Mamudovski v Victorian WorkCover Authority
[2021] VCC 1819
•18 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00072
| FAREDIN MAMUDOVSKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2021 | |
DATE OF JUDGMENT: | 18 November 2021 | |
CASE MAY BE CITED AS: | Mamudovski v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1819 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – ss325 and 335 – application with respect to pain and suffering only – reliance upon paragraph (a) of the definition – injury to the neck – disentanglement of consequences of a subsequent lower back injury – “range case” – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald QC with Mr T Nathanielsz | Zaparas Lawyers |
| For the Defendant | Mr T Storey | Russell Kennedy |
HIS HONOUR:
(a)General background
1This matter comes before me by way of an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). In bringing his application, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s325(1) of the Act. He is seeking leave to bring proceedings in respect of pain and suffering only.
2In bringing his application, the plaintiff relies upon an incident on 7 December 2015, when he was pulling a turntable handle to release the jaws on a trailer, which was in turn on a dock at a warehouse. This shall hereinafter be referred to as “the accident”. At the time, the plaintiff was employed by an entity called ACFS Port Logistics, which shall hereinafter be referred to as “ACFS”. As I understand it, ACFS is a substantial organisation which deals principally with the movement of large containers. The injury suffered by the plaintiff in the accident is one to the neck, with consequences affecting the right shoulder. The plaintiff is right-handed. That shall hereinafter be referred to as “the injury”. There is no dispute concerning the occurrence of the injury, acceptance in respect of payment of statutory benefits for a period and the like.
3Mr Storey, who appeared on behalf of the defendant, indicated at the outset that this was a “range case”, meaning that the central issue was whether the consequences of the injury were sufficient to meet the statutory test. It was also indicated that there was some disentangling to be done in relation to consequences arising out of a lower back injury suffered by the plaintiff in November 2019, almost four years after the accident. The later injury shall hereinafter be referred to as “the back injury”.
4Mr I McDonald QC, with Mr T Nathanielsz of counsel, appeared on behalf of the plaintiff. Mr T Storey of counsel appeared on behalf of the defendant. In evidence-in-chief, the plaintiff adopted the contents of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)The Plaintiff’s background, education and employment prior to the accident
5The plaintiff is 64 years of age, he having been born in Albania in August 1957. He is a married man with two adult children. He received schooling in Albania only to the age of 11 years, and thereafter helped his parents on a farm. He came to Australia at the age of 16, and had no schooling here. Indeed, within two days of his arrival, he commenced work as a labourer and machine operator for BHP. However, he describes himself as having become a career truck driver, commencing that work in approximately 1980. He started with ACFS in approximately 2010, his work being that of a truck driver. He drove semi-trailers which carried very large shipping containers, principally to and from the wharf area. He worked long hours. He was engaged in work ancillary to the driving when the accident occurred.
(c)The Plaintiff as a witness
6I found the plaintiff to be a straightforward and impressive witness. He has obviously been a hardworking man. I am quite satisfied that he did his best to answer questions honestly. I note that Mr Paul Kierce, orthopaedic medico-legal consultant, who examined the plaintiff on behalf of the defendant, described him as a cheerful and straightforward man. Mr Kierce also referred to the plaintiff as being highly motivated. Dr Marcus Navin, occupational medicine physician, also examining on behalf of the defendant, stated that the plaintiff engaged openly and with facility. These observations seem to me to coincide with the impression created by the plaintiff in giving his evidence. I appreciate that two other doctors examining on behalf of the defendant have expressed a view that a number of findings did not fit with a straightforward physical problem, and that there may have been a degree of overlay involved. I shall return to that, but I say now that I have no reason to doubt but that the plaintiff’s evidence was honest and straightforward.
(d)State of the plaintiff’s health prior to the accident
7The plaintiff has a history of heart disease. He had a heart attack in 2010 and had one stent inserted. He has sworn that his heart issues do not significantly bother him. He also has type 2 diabetes and high blood pressure. Both of these are well managed with medication. He suffered an arm injury in 2005 and a rib fracture in 2006. There is no prior history of problems with his neck or right shoulder. As shall be discussed, he subsequently suffered a back injury in late 2019.
(e)The Injury, its treatment, diagnosis and the prognosis
8The accident occurred on the evening of 7 December 2015. The plaintiff attended the Emergency Department at Sunshine Hospital in the early hours of 8 December 2015. At Sunshine Hospital, an appropriate history was taken. No bony injury was identified on x‑ray. A regime of analgesia was suggested. The plaintiff was also to see his general practitioner.
