Markov v National Concrete Pumping Pty Ltd
[2010] VCC 868
•9 July 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-03387
| MICHAEL MARKOV | Plaintiff |
| v | |
| NATIONAL CONCRETE PUMPING PTY LTD | Defendant |
| (IN LIQUIDATION) |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16, 17 & 18 June 2010 |
| DATE OF JUDGMENT: | 9 July 2010 |
| CASE MAY BE CITED AS: | Markov v National Concrete Pumping Pty Ltd (In Liquidation) |
| MEDIUM NEUTRAL | [2010] VCC 0868 |
| CITATION: |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – s.134AB Accident Compensation Act 1985 – loss of function of the cervical spine – pain and suffering and loss of earning capacity consequences – application granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. W. Collis QC | Ellis Palmos & Co. |
| with Mr D. R. Gibson | ||
| For the Defendant | Mr S.A. Smith | Herbert Geer |
| HER HONOUR: |
1 Michael Markov brings this application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (the Act). He is seeking leave to proceed against National Concrete Pumping Pty Ltd (in liquidation), (National Concrete Pumping), in respect of a neck injury that occurred on or about 3 June 2006.
2 Reliance is placed on sub-paragraph (a) of the definition of serious injury found in s.134AB(37) of the Act. The claimed injury is to the neck and the loss of body function is the cervical spine. The application relates to both pain and suffering and loss of earning capacity consequences.
3 It is not in dispute that Mr Markov injured his neck and cervical spine as a consequence of an incident that occurred in compensable circumstances on 3 June 2006. What is in dispute is the nature and consequences of the injury, in particular whether the plaintiff can satisfy the test for serious injury as defined in the Act and the authorities.
4 Mr Smith, on behalf of the defendant, submitted, with respect to the pain and suffering aspect, that the seriousness of the consequence of the injury is in dispute in terms of how significantly the injury restricts Mr Markov’s day to day functioning. In terms of the loss of earnings consequences, the defendant’s position is that Mr Markov is capable of undertaking full-time suitable employment in positions such as ticket seller, parking inspector and booking clerk and therefore there is no basis upon which the plaintiff can claim serious injury in respect of this aspect of loss of earning capacity consequences.
5 Mr Collis QC, submitted on behalf of the plaintiff, that the Court ought to be satisfied that he satisfies the test for both aspects and that a serious injury certificate should be granted.
6 Mr Markov gave evidence in which he adopted affidavits that he had sworn on 16 March 2009 and 24 March 2010 respectively. Those affidavits set out the plaintiff’s background, the circumstances of the injury and its consequences in terms of his employment capacity and his social, domestic and recreational activities.
7 Dr Jacob Landsberger, a general practitioner, and Mr Peter Wilde, an orthopaedic surgeon, were called to give evidence and were cross-examined and re-examined. The balance of evidence was tendered by counsel in documentary form in accordance with the attached schedule.[1]
Credibility of the plaintiff
[1] Schedule 1, Exhibit List
8 Mr Markov’s credit was attacked. Video surveillance taken on 2 and 9 June 2009 and 20 April 2008 was shown to the Court, the total duration of those films was 1 hour, 12 minutes and 30 seconds. By its own admission the defendant confirmed there was a total of 65 hours, 45 minutes and 33 seconds surveillance undertaken.[2] Therefore only a small fraction of the surveillance material in the possession of the defendant was shown to the Court. I infer that the remaining surveillance material was not supportive of the defendant’s case.
[2] Schedule 2, video surveillance of Mr Markov
9 What the video surveillance showed was that Mr Markov can move about freely, drive his car, potter about at home, walk about car auction yards and undertake simple physical tasks such as putting petrol into his car. The films reflect his modest lifestyle and are consistent with his evidence.
10 I do not consider that what was demonstrated on the video contradicted the plaintiff’s version of the extent of the claimed consequences following injury or show that he had a greater range of movement in the cervical spine than he demonstrated to the Court.
11 I am satisfied, having regard to the totality of the evidence and having viewed the exhibited surveillance video material that the plaintiff was a reliable and credible witness. He gave his evidence in an open and straight forward manner. He did not seek to embellish his evidence and did not seek to overstate the consequences of his injury.
12 I accept Mr Markov’s evidence concerning the nature and extent of the consequences of his injuries as set out in the affidavit material and in the evidence before the Court.
Background to the injury and treatment
13 The relevant background facts can be shortly stated. Mr Markov is aged 56. He was born in Serbia on 19 May 1954. He is of Hungarian origin. He was educated to Year 8 level in Serbia. He has had little formal education. In 1970 he migrated to Australia with his family when he was aged 16. He has had no education in Australia. He has limited computer skills and basic English literacy.[3]
[3] PCB 21.
14 He worked as a coach/bus driver for more than 20 years. In early 2001 he started work as a concrete mixer driver. On 12 April 2005 he commenced employment with National Concrete Pumping as a truck driver/concrete hose operator.
15 On 3 June 2006, in the course of his employment, Mr Markov attended a building site in Inkerman Street, St Kilda. He was working with another employee, Mr Peter Robinson. Mr Markov was the hose operator and Mr Robinson was the pump operator. After filling a column with concrete to the appropriate level, Mr Markov yelled to Mr Robinson to stop the pump. He then applied a clamp to the end of the hose. However the pumping continued and the hose exploded causing Mr Markov to be forcibly struck with concrete and stones about his neck and face (the incident).[4]
[4] PCB 12-13.
16 Mr Markov felt considerable shock and pain and was assisted by some other workers on the site. He was taken to the Alfred Hospital where he was treated in the Emergency Department.
17 A report from the hospital confirms that he attended the Emergency Department on 3 June 2006 at 1159 hours. No loss of consciousness was noted. Head and neck examination showed mild abrasions to the left side of the forehead and generalised tenderness over the left side of the skull. There were no haematomas. Examination of the left shoulder showed no wounds or bruising and he had a full range of shoulder movement. No other abnormality was detected.
