McKenzie v BlueScope Steel Limited
[2021] VCC 558
•1 February 2021
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00006
| ROBERT KEITH McKENZIE | Plaintiff |
| v | |
| BLUESCOPE STEEL LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 October 2020 (via ZOOM hearing) | |
DATE OF JUDGMENT: | 1 February 2021 | |
CASE MAY BE CITED AS: | McKenzie v BlueScope Steel Limited | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 558 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – neck injury – specific injury and aggravation thereafter – paragraph (a) of the definition of “serious injury” – leave sought to bring proceedings for pain and suffering damages only against defendant – range case
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013, the Court grants leave to the plaintiff to bring common law proceedings in respect of a neck injury arising out of or in the course of his employment with the defendant, initially on 12 February 2014 and thereafter to 2 August 2014.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Storey | Maurice Blackburn |
| For the Defendant | Ms A Bannon | Hall & Wilcox |
HIS HONOUR:
1 By way of an Originating Motion filed on 3 January 2020, Robert Keith McKenzie (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (as amended) (“the Act”), to bring common law proceedings in respect of a neck injury, initially on 12 February 2014 and thereafter, employment from 12 February 2014 to August 2014 accelerated, exacerbated or aggravated such injury (“the injury”) during the course of his employment with BlueScope Steel Limited (“the defendant”).
2 The plaintiff seeks leave to bring such proceedings for “pain and suffering” damages within the meaning of s325(1) of the Act in respect to such injury. The plaintiff was the only witness to give evidence and be cross-examined. The plaintiff and the defendant tendered a number of documents.[1]
[1]Refer to Annexure “A”
Relevant legal principles
3 The Court must not give leave, unless it satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[2]
[2]See s335(5)(a) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act. That paragraph reads:
“serious injury means ꟷ
(a) permanent serious impairment or loss of a body function.”
5 The part of the body said to be impaired for the purposes of paragraph (a) is the neck.
6 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the “injury” suffered by him arose out of or due to the nature of his employment with the defendant on or after 1 July 2014;[3]
(b)the “injury” and resulting impairment under paragraph (a) must be “permanent”; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)the “consequences” to the plaintiff of the “injury” in relation to “pain and suffering” must be “serious”; that is:
“… when judged by comparison with other cases in the range of possible impairments … as the case may be, [can be] fairly described as being more than significant or marked, and as being at least very considerable.”[5]
This is sometimes referred to as the narrative test.
[3] See s1 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[4]See Barwon Spinners (op cit) at paragraph [33]
[5]See s325(2)(b) of the Act
7 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of the “injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of the disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”;[6]
(b)must make the assessment of “serious injury” at the time the application is heard (unless s348 or s358 of the Act applies);[7]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[8]
[6]See s325(2)(h) of the Act
[7]See s325(2)(j) of the Act
[8]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
The issues
8 When queried as to what were the issues in this proceeding, counsel for the defendant stated that it was a “range matter”.[9] Counsel for the defendant confirmed that there was no issue as to a compensable injury to the neck, there was no issue as to causation of injury during the course of the employment, and that the focus would be on what the plaintiff has retained since “the injury”.
[9]Transcript (T”) 40, Line (“L”) 22-26
The evidence of the Plaintiff
9 The plaintiff relies on his three affidavits, affirmed on 8 August 2019,[10] 28 July 2020[11] and on 24 August 2020.[12] In his evidence-in-chief, the plaintiff gave evidence that he read such affidavits “recently” and to the best of his knowledge and belief they were true and correct.[13]
[10]See exhibit 1, pages 8-13 Plaintiff’s Court Book (“PCB”)
[11]See exhibit 1 at pages 14-16 PCB
[12]See exhibit 1 at pages 54-57 PCB
[13]T42, L31-T43, L1
10 The plaintiff is currently a single man aged forty-seven years old[14] who has a son from a previous relationship. He completed Year 12 at school, then worked as a labourer for twelve months, before commencing work with the defendant when aged about twenty.
[14]Born August 1973
11 The plaintiff recalls suffering the following previous injuries ꟷ although not necessarily an exhaustive list:
(a)in 1997, he suffered a football injury to his left knee, causing him to undergo arthroscopic procedure;
(b)in 1997, he experienced lower back pain as a result of prolonged sitting in crane cabins. At that time, he sought treatment and went onto modified duties for a period of time;
(c)in 2000, he underwent a knee reconstruction to his left knee due to a torn anterior crucial ligament;
(d)in 2003, he again injured his left knee as a result of a slipping incident at work and underwent a further arthroscopic procedure and had time off work;
(e)in 2005, he experienced right shoulder pain which was aggravated when he slipped off a chair at work and again, this resulted in arthroscopic repair;
(f)in 2006, he again experienced left knee pain after a fall at work and required physiotherapy treatment;
(g)in 2010, he suffered some neck and upper back pain when he hit his head on some pipework. He received some treatment, including a cortisone injection, before resuming normal duties;
(h)in 2011, he had difficulty swallowing food and sought treatment for his throat condition;
(i)in 2012, he strained his lower back after lifting a heavy steel gate at work, sought physiotherapy and had some time off work.
12 The plaintiff notes that after each of these physical injuries and/or complaints, and other niggles and aches and pains, he has received appropriate treatment and was able to return to full-time work.
13 The plaintiff commenced work with the defendant in 1994 at the steel manufacturing plant in Hastings, Victoria. Such plant is a large industrial complex with hundreds of people working shifts every day.
14 The plaintiff commenced work as an ironworker and his duties involved the manual handling of steel pieces, cutting of steel pieces, crane driving, operating various machines and other duties around the plant. He describes it as physically-demanding work.
15 Prior to the subject injury, the plaintiff worked twelve-hour shifts and between twelve-and-a-half to fourteen days per twenty-eight-day roster cycle. He typically earned about $2,000 gross per week.
16 On 12 February 2014, during the course of his employment, the head of the plaintiff struck a steel beam when he was cleaning the conveyor pit underneath the empty conveyor. The force of his head being struck resulted in his helmet being crushed onto his head and his safety glasses crunched down onto the bridge of his nose. He experienced pain at the back of his neck and head as a result of this incident.
17 The plaintiff reported the incident and several days later attended the Sports Injury Clinic for physiotherapy, but continued to have lingering neck pain which spread across his shoulders and travelled down his left arm.
18 On 4 March 2014, the plaintiff also attended Dr Bethan Knapp at the Westernport Medical Centre and also Dr Aaron McPherson at the Westernport Chiropractic Clinic. The plaintiff has continued to experience upper back and neck pain, as well as headaches and pins and needles in his left arm and hand.
19 The plaintiff resumed work and was placed on the CTM roller machine. In particular, he describes the duties involved with the operation of such machine in the following terms:
“… This is a machine that required me to stand in an operators console, hold two controls with both hands, and turn my head to the left as I followed a moving object as it was transferred to a manrdill (sic). At the end of this process, my head was looking back over my left shoulder in a fixed position.”[15]
[15]See exhibit 1 at paragraph [18] of the first affidavit at page 10 PCB
20 The plaintiff noted that operating such machine in the manner prescribed over a prolonged period, and on a repetitive basis, required a lot of physical and mental effort. He found such operation difficult, particularly with this neck and upper-back condition and bearing in mind he was working a twelve-hour shift. Over time, he felt stiffness in his neck, upper back and shoulders, as well as a tingling in the left hand of his fingers.
21 The neck pain and stiffness increased to such an extent that he had to stop work completely, after which he was treated with physiotherapy, chiropractic treatment, pain medication and, in particular, a cortisone injection into his cervical spine. On 19 June 2015, he underwent an MRI scan to his cervical spine.
22 The plaintiff had returned to light modified duties, but found this difficult with neck pain worsening. In particular, he was getting pins and needles in the first three fingers and a fuzzy weird feeling in his forearm. He was also experiencing headaches and required more and more medication to get through each day. This included Lyrica and Norgesic.
23 The plaintiff was referred to the neurosurgeon, Professor Richard Bittar, in December 2016, underwent a further MRI scan to his cervical spine on 12 January 2017, and in April 2017, Professor Bittar recommended surgery. On 18 July 2017, Professor Bittar performed a C6-7 anterior cervical decompression and fusion at St Vincent’s Private Hospital.
24 The plaintiff was off work for three months, during which time he was prescribed Tramadol and Endone, together with other analgesic and anti-inflammatory medication. The plaintiff stated:
“I experienced some improvements in the pain in my neck following the surgical procedure.”[16]
[16]See exhibit 1 at paragraph [29] of the first affidavit at page 11 PCB
25 On his return to work on a graduated basis performing light duties, he has managed to build up to his pre-injury hours but has not been able to return to his pre-injury duties. He has described that he is far more limited in the type of work he can perform and the activities he can enjoy.
26 In his first affidavit, sworn on 8 August 2019, the plaintiff sets out the various consequences that he was suffering at that time, although not necessarily an exhaustive list. I refer to paragraph 31 of that affidavit:
“(a)Neck pain - I feel pain every day in my neck. I feel it down both sides of the neck but the left hand side is worse. It travels down across the trapezius, behind my ears at the base of my skull. I regularly apply heat packs to the area. It often feels like a dull ache but can also be a burning sensation.
(b)Upper back - I feel pain in my upper back. It causes a tight feeling across the tops of both shoulders.
(c)Left arm - I continue to experience occasional pain, numbness and tingling sensation down my left arm. It causes my left arm to feel weak. I have a reduced range of motion of my left shoulder and arm.
(d)Treatment - I continue to attend Dr Joyce Liang and Dr Michael Glasby as needed. I also attend physiotherapy with Ms Collette McCarthy.
(e)Medication - I continue to require regular medication for my neck and upper back injuries. I take Maxigesic, paracetamol and ibuprofen across the week. In particular, if I go out socially, I require medication to get through the evening.
(f)Personal - My injuries have impacted the way I feel about myself and the way other people see me. I feel there is a stigma attached to having a work injury. I feel embarrassed by it. I feel that some people don’t believe the extent of my injuries which makes me feel isolated both at work and socially.
(g)Relationships/intimacy - I believe my work injuries caused undue stress in my relationship with my ex-partner. My sex life has been affected. We have now broken up.