9It would appear that an ultrasound of the plaintiff’s right shoulder was carried out on 8 December 2015, with the radiologist’s report being forwarded to the plaintiff’s general practitioner, Dr Sleaby, of St Albans Complete Health Care. The investigation was essentially normal and with no evidence of a rotator cuff tear. It is apparent that an MRI of the cervical spine was conducted on 11 December 2015. Again, the report was forwarded to Dr Sleaby. The conclusion of the radiologist was that there was a C6‑7 broad-based disc protrusion with more focal extrusion in the right posterolateral aspect with mild right C7 nerve root compression. As shall be discussed, further radiological investigation was carried out at the request of Professor Richard Bittar on 5 November 2020.
10Dr Sleaby reported to the plaintiff’s solicitors on 7 October 2016. As is apparent, the plaintiff had attended upon him on 8 December 2015. The plaintiff described the accident and his visit to the Emergency Department at Western Health, where he had been advised that he had a possible muscle tear. His right upper limb was in a sling. I would point out that the plaintiff’s dominant hand is his right. At that stage, Dr Sleaby diagnosed a musculo‑ligamentous injury of the right shoulder rotator cuff, the injury apparently being a tear. There was also musculo-ligamentous and discogenic injury to the cervical spine, causing right C7 nerve root compression. Dr Sleaby referred to a background of age-appropriate asymptomatic degenerative changes. The treatment of the plaintiff was conservative in nature, including physiotherapy and medication to relieve pain. There had been referral to a neurosurgeon, Professor Bittar. Surgery was not recommended at this stage, as the plaintiff’s condition had improved significantly. Further treatment was to be aimed at relief of symptoms and maintenance of function. As at the date of the report of Dr Sleaby, being 7 October 2016, the plaintiff had managed to return to work full‑time, although not fit to return to his pre-injury duties. Dr Sleaby considered that it was likely that the plaintiff would continue to suffer from neck and right shoulder symptoms in the future.
11It is apparent that Dr Sleaby referred the plaintiff for physiotherapy, which was carried out by Mr David Horvath. Indeed, he suggested referral to a neurosurgeon, as the MRI had shown a distinct C6‑7 broad-based disc protrusion, with a focal extrusion in the right posterolateral aspect with mild right C7 nerve root compression. The plaintiff underwent a gymnasium-based strengthening and rehabilitation program, without a great deal of change to his symptoms. It would appear that physiotherapy and like treatment was carried out through 2016, with Mr Horvath and his associates last seeing the plaintiff on 6 December 2016. When last seen, the plaintiff was restricted in relation to his overall neck range of motion, especially right rotation and extension. He was able to drive, but suffered increased aggravation especially towards the end of the day. He was very limited in overhead activities, and was limited to lifting less than 10 kilograms. Prolonged sitting gave him some trouble in a driving situation. The primary injury suffered was more in relation to the cervical spine, as opposed to the shoulder.
12As stated, the plaintiff was referred by Dr Sleaby to Professor Richard Bittar, neurosurgeon and spinal surgeon. He saw the plaintiff on 27 April 2016, reporting back to Dr Sleaby on that day. At this stage, the plaintiff was working three hours per day, two days per week, on light duties in an office-based position. He was complaining of neck pain and right brachialgia. Professor Bittar took an appropriate history, including the fact that the plaintiff had been absent from employment for approximately three months following the accident, before returning to work on light duties. At this time, the pain was predominantly in the right side of the neck, radiating into the right shoulder and elbow, with occasional pain in the right forearm. It had improved over approximately the last week. The pain was intermittent and had a maximum severity of 6−8/10. It was aggravated and exacerbated by any forceful use of the arm, and particularly lifting. The plaintiff was taking a range of medications, including Celebrex and Tramadol.
13Professor Bittar observed that the MRI conducted on 11 December 2015 demonstrated a ruptured C6‑7 disc, with an extruded disc prolapse on the right-hand side compressing the right C7 nerve root. He stated that the plaintiff was managing his symptoms reasonably well at that time and was keen to increase his work hours and activities. He would need to avoid repetitive neck and upper limb activities, forceful pushing or pulling, and lifting more than approximately 10 kilograms. Professor Bittar did not favour surgical intervention, and intended to refer the plaintiff to Dr David Eaton, occupational physician.
14Professor Bittar reported to the plaintiff’s solicitors on 14 July 2016. As this was less than three months after the report to Dr Sleaby, a considerable amount of the same material is included in this report. Professor Bittar described his diagnosis as being right C7 radiculopathy secondary to C6‑7 intervertebral disc prolapse. The accident had caused this. Professor Bittar considered it likely that the plaintiff’s condition would improve with the passage of time, either spontaneously or with intervention. If his condition did not improve with conservative measures, spinal surgery would be likely to be recommended. That would most likely take the form of a C6‑7 anterior cervical decompression and fusion. Professor Bittar was of the view that the plaintiff had the capacity to work 3−4 hours per day, 3−4 days per week. He considered the prognosis to be guarded, and that it would be best assessed once the plaintiff’s condition had stabilised.