18 It was felt Mr Markov had sustained soft tissue injuries to the left side of the forehead, left temple area and left shoulder. Further investigations were not required and he was discharged home with analgesia and anti-inflammatory medication. There was no further attendance at the Alfred Hospital.[5]
[5] PCB 84-85.
19 Mr Markov returned to work on 5 June 2006. He continued working up until December 2006. He noticed gradually increasing pain in his neck and right shoulder radiating from his neck into the right arm and fingers of the right hand. He struggled on coping with the pain.[6] He rested over the Christmas break and returned to work in late January 2007. Ultimately he could not cope with his symptoms. He first saw a Dr Stesin, a general practitioner, on 2 February 2007. On 12 February 2007 CT scan investigation of the neck and x-rays and ultrasound examination of his right shoulder was undertaken. Dr Stesin’s diagnosis was C4/C5 and C5 and C6 disc protrusions and right supraspinatus tendonitis and right supraspinatus calcinosis.[7] He treated Mr Markov with Tramal a painkiller and Celebrex, an anti-inflammatory and referred him for physiotherapy. He also referred him to Mr Wilde, a spinal surgeon, and Mr Bell, an orthopaedic surgeon.
[6] PCB 14.
[7] PCB 57.
20 Mr Markov kept working with increasing pain until late February 2007 at which stage he could not continue. He ceased work and has not worked since.
21 On 26 February 2007 Mr Markov attended Dr Jacob Landsberger, a general practitioner, for ongoing treatment and management. Dr Landsberger confirms that Mr Wilde undertook further investigations which confirmed the neck disc problems as the cause of Mr Markov’s pain.[8]
[8] PCB 61.
22 On 16 July 2007 Mr Wilde performed corrective surgery, namely a two level anterior cervical discectomy and fusion surgery (C4/5 and C5/6).
Claimed consequences of the injury
23 Mr Markov sees Dr Landsberger from time to time who provides current capacity certificates.
24 Mr Markov says that he is not fit to undertake his pre-injury employment and that he is not fit for any suitable employment. He avoids any activities that involve any heavy lifting or awkward positions.
25 In his affidavit he states that he continues to suffer from persistent pain in the base of his neck and on both sides of his neck. The movement in his neck is restricted and attempting to move his neck beyond his limits tends to cause increased pain in his neck. He frequently suffers from headaches in the back of his head that tend to last from one to two hours. He takes Panamax and sits down and tries to relax in order to get relief.[9] He continues to suffer from disturbed sleep because of neck pain. He currently takes Muralax, one a night, to assist him to sleep but otherwise he has learnt to cope with his pain. He finds lifting tends to aggravate his neck pain as does prolonged driving. He states that, if he holds his neck in a prolonged posture, it tends to increase his neck pain, however at times he can suffer severe episodes of neck pain without any apparent reason.[10]
[9] PCB 20, paragraph 4(a) of the plaintiff’s affidavit.
[10] PCB 20, paragraphs 4(b) and (c).
26 Prior to injury his main interest was his small hobby farm located in Corop, north central Victoria. He and his wife would travel to the farm most weekends. They grew their own vegetables and grapes and made their own wine. These days the trips are less regular.
27 Following injury Mr Markov relies on his relatives and friends to do most of the heavier work on the hobby farm. For instance, he can no longer use a whipper-snipper because of the increased pain it causes and also, when using the ride-on mower, he has to stop after about 20 minutes because of increased pain in the neck and the feeling of pins and needles in the neck.
28 He also used to enjoy fishing, but following injury he did not continue with this activity and sold his boat in early 2007.[11]
[11] PCB 22, paragraphs 6(c) and (d).
29 Insofar as his activities of daily living are concerned he tries to assist with housework but finds mopping difficult. After a short period of time, it causes increased pain in his neck and he has to stop. He accompanies his wife whilst shopping but she tends to do the heavy lifting because of his injury. His sexual relationship with his wife has been adversely affected. He frequently has to have a lie down during the day as he gets very tired after having disturbed sleep each night.[12]
[12] PCB 23, affidavit, paragraphs 6(f) and (g).
30 Maria Markov, the plaintiff’s wife, has provided an affidavit in support of her husband’s application. This was sworn on 18 May 2010. Her uncontradicted evidence is that Mr Markov did not have any pre-existing neck problems prior to the injury in 2006. He was a very strong and physically capable man who enjoyed undertaking the numerous tasks concerning the maintenance and upkeep of their hobby farm. She confirms that they regularly visited the farm on weekends and holidays prior to the injury. Her husband was very physically active and he would spend a lot of time chopping wood and doing the gardening. He helped a relative build an outdoor entertaining area. Now they visit the farm less frequently and her husband is constrained by what tasks he can now do such as using the ride-on mower to mow the lawns. He can still do the mowing but it takes him a lot longer. He does the mowing in small bouts because of the pain. It can take him upwards of a full day to do work that would previously have taken half an hour. He relies heavily on his family and friends to prune trees and shrubs at the farm. He no longer has the capacity to lift heavy things, such as heavy water containers.
31 Mrs Markov confirms that her husband no longer enjoys the social activities that they used to do together, such as dancing. He is limited in the amount of time he can spend in the car and finds driving very uncomfortable if they are driving for a long period of time. As far as activities around the home are concerned, he engages in some domestic chores. On occasion he attempts mopping or vacuuming but has to stop or come back to it or get her to complete it for him.
32 She confirms the difficulties Mr Markov experiences sleeping. He sleeps for a couple of hours at a time and then wakes up and is very restless and gets out of bed and watches television, usually for a few hours. His injury has affected their intimate life and has made their marriage very difficult.[13]
Progress following the discectomy
[13] Affidavit of Maria Markov sworn 18 May 2010; PCB 38-43.
