Macbain v Victorian WorkCover Authority
[2018] VCC 1996
•4 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-02257
| JOHN ROBERT MACBAIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2018 | |
DATE OF JUDGMENT: | 4 December 2018 | |
CASE MAY BE CITED AS: | Macbain v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1996 | |
REASONS FOR JUDGMENT
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Subject:Workplace Injury and Compensation Act 2013 – s325 and s335 – injury to the low back – reliance upon paragraph (a) of the definition – application in respect of pain and suffering only – reliable witness of 66 years of age – whether burden of proof discharged – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Dimsey | Hounslow Lawyers |
| For the Defendant | Mr D Churilov | Minter Ellison |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013, hereinafter referred to as “the Act”. The injury upon which reliance is placed is one to the low back, which is alleged to have occurred throughout the course of the plaintiff’s employment with the defendant, which employment commenced in 2011, and with particular emphasis upon incidents in June 2014. The injury to the low back shall hereinafter be referred to as “the injury”.
2 The plaintiff relies upon paragraph (a) of the definition of serious injury and seeks leave in respect of pain and suffering consequences only. The number of issues is somewhat limited. The plaintiff has made claims in relation to the payment of statutory benefits and those claims have been accepted. The plaintiff remains upon weekly payments of compensation. The defendant has effectively defined the issues as being “range”, which I understand to mean that there is an issue as to whether the consequences of injury are sufficient to satisfy the statutory definition; disentanglement of consequences of the injury from other conditions and their consequences; and whether there continues to be an ongoing contribution from what occurred at work. In relation to this last mentioned issue, Mr Churilov, on behalf of the defendant, described that as an issue which had “less impetus”. In this regard and in regard to the defining of issues generally, I would refer to Transcript (hereinafter referred to as “T”) 5.
3 Mr A Dimsey of Counsel appeared on behalf of the plaintiff. Mr D Churilov of Counsel appeared on behalf of the defendant. The plaintiff gave evidence, including the adopting of two affidavits as being true and correct (save for two changes at T8 and 9) and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, training and employment
4 The plaintiff is aged 66 years, he having been born in October 1952. He has been separated from his wife for a lengthy period and has two adult children. He lives alone, but apparently with some assistance from his daughter.
5 He was raised in Shepparton, where he had limited education. He describes his reading and writing skills as “pretty basic”.
6 The plaintiff originally completed an apprenticeship as a coppersmith. However, he then worked as a concreter by day, whilst doing some night shift cleaning work at the SPC cannery. He worked for a period as a cleaner at a coal mine in North Queensland and then returned to Victoria as a concreter on the construction of the Loy Yang Power Station. For approximately 12 years he worked as a concreter doing paving work in the suburbs of Melbourne, before returning to Shepparton and running his own concrete paving business. Ultimately he accepted employment with the Shepparton City Council as a foreman concreter. In 1998 he moved to Melbourne, working as a concreter and labourer on large construction jobs. From approximately 2001 to 2004, he was employed as a shop steward, only doing manual work a couple of days a week, changing employers in 2004 and continuing to do similar work. In approximately 2011 he commenced work as a concreter and labourer with an entity called Spec Property Developments Pty Ltd (hereinafter referred to as “Spec”). He also worked for a related company. The work involved construction of large apartment blocks in the eastern suburbs. I accept that the plaintiff often worked very long hours, including Saturday work. In other words, he is a man who, over the years, has engaged in hard work and, particularly in recent years, over quite long hours. As the plaintiff is not seeking leave in relation to loss of earning capacity, more precise details are not required.
(b)The plaintiff as a witness
7 I found the plaintiff to be a straightforward, credible and reliable witness. As Mr Churilov said in his closing address, the plaintiff gave “candid evidence” – see T46. As I said during Mr Dimsey’s closing address, I have no problems with the plaintiff’s credit and there has been no attack on it. I have no difficulty in accepting him as a witness doing his best to give an honest account of things. I would refer to T58 – 9.
(c)The state of the plaintiff’s health prior to the injury
8 The plaintiff has suffered from a number of medical conditions. Apparently he was born with an aortic valve problem, first noticed when he was 14 years of age and requiring surgery and treatment over the years. A blockage of his left anterior tibial artery was noted in 2010. He had some form of cardiac-related collapse in approximately 1994 and has required stents in more recent years. He has also had prostate cancer, an operation being required in 2008 and from which he made a good recovery.