15Professor Bittar reported again to the plaintiff’s solicitors on 11 July 2021. He recounted details of his original examination. Much of this report is as set out above. However, Professor Bittar had been forwarded the plaintiff’s affidavit of 10 September 2020. It may be that matters were conducted in this way because of the COVID virus, but it is clear that Professor Bittar did not see the plaintiff, but was provided with the affidavit.
16It is also apparent that the plaintiff returned to see Professor Bittar on 26 October 2020, this being upon referral from Dr Ansari, by now his general practitioner. The main reason for this consultation was the plaintiff’s neck, although he also had lower back issues. There was ongoing neck pain radiating into the right arm, especially when the plaintiff used that arm to reach out. His neck pain was particularly exacerbated by any rotation. He had not worked since November 2019, when he suffered the back injury. Professor Bittar arranged for further imaging of the cervical spine.
17On 5 November 2020, an MRI of the cervical spine and flexion/extension cervical spine x‑rays were performed. These did not demonstrate any instability, but did show bilateral foraminal narrowing and nerve root compression at C6‑7. Professor Bittar suspected that a lot of the plaintiff’s symptoms were emanating from that level. He suggested a right C7 nerve sheath injection, to be performed by Dr Richard Sullivan. He also suggested right upper limb nerve conduction studies to rule out a peripheral entrapment neuropathy, which could have been contributing.
18In the opinion of Professor Bittar, the cervical spine injury was consistent with the stated cause, and employment had been the dominant contributing factor. He believed the plaintiff to have a number of significant functional limitations, particularly in relation to forceful pulling or pushing, heavy lifting, and repetitive neck or arm movements. He would have moderate restriction in relation to neck rotation, driving for lengthy periods, sustained overhead activities, pushing or pulling, or lifting or carrying more than light objects.
19Professor Bittar recommended permanent work restrictions. He also expected that the cervical spine injury would have a significant detrimental impact on the plaintiff’s social, domestic and recreational activities. He referred to the plaintiff’s affidavit. Most of the restrictions referred to in it were due to the work-related neck injury. Professor Bittar expected the restrictions to persist into the foreseeable future. He considered the consequences of the cervical spine injury and the impact on the plaintiff’s quality of life to be very significant. Professor Bittar referred to the severity and frequency of pain and interference with sleep, capacity for self-care and self-management, performance of house and family activities, recreational and sporting activities, and quality of life generally. He did not believe that the plaintiff had experienced a substantial recovery from the original injury, and his ongoing symptoms were consistent with this. The prognosis was poor.
20Returning to the plaintiff’s treatment over the years, as mentioned by Professor Bittar he was referred to Dr David Eaton, specialist occupational and environmental physician. Dr Eaton reported to Professor Bittar on 16 June 2016. Given that he is an occupational physician, and the plaintiff is seeking leave solely in relation to pain and suffering, Dr Eaton’s reports are of limited relevance.
21However, Dr Eaton noted that the plaintiff had no history of neck and right shoulder problems before 7 December 2015. The plaintiff was complaining of intermittent pain in his neck and right shoulder, increased by awkward and fixed head and neck postures. Dr Eaton recorded that, on examination, the plaintiff’s active range of movements of his head and neck were reduced by approximately 25 per cent. His right triceps jerk was reduced and his elbow extension was weak. Dr Eaton also noted the result of the radiological investigations. He diagnosed a C6‑7 disc protrusion with radiological and clinical evidence of right C7 radiculopathy. He did not consider the injury to have yet stabilised. He was concerned about some of the heavier aspects of the plaintiff’s work aggravating his injury.
22Dr Eaton reported again to Professor Bittar on 23 August 2016, having seen the plaintiff that day. On this occasion, the plaintiff’s head and neck movements were approximately 60 per cent of normal. Dr Eaton thought that the injury had stabilised. There were various lifting, pushing and pulling activities which could be associated with the plaintiff’s employment and which should be avoided permanently.
23Dr Eaton reported back to Professor Bittar for the third time on 15 November 2016. He had reviewed the plaintiff on that day. The plaintiff was continuing to have some neck and right shoulder pain and significant neck stiffness each morning. The plaintiff had resumed driving, but not performing trailer changeovers, which were a cause for some concern. His head and neck movements remained at approximately 60 per cent of normal. Dr Eaton expressed the opinion that the plaintiff’s neck injury had stabilised.
24Dr Richard Sullivan, anaesthetist and pain specialist, reported to the plaintiff’s solicitors on 31 May 2021. He first saw the plaintiff on 1 April 2020 upon referral from Dr Hazem Akil, who was apparently treating the plaintiff in relation to the lower back injury suffered in November 2019. Dr Sullivan was aware of the neck injury the subject of this application. He was also aware of the plaintiff’s treatment by Professor Bittar and of the radiological investigations of the cervical spine.