33 The evidence shows that during the first month or so following the operation, Mr Markov continued to have pain in his neck and right side. He had difficulty swallowing or eating solid food and his voice was rather hoarse for some time. The pins and needles and pain he was having radiating from his neck to his right shoulder largely went. He continued to complain of considerable pain in the neck and at the base of the neck on both sides.[14] He regularly took anti- inflammatory and pain relief medication. He undertook physiotherapy twice a week for about a year, but ceased when he found that he was not receiving much benefit.[15]
[14] Plaintiff’s Affidavit, paragraph (p); PCB 19.
[15] Plaintiff’s Affidavit; paragraph (g) – (t).
34 Mr Wilde continued to review him post-operatively. He confirms that, following surgery, he conducted a four week post-operative review on 14 August 2007 with a new x-ray. The x-ray was satisfactory with no change in the position of the bone grafts at C4/5 and C5/6. The wounds were well-healed although Mr Markov felt discomfort in his neck and right iliac crest where the bone graft was harvested. He had minor difficulties swallowing solids and his voice was quite hoarse for a few days but was now normal once again.
35 Mr Wilde reports that the plaintiff told him the strength in his arms had improved considerably and he moved his upper limbs quite normally. Physical examination revealed no sensory change and the reflexes were equal and symmetrical. He prescribed Voltaren and Endone.[16]
[16] PCB 75.
36 A further review took place on 13 November 2007, at which time Mr Markov reported increasing strength in the right arm. Mr Wilde recorded biceps power MRC5/5 which Mr Wilde states was a considerable improvement compared to the preoperative situation.
37 Mr Markov continued however to report discomfort in the back of his neck and both shoulders. Mr Wilde felt that was referrable to musculoskeletal pain, possibly from the facet joints posteriorly now that the balance of his spine had been rearranged by the surgery. This soreness occurred when he was active or during the night and he wakes in pain with his right proximal arm and aching around his shoulders. He prescribed Voltaren.[17]
[17] PCB 75.
38 On 16 September 2008 Mr Wilde reviewed Mr Markov for a routine check-up. He continued to report low grade symptoms in the neck and the trapezial muscles but there were no neurological features in his upper or lower limbs. The current medication was Mobic. He had discontinued physiotherapy because it made him feel worse.[18]
[18] PCB 75.
39 Mr Markov returned for further review on 15 December 2009 for an update assessment and to enable Mr Wilde to prepare a medical report for his solicitors. Mr Markov reported persistent mild neck pain with referral into both trapezial muscle areas and into both hands. He described pins and needles in his neck and both hands. He slept poorly at night and tossed and turned but during the day his pain was not too bad.[19]
[19] PCB 82.
40 At that time he was not working but had applied for a part-time job with a light delivery company and was to be interviewed. The hours were two to three hours per day, five days per week. Mr Wilde suggested that he trial a small dose of Endep, 50 mg nocte, and Fentanyl patches, 25 mg per hour during the day. Mr Markov told the doctor that he was not taking regular analgesics because he did not think anything was working, including Panadol Osteo, Endep at night and Muralax which he had taken in the past. Mr Wilde told him there was probably little further that anybody could do to assist him with his pain and he may have to accept things as they are, but if chronic and severe pain became an issue then he may benefit from a referral to the Melbourne Pain Group.[20]
[20] PCB 82.
41 Mr Wilde considers that the plaintiff’s condition is stabilised and his prognosis is guarded as he expects Mr Markov will experience neck stiffness and pain from time to time. He did not consider that Mr Markov is capable of returning to his full-time pre-injury work or other forms of physical or manual work in the future. He anticipates that in the medium to longer term he would be able to return to gainful employment in sedentary or light duties. He considers Mr Markov’s injury results in him being precluded and/or restricted from undertaking any employment and/or activity involving repetitive and/or sudden neck movements, prolonged neck postures, lifting over any weight, pulling and/or pushing and reaching up on a repetitive basis.[21]
[21] PCB 83.
42 Dr Landsberger has continued to monitor Mr Markov’s progress and he has provided the plaintiff with WorkCover certificates certifying him unfit for work. Dr Landsberger agrees that Mr Markov could not return to his original duties in the construction industry but considers he is able to return to work in an appropriate job if appropriate alternative employment was available.[22]
[22] PCB 62.
43 When cross-examined, Dr Landsberger confirmed that it would be beneficial for Mr Markov to return to suitable alternative employment. He considered that he would be suitable to undertake the job of a parking inspector full-time, ticket seller, booking clerk, information clerk, order clerk, ticket collector and usher full-time (provided there was no heavy lifting or recurrent lifting in the job) and retail sales person (he could do with the same restrictions previously stated). He placed a lifting limit of three to four and maximum of five kilograms.[23] He has encouraged Mr Markov to return to work but acknowledged that there was some difficulty in the prospect of finding appropriate employment. He considers that Mr Markov could do a job that did not involve regular and repeated bending and lifting and did not involve lifting anything over four or five kilograms.[24]
[23] T 102, lines 4-6.
[24] T 102, lines 25-29.
44 He admitted, in re-examination, that he was not aware of Mr Markov’s ability to write in the English language. He also had no idea as to his formal schooling or other skills such as computer skills.[25] He confirmed that Mr Markov has complained intermittently of his sleep problems.[26]
[25] T 106, lines 3-17.
[26] T 107, lines 18-19.
45 Mr Wilde confirmed, in his evidence, that following surgery the plaintiff’s arm symptoms had eased but unfortunately all the neck pain has not disappeared and he has ongoing pain which requires medication.[27] He considered that if Mr Markov feels that his endurance for a full day’s work is not there then he would accept his statement, and if he has to lie down he thinks that is a sensible thing to do. He did not consider that work as a parking inspector would be suitable employment for Mr Markov because of the pain that runs into his thoracic spine and also back ache. He admitted he could probably cope with aspects of the job but overall he did not consider parking inspector to be a job that would be suitable. It would be in excess of what he could manage.[28]
[27] T 112, lines 13-20.
[28] T 113, lines 1-15.
