Mitchell v Ashton Pty Ltd & Anor
[2011] VSCA 47
•3 March 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2009 3908 | |
| MARK MITCHELL | Appellant |
| v | |
| ASHTON PTY LTD (Trading as Swan Hill Abattoirs) & Anor | Respondents |
---
| JUDGES | ASHLEY and TATE JJA and HARGRAVE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 4 February 2011 |
| DATE OF JUDGMENT | 3 March 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 47 |
| JUDGMENT APPEALED FROM | Mitchell v Ashton Pty Ltd (Unreported, County Court of Victoria, Judge Robertson, 7 December 2009) |
---
Accident Compensation – Serious injury application – Dismissed by County Court Judge – Injury essentially soft tissue and resolved – Current consequences not serious – Appeal dismissed.
---
Appearances: | Counsel | Solicitors |
| For the Appellant | Mr C W R Harrison SC and Mr R W Dyer | Nowicki Carbone |
| For the Respondents | Mr M F Wheelahan SC and Mr S A O’Meara | Hall & Wilcox |
ASHLEY JA:
I have read in draft the reasons for judgment of Hargrave AJA and I respectfully agree with them.
TATE JA:
I agree with Hargrave AJA.
HARGRAVE AJA:
Introduction
On 11 December 2006, the appellant, Mark Mitchell, was employed by the respondent, Ashton Pty Ltd (trading as Swan Hill Abattoir) as a carcass assessor and labourer. On that day, a cow carcass fell on his back and knocked him to the ground (the ‘workplace accident’). As a result of this workplace accident, Mr Mitchell suffered an injury to his thoracic spine (the ‘workplace injury’).
Mr Mitchell applied to the County Court for leave to bring a common law proceeding against the respondent, for the recovery of pain and suffering damages only, in respect of his workplace injury. The application was made pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’). In order to succeed in his application, Mr Mitchell was required to satisfy the County Court, on the balance of probabilities, that his workplace injury was a ‘serious injury’ as defined in s 134AB(37) of the Act. In that regard, he relied upon paragraph (a) of the definition of ‘serious injury’, contending that his injury was a ‘permanent serious impairment or loss of a body function’. Further, by s 134AB(38)(c), Mr Mitchell was required to satisfy the County Court that his impairment or loss of body function is, when judged by comparison with other cases in the range of possible impairments, fairly described as being more than significant or marked, and is properly to be described as ‘at least very considerable’.
The trial judge dismissed the application, principally because he found that Mr Mitchell’s workplace injury was: (1) ‘essentially in the nature of a soft tissue injury’ and (2) that ‘such injury effectively resolved over a short period of time.’[1]
[1]Reasons, [43(3)].
Nature of the appeal
The first issue for determination on appeal is whether the trial judge erred in making these principal findings. The appeal was conducted on the agreed basis that the appeal against both of these findings is governed by s 74(3) of the County Court Act 1958,[2] attracting the usual principles for appellate review, as developed in cases such as Fox v Percy,[3] CSR Limited v Della Maddalena,[4] and Kelso v Tatiara Meat Pty Ltd.[5] Although the challenged findings in this case are not identical to the issue which fell for consideration in Kovacic v Henley Arch Pty Ltd,[6] as to whether there was in fact a workplace accident, I will proceed on that basis. However, if the correctness of these findings falls to be decided by this Court for itself under s 134AD of the Act, I would have made the same decisions on that basis. For that reason, and also because we have not had the benefit of full argument on the issue, it is unnecessary to decide the correctness of the agreed basis upon which these aspects of this appeal should be determined.
[2]Reference was made to Kovacic v Henley Arch Pty Ltd [2009] VSCA 56, [4].
[3](2003) 214 CLR 118.
[4](2006) 80 ALJR 458.
[5](2007) 17 VR 592 (Dodds-Streeton JA).
[6][2009] VSCA 56.