25In relation to the plaintiff’s cervical spine, the diagnosis of Dr Sullivan was of an aggravation of cervical spondylosis with C6‑7 disc injury and impingement affecting the right C7 nerve root. He was of the view that the plaintiff’s cervical spine symptoms and the symptoms affecting his right upper limb were consequential upon the cervical injury. He placed various restrictions upon the plaintiff’s activities as a result of that injury. These included the aggravation of neck and right upper limb pain when performing overhead activities or by the pushing or pulling of objects in excess of approximately 5 kilograms. He referred to the plaintiff as being likely to have pain aggravated by cervical movements, including extremes of flexion, extension and neck rotation. Dr Sullivan thought that the plaintiff would have limitations in relation to various social, domestic and recreational activities and that such limitations could be considered permanent. There would also be restrictions in relation to the lifting or carrying of objects in excess of 5 kilograms, the avoidance of repetitive pushing, pulling or lifting or sustained used of the right upper limb and the like.
26It is apparent that Dr Sullivan’s attention was directed more to the plaintiff’s lower back injury, because he stated that, in relation to the cervical spine injury, he had not questioned the plaintiff about interference with family duties, recreational or sporting activities and the like. Indeed, he stated that the majority of his involvement with the management of the plaintiff pertained to the lower back injury. Professor Bittar had provided the majority of care for the cervical spine and right upper limb injury.
27Also placed in evidence by the plaintiff were reports from Dr Imraan Ansari, who was the plaintiff’s treating general practitioner following the departure of Dr Sleaby and another doctor, Dr Bhalerao. A considerable portion of the report of Dr Ansari of 1 February 2021 is based entirely upon the clinical notes of the plaintiff’s previous treating doctors. However, based upon the history provided by the plaintiff, together with the clinical and imaging findings which had been organised by the previous treaters, Dr Ansari considered that the plaintiff’s employment had been a significant contributing factor to his neck and right shoulder condition.
28The plaintiff consulted Dr Ansari in September 2020 in relation to worsening neck pain and right shoulder pain. Accordingly, Dr Ansari referred the plaintiff back to Professor Bittar, and an updated MRI was reported as demonstrating bilateral foraminal narrowing and nerve root compression at C6‑7. Apparently it was envisaged that the plaintiff would have a right C7 nerve sheath injection performed by Dr Sullivan. There was also a recommendation in relation to right upper limb nerve conduction studies. Dr Ansari considered that the prognosis for the neck and right shoulder condition was guarded and that it was likely that the plaintiff would consider to suffer from neck and right shoulder symptoms in the future.
29On 28 June 2021, Dr Ansari reported to the plaintiff’s solicitors. He had last seen the plaintiff in January 2021. The plaintiff had ongoing neck and right shoulder pain with tenderness and stiffness and with pain radiating into the fingers of the right hand. Some neck movements caused dizziness. His pain was exacerbated if he reached above or across. He was unable to bend his right arm behind his back, and had some problems dressing and toileting. He was unable to participate in his pre-injury hobbies and interests, such as gardening, fishing and handyman tasks around the house. He also suffered from some anxiety.
30Dr Ansari implicated employment as a significant contributing factor to the neck and right shoulder condition. In relation to current symptoms, these included pain and tenderness in the neck. Pain radiated down both sides of the neck, mainly to the right side and into the trapezius and shoulder. Most movements aggravated the pain. Various functional limitations were set out. Dr Ansari was of the view that the plaintiff had no capacity for pushing, pulling, bending, reaching, twisting or stooping. He could drive only locally. The plaintiff was limited in relation to neck rotation, extension and flexion; overhead extension; lifting or carrying; and there were some limitations in relation to prolonged sitting, standing or walking. Dr Ansari referred to work restrictions in relation to the plaintiff’s use of the right upper limb, these restrictions including overhead activities. The plaintiff was unable to help his wife with cleaning, cooking and gardening due to his pain, and was able only to drive locally and perform light shopping. He was unable to sleep on his right side due to the pain. Dr Ansari considered the prognosis in relation to the right upper limb injury to be guarded, and thought it likely that the plaintiff would continue to suffer from right shoulder symptoms in the future.
31The plaintiff has been examined for medico-legal purposes at the request of his solicitors. Mr Mohammed Awad, neurosurgeon and spinal surgeon, saw the plaintiff on 20 April 2021, reporting on the same day. Mr Awad seems to have been examining in relation to both the plaintiff’s neck injury and lower back injury, but this summary shall deal only with the neck and right upper limb. Mr Awad took an appropriate history. In relation to the plaintiff’s neck and right shoulder, the history was of pain constantly there with any kind of movement. The pain is minimal if the plaintiff keeps his neck entirely still, but, with movement in any direction, the pain level goes up to 8/10.
