McGrath v Jack Dawson Exports Pty Ltd
[2011] VCC 968
•4 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01267
| MICHAEL McGRATH | Plaintiff |
| v | |
| JACK DAWSON EXPORTS PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 March 2011 |
| DATE OF JUDGMENT: | 4 May 2011 |
| CASE MAY BE CITED AS: | McGrath v Jack Dawson Exports Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 968 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(37)(a) – serious injury to the thoracic spine – pain and suffering – leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E Hill | Slater & Gordon Ltd |
| For the Defendant | Mr J L Batten | Lander & Rogers |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on 29 November 2005.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only .
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the back and more particularly, the plaintiff’s thoracic spine.
6 The plaintiff relied upon three affidavits, two sworn by him on 6 November 2009 and 21 March 2011, and one sworn by Lisa Innis on 2 March 2010. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.1
8 In order to succeed, the plaintiff must prove, on the balance of probabilities
that:
(a)
“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant.
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.2
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: “… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to —
(i) pain and suffering;
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d) under s.134AB(38)(c) of the Act an impairment or loss of body function, in this case, the pain and suffering, shall not be held to be serious unless the consequences, when judged by comparison with other cases, are within: “… the range of possible impairments or losses of body function fairly described as being more than significant or marked, and as being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:3
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”4
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”5
S.134AB(19)(a) of the Act
Barwon Spinners (ibid) at paragraph [33]
[2009] VSCA 181
(ibid) at [42]
Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12
The test for “serious”, as set out in paragraph (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[6]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[7]
[6] S.134AB(38)(j) of the Act
[7] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that there are issues in relation to the identification of the injury, disentanglement, credit, permanency and range; namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
The Plaintiff’s Evidence
15 In his first affidavit, sworn on 6 November 2009, the plaintiff deposes that:
•
He was born on 7 June 1970 in Ireland. He attended school until he was approximately fifteen years old and then commenced in meat works, mainly as a boner. In 1997, he moved to Australia, where he has worked as a beef boner save for a period of four months when he was recovering from a right carpal tunnel operation. The work is physically demanding and requires cutting bones off cow carcasses that hang from chains. The work involves constant use of knives and handling heavy carcasses. In 2004, he commenced working full-time for the defendant.
•
On 29 November 2005, he was walking out of the boning room when he slipped and fell backwards. He landed on his back on a metal rack used to stand on when boning carcasses.
•
After the accident, he saw Mr Issac Spivak, physiotherapist, and had about a week off work. He then returned to work, at one stage having a weight lifting restriction, but he occasionally had to take time off work.
•
In late 2006, he saw Dr Sidney Segal because of ongoing back pain. He also had physiotherapy treatment from Mr Craig Dungey. In early 2007, he saw Dr Tim March and consulted Mr Richard Kelly, physiotherapist.
•
He attended an outpatient rehabilitation program at the Victorian Rehabilitation Centre. He saw Dr Alan Blandthorn, psychiatrist, once. He has also participated in gym programs but these did not help.
•
He was prescribed Endone, but developed an opioid dependency and is trying to address this. He was taking Duragesic, but recently stopped.
•
After the accident, he had right knee pain, which he attributes to walking and moving differently due to his back injury. He received a cortisone injection from Dr March, and his right knee no longer bothers him.
•
He has constant pain in the middle of his back, which goes up between his shoulder blades. The pain is increased by bending, turning or lifting movements. His pain is worse if he sits or stands in one position for too long or walks too far. He sometimes experiences numbness and pins and needles in his right arm down to his elbow.
•
His current treating doctor is Dr March, and he sees Dr Clayton Thomas, rehabilitation and pain medicine consultant. He takes Tramadol for pain and Zoloft, an anti-depressant, and Xanax, an anti-anxiety drug.
•
He ceased work in early 2007 and is currently studying to obtain a meat inspector’s certificate, which he is due to complete in late 2009.
•
His previous injuries include a slip at work a couple of months before this accident where he hurt his back. He had approximately one week off and had physiotherapy from Mr Issac Spivak. He returned to work without difficulty. In about 1999, he had a right carpal tunnel operation.