The second issue for determination, once the nature of the workplace injury has been ascertained, is whether that injury was a ‘serious injury’ within the meaning of the Act. In that respect, the parties accepted that this appeal is governed by s 134AD of the Act, notwithstanding its repeal on 10 December 2009.[7] Section 134AD of the Act requires this Court to decide the issue of serious injury for itself. In performing that task, this Court must take into account all of the evidence and other material before the judge who heard the application, and also any other evidence which this Court is entitled to receive under any other Act or rules of Court.
[7]Accident Compensation Act 2010 ss 60, 2(5).
Importantly, for the purposes of this appeal, where the judge who heard the application records in his or her reasons for judgment an observation concerning a witness’s demeanour, that observation should be taken into account by this Court.[8] In this case, as appears below, the trial judge made observations in his reasons about the manner in which Mr Mitchell ‘presented to the Court’ during the course of the hearing before him. Based on his observations as to Mr Mitchell’s presentation in Court, the trial judge concluded that his presentation in Court (and to the doctors who examined him) was ‘in stark contrast’ to his appearance on video surveillance films. These observations by the trial judge should be taken into account by this Court on appeal.
[8]Church v Echuca Regional Health [2008] VSCA 153, [107]-[109], [125]-[126].
Relevant background facts
At the time of the hearing in the County Court, Mr Mitchell was 33 years old. He had previously worked for the respondent as a labourer, between January 1994 and July 1997. During this period of employment, he suffered a number of minor employment related injuries, which were treated and resolved promptly.
In July 1997, Mr Mitchell was involved in a serious motorcycle accident. Among other things, he sustained a severe closed head injury with post-traumatic amnesia lasting two or three weeks and, in all probability, a fracture of his thoracic spine at T1. As a result of this injury, x-rays were taken of his cervical spine and a CT scan of his lumbar spine. It appears that there were no radiological examinations of his thoracic spine at this time.
As a result of his injuries in the motorcycle accident, Mr Mitchell was an in‑patient in hospital for about two and a half weeks and, subsequently, an in‑patient at the Acquired Brain Injury Unit in another hospital for a similar period. Following these hospitalisations, Mr Mitchell required significant rehabilitation as an outpatient, including undergoing therapies to recover his concentration and memory and physical rehabilitation treatments.
According to Mr Mitchell, he fully recovered from his injuries arising from the motorcycle accident. From 1998 he was engaged in physical employment, including occasional farm work, working for a home removal company, driving and working as a pizza chef. In 2000, he commenced a winter seasonal business of chopping and delivering firewood to customers in the Swan Hill area. In this business, he would drive his ute to his uncle’s property in southern New South Wales, saw timber into logs and load his ute with approximately 2½ tonnes of timber. He would then take the timber home and split it, store it and supply it to customers as a required. This was obviously heavy physical work. By the time of the workplace accident, Mr Mitchell was working up to 65 hours per week in various roles.
Mr Mitchell also led an active recreational life. Between 2003 and 2006, he participated annually in the ‘Cancer Council Relay for Life’, running approximately 80 kilometres in 2006. He played competitive B-grade cricket and received some awards in respect of his participation in the 2002/2003 and 2003/2004 seasons.
In January 2006, Mr Mitchell commenced employment with the respondent as a carcass assessor and labourer.
The immediate aftermath of the workplace accident
Immediately following the workplace accident, Mr Mitchell attended at the Swan Hill District Hospital. No doctor was available to consult him. A nurse recommended that he attend a physiotherapist. As a result, he consulted Greg O’Bree, physiotherapist. Mr O’Bree treated Mr Mitchell on three occasions between 11 and 18 December 2006. In his report addressed to the respondent’s insurer, Mr O’Bree recorded Mr Mitchell’s account of the workplace accident, which was consistent with his evidence before the County Court. Further, he recorded that his examination of Mr Mitchell revealed reduced thoracic and trunk range and generalised tenderness in that region of his back. He assumed that Mr Mitchell’s injury was ‘soft tissue bruising in the regions mentioned’ of an acute nature and thought that it was unlikely to give continuing problems. He said in his report:
Treatment consisted of manual therapy techniques, electrotherapy and mobility programs. I have reported at this time that he had significant improvements with each treatment. At this time I consulted Mark on 3 occasions and discharged him on the 18th December as he was going to Western Australia for a holiday. Mark has not consulted me since this date.