9 The plaintiff has had a number of other injuries over the years, such as a strained ankle, a left leg injury and the like. This is hardly surprising, given the nature of the work which he performed. It is also not surprising that he has had some back problems. He can recall straining his back when working for Shepparton Council in approximately 1993. He made a complete recovery from that. He also strained his back when working in 2002 and believes he missed approximately one week before returning to normal duties. He can recall hurting his back again in approximately 2008 and, after approximately a week off, returning to his normal duties. He has also had a left foot problem, which required ongoing treatment, but did not seem to prevent him from walking very considerable distances each day in the course of his employment. This was in approximately 2010. He has had bilateral wrist problems in the form of carpal tunnel syndrome over the years. He has required injections from time to time, but has no major ongoing difficulties in that regard.
10 In approximately 2005, the plaintiff performed heavy duties and had ongoing niggling problems in his mid and lower back. He began visiting an osteopath as a result, and that osteopath, Dr Gavin Lovett, has treated the plaintiff over the years. Between 2008 and 2014, the plaintiff principally saw Dr Lovett in relation to left foot problems. In addition, he took over-the-counter painkillers as required in relation to his low back pain.
11 Thus, the plaintiff has quite a long history of sporadic back pain associated with heavy work and has suffered from other conditions.
(d)The injury, its treatment and diagnosis
12 In approximately June 2014, the plaintiff suffered back pain when emptying wheelie bins containing various kinds of building waste, including cut-offs and concrete. These were very heavy. The plaintiff’s back pain increased and he attended his osteopath for treatment. However, he continued to work. I accept that he was anxious to retain his employment.
13 On approximately 30 June 2014, he injured his back when removing bundles of steel reinforcement and cement blocks. This work had to be performed in a small confined area and was done over approximately three days. The plaintiff claims that, since that time, his back has never recovered. Since then he has complained of unremitting strong back pain and intermittent buttock and leg pain, along with cramping. He was keen to keep working and managed with over-the-counter painkillers. He was noticeably slowing down at work. His employment was terminated in October 2015.
14 The plaintiff’s treating general practitioner is and has been Dr Michael Kreltszheim, who has a surgery in Lilydale. He is fully conversant with the plaintiff’s cardiac problems and with the bilateral carpal tunnel syndrome from which he has suffered. Indeed, the plaintiff has been a patient of Dr Kreltszheim for something in the order of 24 years. In a report of 4 August 2016, Dr Kreltszheim recorded that the plaintiff had a history of lumbar spinal canal stenosis and bilateral sciatica of several years’ standing. He was unable to sit or stand for over two hours. He had been in constant pain until ceasing work in late 2015. Dr Kreltszheim stated that, since ceasing work, the plaintiff had been able to control his pain with simple analgesics such as paracetamol. As at the date of this report, the plaintiff’s symptoms were currently stable, but there was a risk of deterioration. He concluded by saying that the plaintiff had been referred to a neurosurgeon and it is apparent that this was Mr Christopher Thien.
15 Mr Thien reported to Dr Kreltszheim on 15 September 2016. Mr Thien had taken a history of quite severe low back pain and bilateral sciatica. He described the plaintiff as being clearly unable to continue his occupation as a concreter. At rest, the plaintiff was reasonably well, but any activity could aggravate his lower back condition. Mr Thien reviewed an MRI scan which he had organised and which was conducted on 11 September 2016. It is quite a detailed report, but the ultimate conclusion of the radiologist is one of moderately severe canal stenosis at L4/5. It should be said that there had earlier been two CT scans conducted on 24 March and 22 June 2016. Essentially these revealed multilevel pathology and particularly at the L4/5 and L5/S1 levels, where there were broad based disc herniations and extrusions. At L4/5 there was central stenosis complicated by facet arthropathy.