•
As a result of his injury, he gets depressed and anxious about his and his family’s future and suffers poor sleep. He currently lives with his partner, her two children and their young child. His injury limits his ability to help with domestic chores, makes it difficult for him to lift and care for his young daughter, and has affected sexual relations with his partner. Prior to his injury, his family often went on drives and camping, but his back injury makes this difficult. He is limited in how much he can play with his children; for example, he cannot play ball games with them.
16 In his second affidavit, sworn 21 March 2011, the plaintiff deposes that:
•
He continues to have chronic pain and stiffness in the middle of his back and between his shoulder blades. He gets pins and needles in his hands and fingers, mainly in his little fingers and ring fingers, about three to four times per week. He continues to suffer depression and anxiety.
•
He continues to see Dr March. He takes Xanax three times per day, but on a bad day he takes up to four tablets. He takes Valium to help him sleep. He takes two slow-release Tramadol daily for the pain and quick- release Tramadol if pain is very bad. On average he takes one quick- release Tramadol per day, but on a bad day he takes up to three tablets.
•
Before his injury, he was generally fit and healthy and took very little medication.
•
He is currently unemployed and receiving social security. He completed the meat inspector’s course and has applied for jobs in this area, but has been unsuccessful. He thought he would receive a position with a meat works in Brooklyn, but after receiving a letter from his doctor about his injury, the employer did not offer him the position.
•
His self-confidence and pride have been badly affected by not being able to work and he misses his work as a boner as it was a social outlet, was well paid and he had been doing that work since he was seventeen years old.
•
He has separated from his partner due to the frustration of not being able to work and the associated financial pressures and problems with their sexual relations. He continues to live with his ex-partner. He does not have anywhere else to go in Australia and is very isolated. He continues to have difficulty with domestic duties, in particular, he cannot mow the lawn, and can no longer go camping or on long drives with his family.
17 Ms Lisa Innis, former partner of the plaintiff, deposed on 2 March 2011 that:
•
She was born on 20 October 1972 and has known the plaintiff for approximately eight years. She has a daughter with the plaintiff who is nearly four years old.
•
Prior to the plaintiff’s injury he was a happy person who enjoyed his work and was fun to be around. After his injury he gradually became more depressed and they stopped socialising and going on long drives down the coast.
•
Prior to the plaintiff’s injury he would collect his three children from Bendigo every second weekend. For approximately two years after his injury, she had to drive to pick up the plaintiff’s children because the plaintiff was no longer able to drive that distance. The change in their financial situation as a result of the plaintiff’s injury resulted in them no longer being able to afford to drive to Bendigo to collect the children.
•
Prior to the plaintiff’s injury he would assist her with the clothes washing and the dishes. After his injury she became frustrated with doing all the household chores and shopping as the plaintiff was no longer able to assist her. In addition, their sexual relations suffered.
•
Last year her relationship with the plaintiff deteriorated as the plaintiff became angry and withdrew into himself. After an altercation between her and the plaintiff she called the police and obtained an intervention order, which required the plaintiff to move out of the home.
•
She remains friends with the plaintiff and he has returned to live with her, but they are no longer in a relationship. The plaintiff tires very easily and is restricted in bending over and lifting, which has restricted the way he interacts with their daughter.
The Plaintiff’s Evidence in Cross-examination
18 The plaintiff was cross-examined and gave the following pertinent evidence:
• He has not seen his children from his first marriage for two years. •
He did not lodge a claim for worker’s compensation in November 2005 because he wanted to continue to work and support his family.
•
He agreed that he did not see a doctor after the fall because it did not affect him straightaway.
•
The pain became unbearable and he stopped work at the end of January 2007.
•
He agreed he had seen Mr Roy Carey, an orthopaedic surgeon, on one occasion.
•
He agreed he had attended the gymnasium for two years and he does exercises each night.
•
He said he lives with his former partner’s parents and they see each other regularly.
19 In re-examination, the plaintiff said:
•
He slipped on a slippery floor at work. He said there were a number of witnesses to that fall.
• He thought the injury he suffered was muscular. • He said he had lost all contact with his children of his marriage. •
He said he could not afford to visit them at Kyneton. When he did visit them he could not play with them. He was unable to take them to the park or run around with them as a normal father would with his kids. He has lost all contact with them.