(h)Golf - Prior to my injuries, I played golf regularly with friends. I have been unable to play golf since my surgery. I am terrified I will re-injure myself. It makes me feel sad that I have lost this social and recreational outlet. It was something I really enjoyed.
(i)Fishing - Prior to my injuries, I enjoyed fishing with friends and family. I recall going away for a fishing trip with friends, but after one day I was in so much pain I had to stop and rest completely. Simple things like reversing a trailer is too painful and difficult due the prolonged twisting and awkward head position required. Driving a fishing boat is also difficult due to the constant head checks that are required.
(j)Holidays - I am now limited in the types of holidays that I am able to enjoy. For example, I previously enjoyed white water rafting. This was a fun, adventurous activity that I hoped to do more of in my life. There is no way I would enjoy such an activity now. I have been to Bali and the Gold Coast on holidays but the activities I participated in were limited. I found the prolonged sitting, particularly in the planes, very tough on my neck, shoulders and upper back.
(k) Driving - I am able to drive a car but need to be very careful, particularly with head checks. If I had to do a long drive, I would pay for it badly the next day.
(l) Social - I find that my injuries have affected my social life and my confidence. It is generally uncomfortable for me to be out and about sitting at restaurants or bars. I find that I quickly get sore and I make excuses to leave early. If I do stay out later, even with the help of medication, I pay for it the next day.
(m)Domestic - I have made numerous small changes to my home life in an effort to reduce any strain I may put on my neck and upper body. This includes lifting heavy items, gardening, bending down and so on. I need to be careful in performing basic daily activities so as not to aggravate my neck or upper back pain.
(n) Weight - I have put on a significant amount of weight since my injuries. I cannot exercise as much as I used to.”[17]
[17]See exhibit 1 at pages 11-13 PCB
27 In his second affidavit, the plaintiff deposes that he continues to be employed by the defendant, but now has the role of senior process operator, which is a managerial role and largely performed “at the desk”. He does note that there are times when he has to fill in for people in operational roles if they are away or at a meeting or the like. He tries to be careful to avoid jobs which require him to look up, twist his neck or involve some other action that may cause stress to his neck or upper back.
28 The plaintiff deposes that he continues to suffer from the consequences referred to earlier in his first affidavit, but with the following qualifications:
“(a) Neck pain – I feel pain every day in my neck, down both sides and at the base of my skull. Generally speaking, the more I do, the more it hurts. In particular, any activity which requires me to tilt my head back and look up causes pain.
(b) Upper back – I feel pain and tightness in my upper back and across the tops of both shoulders.
(c) Left arm – my left arm symptoms have improved slightly since swearing my last affidavit. I continue to experience occasional numbness and tingling sensation down my left arm. My left arm sometimes feels weak.
(d) Treatment – I continue to attend Ms Collette McCarthy for physiotherapy about every six weeks. I do not see Dr Joyce Liang and Dr Michael Glasby regularly.
(e) Medication – I continue to take over-the-counter medication for my injuries, including pain medication and anti-inflammatories. I try not to take tablets every day. On average, I take medication about 3-4 days a week. However, in a bad week, when the pain and stiffness in my neck is particularly bad, I can take tablets every day.
(f) Personal – I continue to feel embarrassed and self-conscious about my injuries and limitations. I try to get on with life as best I can.
(g) Golf – I am no longer able to enjoy playing golf. It is too difficult. I miss playing golf.
(h) Fishing – these days I try to go fishing whenever I can. It is certainly something that I find more difficult than what it was before my injuries, but I do it anyway. It is a pastime that I love. It feels good to be out on the water, getting away from work and the stress of life, and chatting to mates. I keep medication on the boat. I always take tablets before, during and after a fishing trip.
(i) Driving – I am able to drive a car but can feel discomfort in my neck on longer trips. I usually take medication before and after a long trip.
(j) Social – my injuries continue to affect my social life. I do not feel as comfortable socially as I did before my injuries.
(k) Drinking – due to the pain in the back of my neck, I find it difficult to finish drinks, especially cans of drinks, because it requires me to tilt my head backwards. This causes pain.
(l) Walking – there have been occasions where I have gone for bush or coastal walks. I found that I was constantly hitting my head on low-hanging branches along the track due to the difficulty I have in looking up.
(m) Weight – I believe I have actually lost weight since my last affidavit. However, I have not been exercising or changing my diet. I believe the weight loss has “been caused by stress and anxiety.”[18]
[18]See exhibit 1, second affidavit of plaintiff, dated 28 July 2020, at pages 15-16 PCB
29 In his third affidavit, sworn on 24 August 2020, the plaintiff gives more detail surrounding periods of time that he was off work and, amongst other things, notes that it was in about August 2014 when he stopped working on the CTM roller machine and changed to lighter tasks that were easier on his neck. He continued on those restricted lighter duties until he ceased work completely about one month before his cervical fusion surgery in July 2017.
30 Again, in particular, the plaintiff refers to another consequence of his injuries in his final paragraphs – that to do with the Emergency Response Group. He deposes that:
“I wish to refer to another consequence of my injuries which I did not disclose in my two previous affidavits. Since approximately 1996, I have been a member of the Emergency Response Group (ERG) at Bluescope. Being a member of the ERG is a position akin to being an in-house volunteer firefighter or rescue worker. The ERG attends to fires, chemical spills, rescue and other emergency situations which occur at the plant. We were regarded as the ‘first responders’ to those emergency situations.
Members of the ERG receive extensive training, including firefighting training, first aid and rescue training. We attended off-site training camps to hone our skills. It was something that not only improved my skill-set and fitness but it also gave me a sense of pride and accomplishment within Bluescope and amongst my friends. Members of the ERG were given an annual allowance of approximately $1,000 per year.
In around 2008, I became the Fire Crew Leader. This meant that I was the head of this important group. As a result of my neck, back and left arm injuries, I can no longer be a part of the ERG. I resigned from the ERG as I lacked confidence in my neck. I did not want to become the person being rescued because my neck suffered pain as I attempted to rescue someone. I didn’t have confidence in my neck carrying all the breathing apparatus or holding a fire hose. This is disappointing on so many levels. I miss being part of that team.”[19]
[19]See exhibit 1, third affidavit of plaintiff, dated 24 August 2020, at page 56 PCB
The radiology
31 The plaintiff underwent the following radiological investigations:
(a)an MRI scan of the cervical spine on 19 June 2015. The radiologist concluded:
“Principal findings;
1. C6/7 left paracentral disc extrusion and right paracentral disc protrusion.
2. Moderately severe bilateral neural exit foraminal narrowing at C5/6 and C6/7 related to uncovertebral joint degenerative change.”[20]
(b)on 12 January 2017, the plaintiff underwent a further MRI scan at the behest of his treating neurosurgeon, Professor Richard Bittar. The radiologist concluded:
“Uncovertebral and facet OA in the mid and lower cervical spine, most severe at C5/6 and C6/7 where there is severe bilateral foraminal stenosis with likely neural compression. The patient’s left sided symptoms is probably due to compression of the left C7 nerve in the neural foramen.
There is also mild-moderate spinal canal stenosis at this level with anterior cord indentation without evidence of myelopathy.”[21]
[20]See exhibit 4 at pages 46-47 PCB
[21]See exhibit 4 at page 49 PCB
Medical treatment of the Plaintiff
32 Considering that this is a “range” case, I will spend little time elaborating on the medical events leading to cervical surgery in 2014. Suffice to say, the plaintiff relies on two medical reports from his treating medical practitioner, Dr Joyce Liang, at the Atticus Tyabb Medical Centre in Tyabb. Her first report, dated 9 March 2018,[22] traces through the history of his injury up to surgery and notes at the time of the writing of the report, the plaintiff was currently doing eight-hour shifts, thirteen days per month on a rostered cycle. Dr Liang considered the plaintiff was most probably capable of returning to full lighter duties in the near future.
[22]See exhibit 2 at page 17 PCB
33 In a slightly later report, dated 5 June 2018,[23] Dr Liang reports as at that date, that the plaintiff is relatively pain free, although he continued to experience stiffness and tightness in the neck condition.
[23]See exhibit 2 at pages 18-19 PCB
34 Furthermore, Dr Liang reports how the plaintiff had to give up his voluntary services with the Emergency Response Group, as he cannot hyperextend his neck, and also has given up playing golf recreationally as a result of his neck injury. Dr Liang also noted that at the time of her report, the plaintiff had to take pain relief three or four times a week just to relieve the pain in the neck.
35 The plaintiff also relies on reports from the treating neurosurgeon, Professor Richard Bittar, dated 16 December 2016,[24] 11 April 2017,[25] 20 March 2018[26] and 1 October 2020.[27]
[24]See exhibit 2 at pages 20-21 PCB
[25]See exhibit 2 at pages 22-23 PCB
[26]See exhibit 2 at page 25 PCB
[27]See exhibit 2 at pages 60-64 PCB
36 When Professor Bittar first consulted with the plaintiff, he arranged for the repeat MRI scan of the cervical spine and also referred him to the occupational physician, Dr Kilner Brasier, specifically looking to obtain an opinion of any modifications of the workplace activities then being undertaken by the plaintiff.
37 Professor Bittar considered that the repeat MRI scan demonstrates a disc/osteophyte complex at C-7, causing a mild to moderate degree of canal stenosis and severe bilateral foraminal stenosis. Professor Bittar was also of the opinion that the plaintiff had bilateral foraminal stenosis at C5-6.
38 Based on these findings, together with positive clinical findings involving mild weakness of the left elbow and finger extension and an absent left triceps jerk, Professor Bittar recommended that surgery be considered by the plaintiff.
39 In particular, Professor Bittar advised the plaintiff that there were risks of adjacent segment disease following a cervical spine fusion, although he considered that for a variety of anatomical reasons, the plaintiff would not be a good candidate for an artificial disc replacement.
40 I refer to the operation record of Professor Bittar dated 18 July 2017,[28] wherein he confirmed that the C6-7 disc was removed and an anterior interbody fusion was then performed. A check x-ray confirmed satisfactory appearances and the wound was closed.