…
As outlined above, Mark responded very well to physiotherapy immediately following the incident in question. It was expected at this point that this was an acute injury and would not require treatment following discharge on the 18th December 2006. I have no understanding of why Mark did not return to Mallee Physio if his condition exacerbated and due to no communication with Mark it is difficult to comment on the legitimacy of his claim.
Mr O’Bree’s assumptions concerning Mr Mitchell’s injury, and his opinion that it responded well to treatment, are supported by what happened next. A few days later, on 20 or 21 December 2006, Mr Mitchell drove from Swan Hill to Perth in only one and a half days. After a short holiday over the Christmas period, he then drove back from Perth to Swan Hill over a period of three days, sharing the driving on occasions with his mother. He said that his back ‘was not very good’ during the drive to and from Perth.
He returned to his usual employment with the respondent on 4 January 2007. At this time, he did not seek further time off work or re-assignment to lighter duties.
On 24 January 2007, Mr Mitchell attended his local medical centre and was seen by a general practitioner. The records of that consultation disclose that Mr Mitchell made no complaint about continuing pain from his workplace injury. The purpose of the consultation was to obtain medical certificates to support his WorkCover claim for his brief absence from work in December 2006, immediately following the accident, and consequent period of light duties at that time. A certificate of capacity prepared by the general practitioner, and adopted by Mr Mitchell’s own signature, states that he was expected to be fit for normal work duties on 21 December 2006 and that no further date for a medical review had been set. This indicates that Mr Mitchell presented to his general practitioner on that day on the basis that his workplace injury had been resolved.
Mr Mitchell said that he ceased work as a pizza chef in about February 2007, as he was experiencing too much pain. No further particulars were given.
It was not until 27 March 2007 that Mr Mitchell sought further medical assistance concerning his workplace injury. He attended at the Emergency Department of the Swan Hill District Hospital and was issued with a certificate of incapacity for work until 29 March 2007. At his request, x-rays were taken of his spine. The contemporaneous records prepared by hospital staff at this time record the following relevant matters:
(1) On presentation to the triage nurse, Mr Mitchell complained of continuing back pain arising from the workplace accident. He told the nurse that he was not taking analgesia for that pain.
(2) Mr Mitchell told the emergency doctor that his pain had arisen ‘since last three days’. He described the pain as ‘stiff muscle at back’. He said that there was no radiation of pain but he felt alternating weakness on the left side and then the right side.
(3) On examination, Mr Mitchell was tender in the thoracic and lumbar areas of his spine, had pain when bending his back and mild tenderness at the back of his neck.
(4) The emergency doctor diagnosed back pain and prescribed ibuprofen and diazepam. X-rays of the cervical, thoracic and lumbar spine were ordered.
The x-rays were performed that day. The radiologist’s report noted ‘an old un-united fracture at the tip of the T1 spinous process and a moderate old compression fracture in the T5 vertebral body’.[9]
[9]Emphasis added.
On 29 March 2007, Mr Mitchell attended his general practitioner, Dr T Wang. In his notes of this consultation, Dr Wang noted the x-ray results, in particular the T5 compression fracture. He recorded Mr Mitchell as complaining of back pain and pain radiating to the left leg when walking. On examination, Dr Wang reported ‘mid low back mild tenderness’. He advised Mr Mitchell to cease taking ibuprofen and other medication, and to replace it with paracetamol and a lower dose anti-inflammatory medication.[10] Dr Wang issued Mr Mitchell a certificate to the effect that he was fit for light duties only for the next month.
[10]Voltaren 25 mg instead of 50 mg.
Mr Mitchell then returned to work on modified light duties and restricted hours. On 30 March 2007, Mr Mitchell made a second work cover claim. In that claim form, he described his injury as ‘crush thoracic spine’. This description was probably the result of him being informed of the x-ray results, particularly the reference to a compression fracture at T5.