16 Mr Thien was essentially opposed to there being any surgery, particularly as this would mean temporary cessation of the plaintiff’s anti-platelet and anti-coagulation drugs. This would pose a considerable risk. Thus, surgery, though possible, was clearly not indicated in view of the significant risks associated with the plaintiff’s cardiac condition. In a brief letter of 15 September 2016, Mr Thien effectively repeated this, also referring to the degenerative changes indicated on the MRI scan. Further, he stated that it was inappropriate for the plaintiff to continue work as a concreter and, because of his age, he had minimal options in terms of retraining.
17 In a recent report of 16 October 2018, Dr Kreltszheim stated that, apart from reading various reports which had been sent to him and which are essentially the bulk of the reports relied upon by the parties in the present case, he had perused his file for all attendances and reports in relation to the plaintiff’s work-related injury. He stated various conclusions. Firstly, Dr Kreltszheim expressed the opinion that the plaintiff’s back condition was that of lumbosacral spine disc degenerative disease, with L4/5 and L5/S1 disc prolapse and with acquired central canal and foraminal stenosis. He referred to the resultant symptoms being those of neurogenic claudication. He went on to say that he agreed that the plaintiff’s back condition was materially contributed to by his employment with Spec. The plaintiff was currently on Lyrica and simple analgesics for pain management, as well as seeing his osteopath. Because of his cardiac disease, surgical management was a very risky option. In the view of Dr Kreltszheim, the plaintiff is unfit for his pre‑injury employment as a result of his back condition and the dominant cause of the plaintiff’s ongoing incapacity is that condition. He pointed out that the plaintiff had been forced to employ a gardener and cleaner to maintain his house and garden. He has a daily exercise program to follow and could no longer participate in recreational golf. In the opinion of Dr Kreltszheim, the plaintiff’s symptoms will continue into the foreseeable future and will mostly likely deteriorate with the passage of time.
18 As stated, there is a report from Dr Gavin Lovett, he having been the plaintiff’s osteopath for many years. This report is dated 25 October 2018. He referred to the diagnosis being effectively that as described above and revealed in the radiological investigations. Dr Lovett expressed the view that the plaintiff’s current back condition had been materially contributed to by his employment with Spec. He was not fit for such employment. The dominant cause of the incapacity was his back condition. The plaintiff also had to modify his daily walking routine, restrict his gardening and home maintenance and the like. The plaintiff’s social activity had diminished significantly, as most of it had been with his workmates. Dr Lovett was of the view that it was likely that the plaintiff’s symptoms would continue in the foreseeable future.
19 The plaintiff has also been seen for medico-legal purposes at the request of his solicitors. In the circumstances, I shall devote less time to these than to the reports of treaters. The plaintiff’s medico-legal reports could be summarised as follows:
·Associate Professor Ian McInnes, senior specialist surgeon, report of 3 October 2016. The plaintiff has degenerative disease of the lumbosacral spine, dating back to 2004. His present situation is of that disease with intervertebral disc pathology at L4/5, L5/S1 and spinal stenosis. His back condition is the aggravation of underlying degenerative disease of the lumbosacral spine dating back to 2004 and directly related to the type of work he has been doing with heavy concreting and similar manual work. He will not return to pre‑injury duties as a concrete labourer. (Associate Professor McInnes was also considering the bilateral carpal tunnel situation.)
·Mr Douglas Gardiner, orthopaedic surgeon, report of 24 November 2017. The plaintiff gave a history of hard work over the years, but the work undertaken with Spec was much more physically demanding labouring work than he had previously undertaken. The worsening of back pain was described. The plaintiff referred to ongoing pain which seriously compromised bending, twisting and lifting activities, as well as limiting sitting, standing, driving and the like. Sleep was very difficult. The plaintiff suffers from chronic low back pain due to quite severe degenerative changes in the lumbosacral spine. The work with Spec resulted in significant deterioration in the condition of the lumbar spine and materially contributed to his back condition. The dominant cause of the plaintiff’s ongoing incapacity is his low back problem. He suffers from other conditions, but was able to work with these prior to the low back pain exacerbation experienced when working for the defendant. His symptoms are likely to continue in the foreseeable future and may in fact become worse. He is unfit for his pre‑injury employment.