32Upon examination, the plaintiff had extremely limited lateral rotation of the cervical spine bilaterally. He had limited power in his right upper limb mostly to the triceps, but to some degree the biceps, which was likely secondary to pain. He had some numbness, predominantly in the C7 distribution on the right. The diagnosis of Mr Awad was of a likely acute C6‑7 disc prolapse with ongoing aggravation of cervical spondylosis and right C7 radiculopathy. He implicated employment. He thought that the plaintiff was likely to suffer the consequences of the injury in the form of ongoing pain and disability into the foreseeable future.
33Considering the cervical spine injury on its own, the plaintiff was likely to be functionally limited with any form of neck rotation, including extension and flexion, which affected his driving, overhead activities, pushing, pulling and lifting. Such movements were likely to exacerbate the pain. As a result of the cervical spine injury, the plaintiff did not have the capacity to engage in unrestricted employment and he was likely to be precluded and restricted in relation to social, domestic or recreational activities. The cervical spine injury, viewed on its own, was having an impact upon the quality of the plaintiff’s life in relation to sleep, mobility, self-care and management, house duties, and social activities.
34Mr Awad believed that the employment injury to the cervical spine was likely to cause the plaintiff to suffer from consequences in the form of ongoing neck pain and right arm radicular pain. The prognosis was poor, and he was likely to suffer the consequences of the cervical spine injury in the form of ongoing pain and disability into the foreseeable future. The right arm symptoms were likely to have arisen from the C7 nerve root compression, which in turn resulted from the acute C6‑7 disc prolapse which the plaintiff had suffered.
35Mr Ash Chehata, orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 26 May 2021. He took a detailed history of the accident and the subsequent treatment.
36On examination, Mr Chehata found that the plaintiff had essentially a full range of movement of the right upper limb, but with a reduced range of movement in the cervical spine, with all ranges being quite painful. There was no obvious muscle wasting. Mr Chehata was of the view that the plaintiff had suffered an employment injury which had affected the C7 nerve root. He added that it would appear that the cervical spine discogenic injury is certainly the driving force behind the ongoing pain radiating across the shoulder, there being no obvious shoulder pathology present. Thus, it was likely that the right shoulder injury resulted from radiating pain from the discogenic injury. As a result, the plaintiff struggles with ongoing weakness in the right upper limb, this being a consequence of the radiating pain from the cervical spine and being directly related to the C7 discogenic injury. As a result, the entire right upper limb is quite painful and weak and this has affected all of the plaintiff’s social, domestic and recreational pursuits. He is unable to perform many normal activities and tasks, and has stopped going fishing and skiing. He is unable to sleep on his right side. Given the longstanding issue of chronic pain, which has not been responsive to conservative measures, the prognosis is that the plaintiff’s injury and condition are unlikely to change over time.
37The defendant has also had the plaintiff examined for medico-legal purposes. Dr Andrew Miller, occupational health consultant, saw the plaintiff at the request of the defendant on 7 April 2016. Dr Miller described the plaintiff as having suffered a chronic partially incapacitating injury to his neck and right shoulder region. He implicated employment. Dr Miller diagnosed a cervical intervertebral disc lesion with spinal nerve root involvement and a soft tissue strain of the right shoulder. The plaintiff had an ongoing partial disability. Dr Miller anticipated slow but sustained improvement within six months. However, the plaintiff was not capable of undertaking the full range of his pre-injury duties, and various restrictions would be required.
38A workplace inspection undertaken by Dr Miller was reported on a few days later and, for the purposes of the present application, does not take matters much further.
39Dr Miller reported to the defendant again on 21 October 2016, having re‑examined the plaintiff on the previous day. His condition had remained relatively unchanged. He had returned to work, but was not required to do any manual handling or physically demanding tasks. Dr Miller’s clinical reassessment had revealed that the plaintiff’s condition had remained relatively unchanged. His diagnosis of a cervical intervertebral disc lesion with spinal nerve root irritation and soft tissue strain of the right shoulder remained. Dr Miller still implicated employment. He now thought that it appeared that the plaintiff’s condition may not fully resolve. Restrictions may have to be put in place on a long-term basis.
40Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff at the request of the defendant and reported on 18 October 2017. The opinion of Mr Kierce was that the plaintiff had suffered a significant disc prolapse in his cervical spine, along with the development of adhesive capsulitis of the right shoulder joint, these following the workplace injury of 7 December 2015. The plaintiff described “deep pain” in the neck on an intermittent basis and with the severity varying with the amount of neck movements and right shoulder movements. Turning his head in either direction was painful. He also had trouble with such things as dressing. Gardening and vacuuming were a problem. He could drive for short distances.