In his first affidavit, Mr Mitchell deposed that his back pain in March 2007 arose ‘after working fulltime for a week’. However, that evidence should be seen in the light of Mr Mitchell’s wood chopping activities during that month. In his affidavits, Mr Mitchell disclosed that he began receiving orders for fire wood for the forthcoming winter period ‘in or around March 2007’ and that he accordingly ‘continued with [his] wood chopping and selling business’ at this time. He said that he was only able to manage this work by taking large amounts of pain killers, resting as often as possible and obtaining assistance from other people.
It is clear that Mr Mitchell continued with his wood chopping business after attending at the Emergency Department of the Swan Hill Hospital on 27 March, and after being certified by his general practitioner as fit only for light duties on 29 March 2009. He was observed by a fellow worker undertaking wood cutting activities on 9 April 2007. When this was brought to his attention by his fellow employee, a production manager employed by the respondent, he replied that he had to make money somehow. This evidence was not challenged by cross-examination.
Mr Mitchell’s employment with the respondent was terminated on 17 June 2007.
Medical evidence
Mr Mitchell was examined by a number of orthopaedic surgeons and other medical practitioners. Reports were provided to him, his solicitors or the respondent’s solicitors. Further, a number of radiological investigations were undertaken in respect of Mr Mitchell’s workplace injury.
I will first consider the radiology. The evidence disclosed that there were no x-rays taken of Mr Mitchell’s thoracic spine following the motor cycle accident in 1997. The T1 fracture was identified from limited views contained in an x-ray of Mr Mitchell’s cervical spine.
As noted, the x-rays taken on 27 March 2007 disclosed, in addition to the T1 fracture, a moderate ‘old compression fracture’ at T5. No abnormality was detected in the lumbar spine.
A CT scan of T5 and the lumbar spine was performed in May 2007. Degenerative changes at T5 were reported, with no evidence of any fracture fragments or any narrowing of the spinal canal or foramina. Mild disc bulges at L3-4 and L4-5 were reported, without any definite evidence of neural impingement.
A bone scan was performed in August 2007. It showed no evidence of a recent thoracic fracture. No cause was found for Mr Mitchell’s reported symptoms of low back pain radiating down his left leg.
An MRI was performed in September 2007. The radiologist’s report concludes that the T5 comprehension fracture ‘appears to be longstanding and benign in nature’. No cause for right leg pain was identified. It is not clear whether the report is in error in referring to symptoms of right leg pain being reported, as opposed to left leg pain. In any event, the MRI revealed that all of the lumbar discs showed a ‘preserved signal’ and the small disc bulges at L3/4 and L4/5 were ‘not causing significant canal or foraminal stenosis’.
Dr Wang referred Mr Mitchell to Mr Travis Perera, orthopaedic surgeon. He was first examined by him on 27 July 2007. In his first report, dated 1 August 2007, Mr Perera recorded that Mr Mitchell complained of pain between his shoulder blades, especially when he breathes deeply, inability to stand for any length of time due to pain in the base of his spine and a ‘buzzing sensation in the left leg’. Further, he recorded that Mr Mitchell told him that the light duties which he had been assigned required him to stand a lot and to use a heavy screwdriver. He said he was unable to continue with these duties. I note that there is no mention in this report of other difficulties which Mr Mitchell said in oral evidence caused him to be unable to continue with these light duties.
Following examination, Mr Perera reported that ‘clinically there was very little that I could find wrong with him’. Given the disparity between the reported symptoms and the lack of any clinical evidence to support them, Mr Perera sought permission from the respondent’s insurer to request an MRI scan. The resulting MRI scans have been referred to.
Following receipt of the MRI report, Mr Perera saw Mr Mitchell again on 6 September 2007. Mr Perera reported that, at this time, Mr Mitchell’s symptoms did not appear to have changed. The MRI confirmed the existence of the compression fracture at T5. In a further report, dated 26 September 2007, Mr Perera stated that the T5 fracture required no specific treatment, and suggested that neurological tests be performed on Mr Mitchell to further investigate the reported ‘buzzing’ in his left leg. He concluded with the opinion that there was ‘very little else that I could offer him personally’.