46 When cross-examined, Mr Wilde did not resile from this expressed opinion. He went further and said that he thought that some of the tasks that a parking inspector would be required to do might be beyond Mr Markov’s physical capacity such that it would lead to further aggravation and more pain and more difficulty for him.[29]
[29] T 118, lines 28-31.
47 He did consider other jobs such as ticket seller, order clerk, information clerk, hotel reception or booking clerk would be suitable for the plaintiff on a full-time basis.
The plaintiff’s medico-legal evidence
48 Mr Markov has been examined by a number of medico-legal examiners. Dr David Brownbill, consultant neurosurgeon, reviewed Mr Markov on 11 March 2008 and the 9 December 2009.
49 Dr Brownbill noted Mr Markov’s complaints of neck pain situated posteriorly low down in the mid-line present all the time. Pain also occurs in the front of the neck and at the sides if he does any physical things or lifts anything that can also increase the pain in the back of the neck.
50 He examined Mr Markov and found active cervical spine movements with full in flexion and a third of full extension, with others being two-thirds full. There was no objective neurological abnormality in the upper limbs or lower limbs.[30]
[30] PCB 88 and see PCB 92.
51 He concluded that the radiological investigations (pre-operative) demonstrate two level cervical spine intervertebral disc derangement and protrusions and EMG testing indicated some radiculopathy relevant to both levels. Following two level cervical spine fusion Mr Markov has ongoing fluctuating neck pain but no other objective neurological abnormality.[31] The injury has stabilised.[32]
[31] PCB 90.
[32] PCB 90.
52 Dr Brownbill confirmed that Mr Markov should in the future avoid activities involving heavy lifting or cervical mobility or holding his neck in a fixed position. The prognosis of the described ongoing neck pain is not certain.
53 He considered that the work incident of 3 June 2006 was a significant contributing factor to the latter demonstrated two level intervertebral disc derangement for which he has undergone spinal surgery. From a neurological point of view he anticipates neck pain will continue in a fluctuating manner indefinitely.[33]
[33] PCB 89 & 93.
54 Dr Brownbill’s assessment in respect of work capacity is that Mr Markov is unfit for his pre-injury duties, and with his described ongoing activity and related fluctuating neck pain, he does not consider that Mr Markov is capable of suitable employment duties. He will in the future need to avoid heavy lifting, forced spine mobility, repeated bending or prolonged standing or sitting or holding his neck in a fixed position.
55 He concludes that it is likely that degenerative changes that occur with the ageing process in the cervical spine will occur at an earlier stage and at an increased level as a result of the cervical spine fusion than otherwise have been anticipated had the neck injury not occurred.[34]
[34] PCB 94.
56 Dr Castle, occupational physician, reviewed the plaintiff on 12 May 2010. Following his examination he recorded the range of movement of the cervical spine as follows: flexion 20º, extension 30º, right lateral flexion 30º, left lateral flexion 30º, right rotation 40º and left rotation 40º. Those findings are consistent with what Mr Markov demonstrated whilst he was in the witness box. On physical examination he found no sign of radiculopathy but found Mr Markov had decreased grip strength for pincer grip and chuck grip.
57 He confirmed that Mr Markov has neck pain, resulting from a large right posterolateral disc protrusion rotating the spinal cord, and contacting the exiting nerve roots. In addition there was a mild size but shallow right posterolateral disc bulge with a spur impinging on the exiting right nerve root.[35] He diagnosed persistent pain following the surgical repair of C4/5 and C5/6.
[35] PCB 101.
58 Dr Castle was asked to comment on Mr Markov’s suitability to undertake these jobs; car park attendant, parking officer, information clerk, tourist information clerk, order clerk, ticket collector and usher, retail sales person, courier, bus driver, delivery driver and school crossing supervisor.
59 Dr Castle confirmed that repeated neck movements aggravate neck pain. Sneezing sometimes also sets off pain. Sudden neck movements make pain significantly worse. Prolonged neck postures cause increased pain. That restricts Mr Markov from undertaking any employment or activity requiring that movement. Prolonged sitting, standing or driving activities increase pain. Mr Markov can sit for 40 to 60 minutes, stand for about an hour and walk for about one or two kilometres. Anything beyond that significantly increases neck pain and he is unable to do that either as part of employment or any other activity.[36] He has a lifting limit of five or six kilograms in the right hand. His ability to push or pull up to five to six kilograms is restricted and therefore he is unable to do that either part of routine activities or part of any employment. He has difficulty reaching up. He is only able to lift his right arm to slightly above shoulder level. This is partly due to the cervical spine condition and partly due to his right shoulder. Because of this he is unable to do any activity or any employment where he has to repetitively reach above his shoulder.[37]
[36] PCB 101.
[37] PCB 102.
60 Dr Castle did not consider Mr Markov could work as a car park attendant, parking officer, bus tour, booking clerk or ticket seller. Extended sitting and extended periods where his neck is flexed would be required for the job of information clerk, tourist information clerk, order clerk, ticket collector and usher and therefore he considers that Mr Markov would not have that ability to perform those tasks.[38] Further, Mr Markov does not have extensive knowledge of computers and no experience working in that sort of area.
[38] PCB 102-103.
61 Retail sales would not be suitable because it invariably requires handling reasonable weights, frequent extended periods of standing and inability to sit or stand as required. He notes limited written English skills are also likely to be a problem.[39]
[39] PCB 103.
62 He considered that he would be suitable as a school crossing supervisor and in his opinion Mr Markov could only be able to work 12 to 15 hours a week.[40]
[40] PCB 103.
63 Dr Castle noted that there was a possibility Mr Markov could work as a car park attendant/parking officer provided he only was required to perform limited hours between 12 to 15 hours a week. Those restrictions will continue for the foreseeable future.[41] Courier driving required extended periods of driving and would be outside his capabilities as would bus driver.[42]
The defendant’s medico- legal evidence
[41] PCB 104.
[42] PCB 103.