•
He said he had applied for fifteen to twenty jobs as a meat inspector. He said he was accepted for one job, attended the induction program, but was not taken on when the employer became aware of his back problem despite him obtaining a letter from his doctor which said he could lift up to 15 kilograms and he was suitable to perform the role of meat inspector.
Investigations
20 Osteopathic degenerative change is seen anteriorly and anterior-laterally in the lower thoracic spine region. Generally skeletal appearances are otherwise unremarkable. No bony injury is seen. No kyphoscoliosis is apparent.
21 On 8 February 2007, a whole body scan showed:
“Distribution of tracer throughout the skeleton is normal. No pathological
uptake is seen in the thoracic spine, ribs or elsewhere in the skeleton.”
22 On 26 March 2007, an MRI scan of the thoracic spine showed:
“Shallow left T6-7 paracentral disc protrusion just contacting the anterior aspect of the spinal cord without significant canal or neuroforaminal compromise. No other significant pathology is demonstrated.”
The Plaintiff’s Medical Evidence
23 On 5 March 2007, Mr Craig Dungey, physiotherapist, said the plaintiff had attended from mid-October 2006 through to December 2006 on seven occasions for treatment to his back. The plaintiff’s symptoms were pain in the thoracic spine, reduced thoracic range of movement, reduced spinal muscle strength and tightness/decreased thoracic musculature. The plaintiff said he had slipped and fallen on 30 November 2005 at work.
24 It was Mr Dungey’s view that the plaintiff, when he fell at work, aggravated his thoracic facet joints and inflamed the current condition of his joints and muscles. He provided a treatment plan which consisted of local joint mobilisation, massage, ultrasound and a home exercise program, which was aimed at increasing the plaintiff’s spinal joint/muscle flexibility/strength. He expected that the plaintiff would recover in three to four months, depending on the treatment, the extent of injury and his compliance. He said the plaintiff was suitable for light duty work, including no rotation, lifting no greater than 5 to 10 kilograms and no excessive bending.
25 Dr Tim March, sports and orthopaedic physician, provided reports dated 27 November 2007, 15 May 2008, 30 October 2008, 1 June 2009, 7 February 2011 and 9 March 2011. Dr March saw the plaintiff at the request of his physiotherapist in February 2007. The plaintiff told Dr March that he had no problems until six months before seeing Dr March. He reported two falls, the first of which he did not report to WorkCover, in which he required a week off work; and the second, which occurred in November 2005, when he slipped over, landing on a steel grate. He developed instant pain in the right lower thoracic area and had to take further time off work. Gradually the pain improved and he returned to work, but the pain has been with him since that time.
26 It was Dr March’s view that the plaintiff has a thoracic disc injury and that his pain is aggravated by lifting, bending and sitting. Dr March said that disc injuries can last a significant amount of time. He noted the plaintiff had been off work for ten months and still has problems. It was his view that he could not work as a meat boner in the future. He referred him to Mr Roy Carey, orthopaedic surgeon, whom he saw on one occasion, and Dr Clayton Thomas, consultant in rehabilitation and pain management.
27 In Dr March’s report of May 2008, he believed the thoracic injury was entirely caused by the plaintiff’s work. He said it started by a fall at work and was aggravated by the repetitive meat boning, which required flexion of the spine and aggravation of the disc. He noted that he was requiring pain-relieving medication and that he was having difficulty sleeping at night.
28 In Dr March’s report dated 30 October 2008 to the defendant’s insurer, Dr March said the plaintiff could not return to boning beef, which was a physical job involving significant bending. He said the job would aggravate the plaintiff’s disc problems beyond what is reasonable. He considered the plaintiff was capable of work of a light nature and he mentioned that the plaintiff was undergoing a meat inspection course. He said that given the plaintiff has had the problem for almost three years, his condition should be considered chronic. He said the condition will continue to aggravate him throughout his life and he hoped that his pain would gradually settle as the disc becomes desiccated.
29 In Dr March’s report dated February 2011 to the defendant’s insurer, Dr March said the plaintiff has an injury to the thoracic disc at T6-7; he had been offered a job as a meat inspector but was not taken on. He said the plaintiff had significant trouble bending, lifting and sitting for any length of time. He said the plaintiff was very determined to get back into the workforce, hence his further training as a meat inspector, which does not involve heavy lifting. He thought that the plaintiff required Tramadol, which is a long-acting analgesic. He said the medication was particularly effective in musculoskeletal conditions.
