lumbar spine.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] and [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38)(b) and (c)
7 Mr Leng submits that the pain and suffering consequences of his injury satisfy the threshold test. The defendant denies this is so.
Background
8 Mr Leng is aged thirty-one. He lives with his fiancée and their three-year-old son.
9 By way of education, he completed Year 10.
10 In April 2000, whilst still at school, he was a passenger in a car involved in a transport accident. He was taken to the Royal Melbourne Hospital after that accident and was later diagnosed as having a low-back injury. He underwent an MRI scan of his lumbar spine in September 2000 which disclosed a crush fracture of the L4 vertebra.[4] The extent of that injury and the consequences of it are relevant to this application and I shall return to them later.
[4]Defendant’s Court Book (“DCB”) 38
11 Mr Leng’s affidavit and oral evidence was silent as to what employment he sought or obtained after leaving school. It appears from histories given to various doctors in the years that followed that he did obtain some work, and I shall return to this aspect later in these reasons.
12 In 2003, Mr Leng was diagnosed as suffering from schizophrenia. This has been treated by means of a medication, Solian. It appears that the medication has controlled that condition. Whilst his employment history between 2000 and 2003 is unclear, it is evident that between 2003 and 2007, Mr Leng did not work at all.
13 At some time in 2007 he commenced work through an employment agency, with Visy Board Recycling Pty Ltd (“Visy Board”). In June 2008, he was made a permanent, full-time employee of that company. He was employed as a general hand and machine operator. His employment involved regular overtime hours. He was earning in excess of $1,000 per week including overtime.
14 Shortly before he was made a permanent employee at Visy Board, he was subjected to a medical examination arranged by the company. The medical practitioner who conducted that examination reported that Mr Leng’s thoraco-lumbar spine was normal. He was assessed as being fit to perform the “inherent requirements” of the position of a “general hand”.[5]
[5]Plaintiff’s Court Book (“PCB”) 87-89
15 I accept that the work at Visy Board often involved heavy and awkward lifting tasks and long hours of work. Mr Leng gradually developed some backache in the course of performing his duties.
16 In June 2009, he was required to do a good deal of cleaning up and, whilst doing so, developed severe pain in his back and down his left leg and into his left foot. He reported the injury. He attended an unidentified general practitioner, as he could not obtain an appointment with his regular general practitioner, Dr Dennis Holland. Later in June, he saw Dr Holland and was referred for physiotherapy and for a CT scan.
17 He returned to work on modified duties. His employment was terminated by Visy Board in December 2009. The reason for that termination was unclear on the evidence before the Court. He has not worked since.
18 He has continued to attend on Dr Holland from time to time. He has been prescribed Panadol Osteo (tablets also available without prescription). He takes a supplement, glucosamine (the exact nature of which is not clear on the evidence). He no longer has physiotherapy. It is unclear whether funding for this was ceased by the defendant or whether Mr Leng chose to cease such treatment.
19 In 2010 (about six months after his injury at work), he undertook a course of study at the Kangan Institute. He commenced with a Certificate II in Computer Assembly and Repair in January 2010, completing the course in June of that year. He then commenced an Advanced Diploma of Computer Systems Engineering. This was a one-and-a-half-year course. He ceased that course shortly after being involved in a further motor vehicle accident in November 2010. His then pregnant girlfriend was in the car at the time of that accident. She gave birth to their son prematurely. The child initially required life support. It was a stressful period for Mr Leng. He discontinued the course at Kangan Institute at that time and did not return to it. His son, now aged three, is in good health. There was no evidence that Mr Leng suffered injuries to his back in that later motor vehicle accident.
20 Shortly prior to that second motor vehicle accident, Mr Leng had made enquiries about commencing a course in Building and Construction Management at RMIT. He had not obtained a placement at the time but had made enquiries. I infer that he was not merely interested in that course but that he was likely to have sought a placement in it had it not been for the family problems that followed the second motor car accident.
21 In relation to his schizophrenia, he has been under the care of a psychiatrist, Dr Duncan Taylor, since late 2012. His Solian medication was ceased in early 2013. He is currently taking no medication in respect of that condition. No evidence was tendered from Dr Taylor.