64 Dr Tony M. Kostos, rheumatologist, examined Mr Markov on 27 February 2008 and on 5 May 2010. His examination of the neck showed movements were all restricted, especially extension with stiffness in all directions. There was mid line lower cervical and bilateral paravertebral tenderness to palpation.[43]
[43] DCB 97.
65 His opinion was that it was unlikely that Mr Markov had two nerve roots involved but he agrees with Mr Wilde that Mr Markov’s symptoms are more suggestive of C6 or C7 rather than C5 which would be the nerve root affected by the large disc prolapse at the C4/5 level. He was unsure as to the cause of Mr Markov’s pain. He expressed the view that it is apparent that the pain did not arise from C4/5 or C5/6 because of the neck pain he still has following the spinal fusion.[44] I do not accept this aspect of his expressed opinion. It is out of kilter with the expressed opinions of Mr Wilde, orthopaedic surgeon, Dr Brownbill, neurosurgeon, Mr Dooley, orthopaedic surgeon, Dr Castle and the Medical Panel. The Medical Panel opinion dated 8 August 2008 certifies that Mr Markov is suffering from persistent neck dysfunction without radiculopathy as a consequence of a cervical disc prolapse treated by two level cervical fusion and from a mild adjustment disorder with depressed mood.[45]
[44] DCB 99.
[45] DCB 110
66 Dr Kostos does not consider any further treatment is likely to assist and recommends the consideration of alternative analgesia. He confirms it is unlikely Mr Markov will be able to return to heavy manual work in the future and therefore he requires work of a sedentary nature. He believes the positions of bus tour booking clerk, ticket seller, parking inspector and car park attendant are suitable positions.[46]
[46] DCB 103.
67 Mr Brendan Dooley, orthopaedic surgeon, reviewed Mr Markov on 9 October 2008 for an impairment assessment. Following his examination of the cervical spine he records the plaintiff’s posture as normal but there is marked limitation of movement in the cervical spine in all directions. He had flexion to 30º, extension to 35º, right lateral flexion to 25º and left lateral flexion to 30º, rotation to the left of 60º and to the right of 65º. There was moderate muscle spasm noted with these movements.[47]
[47] DCB 136.
68 He was satisfied that Mr Markov suffered cervical disc prolapse at two levels on the right side, causing neck pain and right brachial neuralgia with no signs of radiculopathy affecting the right arm. He confirmed that he has undergone a two level cervical fusion with a satisfactory result and with relief of the right brachial neuralgia but with persisting neck pain and stiffness.[48] He was satisfied that Mr Markov has a surgically treated disc lesion with residual medically documented pain and rigidity, but without radiculopathy.[49] He considers that Mr Markov’s impairment is stabilised and that he has recovered to the point where he is fit to perform light work only. He is permanently incapacitated for heavy physical work.[50]
[48] DCB 136.
[49] DCB 137.
[50] DCB 138.
69 Dr Malcolm Brown, occupational physician, reviewed Mr Markov on 12 November 2008. He found that there was no tenderness to palpation around the neck or shoulders. Neck rotation was 40º to the left and right with side flexion of 30º, extension of 30º and flexion of 30º.[51]
[51] DCB 117.
70 He diagnosed disc protrusion followed by two level fusion. Dr Brown considered that Mr Markov had a good result from the surgery with no significant impairment of limb strength or other symptoms in the upper limbs. He found little restriction of arm elevation and of neck rotation. Mr Markov’s situation is stable and no other treatment is indicated.
71 He considered Mr Markov has the capacity to return to suitable duties on full hours. He agrees that he does not have the capacity to return to truck driving because of the extended hours. He doubts that he would have the capacity for such. He recommended a formal vocational assessment. He agrees with the other medical examiners Mr Markov is not fit for his pre-injury duties which were quite strenuous in nature. He says that Mr Markov should avoid work which involves heavy lifting and awkward positions with the neck and he should not return to labouring in the construction industry. He believes nonetheless Mr Markov has a current work capacity.[52]
[52] DCB 117-118.
72 A further examination was performed by Dr Malcolm Brown on 10 March 2009. He confirmed his view that little had changed from the previous examination. He noted that Mr Markov was fit to undertake the jobs listed in the vocational assessment such as courier driver or delivery driver, provided no heavy lifting of more than ten kilograms was required. He thought he could work as a bus driver provided he was not doing long distant country routes.[53] Bus tour booking clerk, ticket seller, parking inspector and car park attendant were considered by him to be suitable provided no lifting or other strenuous tasks were involved.[54]
[53] DCB 122.
[54] DCB 125.
73 Finally, Dr Brown reviewed Mr Markov on 24 May 2010 and, at that stage, he recorded that his condition was much the same as on the previous occasions with little change in the symptoms or functional capacity demonstrated. He noted no active treatment apart from anti-inflammatory medication. He reiterated Mr Markov had a capacity for work which did not involve strenuous physical activity or awkward positions of the neck. The situation is permanent.[55]
[55] DCB 126.
74 Mr Ian R Jones, orthopaedic surgeon, reviewed Mr Markov on 29 May 2009. He noted Mr Markov’s complaint of constant pain in the neck. His examination showed the range of flexion and extension was markedly limited to 15° and 10° respectively with rotation to the left and right sides being moderately limited. He confirmed Mr Markov presented with complaints of neck pain and referred pain with some neurological type symptoms involving both upper limbs. This is clinically manifesting as neck pain and particularly stiffness with paresthesia and tingling in both arms. The prognosis is one of persisting neck stiffness and pain with the likelihood of neurological symptoms remaining in both arms.[56] He does not anticipate any deterioration in the level of symptoms in the future. No further surgical treatment is indicated.[57]
[56] DCB 144.
[57] DCB 145.
75 Mr Jones considered that analgesics may possibly be required for exacerbation of pain in the future, but currently are not required. He agrees that Mr Markov does not have the capacity for his pre-injury employment and he believes this to be permanent. He is not fit for his previous employment duties or work that involves extreme movement of the neck or heavy or repetitive use of the left or right arms. He has a permanent incapacity for physical employment.[58]
[58] DCB 145.