[28]See exhibit 2 at page 24 PCB
41 When reviewed on 20 March 2018,[29] Professor Bittar noted that the plaintiff was doing well following his C6-7 anterior cervical depression and fusion, with his neck pain much improved when compared to pre-operatively, and his arm pain having resolved, with the exception of some localised shoulder pain which Professor Bittar believed to represent local shoulder pathology.
[29]See report of same date at page 25 PCB
42 At that time, the plaintiff was taking medications as required and typically between once a week up to two or three times a week, and was also undergoing physiotherapy regularly. At that time, he was working eight hours per day, thirteen days a month, and was aiming to increase to twelve hours per day, thirteen days per month. At that time, he was working light duties and coping reasonably well and it was also noted the wound was clean and healed well.
43 Professor Bittar considered at that examination, the lifting restriction could be increased to around 12 kilograms, but the plaintiff should avoid forceful pushing or pulling and repetitive use of his arms above shoulder height. Furthermore, he should also be able to change neck positions frequently.
44 In his final report dated 1 October 2020, Professor Bittar only set out the various details of his examinations up to what seemingly was the last examination on 17 August 2018. At that time, the plaintiff, although experiencing some discomfort intermittently, was far better than he was pre-operatively. Furthermore, at that time, he was working full time on slightly modified duties, although Professor Bittar suggested that he could resume normal duties, but should exercise some caution when it comes to heavy lifting and undertaking other activities that might place stress on his neck.
45 Professor Bittar also noted that a post-operative CT scan performed on 7 August 2017 demonstrated solid bone growth across the disc space. His ongoing treatment at that time was minimal, apart from analgesic medications as required.
46 Professor Bittar was of the opinion that the plaintiff had suffered a C6-7 disc prolapse, as well as aggravation of cervical spondylosis. Such condition was treated with a C6-7 cervical decompression and fusion. Professor Bittar considered the plaintiff had ongoing permanent restrictions, which included the following:
·Avoidance of heavy lifting.
·Avoidance of repetitive neck and upper limb movements particularly above shoulder height.
·Avoidance of forceful pushing and pulling.
·Avoidance of engaging in activities in placing himself in situations where there was a significant chance of trauma to his head or neck.
47 As already noted, Professor Bittar referred the plaintiff to the occupational physician, Dr Kilner Brasier. The plaintiff relies on reports from Dr Brasier dated 13 April 2017[30] and 19 March 2018.[31] When first seen by Dr Brasier, the plaintiff had yet to undergo his cervical fusion, whereas when he saw him on the second occasion – that is on 19 March 2018 – that was approximately nine months’ post-surgery.
[30]See exhibit 2 at pages 27-28 PCB
[31]See exhibit 2 at pages 31-32 PCB
48 At that time, the plaintiff was working restricted duties eight hours a day on a thirteen-day fortnight, performing a variety of duties. He was doing some computer work and some work on the floor. He was not undertaking any manual handling and was largely involved in quality checks on the floor. He was also performing some retraining.
49 The plaintiff also relies on reports from the physiotherapist, Ms Colette McCarthy, dated 3 August 2010[32] and 12 January 2016.[33] Both of those reports predate the surgery and are of little assistance in determining whether the plaintiff has discharged his onus in establishing a “serious injury”.
[32]See exhibit 2 at page 33 PCB
[33]See exhibit 2 at pages 34-36 PCB
50 The plaintiff also relies on a report from the exercise physiologist, Mr Joshua McCarthy, dated 25 October 2017,[34] who commenced to treat the plaintiff approximately three months after surgery and, in particular, treated the immediate ongoing arm weakness suffered by the plaintiff. Again, this report is of little assistance given that he was reporting only a few months after the surgery.
[34]See report of same date, exhibit 2 at pages 31-32 PCB
The medico-legal reports relied on by the Plaintiff
51 The plaintiff relies on the following medico-legal examinations:
(a)by the plastic and reconstructive surgeon, Mr Damon Thomas, on 19 June 2020;[35] and
(b)by the neurosurgeon, Dr Hazem Akil, on 4 August 2020.[36]
[35]See report of same date, exhibit 3, pages 37 PCB
[36]See report of same date, exhibit 3 at pages 42-45 PCB
52 At the time of his examination with Mr Thomas, the plaintiff complained of intermittent headaches, neck pain with activity and anything physical, and reduced neck movements. Mr Thomas was of the view that although the plaintiff was capable to undertake full-time work, such work was not unrestricted, in that he should avoid anything involving excessive neck movement, and to this end, he could not perform his pre-injury employment with the defendant.
53 In particular, Mr Thomas stated:
“Mr McKenzie’s prognosis is that he in my opinion will have a long term impairment in regards to neck pain, headaches, reduced neck range of motion and due to the C6/7 fusion, he would likely go on to develop progressive degenerative change in the cervical spine. This may require further treatment anything involving physiotherapy, targeted steroid injections or further surgery such as a repeat fusion or other cervical spine procedures.”[37]
[37]See exhibit 3 at page 39 PCB
54 When examined by the neurosurgeon, Mr Akil, the plaintiff complained of intermittent residual neck pain, particularly so when doing strenuous physical activities like gardening, or even on some activities at work. He also complained of what appeared to be a cervicogenic-type of headache which involves the occipital region, and is intermittent and has variable intensity, and occurs randomly. In this respect, Mr Akil noted that the plaintiff continued to take Panadol or Nurofen as required. Ultimately, Mr Akil stated:
“In my opinion, his prognosis is guarded. I believe that according to the most reliable literature, the chances of adjacent segment disease (adjacent level of his cervical spine) to be affected is around 2.9% annually which means that he might still require further surgical intervention in the future.
…
He is currently doing full-time work without any restrictions. He however has his role change and he is right now doing less physical type of work compared to before.
…
The injuries did impact Mr McKenzie’s daily life in many ways. He used to enjoy fishing and gardening and he finds them sometimes difficult to do. He can have troubles doing some home maintenance and some paintings. He is still apprehensive to go golfing with his friends.”[38]
[38]See exhibit 3 at page 44 PCB
Medico-legal examinations relied on by the Defendant
55 The defendant seeks to rely on the following medico-legal examinations:
(a)an examination by the neurosurgeon, Dr Graeme Brazenor, who examined the plaintiff on 20 September 2016;[39]
(b)by the consultant orthopaedic spinal surgeon, Mr Roy Carey, who examined the plaintiff on 23 October 2018;[40]
(c)by the consultant neurosurgeon, Mr Amin Drnda, who examined the plaintiff seemingly on 8 January 2020.[41]
[39]See report of same date, exhibit “A” at pages 5-14 Defendant’s Court Book (“DCB”)
[40]See report of same date, exhibit “A” at pages 15-25 DCB
[41]See report of same date, exhibit “A” at pages 26-31 DCB
56 Dr Brazenor consulted with the plaintiff prior to the cervical surgery. At the time of his examination, Dr Brazenor was of the opinion that the plaintiff was suffering from accelerated degeneration changes at C5-6, but to a larger extent at C6-7, where the plaintiff was still recovering from a large cervical disc prolapse. Dr Brazenor considered that such injuries were consistent with the work activities described by the plaintiff and at that stage, thought him fit to do work, but not to involve himself in recurrent bending at the waist or use the CTM roller.
57 Mr Carey examined the plaintiff approximately fifteen months after the cervical surgery.
58 At the examination, the plaintiff informed Mr Carey that the operation was “very good”, such that he had returned to work in February or March 2017 and had continued to work slowly, increasing his hours and duties, and in September 2018, had returned to normal hours and all normal duties, apart from some minor restrictions on neck movements. In particular, Mr Carey noted the plaintiff had not returned to his role as part of the ERG (rescue) team as he is not confident of his neck and left arm in an acute rescue situation. At that time, he was seeing a physiotherapist every six weeks and undertaking some massage, together with Maxigesic as needed. Again, at that time, he was obtaining certificates indicating he has minor restriction of range of motion only.
59 The plaintiff did complain that he had a constant discomfort at the root of the neck on both sides, worse on the left, and this increases with posture and activity. He also has occipitocervical headache on both sides from time to time, perhaps once or twice a week, and treats this with pills only. He no longer has any arm symptoms whatsoever.
60 In particular, when queried, the plaintiff stated that he can drive for forty minutes or so before the neck gets worse; he is able to garden, but requires pills beforehand, and he has not returned to golf.
61 The plaintiff tends to avoid social situations where, if sitting down, he is required to look up to talk to people, as he finds extension of the neck of more than ten minutes or so makes things significantly worse.
62 Mr Carey, in his report, noted the plaintiff was “pleasant direct and indeed stoic in his presentation”.[42] Examination revealed minimal tenderness over the posterior cervical spine and a separate area of tenderness in the mid-thoracic region in the midline. Cervical flexion was of full range, but extension and lateral flexions, particularly to the left, were restricted and painful. Rotation was full to the right and restricted to the left, with reproduction of pain at the root of the neck, but not into the left arm.
[42] See exhibit “A” at page 22 DCB
63 Later in the body of his report, Mr Carey noted that the plaintiff does have degenerative changes at an adjacent level in the cervical spine which may become symptomatic with time. Furthermore, and in particular, Mr Carey stated that the plaintiff’s claimed pain and restrictions were “entirely consistent”.
64 When examined by the neurosurgeon, Mr Armin Drnda, on 8 January 2020, the plaintiff gave a full history of his injury and the circumstances leading up to the surgery and the situation thereafter.
65 In particular, the plaintiff informed Mr Drnda that:
·He experiences constant neck pain on the lateral aspects of his posterior neck and significant stiffness in those areas. Furthermore, he gets aches at the back of his head on an average of once or twice per week, but does not have any arm pain and his sleep is not disturbed.
·He takes a combination of paracetamol and Ibuprofen, six to ten tablets per week, and attends physiotherapy on average every six weeks, where he receives some neck massages (for which he pays for).
·He can perform all activities of daily living but has to pace himself and he is careful not aggravate his chronic neck pain.
·Mr Drnda performed a physical examination of the plaintiff and noted that the plaintiff was “pleasant and cooperative without any signs of embellishment”.[43]
[43]See exhibit “A” at page 28 DCB
66 Mr Drnda diagnosed the worker to be suffering from “residual cervical spine dysfunction (chronic pain) on the background of work-related accelerated cervical spondylosis, surgically treated”.[44]
[44]See exhibit “A” at page 29 DCB
67 Mr Drnda was posed various questions by the solicitors acting for the defendant and he responded to such questions in his report. I set out some of those questions and answers:
“…
4.Do you consider the worker’s reported pain and restrictions are consistent with the expected clinical course taking into account the mechanism of injury, any pre-existing condition and the radiological and clinical findings?