30 Dr March, in a letter to the plaintiff’s solicitors on 9 March 2011, said that the plaintiff had seen Dr Clayton Thomas, who agreed that the diagnosis was a thoracic disc lesion. He said he had seen a variety of physiotherapists, and a musculoskeletal physician. He said the plaintiff was taking medication which included Valium, Xanax and Tramadol. He considered the plaintiff’s condition had stabilised. He said the plaintiff should not perform work which includes repetitive bending, lifting, twisting or stooping. He said pushing and pulling are a form of lifting and put strain on the thoracic disc, therefore, he should avoid such movement, including kneeling, squatting and crouching. He said the plaintiff is able to sit, walk and stand provided he has the ability to change his positions as required. Walking up inclines, if excessive, including ladders, can also put a strain on the thoracic disc. He said the plaintiff should not perform these activities in the medium to long-term.
31 He said it is possible that with time, as disc injuries tend to improve and tend to be worse between the ages of thirty-five and fifty-five, that his disc may stabilise and he may be able to do more of the above activities. He accepted that the work of meat inspection would not stress his thoracic spine. He said he did not have the capacity to perform his pre-injury duties from a physical point of view. His condition prevents him from home housekeeping duties, as well as gardening duties, because prolonged bending, repetitive flexion and lifting will aggravate his condition. He accepted that the plaintiff had endured significant pain and suffering. He believed his prognosis was poor.
32 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, provided reports dated 17 December 2007, 19 May and 25 June 2008. Dr Clayton Thomas saw the plaintiff at the request of Dr Tim March in December 2007. In a report dated 19 May 2008 to the defendant’s insurer, he said he had seen the plaintiff on five occasions since December 2007. He accepted that the plaintiff had pain arising from his thoracic spine. He thought the plaintiff had an element of opioid induced hyperalgesia. He recommended the plaintiff undergo a functional restoration work focus rehabilitation program and he accepted the plaintiff would have difficulty working as a beef boner. However, he considered the plaintiff had a work capacity.
33 By 29 April 2008, Dr Clayton Thomas took the view the plaintiff had increasing problems with dose escalation and formed the opinion that drug dependency was an issue. He accepted that work contributed to the development of his condition and remains a material contributor to the current condition.
34 In a report of 25 June 2008, Dr Clayton Thomas said that he reviewed the plaintiff in June 2008. The plaintiff was on Durogesic, 75 milligram per hour patches, and he felt that the medication was helpful. He was about to commence a gym program recommended through the Victorian Rehabilitation Centre. He talked about returning to work. It was Dr Clayton Thomas’s view that the plaintiff was complaining of symptomatic spondylosis which emanates from his thoracic spine. He said he was opioid dependent and the medication was controlling his pain adequately, which was in contrast to previous consultations he had had with the plaintiff. He did not think long-term opioid therapy would be in the plaintiff’s best interest. He accepted the plaintiff had a work capacity within restrictions and assessed his incapacity as being partial. He said returning to work in the meat industry is heavy, physically demanding work and he did not believe the plaintiff would be able to return to unrestricted work in meatworks due to his ongoing incapacity.
35 Mr Richard Kelly, physiotherapist, saw the plaintiff at the request of Dr Tim March between January and April 2007. It was his view that the plaintiff had a thoracic disc bulge. He said that the plaintiff would benefit from an ongoing “active management” program incorporating some form of exercise that targets specific gains in spinal flexibility and postural strength, in addition to general fitness gains. He thought the plaintiff was unfit for full working duties boning beef and said he should not return to any duties involving repetitive, strained or excessive bending, lifting or sitting.
36 Dr Timothy Wood, sports physician, in a report dated 11 July 2007 to the defendant’s insurer, said the plaintiff did not have a current work capacity. He thought it unlikely that the plaintiff could return to active boning duties. He thought the ongoing pain was a major limiting factor to the plaintiff’s ability to return to work as a boner. He thought the plaintiff’s best chance for further employment was a meat inspector for which he would need to undertake training.