76 He believes Mr Markov would be capable of undertaking duties as described of car park attendant, parking officer, bus tour booking clerk and ticket seller, in spite of the restrictions imposed on him, as a result of his neck and arm symptoms.[59]
[59] DCB 147.
77 Mr Markov was assessed on one occasion by Ayres Management Services on 2 February 2009. A Vocational Assessment was prepared by Greg Bishop who confirmed that Mr Markov would be suitable to perform a job of customer service officer, retail sales (provided there was low volume manual handling) light courier/delivery type work, driving buses. A number of jobs were outlined in the document including information clerk, tourist information officer, order clerk, ticket collector and usher, rental sales person, retail sales assistant, courier, bus driver, delivery driver and school crossing supervisor.[60]
[60] DCB 216–230.
78 CoWork Pty Ltd has provided a vocational and labour market analysis report. They have not personally interviewed the plaintiff but have relied on a number of documents that were provided from the defendants that are documented in their report. They recommend that Mr Markov would be suitable to work either as a parking officer or a car park attendant, in customer service type occupations such as booking clerk (tourism) or even a ticket seller.[61]
[61] DCB 234.
79 There are factual errors in CoWork Pty Ltd’s supplementary report of 8 June 2010. They refer to Mr Markov’s wife as being deceased, which is not true. They also refer to Mr Markov relocating to live in his hobby farm, which is also not true. They make assumptions about Mr Markov having already made a decision to retire and taking the first steps in this direction and question his motivation in relation to seeking employment.[62] Having regard to their assumptions, which are wrong, I do not accept their expressed comments in relation to Mr Markov’s motivation.
[62] DCB 289.
80 The parties agreed that Mr Markov has a heart condition that would preclude him from returning to professional driving occupations such as taxis, buses, community buses, limousines, ambulances, ambulatory patient transport, pathology courier work and funeral cars.[63]
[63] DCB 245.
81 The plaintiff’s evidence was that he was not aware of that restriction until the hearing of this application. His evidence was that he has applied for a number of jobs that are set out in a handwritten document in the Plaintiff’s Court Book.[64] He mainly applied for jobs involving driving, coachwork and courier- type driving and driving for small businesses because that is all he has ever known. He does not have any other qualifications or experience.
[64] PCB 117-118.
82 All the examiners and the parties agree that there is no possibility that Mr Markov could return to his pre-injury work as a concrete pump operator/driver because of the heavy nature of the work.
Findings pain and suffering consequences
83 I am satisfied that as a consequence of the incident at work on 3 June 2006 the plaintiff suffered compensable injury namely, injury to the cervical spine being a C4/5 and C5/6 disc prolapse with right brachial neuralgia that has been surgically treated by a two-level anterior cervical discectomy and fusion. He continues to suffer pain and suffering associated with the injury.
84 I find that the injury will not mend or repair to any significant extent. I consider that the injury meets the requirement of being permanent.[65]
[65] See Barwon Spinners Pty Ltd v. Podolak & Ors [2005] V.S.C.A. 33 per Phillips JA for the Court.
85 I am satisfied that the injury has impaired the functioning of Mr Markov’s cervical spine.
86 Mr Markov continues to experience persistent pain following surgery and suffers with restriction of movement in the neck and cervical spine. I accept Mr Markov’s evidence as to the consequences of the injury. He is restricted in his physical activities and the nature and extent of his injury and its effect upon his social, domestic and recreational activities are as set out in his affidavits.
87 Previously he was a fit and active person who enjoyed life without restrictions. He is now extremely limited in the type of work that he can perform and is restricted in a wide range of activities. Prolonged sitting, standing or driving aggravates his pain. He is less social and his relationship with his wife has suffered, particularly his sex life.
88 The plaintiff is required to take medication on occasion to manage the pain and medication for sleep disturbance. The necessity to continue to take medication will continue on indefinitely.
89 I accept Mr Brownbill’s assessment that is likely that degenerative changes that occur with the ageing process in the cervical spine will occur at an earlier stage and at an increased level as a result of the cervical spine fusion than otherwise have been anticipated had the neck injury not occurred.
90 I am satisfied the consequences to the plaintiff of the impairment of the function of the cervical spine with respect to pain and suffering may be fairly described as being more than significant, or marked and as being at least very considerable.
91 I have considered the consequences to the plaintiff of the impairment, or loss of body function of the cervical spine with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments, or losses of the body function to determine if the pain and suffering consequences may be fairly described as being more then significant, or marked and as being at least very considerable.
92 Accordingly, the plaintiff has established in respect to the physical consequences of the injury that he has a serious injury.
Findings loss of earnings consequences
93 I am satisfied that the plaintiff has also discharged the burden of proof in this regard, both in relation to the “very considerable” test and in relation to the additional stringent tests contained in s.134AB(38)(e) to (g).
94 I have had regard to s.134AB(19)(b) which provides that the plaintiff, for the purposes of proving the relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment, including alternative or further or additional employment and the extent of such inability. I am satisfied the plaintiff has satisfied this onus. He unsuccessfully attempted to return to work and was co-operative and undertook the Vocational Assessment with Ayers Management.
95 He is a mature aged man with basic education, limited English capabilities and no computer training or skills.
96 The plaintiff by reason of his injury has been unable to return to work in his pre-injury employment in the construction industry. There is a consensus of medical opinion that states he will not be able to do so. He has persistent neck stiffness and pain. The consensus is that he cannot do heavy or strenuous work and has limitations on his residual capacity for work affecting neck posture, sitting, standing and driving tolerances and he must avoid heavy or repetitive use of his arms. He is a man whose pain can be exacerbated by repeated neck movements, sneezing, shoulder neck movement and prolonged neck postures. He has disturbed sleep and in my view does not have the capacity to undertake full-time employment.