20 The defendant has also had the plaintiff examined. The following is a brief summary of those reports:
·Mr Peter Scott, surgeon, reports of 9 March and 19 June 2017. The plaintiff’s carpal tunnel syndromes have largely resolved, as has his plantar fasciitis. He has had various other problems, some of which continue to affect him. He suffers from work-related chronic low back pain. His employment with Spec remains a significant factor in the ongoing symptom complex related to his back. He is unfit for pre-accident duties, but could engage in light, part-time work. He has limited numeracy and literacy skills and would probably have difficulty in returning to the workforce in the future. He has a capacity to participate in a retraining program.
·Dr Majid Rahgozar, consultant occupational physician, reports of 28 November 2017 and 4 September 2018. The plaintiff’s pain is non-specific, associated with findings suggestive of non-organic components and illness behaviour. Apart from simple analgesics, he does not require any treatment. He probably had a simple musculoligamentous injury to the lower back. Any mechanical dysfunction of the lower back is likely to be related to constitutional factors and no longer materially contributed to by the compensable injury. He has a capacity for light work. A degree of mechanical dysfunction of the lumbosacral spine without radiculopathy cannot be ruled out. The plaintiff has a capacity for restricted duties. The initial compensable injury has now resolved.
21 I accept that the back condition from which the plaintiff suffers is the aggravation of disc degenerative disease of the lumbosacral spine, as described by his longstanding treating general practitioner, Dr Kreltszheim, which diagnosis is consistent with what has been revealed on radiological investigations. It is consistent with the diagnosis of the almost equally longstanding osteopath, Dr Lovett. It is also the diagnosis of Associate Professor McInnes and of orthopaedic surgeon, Mr Gardiner. I do not accept the opinion of Dr Rahgozar, either as to the existence of non-organic components and illness behaviour, or as to the proposition that the aggravating effects of particularly heavy work no longer play a role. I am quite satisfied that the plaintiff’s condition now is much worse than it was prior to his commencement of the very arduous duties with Spec.
22 I am also satisfied that the consequences of this quite severe aggravation of the underlying condition are permanent within the meaning of the Act in that they will persist for and through the foreseeable future. Mr Gardiner has said that the symptoms are likely to continue in the foreseeable future and may in fact become worse. Dr Kreltszheim stated that the plaintiff’s symptoms will continue into the foreseeable future and will most likely deteriorate with the passage of time. I accept these views and the proposition that the requirement of permanence has been satisfied.
23 Pursuant to s325(2)(h) of the Act, consequences of a psychological or psychiatric nature are not to be taken into account. As earlier stated, I do not accept the opinion of Dr Rahgozar that the plaintiff’s pain is non-specific, associated with the findings suggestive of non-organic components and illness behaviour. He is effectively “one out” in this regard and I prefer the opinions of those who know and have treated the plaintiff over many years, along with the opinions of Associate Professor McInnes and Mr Gardiner. In addition, there was absolutely nothing in the behaviour of the plaintiff in the witness box that was suggestive of illness behaviour or of any other psychological or psychiatric condition.
Other developments since the injury
24 The plaintiff ceased work with Spec in October 2015 and has not worked since. He did have carpal tunnel symptoms treated in February and November 2015, that being a problem that had been with him for some years, but had increased in severity at that time. He continues to have an injection from time to time in relation to that condition. The plaintiff was on Centrelink benefits for a period and made some job applications during that time. As I understand it, this was a prerequisite of obtaining the benefits. The plaintiff stated that he would have kept working for Spec if the job had been available (see T27). However, firstly this strikes me as somewhat optimistic and not at all in accordance with the relevant medical opinions. Secondly, the plaintiff has sworn that he was slowing down and found his duties very difficult, with ongoing back pain. His belief was that his employment was terminated because he was not keeping up. I would refer to his affidavit of 15 January 2018. Further, the plaintiff stated in his evidence that, after the incidents in 2014, his condition suffered a massive decline – see T38.
Ruling
25 In my opinion, the plaintiff has discharged the burden of proof in relation to pain and suffering consequences. I have come to that conclusion for the following reasons, which are not listed in order of significance or importance.
(a)I accept that the plaintiff is a stoical man. He kept working at Spec even when it was difficult for him to get out of bed of a morning. He knew that he was slowing down and found his work duties very difficult because of his ongoing back pain, but continued to work until his services were terminated. He believed that this was because he was simply not keeping up. As stated, his condition suffered a massive decline after 2014. He had returned to much heavier work comparatively late in life. He struck me as a man who minimises his symptoms. As was said by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69:
“The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.”