Diagnosis of injury
22 Following the April 2000 transport accident, Mr Leng was treated and/or examined by a number of doctors. Reports of Associate Professor F T McDermott, Associate Professor Paoletti, Dr Martin Miletich and Dr John Honey were tendered by the defendant. I accept the evidence of Professor McDermott (set out in his report of September 2002)[6] that, in that first motor vehicle accident, Mr Leng suffered a lumbosacral spinal injury involving a crush fracture of the L4 vertebra. He was left with resultant risk of increasing pathology in the L3-4 disc, and the development of disc lesions and spondylosis at other levels. Professor McDermott was of the view that his lumbar pain and limitation of movement were likely to persist indefinitely.[7]
[6]DCB 13
[7]DCB 16
23 It is common ground between the various doctors whose reports were tendered that Mr Leng suffered an exacerbation of his pre-existing injuries to his lumbar spine in the course of his employment in 2009.
24 It was conceded by counsel for the defendant that, at that time, Mr Leng suffered an organic injury, being an aggravation of the earlier low-back injury.
25 The issue here is the extent of such aggravation and whether the aggravation itself amounted to a serious injury as defined. This is to be determined by reference to the consequences (both in terms of severity and permanence) to Mr Leng of the aggravation.
26 On behalf of the defendant, it was submitted that the extent of such aggravation was relatively minor and did not, of itself, amount to a serious injury as defined. It was this issue about which the parties were principally in dispute.
Consequences of injury
27 Where a worker has previously suffered an injury to the same body part or which affected the same body function, it is necessary that an analysis be made of the extent of impairment of the body function before and after the relevant injury. The worker must establish that there has been an impairment or loss of a body function which, as a result of the infliction of the injury complained of, is both serious and permanent.[8]
[8]Petkovski v Galletti [1994] 1 VR 436 at 444
28 It would not be sufficient for Mr Leng merely to establish that his current condition has consequences to him which would be considered to be at least very considerable. This is because some of those consequences, and possibly most of them, may have predated the injury in question. It is the degree of exacerbation which must be analysed and shown to amount to a serious injury as defined.
29 In his affidavit and in histories provided to various doctors whose reports were tendered, Mr Leng made light of his earlier injury and the consequences of it.
30 He stated, in respect of the accident of 2000:
“For a period of time I had quite bad back pain, but with the passage of time the pain seemed to settle down. The pain certainly improved to a level where I was able to get work. From time to time, I did attend doctors for flare-up of back pain.”[9]
[9]PCB 12
31 Mr Leng was examined by Mr Russell Miller, orthopaedic surgeon, at the request of his solicitor in June 2012. Mr Miller took a history concerning the April 2000 motor vehicle accident and the extent of injuries suffered in it. He recorded:
“He was admitted to Royal Melbourne Hospital where he was inpatient for approximately one day. He had some problems with back pain at that stage, but his symptoms largely settled and he was able to return to work after approximately two months. He continued with his labouring duties and with very minimal symptoms. … Mr Leng states that he continued with his labouring duties and then commenced working for Visy Board in approximately 2006 initially as a casual employee and then successfully passed the medical examination and became a full time employee in approximately 2007.”[10]
[10]PCB 47-48
32 Mr Leng was examined by Dr Helen Sutcliffe, occupational physician, in May 2012 at the request of his solicitors. Dr Sutcliffe took a history that:
“He had last worked in 2009 when he was employed as a general hand machine operator at Visy Board where he worked for a period of two years. Prior to that he had worked in agency work usually as a general hand and labouring work and he had undertaken tasks at various workplaces as a machine operator labouring work and he had carried on this occupation for 5-6 years. Prior to that he had obtained a certificate in security at William Angliss College and had undertaken some security work in crowd control. …
I note that he was able to perform heavy manual occupations of labouring and machine operation for up to seven years prior to the onset of the injury.”[11]
(My emphasis)
[11]PCB 54, 60
33 Mr Leng was examined in May 2011 by Mr Gerald Moran, orthopaedic surgeon, at the request of his solicitors. Mr Moran took a history at that time as follows:
“Mr Leng had a fracture of L4 in 2000. Since this fracture Mr Leng has worked as a manual labourer for nine years without problems with his back up until June 2009.”[12]
(My emphasis)
[12]PCB 68
34 These accounts of the consequences of the injuries suffered by Mr Leng in the April 2000 accident are, in my view, misleading.
