McQueen v GT Spedding Pty Ltd

[2014] VCC 1270

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY

Case No. CI-13-05374

STEVEN ALLAN MCQUEEN	Plaintiff
v
GT SPEDDING PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Bendigo
DATE OF HEARING:	30 July 2014
DATE OF JUDGMENT:	13 August 2014
CASE MAY BE CITED AS:	McQueen v GT Spedding Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VCC 1270

REASONS FOR JUDGMENT
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Subject:Serious injury – permanent serious impairment or loss of body function- cervical spine function

Catchwords:            
Legislation Cited: s134AB(16)(b) of the Accident Compensation Act 1985
Cases Cited:            
Judgment:                Leave granted to the Plaintiff to commence proceedings.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighel QC with Mr R Ajezensztat	Arnold Dallas McPherson
For the Defendant	Mr W R Middleton QC with Mr R Kumar	Hall & Wilcox Solicitors

HER HONOUR:

1 Steven McQueen brings this application under s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”).

2       He seeks leave to bring proceedings to recover damages in respect of injury during the course of his employment with GT Spedding Pty Ltd on 13 November 2007.

3       It is not in dispute that Mr McQueen suffered a compensable injury, namely an injury to his neck, as a consequence of an incident that arose on 13 November 2007. 

4       The application is limited to leave for pain and suffering damages only.

5       Mr McQueen was the only witness to give viva voca evidence. No other witnesses were required by the parties for cross-examination. He answered questions in cross-examination without exaggeration. He gave his evidence in a straight-forward manner and did not embellish. No surveillance film was relied upon to attempt to attack his credit. I accept him to be credible and reliable.

6       Taking into account the totality of the evidence in this case and particularly the impression I formed of the Plaintiff as he gave his evidence, I am satisfied that the Plaintiff presents as a stoic, well-motivated person. I accept his evidence about the injury and its consequences as described in his two affidavits sworn 9 May 2013 and 29 July 2014.

7       By way of background Mr McQueen is aged 43. He was employed as a driver/loader by the Defendant at its Eaglehawk premises. On the day of injury he was helping to unload a truck. Having finished that task he stood on the tailgate, which had been released by another employee without his knowledge. As a result the tailgate gave way causing him to fall some distance to the ground between the truck and the loading dock. He suffered injury to his neck and right shoulder.

8       Mr McQueen kept working with symptoms and he did not seek medical treatment until 28 November 2007. He first consulted Dr Charles Kerr, General Practitioner, who diagnosed soft tissue injury to the cervical and thoracic spine. He treated Mr McQueen with non-steroidal anti-inflammatory medication. 

9       Later Dr Ian Jones, General Practitioner, took over the conduct of Mr McQueen’s treatment.  He first saw him on 3 December 2007 and at that time he was complaining of discomfort in the neck, right shoulder and right lower chest wall with restricted shoulder movements. 

10      X-rays of the cervical, thoracic and right shoulder were arranged.  The x-rays showed quite marked degenerative changes which Dr Jones stated could be due to previous injury.  Apparently when he was aged 12 Mr McQueen was struck by a vehicle whilst riding his bicycle and suffered injury to his cervical and thoracic spine.  However, Dr Jones considered there was evidence of some wedge compression fractures in the thoracic spine which were probably related to the more recent injury at work on 13 November 2007. 

11      Therefore, Dr Jones considered the injuries sustained in the accident on 13 November 2007 were aggravation of previous degenerative changes in the thoracic and cervical spine, probably new wedge compression fractures to the thoracic spine, rotator cuff injury right shoulder, diffuse tissue injury to the upper trunk.

12      Mr McQueen was referred to Mr Tiew Han, Neurosurgeon, and Mr Huw Williams, Orthopaedic Surgeon. 

13      Mr Han saw him on the one occasion on 26 February 2008. He considered that Mr McQueen’s symptoms were widespread and likely to be related to a combination of soft tissue injury, as well as possible C5/6 disc herniation. He recommended conservative treatment and that he should consider physiotherapy and continue with Panadeine Forte.  He did not recommend any further investigations. 