37 Dr Robyn Horsley, occupational physician, in a report dated 3 June 2009 to the plaintiff’s solicitor, said the plaintiff’s work was a significant contributing factor. She said work restrictions apply which include:
ƒ avoidance of repetitive over-reaching; ƒ avoidance of repetitive pushing and pulling; ƒ avoidance of lifting items greater than 12 to 15 kilograms on a permanent
basis;ƒ avoidance of lifting items up to 10 kilograms on a repetitive basis. 38 She said the plaintiff was permanently unable to return to his previous role as a table boner. The physical demands of such a role are beyond his capacity. She thought it more appropriate he now be re-trained as a meat inspector. She noted that prior to his injury, his hobbies and interests included long drives, picnics with his children, playing with his children, kicking the ball and tennis. All of these activities have ceased since the injury. The injury has had an impact upon his sense of wellbeing, his quality of life and his interaction with both his wife and his children.
39 Mr M A Khan, orthopaedic surgeon, saw the plaintiff in February 2011 at the request of his solicitor. Mr Khan accepted the plaintiff had sustained an injury as described during the course of his employment. He said that the plaintiff’s condition had stabilised. He said the plaintiff was unable to perform heavy strenuous type work requiring repetitive bending, twisting and turning of his cervical and thoracic spine, lifting weights more than 10 kilograms at a time, keeping his back bent for long periods, or working in confined spaces with his spine flexed or twisted for long periods. He said he was totally unfit for pre- injury duties, but could cope with suitable duties. He noted the plaintiff was keen to return to suitable work with the restriction mentioned, but he would need to start work on a part-time basis, working up to full-time work. He noted the plaintiff was keen to return to suitable work.
40 He accepted that the consequences of the plaintiff’s physical injury and impairment to his lower back would preclude or restrict him in relation to his social, domestic and/or recreational activities.
The Defendant’s Medical Evidence
41 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer in July 2008. It was Mr Jones’ view that the plaintiff reported ongoing pain in the lower thoracic spine. Mr Jones noted that the only abnormality was degenerative changes of a minor degree, clearly related to normal aging, and a very common finding in those who have no symptoms at all. His impression was of a significant exaggeration of a very minor degree of disability. Mr Jones said that the plaintiff had a current work capacity and he was surprised that he had not been able to return to work as a meat boner. He noted that the plaintiff had been taking large amounts of medication. In August 2008, he said motivation for the plaintiff to return to employment appeared to be extremely poor.
42 Mr Michael Shannon, surgeon, examined the plaintiff at the request of the defendant’s insurer in October 2008. Mr Shannon said the plaintiff had a fall at work which resulted in direct trauma to his thoracic spine and that such a fall would likely result in soft-tissue damage and bruising. He noted the plaintiff had some degenerative change in the thoracic spine, which is not particularly advanced for someone who has performed physical work all his life.
43 He accepted that it would probably not be ideal for the plaintiff to return to work as a boner but he could work as a meat inspector. Mr Shannon said the contributing factors to the plaintiff’s condition are pre-existing thoracic degenerative change with aggravation by a fall at work and subsequent dependence on narcotic medication. He thought the injury was an aggravation of a pre-existing disease. He said he had a current work capacity but he would not recommend he go back to work involving heavy lifting. The defendant’s insurer wrote to Mr Shannon and asked him to comment on Mr Jones’ view that he could return to work as a meat boner. Mr Shannon agreed; however qualified that view and said, given the level of narcotic medication, it would be unsafe for the plaintiff to work as a boner.
44 The plaintiff was medically examined by Mr Gerald Moran, orthopaedic surgeon, in September 2008. He thought the plaintiff’s thoracic spine injury had stabilised.
45 Mr Donald Haig, orthopaedic surgeon, examined the plaintiff in March 2009. He accepted that the plaintiff’s complaint was caused by the incident at work and was work-related. He expressed surprise that the plaintiff’s symptoms continued nearly four years after the event. He accepted the plaintiff had a work capacity and thought he was fit for his pre-injury employment. He understood that the work as a boner was physical in nature. He said the symptoms were out of proportion to the nature of the fall he sustained. He said he had a degenerative disc disease in the mid-thoracic area. He thought he had a capacity to drive short and long distances and, if necessary, to break up the longer distances by taking breaks, as required.