97 I accept that both Dr Landsberger and Mr Wilde have been monitoring Mr Markov’s post-injury condition closely since early/mid 2007 and accept their expressed opinion concerning their findings pre and post operatively. However, I do not accept their expressed opinion that Mr Markov is capable of undertaking full-time suitable employment. I consider this evidence is aspirational. I note however that Mr Wilde in his evidence was emphatic that Mr Markov could not perform the parking inspector job and I accept that evidence. Both doctors did not properly consider the requirements of all the nominated jobs such as the skill sets required to perform these jobs nor were they fully informed about Mr Markov’s previous work experience, his level of education, lack of qualifications and literacy levels.
98 This criticism applies equally to the other commentators who have provided their opinions on this aspect of Mr Markov’s application such as Dr Kostos, Mr Brown and Mr Jones.
99 Based on my own observations of the plaintiff and my assessment of the totality of the evidence, I prefer and accept the expressed opinion of Dr Castle, an occupational physician, who I consider provides the most realistic assessment of Mr Markov’s ability to perform suitable employment.
100 He interviewed Mr Markov and obtained a comprehensive history including his work history and his condition following injury and then he comprehensively reviewed each job.
101 I am satisfied having regard to the factors set out in s.5 that Mr Markov has a capacity for part-time suitable employment such as school crossing supervisor and car park attendant where he would be required to perform only limited hours, 12-15 hours per week.
102 There was a dispute between the parties as to what was the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred that is, “without injury” earnings.
103 Mr Smith’s submission was that the period that best represents the plaintiff’s “without injury” earning capacity is calculated as follows: Earnings in the period 1 July 2006 to 28 March 2007 a period of 39 weeks (2007 tax return) are $41296 and $1059 per week.
104 Mr Smith then applied the percentage increases referred to in the affidavits of Eamonn Wolf that were filed in support of Mr Markov’s claim[66]. Mr Wolfe is employed in the construction industry with extensive experience in the building industry including the concrete pumping sector. His affidavits set out the pay rates under the national Building and Construction Industry Award. He makes assumptions based on an average of a 6 day working week with an estimate of 10 to 12 hours overtime during the week and a minimum of 5 hours overtime on Saturdays. He provides details of the percentage increase over the periods from 30 June 2006 to 30 June 2009.
[66] Affidavit of Eamon Wolfe sworn 13 May 2010, PCB 33-37.
105 Adopting Mr Wolfe’s percentage increase to the sum of $1,059 Mr Smith provided the follow figures as being appropriate to determine what the “without injury” earnings figure should be:
2% for the remainder of the 2006/07 year = $1080 per week;
4.5% for the 2007/08 year = $1129 per week;
4.5 % for the 2008/09 year = $1180 per week.
Accordingly earnings as at 3 June 2009, being 3 years after the date of the claimed injury, are $1180 and 60% is $708.
106 Mr Gibson, on behalf of Mr Markov, submitted that the information provided by Mr Wolfe should be accepted when he states that on average a concrete pump operator could have expected to earn, in the 2008/09 financial year, $1,719 gross per week; 60% is $1,031. That figure, in my view, is inflated having regard to the circumstances of Mr Markov’s employment.
107 Mr Markov commenced work with National Concrete Pumping as a pump operator on 12 April 2005. He was injured on 3 June 2006. Mr Wolfe’s figure of $1,719 gross per week is based on regular overtime. Whereas Mr Markov’s evidence was that he was paid $1,000 a week plus overtime. The amount of overtime varied and was a half a day or a days pay.[67]
[67] T91, lines 6-13.
108 The Employer Claim Report states the pre-injury average weekly earnings were $1,000 for a 40 hour week and regular overtime of 5 hours. The hourly rate was $24.37.[68]
[68] DCB 7-8.
109 I prefer to utilise the alternative method proposed by Mr Gibson. This utilises the figures shown in the Employer Claim Report. Mr Markov’s ordinary time rate (without overtime) was $1,000 per week and he had regular weekly overtime of 5 hours; the ordinary hourly rate was stated to be $24.37. I accept the submission that it would be reasonable to conclude that the overtime was paid at least at time and a half. On this basis, the figure for weekly gross earnings would be $1,183.
110 If this was Mr Markov’s average between 1 July 2006 and 22 February 2007, (237 days or 33.86 weeks) the total amount for the period would be $40,056. This is consistent with the figures in the plaintiff’s 2006/07 tax return, which are as follows:$41,296 plus $3,720 allowances making a subtotal of $45,016. After deducting the 4.71 weeks at $1,000 per week $4,714 that makes a total of $40,302. I accept that the allowances referred to the 2006/07 tax return come within the definition of income from personal exertion as defined in s.134AB(38) and the Transport Accident Act s.6(2).
111 On this basis the plaintiff averaged $1,190 gross per week between 1 July 2006 and 22 February 2007. Then making allowances for increases in accordance with Mr Wolf’s affidavit:
2% for the remainder 2006/07 = $1,214 per week 4.5% for the 2007/08 year = $1,269 per week 4.5% for the 2008/09 year = $1,326 per week 4.5% for the 2009/10 year = $1,386 per week Average of 08/09 and 09/10 = $1,356 per week On this basis I find that the “without injury” figure is $1,356 and 60% is
$813.60.112 Mr Smith submitted that the following positions would be suitable employment for the plaintiff with the associated rates of pay; parking inspector $818,[69] tourist information officer $835,[70] information clerk $842,[71] rental sales $797,[72] bus tour booking clerk $770.32,[73] ticket sales $757.83[74] and order clerk $752.[75]
[69] DCB 252.
[70] DCB 221.
[71] DCB 220.
[72] DCB 224.
[73] DCB 256.
[74] DCB 258.
[75] DCB 222.
113 I am not satisfied that any of the proposed positions are suitable employment for the plaintiff. Mr Markov has only a capacity for part-time suitable employment such as school crossing supervisor and car park attendant. Taking the hourly rate of $19.59 for a car park attendant as set out in the CoWork report[76] 12 hours per week is $235.08 and 15 hours is $293.85 per week.