14      Mr Huw Williams, Orthopaedic Surgeon, saw him for review on 25 July 2008.  He was primarily concerned with his presenting problem, namely a painful stiff right shoulder. He diagnosed that as a frozen shoulder or an adhesive capsulitis.  Mr Williams postulated the prognosis for that condition was of spontaneous resolution over the next three to six months. Occasionally there could be ongoing symptoms. Fortunately for Mr McQueen the right shoulder symptoms did resolve.

15      Mr McQueen was referred in 2009 for a pain management rehabilitation program at the John Lindell Rehabilitation Unit at the Anne Caudle Centre, Bendigo.  He undertook a 10 week outpatient program and as a result of that program he noted improvement in the function of his cervical spine and shoulder. 

16      Dr Jones, in his report dated 16 December 2009,[1] states notwithstanding the rehabilitation program, Mr McQueen still had quite marked restriction in the movement of his cervical spine and both shoulders.

[1]Plaintiff’s Court Book (“PCB”) 29

17      This application is limited to the neck injury, namely a soft tissue injury and C5/6 disc herniation. Therefore I will focus on the evidence concerning the neck function following injury. 

18      Dr Jones, in his later report of 10 February 2010, notes that there was still some impairment of the Plaintiff’s cervical spine movement following the pain management  treatment. He considered that his condition had stabilised and over time there would be anticipated slow and steady improvement.

19      Dr Jones considered Mr McQueen had limitation of cervical spine movement and shoulder function that prevented him from doing any heavy lifting above shoulder height.  He also considered it posed a problem with driving as it was difficult for the Plaintiff to look over his shoulder to check vehicles behind him as he needs to turn his whole body rather than turn his head.  However, he stated that the Plaintiff was able to compensate for this to some extent.[2] 

[2]PCB 31

20      In that report Dr Jones also noted that Mr McQueen needed some assistance with heavy work around the house, such as gardening and mowing lawns because his general condition precluded him from doing such things.

21      Following rehabilitation Mr McQueen was able to resume employment driving trucks with different employers. Initially he worked for Cooltrans and then he obtained work with his present employer AG & KM Adams. Fortunately, he has been able to cope with full-time employment driving trucks.

22      His current employer took over responsibility for the delivery of the Tip Top bakery products from the Bendigo site. Mr McQueen delivers bread to Dandenong, around the Bendigo region and very occasionally interstate. His employer is aware of his situation and is very understanding. He manages well within his physical limitations and is not required to perform any heavy lifting. 

23      In his affidavit material he confirms that pain continues to affect him most of the time. He has ongoing complaints of neck stiffness and soreness. He continues to get headaches. Over the years he was taking Panadol and Panedeine Forte for the pain and discomfort. The driving causes pain because it requires him to move his neck a lot.[3]

[3]PCB 23, paragraph [16]

24      He did not see Dr Jones for some three and three-quarter years until the 18 February 2014 when he consulted him regarding prescription for analgesia.  Dr Jones states that this was his first consultation since 28 June 2010. 

25      At that review he noted that Mr McQueen requested a prescription of Panadeine Forte and that he had been using that medication for pain relief some three to four times per week. Mr McQueen indicated to the doctor that the medication he was using had been supplied by a family member. He told the doctor it was for the relief of ongoing neck and shoulder pains.[4]

[4]PCB 32

26      Dr Jones noted that with adequate pain relief the Plaintiff was able to manage work and home commitments reasonably well but did struggle at times.  He persuaded the Plaintiff to avoid prolonged regular use of Panadeine Forte and as an alternative suggested that he should trial regular Panadol Osteo, two tablets three times daily, and Naproxen, an anti-inflammatory, twice daily as needed. He also recommended heat and massage.

27      That evidence is consistent with the Plaintiff’s affidavit material.

28      Dr Jones anticipated Mr McQueen would require regular analgesia into the future to manage his chronic pain.

29      The consensus of medical opinion is that the cervical spine injury has stabilised.  Mr McQueen has not required any intensive management of his condition and has largely self-managed the condition through modifying activities so as not to expose himself to risk of injury and also self-medicating with pain relief such as Panadeine Forte and now Panadol Osteo, two tablets three times daily, and Naproxen, twice daily as needed. 