Yes.
5.Do you consider the worker had any pre-existing condition and if yes, please provide your opinion as to the natural course of the pre-existing condition without the effects of the worker’s employment, in particular, using the CTM roller machine in the incident on 12 February 2014?
No.
6.If you consider the worker has sustained an aggravation, acceleration, exacerbation or reoccurrence of any pre-existing condition, do you consider such aggravation, acceleration, exacerbation or reoccurrence to have now ceased? Why/why not?
No, the work-related, acquired condition has not ceased. Mr McKenzie is still symptomatic in the way of chronic neck pain.
7.Do you consider the worker has a current physical capacity to undertake the inherent requirements of his preinjury role (as described by the worker)?
No.
8. If you do not consider the worker has a current physical capacity to undertake preinjury employment, do you consider the worker has a current physical capacity to undertake suitable employment? Please only have regard to the physical injuries which have resulted from employment. Suitable employment is defined in the Workplace Injury Rehabilitation and Compensation Act 2013 as meaning employment and work for which the worker is currently suited (whether or not that work is available), having regard to:
(a) the nature of the worker’s incapacity and preinjury employment?
(b) the worker’s age, education, skills and experience;
(c)the worker’s place of residence;
(d) the details given in the medical information including the medical certificates supplied by the worker;
(e) the worker’s return to work plan, if any; and
(f) if any occupational or rehabilitation services are being provided to or for the worker.
Yes, Mr McKenzie has capacity to undertake suitable employment. Mr McKenzie has currently been working in a suitable employment with BlueScope Steel.
9.What restrictions, if any, would you place on the worker’s employment, in particular postural tolerances and work hours?
Mr McKenzie should not be working with a postural neck strain, e.g. constant and/or frequent repetitive neck flexion, extension, larteroflexion (sic) and rotation.
… .”[45]
[45]See exhibit “A” page 29-30 DCB
The cross-examination of the Plaintiff
68 Under cross-examination, the plaintiff confirmed that he was off work for approximately three months following his neck surgery on 18 July 2017.
69 The plaintiff stated that he was cleared for full duties, save that there was one restriction, being that he be not required to move past neutral for more than 15 minutes.
70 The plaintiff was referred to exhibit “B”,[46] which consists of a Certificate of Capacity dated 12 September 2018 and an email chain running from 23 October 2018 to 25 October 2018. The Certificate for Capacity refers to the plaintiff being fit for normal work subject to:
“No repetitive neck movements.
Not to hold a neck position away from the midline for longer than 15 min.”[47]
[46]Found at pages 36-40 DCB
[47]See Certificate of Capacity dated 12 September 2018 at page 36 DCB
71 The plaintiff had accepted that was the limitation to which he made reference.
72 The email chain involves a discussion between management of the defendant as to how any restriction would impact on the plaintiff. One of the emails makes reference to there being a discussion with the plaintiff where it was accepted that it was not likely that he would be required to do anything in his normal duties which would require him to lean forward for any length of period. The following evidence ensued:
Q:“Effectively, I put it to you, that your employer was concerned to have that – that restriction that was mentioned in the final certificate of capacity but when you had discussion with your employer about your duties at that time, what was ascertained was that there would never be a time in your normal work duties where you would have to have your neck in the position that you weren’t allowed to have it in, is that right?---
A:Yes.
Q:So, on that basis you were effectively cleared to return around that time, which is think is August and September 2018, you were cleared to return to normal – your normal work duties, is that right?---
A:Yes.”[48]
[48]T44, L25-T44, L5
73 When the Court queried as to whether or not the plaintiff would be required to do the job that he described in his affidavit – turning his head and following steel as it went past him on a conveyor – the plaintiff stated that this work had been modified by the assistance of cameras following the steel and it was not necessary to rotate the neck that far around.
74 The plaintiff was also referred to paragraph 30 of his first affidavit, where he stated:
Q:So, what you say there in paragraph 30, ‘I slowly returned to work on a graduated basis performing light duties’, and that’s correct isn’t it?---
A:Yes.”[49]
[49]T45, L25-27
75 And then the cross-examiner further stated that the next sentence in the affidavit was:
“‘I’ve managed to build up to my pre-injury hours but I’ve never been able to return to my pre-injury duty’”.
The cross-examiner then asked:
Q:“That’s not because you weren’t cleared for those duties though is it?---
A: No.
Q:No. It’s because, in fact, as you just explained to His Honour, the duties have changes slightly, haven’t they?---
A:Yes. But I still wouldn’t feel comfortable to do it.
Q:I understand that but you were cleared to return to them, that’s right isn’t it?---
A:Yes.
Q:In any event, things have been a little bit superseded, haven’t they, Mr McKenzie, because as my learned friend opened – your counsel opened, you’re actually now in a slightly newer roll, are you not? Senior process operator, that’s right isn’t it?---
A:Yes.
Q:And that came about because there was a call for expressions of interest for that role in about August 2019, do you recall that? I’m happy to take you to the document?---
A:Yes.”[50]
[50]T45, L29 – T46, L14
76 When queried by the Court, the plaintiff confirmed that obtaining such a position was a promotion and more money paid for that job. The plaintiff also accepted that his new role is effectively about 70 per cent an office-based role.
77 The plaintiff was again taken to his affidavit where he deposed that in his new role he still has to fill in for people in operational roles and that when performing such operational roles he has to be careful to avoid jobs which require him to look up, twist his neck or involve any other action. The cross-examiner then suggested that this is a matter of just being “cautious”, not because he had any medical restrictions placed upon him, to which the plaintiff stated:
“No. It does physically hurt if I do certain jobs.”[51]
[51]T49, L12-13
78 The cross-examiner then stated:
Q:“Okay. And it wouldn’t occur too much either, would it, if it’s largely a desk based role?---
A:That can depend. If someone was to have a month’s off annual leave and we couldn’t get coverage I could do it for a whole week, or two, but more regularly it’s only done a few hours, per day or per week.
…
HIS HONOUR:
Q:Can I just ask you again, Mr McKenzie, I’m sorry to interrupt Ms Bannon, but it’s probably appropriate I ask this while I think of it. I understand, Mr McKenzie, what you’ve said, even in this job which you’ve accepted is, you know, a significant amount working at a desk, deskbound work, you’ve also said in your affidavit, or affidavits, that you continue to get neck pain every week?---
A:Yes.
Q:That’s correct, is it?---
A:That’s correct, yes.
Q:And since doing this job which you’ve now been confirmed as permanent there, could you give me an idea, say, over the last year, how frequently you would get neck pain in any particular week, if you can?---
A:It would be a minimum of three, up to seven.”[52]
[52]T49, L14 – T50, L3
79 The plaintiff was again referred to his affidavit where he notes he has been losing weight since his last affidavit although he has not been exercising or changed his diet. When suggested by counsel for the defendant that he believed such weight loss was caused by stress and anxiety the plaintiff accepted that was his view.
80 The plaintiff was taken to a Facebook post at page 89 of the Defendant’s Court Book, which shows the plaintiff wearing what he described later as a Samsung device that keeps track of exercise, which involved gym work and running on a treadmill. The plaintiff also gave evidence that his son has a Certificate III in Personal Training and he has assisted the plaintiff in the past at the gym. When queried about the situation since June/July 2019, the plaintiff stated: “I couldn’t maintain it”. The following evidence was then given:
Q: “All right. So, you gave up, entirely did you?---
A: Yes.
Q: Right. You don’t – and you now don’t attend the gym at all?---
A: No.
Q: No? You don’t run on the treadmill at all?---
A: I haven’t in the past 12 months.
Q:Yes. And so, could it not be that it’s that which is contributing to the loss of weight?---
A:I don’t know.
Q:No. So, you can’t be sure it’s anxiety and stress, it could for example be - - -?---
A:It’s anxiety and stress that caused the weight loss. I didn’t eat. I didn’t eat for a period of time due to a separation.
Q:Okay. So, that was – so, it’s not anxiety and stress in relation to your injury, it’s anxiety and stress in relation to your relationship breakdown which occurred in mid-2019, is that right?---
A:Yes.
Q:Yes. Okay.”
HIS HONOUR:
Q:“Mr McKenzie, again, the cessation of physical activities like going to the gym with your son and out on the treadmill, I think you said, ‘I couldn’t cope with it’, what do you mean by that?---
A:It became sore. The treadmill running was okay but the weight training which I found in the past helps me to lose weight, the weight training I couldn’t – I couldn’t do, it was sore.
Q:But what was sore?---
A:Upper back and neck.”[53]
[53]T63, L19 – T64, L11
81 The plaintiff was also referred to that part of his affidavit where he deposed that his work injury caused stress in his relationship with his ex-partner.
82 Counsel for the defendant referred to further evidence given by the plaintiff in his affidavits whereby he deposed it was difficult to finish cans of drink because it required him to tilt his head backwards. The following evidence was given:
Q: “Is that the case?---
A: Yeah, it’s quite embarrassing.
Q: Do you have the same problem with stubbies, beer bottles? ---
A: No.
Q: No. Why not?---
A: Because I can tilt them further to get the – the drink out.
Q:So, stubbies are more manoeuvrable, if I can put it that way? ---
A:Yeah, you can turn them up - the can, because the holes at the bottom, you can’t - I can’t get to the bottom without having - - -
Q:What about normal glasses of drink, so a glass of water or something like that?---
A:Yeah, glasses, anything that can be tilted past, you know, to get the last bit, is fine.
Q:Yes, can I suggest to you the problem would be easily solved by pouring the liquid into a glass?---
A:That could be, but I’m not always in a place where there is a glass.
Q:No. What I’m suggesting to you, it, it’s more of a minor inconvenience than a massive problem in your life. Would you accept that?---
A:It’ embarrassing.
Q:Yes. But it can be easily gotten around, can’t it?---
A:Not always, no.