46 In February 2009, Mr Paul Kierce, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s insurer. He thought the plaintiff had recovered from an aggravation of dorsal spondylosis. He said if the plaintiff did slip, as he described, it is consistent that he may have aggravated his pre-existing dorsal spondylosis. He noted that the plaintiff was dependent on massive doses of analgesics which were not necessary. He thought that the plaintiff’s current physical condition was no longer work-related and that he was fit for pre-injury employment, but noted he could not return to that work because of his drug dependency. He said the plaintiff had been involved with heavy physical work, which he had been doing for a long time, and there were no physical findings that he could no longer do this work. He thought a meat inspector’s course would be appropriate.
47 Dr Sidney Segal, the plaintiff’s general practitioner, reported to the defendant’s insurer in March 2007. Dr Segal said he saw the plaintiff on three occasions in 2006 before he mentioned the problem in relation to the injury in November 2005. Dr Segal said that he suspected that lifting at work had made his condition worse, so he accepted that his work was a significant contributing factor to his injury. He thought any return to work should be restricted to non-lifting/non-bending type of work. He doubted whether there would be any permanent impairment.
Video Surveillance
48 I was shown a video of the plaintiff. I accept that a video is a snapshot in time and that a plaintiff with injuries as the plaintiff described may have days when he is able to do more activities than on other days. The video surveillance did not show the plaintiff doing any activity that was inconsistent with his evidence. I accept that the surveillance did not assist the defendant’s case.
Credit of the Plaintiff
49 The plaintiff impressed me as a truthful witness.
50 The plaintiff was keen for the Court to understand how the injury occurred. He tried to answer all questions accurately but on occasions appeared to misinterpret the question. I interpreted that as due to the stress of the situation and lack of education, rather than a deliberate attempt to not answer the question. The answers provided were given in a direct and frank manner.
51 He was consistent in reporting the injury and its causes to the doctors whom he saw. He did not overstate the consequences of his injury. He was proactive in re-training and in seeking suitable employment.
52 Overall, the plaintiff impressed me as a credible witness.
Analysis of the Evidence
53 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course, of his employment with the defendant. All of the medical witnesses accepted the injury was work-related. Counsel for the defendant conceded there may have been a soft tissue injury, a minor exacerbation, not an aggravation, of an underlying condition and, in summary, it did not cause permanent injury, it did not cause an aggravation beyond an exacerbation, the events of the injury have long since resolved and even if I were to accept there was permanence, it did not fall within the range of injuries that are within the “very considerable” test. The issue was whether the plaintiff’s injuries for pain and suffering were “serious” within s.134AB(38).
54 Under s.134AB(38)(h) of the Act, the Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.[8]
[8] S.134AB(38)(h)
55 The Court must examine the consequences of a physical impairment in the separate context of paragraph (a) pain and suffering.
56 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[9] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the court must be satisfied that the consequences are “more than significant or marked”.
[9] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187 at [41]
57 The plaintiff has sustained an injury to his thoracic spine.
58 The consequences of his injuries are in dispute. The medical practitioners who treated the plaintiff over a period were of the view that the plaintiff had suffered a disc protrusion in the thoracic spine at T6-7 or T10-11, which was confirmed by the MRI scan taken in March 2007. Dr March diagnosed a disc injury and in March 2011 said that the plaintiff could no longer work in his pre- injury employment as a meat boner. Further, the plaintiff could not perform employment which involved repetitive, strained or excessive bending, lifting, sitting, twisting or turning. All of the plaintiff’s medical practitioners said he could work as a meat inspector. All accepted he was suffering pain and the evidence was that he had obtained medication to treat his pain which had been prescribed by medical practitioners. None of the treaters questioned the plaintiff’s credit and none suggested that the plaintiff was not genuine. In fact the plaintiff’s evidence was that he wanted to continue to work. The evidence was he had worked as a boner for twenty-six years. He said he loved his work, he continued working after the injury. Immediately after the injury, he sought assistance and returned to work, working for approximately twelve months, before he sought further treatment and went off work due to pain. The evidence was that he had re-trained as a meat inspector. He had applied for a number of jobs as a meat inspector. He had travelled in Victoria and New South Wales seeking employment, but without success. A number of the medical practitioners commented about the plaintiff’s inability to obtain employment. The plaintiff’s medico-legal practitioner, Mr Kahn, accepted the plaintiff could return to suitable work but could not perform work which involved heavy strenuous work requiring repetitive bending, twisting and turning of his cervical and thoracic spine.