[76] DCB 260.
114 In considering whether the plaintiff has established the loss of earning capacity required by paragraph 134AB(38)(b), I have measured the loss of earning capacity by comparing the two amounts of gross income referred to in s.134AB(38)(f). The plaintiff has clearly established the relevant loss of earning capacity required pursuant to s.134AB(38)(b), (e) and (f).
115 The plaintiff does not have a capacity for any employment which, if exercised, would result in the plaintiff earning more than 60% of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred. Mr Markov satisfies the requirement of s134AB (38)(g).
116 Given that the plaintiff has discharged the burden in relation to the more demanding tests set out in s.134AB(38)(e) to (g), I consider that he has also discharged the burden in relation to the “very considerable” test. Mr Markov has already lost a substantial amount of income and will continue to suffer a financial loss in excess of 40% per annum for the foreseeable future s.134AB(38)(e).
117 When the requisite comparison with other cases in the range of possible impairments or losses of a body function is made, the loss of earning capacity consequences may be fairly described as being more than significant or marked and as being at least very considerable.
118 The plaintiff has discharged the burden of proof in relation to his injury to the neck and cervical spine in respect to both pain and suffering damages and pecuniary loss damages.
119 Leave is granted to Mr Markov to bring proceedings for the recovery of damages for both pain and suffering and loss of earnings consequences in respect to the compensable neck injury suffered on 3 June 2006.
- - -
MARKOV v National Concrete Pumping Pty Ltd & Anor
(In Liquidation)
Schedule 1
EXHBIT LIST
Number and
Identifying Mark Short Description of Exhibit Date Plaintiff/
on Exhibit Tendered Defence
1 Bundle of documents including; 17 June Plaintiff
Affidavit of the Plaintiff sworn 16 March 2009; 2010 Further Affidavit of the Plaintiff sworn 24 March 2010; Affidavit of Steven Turner sworn 21 January 2010; Affidavit of Eamonn Wolfe sworn 13 May 2010; Further Affidavit of Eamonn Wolfe sworn 7 June 2010; Affidavit of Maria Markov sworn 18 May 2010; X-Ray Cervical Spine dated 7 October 2004; X-Ray Cervical Spine and Chest dated 5 February 2007; Bone Scan dated 20 February 2007; MRI Cervical Spine dated 8 May 2007; Nerve Conduct and EMG Report dated 29 June 2007; Fluoroscopy dated 17 July 2007; X-Ray Cervical Spine dated 6 August 2007; Medical reports of the Plaintiff including; Dr Leo Stesin dated 3 June 2007; 17 March 2008 Dr Jacob Landsberger dated 6 March 2008; 25 May 2009; 21 January 2010; Mr Peter Wilde dated 4 July 2007; 5 March 2008; 26 May 2010; Dr MacDonald dated 17 August 2007; Mr David Brownbill dated 13 March 2008; 9 December 2009; Dr Charles Castle dated 13 May 2010; Report of Louise Meilak dated 4 February 2010; Michael Markov’s Job Diary (as at 9 June 2010); Certificate of Capacity dated 19 May 2010; Medical Panel Certificate of Opinion dated 8 August 2008; WorkCover Claim for Impairment Benefits dated 25 August 2008;
Correspondence from CGU to Mr. Markov dated 13 October 2008; Photographs of the Ruptured Hose; WorkSafe Entry report dated 3 June 2006; Photographs of the Plaintiff’s Scarring taken 2 August 2007; Statement of calculation of loss of earning capacity – Tax returns for the years 2004/2005; 2005/2006; 2006/2007
Employer Claim Form dated 26 July 2007 17 June Plaintiff
2 2010
3 Certificates of Capacity dated 3 September 2009 to 24 17 June Plaintiff
December 2009 2010
Statement of Michael Markov dated 21 March 2007 17 June Plaintiff
4 2010
D1 Bundle of Medical Reports including; 17 June Defendant
Dr Tony Kostos dated 3 March 2008; 24 April 2008; 1 May 2010 2008; 30 April 2010; 11 May 2010; 2 June 2010; Medical Panel Opinion dated 15 August 2008; Dr Malcom Brown dated 12 November 2008; 10 March 2009; 27 April 2010; 24 May 2010; Mr Brendan Dooley dated 9 October 2008; Mr Ian Jones dated 1 June 2009; 29 April 2010; 25 May 2010
Latter from Agent to Worker dated 2 April 2009 17 June Defendant
D2 2010
D3 Rehabilitation documents including; 17 June Defendant
Vocational assessment report dated 2 February 2009; 2010 CoWork Vocational and Labour Market Analysis Report
dated 16 April 2010
Supplementary Report of CoWork dated 8 June 2010
D4 Video surveillance of the plaintiff taken 20 April 2008; 2 & 17 June Defendant
9 June 2009 2010
Schedule 2
VIDEO SURVEILLANCE
Date Duration Total 20/4/2008 25 mins 40 secs 25 mins 40 secs 2/6/09 & 9/6/09 46 mins 53 secs 1 hour 12 mins 33 secs 21/7/09 3 hours 4 hours 12 mins 33 secs 21/7/09 45 mins 4 hours 57 mins 33 secs 7/8/09 3 hours 30 mins 8 hours 27 mins 33 secs 8/8/09 7 hours 15 hours 27 mins 33 secs 29/1/10 4 hours 19 hours 27 mins 33 secs 1/2/10 5 hours 30 mins 24 hours 57 mins 33 secs 13/2/10 30 mins 25 hours 27 mins 33 secs 26/2/10 6 hours 31 hours 27 mins 33 secs 5/5/10 9 hours 18 mins 40 hours 45 mins 33 secs 6/5/10 6 hours 30 mins 47 hours 15 mins 33 secs 7/7/10 9 hours 56 hours 15 mins 33 secs 8/7/10 9 hours 30 mins 65 hours 45 mins 33 secs
0
0
0