Q:Wouldn’t a straw fix it?---
A:I don’t carry straws with me. I don’t go everywhere with a straw.”[54]
[54]T69, L28 – T70, L18
83 The plaintiff was taken to the Defendant’s Court Book at page 109, which indicates an attendance at an air show on about 11 March 2019 – that is approximately nine months after the neck surgery. The plaintiff accepted such situation and the following evidence ensued:
Q:I don’t mean to sound trite, Mr McKenzie, but what I’m suggesting to you is that attendance at an air show would necessarily involve a lot of looking up at the sky; would you accept that?---
A:I would but that’s actually from my house.
Q:Okay?---
A:So I didn’t actually attend the show.
Q:Okay, but you were looking at the planes that are in the show, at your house; is that fair?---
A:Yes.
Q:And to do that you have to look up, do you not?---
A:Yes.
Q:There’s no other way around it. How is that different to tilting your head back to drink out of a can or a glass?---
A:It’s a distance I can look up, so I can look up to a certain distance before my neck won’t move any further, or I’m very sore.
Q:So, to look up at an air show wouldn’t you have to get your neck back quite a long way?---
A:Not if you’re sitting in a chair.
Q:All right?---
A:Or laying down.
Q:You’re outside in those photos, aren’t you?---
A:I’m in my driveway, yes.
Q:Yes. So, you’re not sitting in your chair in your driveway, are you?---
A:Yes, we had it set up. We did it – it was a regular thing we did every year.
Q:Okay. And how does the chair - - -?---
A:Or every second year. Because I can lay back.
Q:All right. Okay?---
A:So, I can look up to certain degree and that’s the problem with drinking a can. My two ways of drinking a can is either drinking out the side of my mouth or actually leaning back in my knees to get the angle right to allow the drink to come out.
Q:What sort of cans are you talking about? Are you talking about beer or coke or what are you talking about?---
A:Coke.
Q:Coke?---
A:Soft drink. Soft drink cans, yes. Or alcohol.”[55]
[55]T70, L25 – T71, L26
84 Under cross-examination, the plaintiff described the work he undertook in his ERG position prior to his neck injury. When asked what that job involved, the plaintiff described it as being an onsite volunteer fireman and that people in that role were required to attend fire, rescues or any hazardous substances spills, or where there were medical issues. The plaintiff gave up this work because of his neck condition. The following evidence was given:
Q:“Yes. And what you say in your third affidavit, that is the affidavit that was put in shortly after you were last before the court, that you resigned from that position. Is that right, because you didn’t have full confidence in your neck I think is what you say in your affidavit?---
A:Yes, that is - that is correct.”[56]
[56]T40, L16-21
85 The plaintiff was also taken to two parts of his affidavits where he deposes that his injury continues to affect his social life and he does not feel as comfortable. When queried about this aspect, the plaintiff quickly disclaimed any particular problems during the period of COVID due to his inability to go out in any event. The following evidence was given however:
Q:“If we just put Covid aside, I know we’d all like to do that immediately, but beside just explain to me how your neck injury or post your surgery how that has impacted on your social life, what do you mean by that?---
A:If I’m out at an event – so if I go to a pub and have a few drinks with some mates or if I’m out socially with friends in a bar and if I’m sort of sitting down and having to communicate with people looking up or if I’m sitting at a high table with my arm up on the table I get – it gets really uncomfortable on the back of my neck to the point where I don’t want to be there anymore and I end up saying, ‘I’ve got to get – I’ve got to go home’.
Q: Yes. Thank you.”
MS BANNON:
Q:“I want to put to you, Mr McKenzie, that it hasn’t prevented your post-injury from taking a lot of holidays?---
A:No.
Q:No. You went to – including holidays that involved long plane flights, is that right?---
A: Yes.
Q:You went to the Philippines in September 2016, is that right?---
A:Yes.
Q: You went to Fiji in January 2017?---
A: Yes.
Q: You went to Byron Bay in May 2017?---
A: Yes.
Q:You went on a cruise on the Gold Coast in May 2017?---
A:No. Didn’t go on a cruise but I went to the Gold Coast.
Q: Okay. So, you went to the Gold Coast in May 2017?---
A: Yes.
Q:Yes. You went to Tassie, you went to Hobart in September 2017, so a couple of months post-surgery?---
A:Mmm hmm.
Q: You went to Bali in January 2018?---
A: Yes.
Q:You went to Bali again in September 2018, is that right?---
A:Yes, I did go to Bali within a short – in the 12 months so, yes, that would probably, yes.
Q: Twice effectively in 2018, is that right?---
A: Yes, I’d say it’d be close.
Q: Yes. How long is the flight to Bali? It’s about five hours, isn’t it?---
A: Yes.
Q: Yes. You went to the Gold Coast again in April 2019?---
A: Yes.
Q:And you went to Bright in October 2019 where you post on Facebook about activities including bike riding between breweries, is that right?---
A:Yes.
Q:And obviously those references are all from Facebook posts that you have posted and are extracted in the defendant court book, are there other holidays that are not posted on Facebook that are not included in the list I’ve just read out to you?---
A:I’m not certain but I don’t think so.
Q: No. So, you think that - - -?---
A: Sorry?
Q: You think that captures most of them, do you?---
A: I would think so, yes.
Q:Yes. You certainly haven’t been prevented from holidaying by your injuries, you travelled soon after your operation and you’re able to take lengthy plane flights, is that right?---
A:Yes.
Q:And you haven’t been prevented from other social activities that are noted on Facebook either, for example, you attended Matty’s Match, the St Kilda Richmond game in June 2019 at Etihad Stadium or Marvel I think it’s now called, is that right?---
A:Yes.
Q:You attend concerts and there’s indication on your Facebook posts about you attending an outdoor concert it looks like in January 2019, do you recall that?---
A:Yes.
Q:And you spent your birthday in August 2019 at – on a three-day trip to Crown in Melbourne, is that right?---
A:Yes.
Q:It would be fair to say then wouldn’t it, Mr McKenzie, that you’re not overly inhibited in your social and your holidaying activities?---
A:I’m not sure what you actually mean by that question exactly.
Q:What I mean is you’re not very restrictive if you’re able to undertake the holidays that I’ve mentioned and the social activities that I’ve mentioned?---
A:I’m able to travel, yes.
Q:Yes. You’re able to attend other social activities as well, aren’t you?---
A:Yes.
Q:Yes. In fact, you’re able to participate in a wide variety of social and leisure activities, aren’t you?---
A:Yes.”[57]
[57]T72, L31-T75, L10
86 Counsel for the defendant then cross-examined the plaintiff about his assertions in his affidavits about being embarrassed in relation to his work injury. In particular, in his first affidavit, the plaintiff stated:
“I feel there’s a stigma attached to having a work injury.”
87 And in his second affidavit the plaintiff also stated that he felt embarrassed and self-conscious about his work injury and limitations. The plaintiff was taken to various Facebook entries when the plaintiff was in hospital after his surgery and performing rehabilitation in the context of the plaintiff having seven hundred Facebook friends, it was put to him that such photographs would be seen by many people, which he accepted. The following evidence then ensued:
Q:“So, how does it fit with you saying you’re embarrassed by your work injury that you would post pictures of you in hospital immediately post-surgery, and in rehabilitation subsequently, to effectively advertise the fact, to 700 Facebook friends, and potentially other friends of theirs?---
A:I’m not certain whether I mentioned it being a work injury, I’m not a hundred per cent certain, I haven’t got my Facebook page, but I certainly didn’t make it a - a proud moment of it being a work injury, it was more about the rehab.
Q:Right?---
A:And the - having the surgery.
Q:Yes, that’s not what you say in your second affidavit though, is it, Mr McKenzie? You don’t - in your first affidavit you certainly say that you’re embarrassed by it being a work injury. In your second affidavit what you say is, ‘I continue to feel embarrassed and self-conscious about my injuries and limitations.’ How does that fit with posting it to 700 friends on Facebook?---
A:I - that affidavit was referring to the previous comment, from the previous affidavit.
Q:Is it fair to say you’re no longer embarrassed and self-conscious?---
A:No.
Q:It’s not?---
A:At my workplace, at my workplace I get embarrassed about the work injury, and the consequences of someone asking me to do something that I can’t do, I don’t feel comfortable doing.
Q:No. I’ll put it to you that it’s entirely irreconcilable that you would post it to 700 Facebook friends if you’re embarrassed and self-conscious by your injury?---
A:I disagree.”[58]
[58]T76, L24 – T77, L22
88 Under cross-examination, the plaintiff confirmed, consistent with his affidavit material, that he had not returned to golf since his neck injury. Unfortunately there was a breakdown in the Zoom technology at that time and after several attempts to resume, the following evidence was given:
MS BANNON:
Q:“Thank you, Your Honour. Apologies, Mr McKenzie, I think before I froze what I was indicating to you was that before we lost you earlier, I was enquiring about what attempts, if any, you’d made to return to golf subsequent to your injury. And I think the question I asked just before you froze was, have you made any attempt to return to golf since your injury?---
A: No.
Q:No. So, you are in fact unaware if in fact you could complete a round of golf?---
A: Yes, I’m unaware.
Q: Yes. Because you haven’t tried?---
A: No.”
HIS HONOUR:
Q:“Can I just ask you, Mr McKenzie, prior to your neck injury or prior to when you had trouble with your neck, how frequently did you play golf?---
A:It varied, sometimes I’d play sort of once a fortnight, once a month to sometimes I wouldn’t play for a few – couple of months. So, it wasn’t every week as such.
Q:Were you a member of a golf club?---
A:No.
Q:And did you have a handicap?---
A:No.
Q:No?---
A:Very bad.
Q:You’ve been asked a few questions about not playing or not trying to play since your neck injury, why have you taken that view?---Because I’m afraid that I’ll hurt myself further, I don’t want to go through that so –
A:I’m, yes.