30      Mr McQueen has been reviewed for medico-legal purposes. 

31      He was seen by Mr John O’Brien at the request of his solicitors on 22 January 2014.  Mr O’Brien’s opinion is that there was currently very definite restriction of movement of the cervical spine associated with some moderate local tenderness but without any evidence of nerve root compromise or radiculopathy.[5] 

[5]PCB 41

32      Mr O’Brien’s opinion is that the Plaintiff presents with significant symptoms of cervical spondylosis.[6]  He finds on the basis of the history that the fall at work resulted in aggravation of pre-existing cervical spondylosis which subsequently remained a significant symptomatic problem. 

[6]PCB 42

33      The Plaintiff’s clinical condition is stable. He did not recommend any active treatment and stated that the Plaintiff can rely on analgesic medication to control pain. No surgery is indicated.

34      Mr O’Brien considered that the Plaintiff is limited in general, social, domestic and recreational activities and that will be permanent.

35      Dr James Rowe, Specialist Occupational Physician, examined Mr McQueen on two occasions at the request of the worker’s compensation agent.  He saw him on 27 November 2008 and 26 November 2009.  At the last review Mr McQueen had just completed the rehabilitation program. Mr McQueen reported some pain about the neck on the right side and neck movements were stiff.[7] He reported that he was taking Tramadol SR, Baclofen and Panadol for pain when needed.

[7]DCB 16

36      Dr Rowe noted the stiffness of movement in the neck, but the range was much better than the first examination, in particular lateral flexion to the right and rotation to the right were much improved.[8] 

[8]DCB 17

37      He confirmed the ongoing complaint of neck pain with some immobility. He noted considerable improvement and stated that the Plaintiff could return to full time work as a truck driver. He might have some restrictions, such as not lifting or elevating his arms overhead with weight, otherwise he thought the Plaintiff was fit for suitable employment. He did not recommended any ongoing formal treatment.

38      He considered that the Plaintiff’s condition had stabilised and the prognosis was good. The treatment by way of simple medication is reasonable and no formal treatment was recommended.

39      Mr Brendan Dooley, Orthopaedic Surgeon, reviewed the Plaintiff on 27 July 2010 and confirmed the diagnosis of soft tissue injury cervico-thoracic spine with aggravation of pre-existing disc degenerative changes at C5/6 level with non-verifiable referred pain to the right arm but with no signs of radiculopathy affected his right arm.[9] 

[9]DCB 22

40      His examination of the neck showed some stiffness of movements in the neck with minor muscle spasms noted; neck posture was normal.[10]

[10]DCB 22

41      Mr Dooley considered that the cervico-thoracic spinal injury had fully stabilised.[11]

[11]DCB 26

42      He was optimistic that the Plaintiff would gradually make a good overall recovery and that he should be able to continue working in his present occupation as a truck driver which did not involve heavy use of the right arm with loading or unloading, all of which was done by forklift. That optimism has been borne out in practice.

43      Mr Michael J Dooley, Orthopaedic Surgeon, reviewed the plaintiff on 24 March 2014. 

44      He recorded complaints of ongoing pain in the neck, shoulder girdle and upper back. The pain is managed by Panadol Osteo and anti-inflammatories.[12]

[12]DCB 29

45      He confirms in the fall that the Plaintiff sustained a soft tissue injury to the cervical spine that involved musculoligamentous damage and some aggravation of underlying degenerative disc disease.

46      Plain x-rays and CT scanning of the cervical spine show evidence of narrowing at the C5/6 level. CT scanning of the cervical spine is reported to show significant degenerative change at the C5/6 level with some resulting right foraminal stenosis.

47      Mr M Dooley’s examination revealed moderate restriction of cervical spine motion with no evidence of radiculopathy affecting upper limbs. He considered it was appropriate for the Plaintiff to undertake regular low impact exercise, take simple analgesia and anti-inflammatory medication as required and sensibly modify his activities, and that he was fit to continue with current employment. 

48      Mr Dooley postulated that the Plaintiff would continue to have some intermittent cervical spine pain, in addition to shoulder, girdle and upper thoracic spine pain.  He did not anticipate the Plaintiff’s condition would deteriorate. 

49      He confirmed the Plaintiff was not able to carry out regular heavy physical work or work that involved a lot of activity at and above head level.[13] That finding reflects the overall consensus of medical opinion.

[13]DCB 30

50      Mr McQueen is aged 43, he was born on 12 February 1971.  He is a highly motivated individual with an excellent work history. He has always undertaken manual type work. After he left school after Year 11 he worked as a boner and slaughterman for about 14 years with Castle Bacon and then he went to a dairy company delivering milk. Thereafter commenced work with Rick & Sue Bell Transport prior to commencing with GT Spedding Pty Ltd as a driver/loader.