41The overall diagnosis of Mr Kierce was of a disc prolapse at C6‑7 and a soft tissue injury to the right shoulder, the latter now showing signs of adhesive capsulitis of the right shoulder joint. Mr Kierce noted that the plaintiff’s range of movements of his neck and right shoulder seemed to be consistent throughout the interview. He thought it likely that the plaintiff would continue to suffer with intermittent neck pain and referral of pain down the right upper limb. He would be permanently restricted in relation to the use of his right arm above shoulder level, and restrictions in relation to the lifting of weights would operate for the foreseeable future. Overall, the plaintiff’s clinical presentation was consistent with the workplace incident.
42Dr Marcus Navin, occupational medicine physician, reported to the defendant on 23 November 2017, having examined the plaintiff on 14 November. It was apparent that the plaintiff wished to stay at work as long as he could. He was not doing much cooking or work around the house. Whilst he had a garden, he was doing no gardening because he was unable to dig using his right hand. He had become “more adapted” to using his left hand. Overall, upon examination there was decreased power in most muscle groups on the right compared to the left. Dr Navin described the plaintiff’s original complaint as being “not in doubt”. The plaintiff was managing his work duties. However, these had been adapted. Whilst there were no specific restrictions, the plaintiff was not carrying out manually-demanding roles which placed significant demand on his right arm. This had been “factored into” by his employer.
43Dr Navin reported again on 16 December 2020, having seen the plaintiff on 7 December. His attention was directed specifically to the neck and right shoulder injury. On this occasion, the plaintiff described his shoulder pain as being absent for a period, but, when present with activity, rising to a level of 9/10. With respect to the neck, there was a constant level of 2−3 to a level of 7 or 8. The plaintiff was limiting the use and movement of his right shoulder and preferred not to move his head or neck significantly due to this. The plaintiff said that, as a consequence of his right shoulder problems, he had been using the left hand predominantly for most activities of daily living and avoiding any use of the right shoulder or right arm movement wherever possible. He was continuing to have physiotherapy twice weekly, although this also involved treatment of his lower lumbar spine. He had undergone no further intervention or injections in the right upper limb, but tried not to use it to any great degree, particularly if it also involved use of the right shoulder. He was taking Celebrex and Panadeine Forte for treatment of his neck and his back. He was also taking medication for his diabetes and blood pressure. He could not engage in activities which involve his right shoulder, gardening being an example. He had been able to adapt and make changes to suit his needs, but his symptoms had essentially remained unchanged. No wasting of the right upper limb was observed.
44Dr Navin felt that it could be presumed by inference that the plaintiff’s symptoms, when he carried out a handgrip test, lacked a foundational basis in terms of his radiology and symptom profile. He thought that there was no indication of nerve root compression which may be compatible with the reported symptoms, and these could be considered to be associated with ageing. With balancing of his tight muscles, the plaintiff may be able to return to work. Dr Navin thought that the reported restriction of range of function may have given rise to the symptoms in the shoulder and were indicative of a volitional restraint. Given the plaintiff’s age, he “would well have suffered” the relevant anatomical changes. Dr Navin stated that he did not consider that there was any ongoing work-related cause and that any work-related aggravation had now ceased. The plaintiff would have the capacity to return to suitable employment on a full-time basis.
45Dr David Barton, consultant occupational physician, examined the plaintiff at the request of the defendant on 18 June 2020, reporting on the following day. Dr Barton’s attention seems largely to have been directed to the plaintiff’s lower back injury. He did record that for seven years the plaintiff’s employment duties had been to lock containers in place, check his vehicle and essentially drive short distances delivering containers. Prior to this, he had done other truck-driving work since approximately 1980. However, Dr Barton recorded that there was no prior history of any other “relevant” musculo-skeletal problems or injuries. He did think that the plaintiff’s job sounded relatively easy. Otherwise, I do not regard the comments of Dr Barton in relation to the plaintiff’s back injury, assessment of it and the like to be particularly helpful in relation to the neck and shoulder injury under consideration.
46Dr Barton reported again on 26 June 2020, but this was to answer specific questions in relation to the back injury. He commented again in a report of 17 September 2020 after receiving radiology results and letters in relation to the lower back. Again, whilst these reports were in the defendant’s Court Book, being directed, as they were, to the plaintiff’s subsequent lower back injury and in a case where a certificate in respect of loss of earning capacity is not sought, they were of no great assistance.
47Dr Clayton Thomas, consultant in rehabilitation pain medicine, reported to the defendant on 29 October 2020, having examined the plaintiff on the preceding day. This examination and report were also directed to the lower back injury. Again, there was not a great deal of assistance to be gained from this report in relation to the present case. The same could be said of a supplementary report of Dr Thomas dated 1 December 2020, which relates to capacity for employment, Dr Thomas noting that the plaintiff does not have the capacity for pre-injury work duties, but this comment is also directed to the lower back injury. I might add that possibly some of these reports were included in the defendant’s Court Book in the belief that the plaintiff may have been claiming loss of earning capacity in the present application. Of course, that did not turn out to be the case.