In making observations such as this, Maxwell P was approving what had been said by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.
In my view the plaintiff has adopted a stoical approach to quite severe back symptoms and he should not be disadvantaged because of that.
(b)As earlier stated, I regard the plaintiff as being a truthful, honest and reliable witness. That credit is an issue of considerable importance in applications of this nature seems beyond dispute. As was said by Brooking J in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”
This observation has been referred to with approval subsequently – see Papamanos v Commonwealth Bank of Australia [2014] VSCA 167. Accordingly, I accept the plaintiff as a witness of truth, if somewhat stoical.
(c)I accept that the plaintiff thoroughly enjoyed both the work which he performed and the social aspects that went with it. In his affidavit of 15 January 2018, he has sworn that his inability to keep on working is a huge disappointment to him and that he really enjoyed the social aspect of it. He has lived alone for a number of years and there is no reason to doubt that work was something of a social outlet for him. In addition, it would appear that he had been in virtually uninterrupted employment since commencing his apprenticeship as a coppersmith back in 1968. I accept that he was hugely disappointed when he had to cease work and I also accept that the principal reason why he so ceased was back pain. As he has sworn, he would have been able to continue to work but for his back injury. This is also consistent with the opinion of Dr Kreltszheim that the dominant cause of his ongoing incapacity is his back condition.
(d)In his affidavit of 15 January 2018, the plaintiff swore that he has had unremitting back pain since late June 2014, describing the pain as constant, but not usually overwhelming. In his more recent affidavit of 23 October 2018, he has sworn that he continues to experience the back pain, which radiates down both legs to the calves, and is made worse by walking or standing. This is consistent with the history given to Associate Professor McInnes of continuing pain in the lower back and down the back of each leg and substantially with the history given to Mr Gardiner of chronic low back pain. As one would expect, the presence of chronic or unremitting pain has long been stated to be an important consideration in applications such as this. I would refer, for example, to what was said by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 and by Tate JA in Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
(e)Interference with sleep in also a consequence which received attention in each of the above cases and has continued to be regarded as a consequence of significance. The plaintiff has sworn that he often wakes early with back pain and discomfort when his medication starts to wear off. To Mr Gardiner, the plaintiff recounted that sleep is very difficult, particularly trying to get to sleep, and that he wakes often. I appreciate that pain or discomfort in the hands may also interfere with the plaintiff’s sleep, but, as earlier stated, the overwhelming weight of evidence, which I accept, is to the effect that the plaintiff’s back condition is the major source of the consequences which he suffers.
(f)There has also been a large amount of interference with the plaintiff’s ability to enjoy various activities in which he had engaged or hoped to engage. The plaintiff had been proud of his physical strength and fitness and was a very keen walker, including bush walks. He can now walk only a very short distance before experiencing pain in the hamstrings and low back. He was a social golfer who hoped to play a lot more golf upon retirement. However, he has found that both walking and twisting increase his back pain and he has been unable to play. He had hoped to participate in lawn bowls when he retired and was planning to join the Mooroolbark club. He has tried to bowl, but finds that it causes increased back pain as a result of being on his feet and bending. He also had a passionate interest in Holden motor vehicles and took a lot of pride in his car. He used to enjoy washing it, polishing the wheels and the like. He is now unable to do this without increasing back pain and is forced to use a car wash or car detailers in this regard. In short, many of the activities in which he used to engage or hoped to engage upon retirement are now lost to him because of the injury to his back.
(g)There is also interference with the plaintiff’s everyday activities. House cleaning has become a problem. He has had to employ a cleaner to assist with the cleaning every fortnight. He has also had to employ assistance in relation to gardening. In short, he is no longer the self-sufficient person that he was prior to the injury.
26 In summary, I find that the plaintiff has pain and suffering consequences of the injury which, when the appropriate comparison is made in accordance with the Act, could be fairly described as being more than significant or marked and as being at least very considerable.
Conclusion
27 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to pursue an action for damages for pain and suffering.
28 I shall hear the parties as to any ancillary orders that are required.
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