35 In September 2002, Associate Professor McDermott, general surgeon, examined Mr Leng at the request of Slater & Gordon, the same solicitors presently acting for him. This was approximately two-and-a-half years after the earlier accident. The history taken by him at that time was that Mr Leng had lumbosacral spinal pain, initially constant for one year and then intermittent, recurring on average three to four days per week and being related to physical activities. The lumbar pain intermittently radiated to the left groin. There was occasional paraesthesia of the left foot extending to the left lower leg on its antero-medial aspect. He had occasional weakness of the left lower limb and symptoms had worsened over the previous year; that is, from 2001.[13] Further, Professor McDermott took a history that Mr Leng was able to walk without difficulty for half-an-hour and that, after this, lumbar pain increased and that occasionally the left leg gave way in relation to left groin pain radiating from the lumbar spine.[14]
[13]DCB 14
[14]DCB 14
36 The history taken by Professor McDermott included that Mr Leng had completed his VCE in late 2001 and then undertaken a food and hospitality course for about six months. He had subsequently worked as a machine operator but was retrenched in about August 2002, having worked there six months. Gardening aggravated his symptoms. Since the 2000 injuries, Mr Leng had ceased golf, basketball, football and rugby.[15]
[15]DCB 15
37 In November 2002, Associate Professor Paoletti, a psychiatrist, examined Mr Leng at the request of Slater & Gordon. Professor Paoletti took a history that –
“Mr Leng cannot play sports any more, because his back hurts. At work, if he bends down his back hurts. He cannot sit at length in any one spot. When he walks, he gets pain in the lower back.”[16]
[16]DCB 5
38 In April 2003, Dr Martin Miletich, Mr Leng’s then general practitioner, reported that –
“He is still experiencing chronic back pain which is frequently exacerbated by any physical activity. He recently had to cease work as a panel beater/spray painter as he could not effectively perform his duties. As well, he has been severely limited socially and recreationally and can no longer play basketball.”[17]
[17]DCB 12
39 Also, in April 2003, Mr Leng was examined by Dr John Honey, a psychiatrist, at the request of the Transport Accident Commission. The history reported by Dr Honey at that time was that –
“He has back pain in the lower left side of his back which is a constant dull pain. With exertion the pain increases and radiates into the left groin and the left leg. … At the time of the accident he was working as a furniture frame maker and had been working at that for five months.
After the accident he returned to school and completed Year 11 and then did a Certificate II in Food and Beverage at William Angliss and has also had jobs as a machine operator, at which he managed to last, I think about six months during 2002, a few days working in recycling, and a six month job in panel beating and spray painting. He’d hoped the latter would lead to an apprenticeship but he had to give up due to his pain.
Now he says he can walk for 20 to 30 minutes at a time, he can sit for 20 minutes and when standing he has to move. He has to sit to put his shoes and socks on as he can’t bend freely. … He had to give up basketball and other sports but does some swimming to try and help his back.”[18]
[18]DCB 21
40 The last of those reports was approximately three years after the April 2000 injury. I conclude, on the basis of the histories provided to each of those doctors, that Mr Leng suffered from significant symptoms of a low-back injury for at least three years following 2000 and very likely for considerably longer. I find that it is likely that the histories recorded by Professor McDermott, Professor Paoletti, Dr Honey and Dr Miletich referred to above are based on what they were told by Mr Leng and accurately reflect his condition at the time of those examinations.
41 The histories provided to Professor McDermott, Dr Miletich, Professor Paoletti and Dr Honey are inconsistent with that provided to Mr Miller, Dr Sutcliffe and Mr Moran, referred to above.
42 In order to conduct a meaningful analysis as required by Petkovski, it is necessary that the Court have before it a frank history of a plaintiff’s pre-accident condition and symptoms. Such an analysis is made difficult where a plaintiff glosses over pre-accident symptoms or understates them, deliberately or unintentionally. A further consequence of the provision of an inaccurate history of prior symptoms and consequences is that the opinions of medical practitioners who have relied upon that inaccurate history may be seen to be unreliable. I consider that this is the case here.
43 Counsel for Mr Leng conceded that, on occasions, he had not given an accurate history but submitted that this may have been due to his schizophrenia. In the absence of evidence that that condition may have led to such a result, I do not consider that I should draw such an inference.
44 Counsel for Mr Leng conceded that the radiological investigations post June 2009 showed no new evidence of injury over and above the changes seen in an MRI scan performed in 2000 and that there was currently no evidence of radiculopathy.
45 The evidence concerning Mr Leng’s condition between 2003 and 2009 is sparse. I have previously noted the histories provided to Professor McDermott, Dr Paoletti, Dr Miletich and Dr Honey. I consider it relevant that no further report was tendered from Dr Miletich (his then general practitioner) after April 2003, at which time Mr Leng’s condition was described as “chronic back pain frequently exacerbated by any physical activity”.