On 17 October 2007, Mr Perera saw Mr Mitchell for the last time. There was no change to his opinions. He referred to an additional MRI scan which had not identified any abnormal enhancement in the spinal cord and stated that ‘overall therefore there does not appear to be an ongoing problem’.
Reading Mr Perera’s reports as a whole, it is clear that he found no clinical evidence to support the symptoms being reported by Mr Mitchell.
Mr Mitchell’s treating general practitioner, Dr Wang, was of a similar view. In his view, the relationship between Mr Mitchell’s workplace injury and his current symptoms was unclear.
Another general practitioner, Dr Booth, expressed the tentative view that Mr Mitchell had suffered either a new injury or an aggravation of a pre-existing injury as a result of the workplace accident, ‘with the possibility of a T5 fracture’.
Given that Mr Perera felt that he could offer no assistance to Mr Mitchell, Dr Wang next referred Mr Mitchell to David de la Harpe, orthopaedic surgeon.
Mr de la Harpe first examined Mr Mitchell on 25 February 2008. In his first report, Mr de la Harpe recorded Mr Mitchell as stating that he was ‘basically suffering mid to lower thoracic pain and he feels as though his left leg has gone dead.’ Mr Mitchell told him that he was taking painkilling medication, including Oxycontin. He expressed the following opinion:
On examination he stands in a forward flexed position and a left sided list. There was no neurological abnormality in the lower limbs. His gait was awkward because of his forward flexed position. His range of movement was to 0° extension of the thoracic spine and flexion to 45°. His imaging revealed a T5 wedge compression fracture which is old without any cord signal abnormality. There was also an arachnoid cyst which was non neurocompressive.
I feel that his problems are all mechanical. No surgery is indicated. I think he probably needs a more structured exercise program and I would be pleased if you could organise a Physiotherapist in Swan Hill to set him up with a gym and hydro program.
Mr de la Harpe later provided a medico-legal report to Mr Mitchell’s solicitors, in which he did not express any different view. However, he added that he thought Mr Mitchell’s injury was unlikely to be permanent.
The respondent’s insurer had Mr Mitchell examined by Mr Clive Jones, orthopaedic surgeon. In his first report, dated 18 June 2007, Mr Jones expressed the view that the T5 compression fracture was unlikely to be recent, and recommended an isotope bone scan. As appears below, the issue as to whether the T5 compression fracture was caused by the workplace accident is not determinative, and little focus was placed upon it in submissions. It was accepted by both parties that it was unlikely to be the cause of Mr Mitchell’s current symptoms.
Mr Jones was of the view that Mr Mitchell’s injury was not severe. He said:
The other question is the severity of the injury of 11/12/06. I note that after the injury, he did complain of back soreness and some problems breathing, consistent with a soft tissue or contusional type injury. In the New Year, it appears he was able to return to full-time normal duties for a while, and then went on to lightened duties. During this time, he was seen to conduct his firewood selling business. This suggests that the injury may not have been a major one, and could have partially or completely recovered in the earlier part of this year as expected.
However, given the abnormal neurological signs reported by Mr Mitchell in his left leg, Mr Jones recommended an MRI scan. Pending receipt of that scan, Mr Jones expressed the opinion that it was not possible to say with any certainty what injury had been suffered during the workplace accident. However, he thought the most likely diagnosis would be a contusional or soft tissue injury.
Following the recommended MRI scan, Mr Jones provided a second report. He expressed the opinion that the T5 compression fracture was long-standing and benign in nature. There was no relationship to any leg pain.[11] Mr Jones concluded that the MRI scan confirmed his previous opinion of contusional or soft tissue injury, which he would have expected to have resolved by that time (17 October 2007). Accordingly, he expressed the view that the injury suffered in the workplace accident was not a contributing factor to Mr Mitchell’s current symptoms.
[11]Probably mistakenly, the report refers to right leg pain. There is no evidence of Mr Mitchell ever complaining of right leg pain.