51      After the injury he successfully re-entered the work force. From his evidence it is evident that the Plaintiff is able to manage his truck driving duties and that is reflected in the income that he has been able to generate following his return to work.  For the year ended 30 June 2011 the Plaintiff’s gross earnings were $84,237, and for the year ended 30 June 2012 his gross earnings were $82,239.

52      He starts at 4pm in the afternoon and depending on the run he finishes at 4am. He works an average of 4 to 6 days.[14]  Mr McQueen has a supportive employer who allows him to rest during a shift if he needs to do so. In re-examination he confirmed he takes more breaks than is required for the log book.[15] He described the regular breaks he takes throughout his journeys. [16] 

[14]T12, L24-30

[15]T22, L20-23

[16]T22, L24-31; T23 L1-20

53      Mr McQueen lives on a 24 acre rural block in Muckleford, a small rural hamlet 35 km from Bendigo. He lives there with his partner, Roslyn and their six year old daughter.

54      Mr McQueen sets out in his affidavits the consequences of his neck injury. I accept that the neck pain continues to affect him most of the time and he continues to get headaches. He takes Panadol at least once most days. His neck remains quite stiff and restricted in movement.  A sharp movement of his neck invariably triggers a severe headache.[17] 

[17]PCB 24B

55      He works because he needs to but he is in almost constant pain.[18]

[18]PCB 24C

56      Since February 2014 he has been following Dr Jones’s recommended pain management regime, that is, taking Panadol Osteo three times a day as well as Naproxen twice daily as needed. He says he is still required to take extra Panadol when the pain is worse. He states he works because he needs to but he is in almost constant pain. By the time he gets home he has little energy to do anything else. He has broken sleep and is woken by the pain quite often.  He uses a heat pack and tries to get back to sleep.[19] His sex life is limited as this can aggravate his pain.[20]

[19]PCB 24C

[20]PCB 23, paragraph [17]

57      I accept as a consequence of the neck injury and associated impairment he is limited in the sorts of activities he can undertake. For instance, prior to injury he fenced the whole property and cut all his own firewood.  Because of the neck pain his partner now does the fencing, mowing the lawns and caring for the stock.  He now buys his firewood. 

58      He has a horse on the property and says because of his injury he no longer rides that horse. It is apparent from his evidence that he was not really engaging in any major riding activity before the incident. Nonetheless, I accept that he did have a love of riding horses and because of his neck pain is precluded from doing that activity. 

59      I accept that the pain and restriction of movement in his neck limits what sort of activities he can do with his young  daughter.

60      All the doctors agree he can no longer carry out regular heavy physical work or work that involves a lot of activity at and above head level.

Conclusions

61      I am satisfied that Mr McQueen suffered a compensable injury to the neck that impairs the function of the cervical spine.

62      I accept that he was able to return to employment where the physical limitations as described by the doctors have been accommodated.

63      I accept his evidence about the pain, neck stiffness and limitation of movement that he suffers with the need for regular pain relief to manage the pain.

64      It has now been almost seven years since the incident. His situation can be regarded as chronic. For a 43 year old, the prospect of ongoing pain and restriction of movement of such a chronic nature, is a serious consequence. Equally, his inability to carry out any regular heavy physical work or work that involves a lot of activity above head level is a serious consequence.

65      I am satisfied that as a result of the compensable injury Mr Collins has suffered a “permanent” impairment to the function of the cervical spine; that is, his impairment is “likely to persist in the foreseeable future”.[21]

[21]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18] to [19]

66      It has been recognised that a stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[22] 

[22]ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at paragraph [70]; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (17 December 2008) at paragraph [3]

67 Overall, having regard to the totality of the evidence I find that the “consequences” of the neck injury in relation to “pain and suffering ” are “serious” that is, “when judged by comparison with other cases in the range of possible impairments be fairly described as more than significant or marked, and as being at least very considerable” [23].

[23]Accident Compensation Act 1985 (Vic), s134AB(38)(c)

68      Accordingly, the Plaintiff has satisfied the test for serious injury in so far as pain and suffering consequences and leave to proceed is granted.