Q:Yes. Thank you?---
A:Swinging the club.”[59]
[59]T79, L23 – T80, L15
89 Again, under cross-examination, the plaintiff accepted that he no longer sees his general practitioner on a regular basis in respect of the injury. However, he does continue to see a physiotherapist approximately every four to six weeks[60] and this has been ongoing for some time. Furthermore, the plaintiff confirmed that the only medication which he takes is over-the-counter medication. When queried by the Court about the nature of the over-the-counter medication and the frequency of use, the plaintiff gave the following evidence:
[60]T80, L26
HIS HONOUR:
Q:“Just on that, Mr McKenzie, give me an idea now, what’s the nature of the over the counter medication and secondly, how frequently do you take it?---
A:Yes, I take a combination of Panadol and Nurofen type stuff. I forget the name of it, the anti-inflammatory medication. I always take the combination. I can take it – sometimes I take it three times in a day up to twice week, maybe up to four or five times a week, I try to avoid taking it seven days a week.
Q:Fluctuation but I just don’t understand, when you do take something, what are taking? A tablet or a series of tablets, what do you mean at the time you take it?---
A:I take two tablets of Panadol and two tablets of Nurofen at the same time.
Q:When you talk two times, three times or five times, whatever it may be, you’re talking about a time represents two tablets does it?---
A:Yes.
Q:Is that - - -?---
A:Four – four tablets, two of each.”[61]
[61]T80, L30 – T81, L16
90 Under cross-examination the plaintiff confirmed that he had been a keen fisherman for a long time and that he owned his own fishing boat, which is about 7.3 metres long, which he described as a “tinny”.
91 The boat was kept in a trailer in a storage yard in Tyabb, about five minutes from where the plaintiff lived, and the boat was launched from the Hastings boat ramp which was approximately 500 metres from where the plaintiff lived.
92 The plaintiff was taken to various Facebook posts in the Defendant’s Court Book which showed the plaintiff and others, including his brother who was a part owner of the boat, out fishing.
93 The plaintiff was taken to his affidavit affirmed on 8 August 2019 wherein he stated, amongst other things, that: “‘prior to my injuries I enjoyed fishing with friends and family.’”[62] He was queried as to whether or not it was implied that he did not go fishing any longer, notwithstanding the various Facebook posts to which he was taken showing him fishing with friends. In answer to that proposition, the plaintiff stated: “No, that it’s more difficult”.[63]
[62]T57, L26-27
[63]T57, L28-29
94 Thereafter, the following evidence ensued.
Q: “Why do you use - I’m sorry, I interrupted you?---
A: Sorry. It’s not as comfortable.
Q:What do you mean by employing the past tense of ‘enjoyed’ then? That you don’t enjoy it any longer?---
A:I still enjoy it, so that was also done in August, so - - -
Q: It was?---
A:There’s no fishing, yeah, so no fishing during that period, so even though, maybe later on I got to do more fishing. I’m basing that on the previous fishing season which I would have done very little of.
Q: What is fishing season?---
A:It’s usually - usually I would - fishing would have finished in probably March to April of 2019.
Q:Yes, so four - three of the posts I took you to previously were in March and April of 2019?---
A:Yeah.”
HIS HONOUR:
Q:“Can I ask you, Mr McKenzie, obviously you’ve made claim fishing is a passion of yours, and has been and still is. Prior to any neck problems did you own the boat that we’re talking about?---
A:Yes.
Q:And as much as we can say, as best you can, and don’t say anything if you can’t over say a 12 month period how frequently would you go out in the boat?---
A:I’d try and get out every long roster.
Q:Every, sorry?---
A:Every long roster which is about every week, I try and get out at least once every week.
Q:Right. And indeed you’ve been taken to - I didn’t count them all, but about eight times or so, maybe nine, in those posts, during the year of 2019, so after the surgery. How many times would you say you would have been out in 2019, overall?---
A:I honestly couldn’t be accurate, I’d only be guessing.
Q:Are you able to say whether it would be more, less, or about the same as those earlier years?---
A:I think a little bit less.
Q:And I just wasn’t quite clear what you said earlier about when counsel took you to p.5 of your first affidavit, where (i) it is, I think it is, talking about fishing. What difficulties do you say you had, if any, in relation to going fishing in 2019?---
A:It hurts. I take pain relief before, during and after, depending how long I fish for.
Q:Right. And the reason you take tablets, obviously to relieve pain, but I suppose what I’m getting at, in asking this, for you to tell me if it’s the case, what sort of things bring on the pain when fishing? Can you say anything about that?---
A:Yeah, it would be the rocking of the boat in the water, like on rough conditions.
Q:Yes?---
A:And it’d also be from driving the boat, and need to turn around.”[64]
[64]T57, L30 – T49, L14
95 When pressed, the plaintiff accepted that he tries and goes fishing whenever he can as it is a pastime that he enjoys very much.[65]
[65]T60, L2-15
The re-examination of the Plaintiff
96 Under re-examination, the plaintiff accepted that the roles he was performing prior to his neck injury involved heavier forms of work and that in particular the type of work he would be unable to perform to the standard they require because of his neck injury.
97 The plaintiff confirmed to the Court that throughout the latter part of his treatment he requested several doctors to certify him fit to return to work and such requests were fairly persistent. In particular, the following evidence was given:
Q:“Is it fair to say that when you were asking these doctors to sign you off, and to clear you for work at BlueScope, did you feel that you had recovered one hundred per cent at the time you were making those requests?---
A:No. Not a hundred per cent, no.
Q:Why were you then asking the doctors?---
A:Because I wanted to - to get back to work and try and do my normal - whatever I could possibly, my normal duties, I wanted - I didn’t want that stigma of going on WorkCover.”[66]
[66]T84, L21-29
98 Further evidence was given in relation to the ERG – that is the Emergency Response Group – which involved the plaintiff prior to his injuries. The plaintiff confirmed that the ERG attends to fires, chemical spills, rescue and other emergency situations which occur at the plant, and that such members of the group are the first respondents to such emergency situations.
99 In particular, the plaintiff gave evidence that to be a member of the ERG you had to undergo extensive training which was repeated over the years.
100 In particular, the plaintiff gave the following evidence as to the intensity of the training and its frequency:
HIS HONOUR:
Q:“No, I’ll allow the question. I think the subject’s been raised, I’ll allow the question?---
A:Yeah, it involved, like if you had to do a rescue, they would have a dummy body that would weigh up, you know, I’d suggest 40 – 50 kilos minimum, especially if it was wet, if we poured water on it. Where we were required to go and rescue that person, we would wear – you’d have to do breathing apparatus activities where you’d climb through tunnels, it was a requirement of doing that under stress as part of the maintaining the accreditation. There’d be snatch and grab rescues, we’d have to set up equipment where we’d rescue people off tripods and that kind of stuff as well as, you know, holding a fire hose, if you were holding a hose which is a bit thicker which is 64 inch, sorry, 64 ml, that’s quite physical, it requires two people to hold that. Just basic examples.”
MR STOREY:
Q: “And do you think - - -
HIS HONOUR:
Q:“Sorry. Just one thing I meant to ask you earlier, just reminded me, when you were doing this work as a – on the EMG or ERG, how frequently was the group called out? I take it, you know, you’re working on shifts and other people are working other shifts but from your experience when you were involved with the group was it called out – was it once a week, once a month or give me some idea if you can?---
A:Yes, two actually calls, we had a lot of false alarms early on. Probably two or three times a month where you’d actually have to be a bit more physical.
Q:And how did that come about? Did you get notified on a walkie talkie or something to go to a site or something did you?---
A:Yes, we had – we had the radios but we had a large fire, we called a hooter fire alarm that would sound and we’d all turn out from our work stations.”[67]
[67]T86, L4 – T87, L5
101 The plaintiff gave evidence that he doubted whether he could complete all the training now because of his injury and in particular he referred to a scenario when the breathing apparatus is required it is quite heavy and with the requirement to crawl through dark spaces for fifteen to twenty minutes he doubts he would be able to cope with that given his neck injury. When asked whether he wanted to resign from the ERG the plaintiff said “No” and then he was queried as to why he did resign:
“I actually put in a letter to the company that I didn’t want to become the person being rescued, it was one of the things that you learn in your training that you don’t go into a situation where you become the person being rescued and I felt that I was trying to carry someone out or if I was on the end of the hose I’d put someone at risk or myself at risk further.”[68]
[68]T87, L23-29
102 When queried as to whether he could still fish today in the same way that he did prior to his injury, the plaintiff answered “No”.[69]
[69]T89, L4-5
103 When asked how it was different, the plaintiff stated:
Q:“How is it different?---
A:Just the length and the frequency. Like, I might be able to go one or two days in a row, I wouldn’t be able to do anymore (sic) than that and for the length of time. But depending on the conditions, you know, I try to go when it’s a lot more calmer and flatter and the boats not rocking around as much.
Q:Are they some activities, some fishing activities, which you are now unable to do at all that you could do pre-injury?---
A:I wouldn’t know, like deep sea like marlin fishing stuff like that, I don’t know whether I could do that kind of stuff, I haven’t tried. I’ve never done it before so I don’t know but I would suggest those bigger – really big fish I would struggle with.
Q:You referred to taking medication before, during and after the fishing trip, did you ever require medication before your injuries?---
A:No.
Q: For fishing that is?---
A: No, not for fishing, no.”[70]
[70]T89, L6-22
104 The plaintiff also gave evidence that the photo of him with his son at the gymnasium was a one-off situation. When queried as to why he did not go again the plaintiff stated:
“Yes, I wasn’t able to do – so part of the reason why I took him with me or I met him there as well was the – with his PT he knows my neck history, he was trying to give me some exercise that could probably help but I wasn’t able to maintain – there was certain ones I couldn’t even do and certain ones that I was able to do for a short period of time at home but not outside.”[71]
[71]T90, L8-16
105 When queried about the plaintiff posting photos of himself on Facebook seeming incompatible with feeling embarrassed or uneasy, the plaintiff agreed that there was only one photo of him lying in a hospital bed and the balance of the photographs were at rehabilitation, where he was outside in sometimes a sauna. In that context, the following evidence was given:
Q:“Does what you post on social media, does that always accurately reflect how you might be actually feeling?---
A:No, definitely not, no. I’ll try and - - -
Q: Can you explain that to His Honour?---
A:Well, on Facebook I try not to put anything real negative on there, I try and make it all positive and happy and that, show things that I enjoy. I’m not someone who likes to have, you know, posting how bad I’m feeling, or how bad I feel, or you know, negative stuff. I prefer, you know, it all to be positive on how things are better, and what I’m enjoying in life.