46 It is not clear when it was that Mr Leng ceased seeing Dr Miletich and commenced seeing Dr Holland. However, I note the report of Dr Holland of 25 June 2009 where he states that Mr Leng has acute lower back pain related to his previous motor vehicle accident.[19] This report was written just nine days after Dr Holland had examined Mr Leng following his alleged development of pain in his back and left leg at work. Similarly, in his report dated 10 July 2009, Dr Holland stated:
“I have seen Justin Leng on three occasions with severe acute lower back pain which he says is what he has put up with since his motor vehicle accident in 2002.”[20]
[19]DCB 27
[20]DCB 26
47 That statement is inconsistent with any significant aggravation of symptoms in 2009.
48 There is no evidence before the Court from either of the general practitioners concerning the state of Mr Leng’s low back in the period from 2000 to 2007, at which time he commenced employment with the defendant, or during 2008 to mid 2009. I consider this a significant gap in the evidence in a case where a Petkovski analysis is required to be made.
49 I accept that Mr Leng currently suffers back pain. The various medical opinions all indicate he is likely to suffer recurrent back pain in the future and is likely to require ongoing conservative treatment. The problem facing Mr Leng is that I have found that he also suffered from substantial low back pain following the April 2000 accident.
50 It is difficult to assess the degree of aggravation of his symptoms caused by his employment. The paucity of evidence concerning his symptoms from 2003 to 2009 is significant. Mr Leng bears the onus of proving the extent of the aggravation of the injury. In his affidavit, he was silent as to medical practitioners seen by him over that period. He does state that he received treatment from a psychologist, Mr Ian Bell, in the period 2003 to 2007.[21] No report from Mr Bell was tendered.
[21]PCB 12
51 In his submissions, counsel for Mr Leng relied heavily on the evidence that:
(a) Mr Leng had been medically examined and passed fit to work as a general hand in 2008;
(b) He had been able to work on a full-time basis, performing full duties, and that since mid-2009, he had been left with a light work back which limited his employment, social and recreational activities.
52 I accept that he was able to work at Visy Board for somewhere between 18 and 24 months. The period over which he performed such work prior to mid-2009 was not made clear in the evidence. It appears that he commenced with Visy Board at some time in 2007 through the employment agency, and became a full-time employee of Visy Board in June 2008. I am not satisfied that the fact that he was able to remain in that employment for that period is indicative of an ability to perform it indefinitely.
53 Mr Leng currently takes medication in the form of Panadol Osteo every one to two months. Mobic (an anti-inflammatory) was prescribed in January this year but was apparently discontinued as a result of some unidentified side-effect. He also takes glucosamine. I consider this reflects a relatively low level of medication.
54 Mr Leng states that recreational activities such as golf, surfing and fishing are no longer suitable for him. With regard to golf and surfing, I note the histories taken by Professor McDermott, Professor Paoletti and Dr Honey (referred to above) that he had ceased sporting activities after the 2000 accident. I did not find Mr Leng’s evidence of alleged difficulties fishing to be persuasive. He maintained he would have difficulty casting a line from a pier. I do not accept that. In cross-examination, he conceded that his activities with his young son prevented him from going fishing.
55 The defendant tendered DVD film depicting Mr Leng on various dates in late 2012, and more recently in August 2013.[22] Counsel for the defendant submitted that these films showed that Mr Leng had retained good movement and retained the ability to interact with his young son. In my view, the films were of little assistance to me in assessing Mr Leng’s current level of incapacity or the degree to which his prior back injury had been aggravated in the course of his work. In the films he was not shown to be engaging in any vigorous activities.
[22]Exhibit 3
56 I accept that Mr Leng has a light work back and would be ill-advised to return to employment involving repetitive bending, lifting or twisting. I accept that he has a capacity for lighter work and a capacity to be retrained.[23] I note his relatively young age and the fact that he was apparently coping with a Computer Systems Engineering course until the November 2010 motor vehicle accident and complications involving the health of his wife and son. I am not aware of any reason why he would not be able to resume that course or one similar. I take particular note of the opinion of Dr Holland, who has seen Mr Leng on many occasions.
[23]See Dr Holland at PCB 39; Dr Sutcliffe at PCB 65; Mr Kudelka at PCB 71d, 71e; Mr Miller at PCB 51
57 Taking all of the evidence into account, I have come to the conclusion that Mr Leng has not discharged the onus of establishing that the consequences of the back injury suffered by him in the course of his employment with the defendant are fairly described as being more than marked or significant and as being at least very considerable. In particular, I note his relatively minor use of medication, minimal level of treatment, his age, his ability to be retrained for sedentary or administrative employment, and his ability to perform a range of activities with his young child.
Conclusion
58 For the reasons expressed above, I am not satisfied that Mr Leng has suffered a serious injury in the course of his employment. The application will be dismissed.
59 I shall hear the parties in respect of costs or other consequential orders.
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