59 The evidence of the defendant’s medical practitioners was the plaintiff had been injured at work and, other than Mr Moran, they thought the plaintiff’s injuries were minor and were surprised that the symptoms were continuing three to nearly four years after the injury. Each of the defendant’s medical practitioners saw the plaintiff on one occasion in 2008 and 2009.
60 In July 2008, Mr Clive Jones saw the plaintiff and thought he had a degenerative change of a minor degree. He thought the plaintiff was exaggerating, and commented on his poor motivation to return to work. There was no basis given for the doctor forming this view. Mr Jones said the plaintiff could return to work as a meat boner.
61 Mr Shannon thought the injury was an aggravation of a pre-existing injury. He concluded that due to the level of narcotic medication, it would be unsafe for the plaintiff to work as a boner.
62 Mr Kierce said the plaintiff’s physical condition was no longer work-related. Mr Kierce said that drug dependency is affecting his presentation. He was fit for pre-injury employment.
63 In respect to the medical evidence, I prefer the evidence of Dr March and Mr Thomas as these doctors treated the plaintiff on a number of occasions over an extensive period. Neither of these doctors suggested that the plaintiff was a malingerer or anything other than genuine. Dr March said he suffered restrictions on his work capacity in the medium to long term. He said disc injuries tend to improve, but were worse between the ages of 35 and 55. Dr Horsley and Mr Khan agreed with Dr March.
64 I accept that the plaintiff can no longer work as a meat boner. All doctors accepted this, other than Mr Jones, Mr Kierce and Mr Haig. Mr Shannon thought he could not return to work as a boner due to the level of narcotic medication. All of the plaintiff’s doctors accepted he could return to suitable work but not pre-injury work. Accordingly, I accept that the plaintiff has lost his ability to work in his chosen field as a meat boner which he had performed for many years. That is a significant consequence to a relatively young man.
65 The plaintiff’s evidence was that prior to the accident he rarely took medication. The medical evidence was that he had become opioid dependent, but by 2011 Dr March said he had come off the more powerful opioids and was taking Valium, Xanax and Tramadol. The defendant put to the plaintiff in cross-examination that he had obtained medication of various descriptions on 460 occasions. That figure was not broken down. It was not disputed that the prescriptions were provided by doctors to assist the back pain. Counsel for the defendant submitted that the drug dependency is not a physical consequence of the injury but falls under limb (c). I find the opiate dependency arose as a result of the pain suffered by the plaintiff and is an indication of the severity of the pain. Accordingly, I accept that it is a consequence of the definition of serious injury under paragraph (a). I refer to the reports of Mr Clayton Thomas, who by June 2008 thought the medication was controlling the pain. The current medication is significant given that prior to the injury he rarely took medication and it is a consequence of his injury.
66 The plaintiff’s evidence is that his relationships have been affected by the injury. He said the intimate side of his relationship with his partner was affected, with the result that they no longer live together as partners but remain friends. This is supported by his former partner. He no longer sees the children of his first marriage as they live in Bendigo and he cannot afford to pay for petrol to travel to Bendigo and is unable to participate in activities with his children because of the pain in his back. He finds it difficult to engage in the activities he previously did with his young daughter. This evidence was supported by his partner. His sleep is affected; he takes Valium for sleeping. There was reference to this in the medical reports. The plaintiff can no longer go bushwalking and camping, which were activities he enjoyed. He is restricted in his social and domestic activities. He has difficulty performing household chores. This was supported by his former partner and was accepted by his medical practitioners.
67 I am satisfied that it is fair to describe the consequences of the plaintiff’s pain and suffering as being more than significant or marked and properly regarded as serious when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
68 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
Findings
69 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the defendant seeking damages for pain and suffering as a result of his employment with the defendant.
70 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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