Q:Is it fair to say you’re trying to make light of your situation?---
A:And that’s very much what I do. My way of dealing with stress usually through - you know, try and find something positive for me, you know.”[72]
[72]T91, L3-17
Analysis
106 As I have already recorded, counsel for the defendant has indicated that there is no issue that the plaintiff suffered a compensable neck injury arising out of or in the course of his employment with the defendant and that such injury gave rise to permanent impairment within the meaning of the Act. For the record, I do find on the evidence available to the Court, that the plaintiff did suffer a compensable neck injury arising out of or in the course of his employment with the defendant and that injury has given rise to impairment with some consequences.
107 Although not an issue raised during the proceedings before the Court, it is to be noted that s5 of the Act states:
“(1) Except as otherwise expressly provided in this Act, this Act applies to the entitlement of a worker to compensation under this Act in respect of—
(a) an injury to the worker arising out of, or in the course of, or due to the nature of, employment on or after 1 July 2014; and
(b) an injury arising—
(i) out of, or in the course of, or due to the nature of, employment; and
(ii)by way of gradual process over a period beginning before, and continuing on or after 1 July 2014—
but does not apply to or in relation to an injury arising out of, or in the course of, or due to the nature of, employment solely before 1 July 2014.
(2) If a worker suffers an injury that—
(a) arises out of, or in the course of, or due to the nature of, employment; and
(b) occurs by way of gradual process over a period beginning on or after 20 October 1999 and continuing on or after 1 July 2014—
the worker may rely on any part of the injury that occurred before 1 July 2014 for the purposes of establishing that the injury constitutes a serious injury for the purposes of Division 2 of Part 7.
(3)Subsection (2) does not apply to any part of the injury that was the subject of an application made under section 134AB(4) of the Accident Compensation Act 1985.
(4)Division 5 of Part 7 applies in relation to an injury, disease or industrial deafness caused to or suffered by a worker before, on or after 1 July 2014 that has arisen out of, or in the course of, or due to the nature of, any employment in which the worker was employed at any time.”
108 It is to be noted that it was alleged that the plaintiff suffered injury to his neck on 12 February 2014 and thereafter employment from 12 February 2014 to August 2014 – that being the compensable injury which gave rise to permanent impairment and consequences.
109 In this respect, part of the injury is prior to 1 July 2014. Although not free of difficulty in interpreting s5, I consider the primary purpose of such subsection is to demarcate the application of the Act to apply to injuries on or after 1 July 2014, except in certain circumstances as set out in the section. However, when the word “employment” is used in ss(1)(a) and ss(2)(a) of s5, I am of the opinion that it is a reference to one employment rather than a series of employments.
110 I consider that ss(1)(a) of s5 of the Act makes clear that the general proposition applies to compensable injuries on or after 1 July 2014. Subsection (1)(b) qualifies this position that, in respect to an injury by way of gradual process it is permissible, where an employment straddles 1 July 2014, to allow that period of employment before 1 July 2014 to form part of the employment in assessing a gradual process injury, but does not apply in relation to an injury which is only compensable by employment solely before 1 July 2014.
111 After a consideration of all the evidence, I find that the neck injury suffered by the plaintiff commenced on 12 February 2014 and by way of “gradual process” continued over the following months to August 2014.
112 The critical issue between the parties is whether any permanent impairment suffered by the plaintiff in his neck is “serious” within the meaning of the narrative test.
113 The following matters must be borne in mind:
(a)As stated by the Court of Appeal (consisting of Osborn and Beach AJA) in Ellis Management Services Pty Ltd v Taylor[73] at paragraphs 57-59:
[73][2013] VSCA 326
“The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.[74]
[74]Reference was made to Humphries & Anor v Poljak (1922) 2 VR 129
Nevertheless the relevant assessment must be made objectively by the Court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.[75]
[75]Again, reference was made to Humphries & Anor v Poljak (opt cit) at 137
The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range … .”
(b) Also, the Court of Appeal in Ellis stated, at paragraph 52:
“… After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.”
(c)I also refer to the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[76] wherein Maxwell P set out various principles in evaluating the “pain and suffering consequences” and I have taken account of all those considerations. In particular, I refer to paragraphs 14-15 under the heading “The disabling effect of pain”, wherein Maxwell P states:
[76](2010) 31 VR 1
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[77]
[77]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[78] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”[79]
[78]Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [47]
[79]Reference was made again to Dwyer v Calco Timbers Pty Ltd (No 2) (op cit) at paragraph [25]
(d)I also again refer to Ellis, where the Court of Appeal expanded on the earlier comments in Haden, when it stated:
“… As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”[80]
[80]See Ellis Management Services Pty Ltd v Taylor (op cit) at paragraph [335]
This concept was enlarged upon by the Court of Appeal at paragraphs 43-44,where it was stated:
“Whether it be the loss of pleasure in doing something one used to be able to do or frustration in being unable to do something one used to be able to do, and whether or not the relevant activity is work related, such loss of pleasure or feeling of frustration falls to be considered when assessing the pain and suffering consequences of a particular injury. Further, the loss of pleasure or feeling of frustration may be all the more serious if it is suffered in circumstances where the range of activities that a person may or may not be able to engage in but for his or her injury is more limited than it might be for a person with a different skill set.
While the appellant’s argument with respect to ground 1 was initially expressed in broad terms (namely that loss of earning capacity consequences could not be relied upon by a worker seeking leave to commence proceedings for the recovery of damages for pain and suffering only), in argument the appellant accepted that loss of the ability to engage in particular forms of employment may be relevant to the issue of pain and suffering consequences in the following ways:
(a) First, pain may in fact be experienced at work or while performing particular types of work.
(b) Secondly, the inability to perform certain work may be indicative of what injury has in fact been sustained by the worker.
(c) Thirdly, a worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. Under this heading there may also be pain and suffering consequences in respect of any frustration of a worker at being unable to perform activity that he or she used to be able to perform.”
114 Before making any findings of fact, it is apposite to comment on the credit of the plaintiff. Obviously enough, credit is generally a significant issue in serious injury applications, but in the circumstances of this matter, it is particularly pertinent when one must largely rely on the credit and reliability of the plaintiff when describing any “consequences” that he suffers as a result of the impairment of his neck.
115 I found the plaintiff to be a very impressive witness with an excellent work history. The plaintiff is now aged forty-seven years and after completing Year 12 he worked as a labourer for twelve months, then commenced work with the defendant when aged about twenty – about twenty-seven years ago.
116 I found the plaintiff to be at all times attempting to give accurate answers to the questions posed by counsel for the defendant. I never gained the impression that the plaintiff was exaggerating or overstating what he perceived to be the consequences of his neck injury. In this respect, I also note the comments of the orthopaedic surgeon, Mr Carey (who examined the plaintiff on 23 October 2018 on behalf of the defendant) and the consultant neurosurgeon, Mr Drnda (who examined the plaintiff seemingly on 8 January 2020). In his report, Mr Carey noted the plaintiff was “pleasant, direct and indeed stoic in his presentation”.[81] In his report, Mr Drnda described the plaintiff as “pleasant and cooperative without any signs of embellishment”.[82]
[81]See exhibit “A” at page 22 DCB
[82]See exhibit “A” at page 28 DCB
117 I consider both of those descriptions to be apt.
118 When the Court queried counsel for the defendant as to whether there was any reason that the evidence for the plaintiff should not be accepted, Ms Bannon stated:
“Yes, well, Your Honour, I would have to say I’d like to make some submissions to you subsequently about – not so much that Your Honour shouldn’t accept the plaintiff as a witness of credit, but that there was some credulity to be applied to some of his evidence about, for example, the posting on Facebook to 700 friends and how that fitted well with being embarrassed about his injury, so I’d like to make some submissions to Your Honour about that subsequently”.[83]
[83]T105, L17-25
119 I did not understand that to be any direct attack on the credit of the plaintiff and if I be wrong about that supposition I reject any submission that the plaintiff was anything other than a credible witness.
120 After a consideration of all of the evidence, I make the following findings:
(a)The plaintiff suffered a neck injury arising out of or in the course of his employment on 12 February 2014 and thereafter to August 2014. In particular, the neck injury involved the C6-7 disc and ultimately on 18 July 2017 the neurosurgeon, Professor Bittar, performed a C6-7 discectomy (that is the removal of the disc) and an anterior interbody fusion was then performed. The very nature of the surgery resulted in some loss of flexibility in the neck. Such loss of flexibility has manifested itself in a variety of ways, including:
(i)The plaintiff has made numerous changes to his home life in an effort to reduce the strain he may put on his neck and although he accepts he can perform basic daily activities, he has to take care in lifting heavy items, gardening, bending down, or any activity that may aggravate his neck;
(ii)That the plaintiff has difficulty looking up from a seated position or indeed to finish cans of drink which require him to tilt his head backwards. This has also affected his social life to some degree, although he freely conceded that he has become involved with a new partner over relevantly recent times;
(iii)The plaintiff experiences discomfort in his neck when driving on longer trips. The plaintiff on occasion has hit his head on low-hanging branches when performing bush or coastal walks due to the difficulty he has with looking up;
(iv)The plaintiff has not resumed golf since his neck injury as he is concerned that playing golf will aggravate his neck and make his condition worse. In his evidence he commented that although not a member of a club or carrying a golf handicap, he enjoyed playing golf intermittently with friends prior to his injury;
(b)The orthopaedic surgeon, Mr Damon Thomas, the orthopaedic surgeon, Mr Roy Carey and the consultant neurosurgeon, Mr Drnda, all note that due to the C6-7 fusion there is a risk the plaintiff would likely to go on to develop aggressive degenerative change in the cervical spine.[84]
[84]See report of Mr Thomas dated 19 June 2020, exhibit 3, at pages 39 PCB; the report of Mr Carey, dated 23 October 2018, exhibit “A” at page 22 DCB; Mr Report of Dr Hazem Akil, dated 4 August 2020 at page 43 PCB
In particular, I refer to the report of the neurosurgeon, Mr Akil, where he states under the heading “Prognosis”:
“In my opinion, his prognosis is guarded. I believe that according to the most reliable literature, the chances of adjacent segment disease (adjacent level of his cervical spine) to be affected is around 2.9% annually which means that he might still require further surgical intervention in the future.”[85]
[85]See exhibit 3 at page 44 PCB
In his report, Mr Thomas noted the plaintiff could go on to develop aggressive degenerative change which may require further treatment, while physiotherapy, targeted steroid injections or further surgery, such as a repeat fusion or other cervical spine procedures.[86]
[86]See report of Mr Thomas dated 19 June 2020, exhibit 3, at page 39 PCB
Also, I note that Professor Bittar, when he made his recommendation to the plaintiff to undergo surgery, advised the plaintiff that there were risks of adjacent segment disease following a cervical spine fusion;
(c)I do find that in or about August 2019, the plaintiff made an expression of interest to fill the role of “senior process operator” and was ultimately successful. I further find that such job was approximately a 70 per cent office-based role. Furthermore, I accept the plaintiff would have applied for this job whether the injury had occurred or not.