48Dr Tony Kostos, rheumatologist, reported to the defendant on 23 June 2021, having examined the plaintiff on the previous day. This also seems to have been in relation to the lower back injury suffered on 24 November 2019. Dr Kostos took a history of the plaintiff developing neck pain in 2015 and having complained of neck and right arm pain ever since. The plaintiff stated that he took the same tablets for neck pain as he did for his back and had undergone physiotherapy, which did not assist. However, he had been able to perform light duties from 2015. Dr Kostos noted that the plaintiff’s neck movements were markedly restricted, with pain in all directions, and that there was a greater range of movement noted in left rotation when the plaintiff was lying prone on the examination couch. He also had diffuse midline cervical and bilateral paravertebral tenderness to palpation and diffuse tenderness around both shoulder girdles.
49The opinion expressed by Dr Kostos essentially was directed towards the partial compression fracture of the L3 vertebrae, being consistent with the mechanism of injury described. He also thought that the plaintiff had a chronic pain syndrome, which had been compounded by the treatment that he had been having. Dr Kostos was critical of some of the treatment which the plaintiff had been receiving for his lower back. There is no further reference of note to his cervical spine or right shoulder.
50Dr Kostos sent a further brief report to the defendant on 20 July 2021 without having seen the plaintiff again. This seems to have been in relation to potential suitable employment. Given that loss of earning capacity is not claimed, it takes matters no further.
51The defendant also placed in evidence approximately twelve items of correspondence or brief reports involving the plaintiff’s treating medical practitioners. By far the majority of these related to his lumbar spine condition. Three items of correspondence relating to the cervical spine condition have been placed in evidence by the plaintiff.
52I accept the diagnosis of Professor Bittar, who treated the plaintiff in relation to his neck and right upper limb injury. His diagnosis was of right C7 radiculopathy secondary to a C6‑7 intervertebral disc prolapse caused by the accident. That is consistent with the diagnosis of Dr Eaton of a C6‑7 disc protrusion with radiological and clinical evidence of right C7 radiculopathy. It is also consistent with the diagnosis of Dr Sullivan of aggravation of cervical spondylosis with a C6‑7 disc injury and impingement affecting the right C7 nerve root. He was also of the view that the symptoms affecting the right upper limb were consequential upon the cervical injury. This is also consistent with the diagnosis of Mr Awad of a likely acute C6‑7 disc prolapse, with ongoing aggravation of cervical spondylosis and right C7 radiculopathy. Whilst Mr Chehata simply stated that the plaintiff’s right shoulder injury and weakness in the right upper limb were consequences of the radiating pain from the cervical spine, this being directly related to the C7 discogenic injury, this is also consistent with the other diagnoses. Dr Miller, examining on behalf of the defendant, also diagnosed a cervical intervertebral disc lesion with spinal nerve root involvement, although he thought that there was also a soft tissue strain of the right shoulder. Mr Kierce, examining on behalf of the defendant, diagnosed a significant disc prolapse in the cervical spine. He also diagnosed a soft tissue injury of the right shoulder. I prefer and accept these diagnoses in so far as they refer to a discogenic neck injury and right C7 radiculopathy, along with right upper limb symptoms consequential upon the cervical injury.
53In other words, I am satisfied that the plaintiff suffered a significant disc prolapse at the C6‑7 level. I also accept that there has been radiation of pain into the plaintiff’s right shoulder. It may be that there is also some degree of soft tissue injury suffered. Of course, this represents either radiation of symptoms or a soft tissue injury (or possibly the combination of both) to the plaintiff’s dominant arm.
54In so far as the symptoms and consequences arise from the aggravation of a pre‑existing condition, I accept that, essentially, the plaintiff had no prior history of problems with his neck or right shoulder. Any symptoms or restrictions that arise from aggravation of a pre-existing condition are consequential upon the injuries suffered in the accident.
55I am also satisfied that any such consequences and restrictions are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Professor Bittar has stated that the plaintiff’s prognosis is poor. Mr Awad expressed the opinion that the plaintiff is likely to suffer the consequences of the injury in the form of ongoing pain and disability into the foreseeable future. Mr Chehata stated that the prognosis was that the plaintiff’s injury and condition were unlikely to change over time. Mr Kierce, examining on behalf of the defendant, expressed the opinion that the plaintiff would be permanently restricted in relation to the use of his right arm above shoulder level, and restrictions in relation to the lifting of weights would operate for the foreseeable future. I do not accept the opinion of Dr Navin that any work-related aggravation had ceased. The balance of medical opinion, and what could be described as orthopaedic opinion, seem to me to support strongly the proposition that the plaintiff’s pain and restrictions will persist for the foreseeable future and are thus permanent within the meaning of the Act.