Although he is clearly coping with such job, there are aspects of his new role which give rise to difficulties with his neck. In this respect, I refer to the cross-examination of the plaintiff when he was taken to his affidavit material wherein he deposes that on occasion he has to fill in for other people in operational roles. Counsel for the defendant suggest that this would cause him to be careful to avoid jobs which involve flexibility of the neck and only amounts to being cautious, to which the plaintiff stated:
Q: “…
A: No. It does physically hurt if I do certain jobs.
Q:Okay. And it wouldn't occur too much either, would it, if it's largely a desk based role?---
A:That can depend. If someone was to have a month's off annual leave and we couldn't get coverage I could do it for a whole week, or two, but more regularly it's only done a few hours, per day or per week.”[87]
[87]See T49, L12-19
I also accepted the evidence of the plaintiff that there were jobs that he had done in the past with the defendant which he can no longer perform given his neck injury.
(d)I also accept the evidence of the plaintiff that prior to his neck injury, his employment duties involved a “more physical role”.[88] In particular, the plaintiff gave the example that pre his neck injury he was required to perform, amongst other things, the manual packing of fifty steel coils per day, whereas it was his estimate that now he could probably do up to twenty steel coils to the required standard.[89]
[88]See T81, L26-27
[89]See generally T82-83
It is to be remembered that notwithstanding the plaintiff’s continued full-time employment with the defendant in this new job – for which he is cleared – he has suffered restrictions on his general work capacity and, indeed, these are best outlined by Professor Bittar, who opined that the plaintiff had ongoing permanent restrictions, including avoidance of heavy lifting, avoidance of repetitive neck and upper limb movements, particularly above shoulder height, avoidance of forceful pushing and pulling and avoidance of engaging in activities placing himself in situations where there is a significant chance of trauma to his head or neck (which may well explain why he has not chanced his hand at returning to golf).
Similar restrictions are suggested by the other doctors and indeed it cannot be gainsaid that the capacity of the plaintiff has been diminished to perform heavier types of work where his neck may be impacted, such work which he enjoyed performing in the past. And indeed, as set out in Ellis,[90] the inability of a worker to engage in work he or she enjoyed or the frustration of being unable to engage in former activities, work or leisure, may be matters properly to be taken into account in assessing pain and suffering consequences;
[90](op cit)
(e)I consider that a clear example of this is in relation to his involvement with the Emergency Response Group – the “ERG” ꟷ members of which attend to fires, chemical spills, rescue and other emergency situations which occur at the plant, and that such members of the group are generally the first respondents to such emergency situations. To become a member of the ERG you have to undergo extensive training which is repeated over the years.
During his cross-examination, the plaintiff accepted that he asked the neurosurgeon, Mr Brazenor (a doctor who examined him on behalf of the defendant) whether he would clear the plaintiff to return to ERG duties and made a similar request to his general practitioner, and the Court enquired and the following evidence was given:
Q:“Okay. And it was you asking both Mr Brazenor and your GP, you wanted to go back. Did you enjoy that type of work?---
A: I really did enjoy it, yeah, it was really good.
Q: Yes, and - - - ?---
A: My favourite part of the job.
Q:And indeed, since you - you asked Dr Brazenor, did he have an opinion about that?---
A: I can't - I can't recall exactly what he said at the time.
Q:Was your GP okay about going back in truth, or did you have push him or her?---
A: If I recall I think I had to push a little bit to try and - - -
Q:Yes. Yes, thank you.”[91]
I gained the impression that it was a matter of pride that the plaintiff was a member of the ERG and although he did not want to resign from the ERG he ultimately did resign because he was concerned, to his credit, that he did not want to become the person being rescued or indeed put other members at risk because of complications of his neck injury. I gained the view that this was a significant loss to the plaintiff;[92]
(f)When queried by the Court as to how frequently he experienced neck pain over the last twelve months, the plaintiff gave evidence, which I accept, that in performing the work as a senior process operator he experiences neck pain every week, and more particularly a minimum of three times per week, up to seven times per week.
Furthermore, although the plaintiff no longer sees his general practitioner on a regular basis in respect of the injury, he does continue to see a physiotherapist approximately every four to six weeks, and this has been ongoing for some time, and such physiotherapy involves neck massages (all of which is paid by the plaintiff);
(g)The plaintiff gave evidence that he takes over-the-counter medication and when queried by the Court about the nature of the over-the-counter medication and frequency of use, the plaintiff gave evidence, which I accept, that he takes a combination of Panadol and a Nurofen-type drug, the name of which he could not recall, in combination. By that, I understood his evidence to mean he would take two tablets of Panadol and two tablets of Nurofen at the same time. As to the frequency of taking such medication, the plaintiff gave evidence, and again I accept such evidence, that he would take such medication three times in a day up to twice a week, and maybe up to four or five times a week, but tried to avoid taking it seven times a week. Again, when queried by the Court about taking tablets “two times”, “three times” et cetera, he confirmed that he was talking about a time where he takes four tablets; two of Panadol and two of Nurofen or a like medication;[93]
(h)I accept that fishing is a passion for the plaintiff. I do find that the plaintiff has continued fishing reasonably regularly, however I do find, based on his evidence that he does not go fishing to the same extent as prior to his neck injury. In particular, I accept his evidence that if the seas are up, which would cause the boat to rock, he would avoid such days. Also, I accept that he finds fishing more difficult and is not as comfortable because of his neck injury. In particular, if he does go fishing his neck does generally hurt and he takes pain relief before, during and after, depending on how long he fishes for;[94]
(i)I accept that given the nature of the plaintiff, he does experience some embarrassment and a degree of stigma of having a work-related condition which has impacted on some of the work that he has undertaken in the past. Again, given the nature of the plaintiff, I accept this may have given rise to some embarrassment both at work and socially. However, I consider these consequences to be relatively mild.
[91]See T51, L14-24
[92]See T87, L22-29
[93]See T80, L27 – T81, L16
[94]See T59, L5-6
Conclusion
121 I consider no one consequence alone to satisfy the narrative test, but when all the consequences I have so found are taken into account, I am satisfied that on the balance of probabilities, the plaintiff has discharged the narrative test in that:
“When judged by comparison with other cases in the range of possible impairments ꟷ as the case may be, [can be] fairly described as being more than significant or marked and as being at least very considerable”.
122 I find for the plaintiff and pursuant to s335(2)(d) of the Act grant leave to him to bring common law proceedings for pain and suffering damages only in respect of a neck injury arising out of or in the course of his employment with the defendant, initially on 12 February 2014 and thereafter to 2 August 2014.
123 I shall hear the parties on any consequential orders and the question of costs.
- - -
Annexure “A”
1 The plaintiff tendered the following documents:
Exhibit 1
ꟷ affidavit of the plaintiff affirmed 8 August 2019
ꟷ affidavit of the plaintiff affirmed on 28 July 2020
ꟷ affidavit of the plaintiff affirmed on 24 August 2020
(all such material found at pages 8-16 and from pages 54-58 of the Plaintiff’s Court Book (“PCB”).
Exhibit 2
ꟷ medical reports from Dr Joyce Liang, the general practitioner of the plaintiff, dated 9 March 2018 and 5 June 2018
ꟷ reports from the neurosurgeon, Professor Richard Bittar, dated 16 December 2016, 11 April 2017, 18 July 2017, 20 March 2018 and his final report dated 1 October 2020
ꟷ reports from the occupational and environmental medical specialist, Dr Kilner Brasier, dated 13 April 2017 and 19 March 2018
ꟷ reports from the exercise physiologist, Mr Joshua McCarthy, dated 25 July 2017
ꟷ reports of the physiotherapist, Ms Colette McCarthy, dated 3 August 2010 and 21 June 2016
(all such material found at pages 17-34 and from pages 6-64 of the PCB).
Exhibit 3
ꟷ report from the plastic and reconstructive surgeon, Mr Damon Thomas, dated 19 June 2020
ꟷ reports from the neurosurgeon, Dr Hazem Akil, dated 4 August 2020 and 8 October 2020
(all such material found at pages 37-45 and from pages 58-59 PCB).
Exhibit 4
ꟷ MRI scan of the cervical spine, dated 19 June 2015
ꟷ MRI scan of the cervical spine, dated 12 January 2017
(both these reports can be found at pages 46-49 PCB).
Exhibit 5
ꟷ Claim Form by plaintiff, dated 15 February 2014
ꟷ Claim Form, dated 3 December 2014
(such material found at pages 50-53 PCB).
2 The defendant tendered the following material:
Exhibit “A”
ꟷ report of the neurosurgeon, Dr Graeme Brazenor, dated 20 September 2016
ꟷ report of the orthopaedic surgeon, Mr Roy Carey, dated 23 October 2018
ꟷ report of the neurosurgeon, Mr Armin Drnda, dated 8 January 2020
(all such material found at pages 5-31 Defendant’s Court Book (“DCB”)).
Exhibit “B”
ꟷ Certificate of Capacity, dated 12 September 2018
(found at pages 36-37 DCB)
ꟷ email chain running from 23 October 2018 to 25 October 2018
(such material found at pages 38-40 DCB).
Exhibit “C”
ꟷ social media extracts (found at pages 41-233 DCB).
Exhibit “D”
ꟷ email from Scott Fry to Davran Hamilton, dated 10 September 2019.
Exhibit “E”
ꟷ extracts from Tyabb Health Clinical Records pertaining to the plaintiff
(such material found at pages 244-250 DCB).
0
7
0