56Any consequences of a psychological or psychiatric nature have not been taken into account by me. No report from a psychologist or psychiatrist has been placed in evidence by either party. Obviously teleconferencing has its restrictions, but certainly the impression given by the plaintiff was not one of a person suffering such consequences.
(f)Other developments since the injury
57After the accident, the plaintiff was absent from employment until approximately March 2016, when he returned on a part-time basis and performing restricted duties. In late 2016, he was able to return to his pre-injury hours of work, but restrictions still existed in relation to his duties. The plaintiff has sworn that, after his return to work, his neck pain would flare when attempting to climb in and out of the truck and at the end of the day’s work. His wife, who was not required for cross-examination, has sworn that, since the accident, the plaintiff has not been able to help with household duties in the way that he previously did, and this state of affairs continued after his return to work in 2016. She has also sworn that his pain has continued from the accident and has not gone away.
58On 24 November 2019, the plaintiff injured his low back when he fell from a truck whilst in the course of his employment. He has not returned to work since.
(g)Ruling
59I am satisfied that the plaintiff has discharged the burden of proof and is entitled to a certificate in respect of pain and suffering. I have come to that conclusion for the following reasons, which are not listed in order of importance or priority.
(a) In the accident, the plaintiff suffered a frank injury, radiologically demonstrated, to his cervical spine, with symptoms radiating to and affecting the use of his dominant arm. This has been an ongoing situation. I note that the plaintiff consulted Dr Ansari in September 2020 in relation to worsening neck pain and right shoulder pain. Further specialist treatment resulted from this. In his report of 28 June 2021, Dr Ansari noted that most movements tended to aggravate the plaintiff’s neck pain, which radiated down both sides of the neck but mainly to the right side. The history taken by Mr Awad on 20 April 2021 included a description by the plaintiff of constant neck pain and right shoulder pain which could only be minimised by him keeping his neck entirely still. Constant pain and restrictions are important considerations in relation to the discharge of the burden of proof.
(b) The plaintiff has suffered substantial interruption to his sleep as a result of the injury. In his affidavit of 10 September 2020, and when dealing specifically with his neck injury, he has sworn that he struggles to get a good night’s sleep, and sleeps in blocks of 3−4 hours so that he is able to move position. In his more recent affidavit, of 7 August 2021, he has sworn that he continues to experience the same symptoms and consequences as those set out in the earlier affidavit. In an affidavit directed to the consequences of the accident, his wife has sworn that he frequently gets up during the night due to his pain. Interference of this nature with sleep has long been recognised by this Court and by the Court of Appeal as being an important factor in relation to pain and suffering.
(c) The plaintiff’s pain is made worse if he has to reach above his head or out from his body. He is greatly restricted in relation to how much he can lift and carry with his right arm and as to the use of the arm generally. He experiences difficulty in washing, toileting, and the like. He needs his wife’s assistance to put on his socks. Thus, there is very considerable interference with the performance of everyday activities.
(d) The plaintiff used to enjoy the performance of tasks around the house. He had carried these out by himself. Before the injury, he had done such things as build a pergola, repair fences, and similar tasks. He is now unable to do these things, and has to rely upon either his son or his brother-in‑law to perform these duties.
(e) I accept that the plaintiff was a person who was a very hard worker and enjoyed his work. I appreciate that the injury did not prevent him from returning to work on a graduated basis in March 2016, eventually working full-time. However, he was no longer able to carry out the more demanding tasks associated with his duties.
(f) Prior to the injury under consideration, the plaintiff used to work in his garden, in particular growing tomatoes and chilies. As a result of the injury, he had to give up his gardening.
(g) Prior to the injury, the plaintiff enjoyed fishing. He would go either weekly or fortnightly to the Hume Dam or to the Goulburn River at Seymour. As a result of the injury, he struggled to cast a line and had to give up fishing. He used to go skiing every winter with his son. He is of the belief that he would not be able to ski, given the restrictions relating to his dominant right arm. The plaintiff’s son, Mr Afrim Saliu, who was not required for cross-examination, has sworn an affidavit in which he confirms such matters as the work which his father did around the house, the skiing, the fishing and the like. He has sworn that now his father does very little.
60When all the above is taken into account, it seems to me that the plaintiff has discharged the burden of proof. The pain and suffering consequences which emanate from the accident are able to be viewed separately from those which followed the 2019 injury to the back. They have been clearly identified by some medical examiners, such as Mr Awad and Mr Chehata, as well as by Mr Kierce. The symptoms and restrictions in question represent consequences that are more than significant or marked and are at least very considerable.
(h)Conclusion
61The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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