Mr Jones re-examined Mr Mitchell on 6 November 2008. At that time, he reviewed all of the medical reports then available. This was before Mr King’s reports. Mr Jones saw no reason to alter his previous view. On examination, he reported:
Inspection of the spine showed normal curvatures. There was widespread spinal tenderness, and signs of non organic illness were prominent. He walked normally. Thoraco lumbar flexion was reduced to approximately two-thirds the normal range, with slight restriction of cervical spine movement as well. There was no muscle wasting in the lower limbs, and the lower limb reflexes were normally preserved.
In answer to a specific question put for his opinion as to the nature of the injury sustained by Mr Mitchell in the workplace accident and his prognosis, Mr Jones was brief but clear. He stated:
Mr Mitchell has non specific back pain. The injury sustained when the carcass fell on him was presumably a soft tissue contusional injury, with a good prognosis and which has now recovered.
Mr Jones saw Mr Mitchell again on 20 August 2009, shortly before the hearing of his application in the County Court. Mr Jones’ opinion did not alter. He expressed the view that Mr Mitchell’s complaints of ongoing pain could not be explained in clinical terms, and that he appeared to have a chronic pain disorder and consequent reduced back function.
Mr Mitchell was also seen by a rheumatologist at the request of the respondent’s insurer, Dr Kevin Fraser. Dr Fraser examined Mr Mitchell on 25 March 2009. He noted that, at that time, Mr Mitchell said he was taking Nurofen but no other analgesics. He noted that Mr Mitchell reported constant pain between the shoulder blades and in his low back. On examination, he noted:
Examination
Movements of the cervical spine were not restricted or painful.
There was also a full range of thoracolumbar spinal movements, although he complained of pain at the extremes and of local tenderness in the interscapular and lumbrosacral regions.
Movements of the hips and knees were said to cause low back pain.
Straight leg raising was not restricted.
The lower limb reflexes were present and equal.
He complained of a diffuse sensory deficit to light touch involving the left leg, but there was no motor weakness.
There was marked atrophy of the left deltoid muscle and he complained of back pain with overhead movements of the left arm.
He walked with a limp, favouring the left leg.
There appeared to be some overreaction on physical examination.
Dr Fraser, while noting that he could not rule out the possibility that the workplace injury was contributing to Mr Mitchell’s symptoms, gave the following opinion:
However, it is not possible to explain the low back/left leg pain on this basis and there is no evidence of a lumbar disc lesion in the MRI.
The overreaction on physical examination and the non-anatomic sensory changes in the left leg, as well as other atypical features including low back pain with left shoulder movements suggest that there is a significant non-organic component.
Nevertheless, as a result of the compensable injury I would suggest that he is unfit for pre-injury duties, or any work requiring bending and/or heavy lifting (>10 kg) or any forceful pushing or pulling. Within the bounds of these restrictions he is fit for any form of work for which he is otherwise suited, including his present occupation. I see no reason why he could not increase to full hours.
Unfortunately, non-organic factors are likely to be an impediment in respect of further rehabilitation in the foreseeable future.
His condition has stabilised and apart from simple analgesics as necessary I do not think that he requires further treatment for any work-related injury.
On 7 August 2009, Dr Fraser proved a supplementary report after viewing further radiology reports. His opinion remained unchanged.
On behalf of Mr Mitchell, principal reliance was placed upon the medico-legal reports prepared by Mr Kevin King, consultant orthopaedic surgeon. Mr King first examined Mr Mitchell on 26 June 2009. At that time, he had been provided with many of the medical reports prepared concerning Mr Mitchell including Mr Jones’ first report.
At the time of preparing his first report, Mr King had not seen the radiology films, although he appears to have seen at least some of the radiology reports. Nothing turns on this. In his first report, Mr King accepted, without question, the whole of the history given to him by Mr Mitchell.
Mr King noted Mr Mitchell’s then current complaints in the following terms:
He complains of the following residual symptoms:
1.He continues to be disabled by constant thoracolumbar back pain, always present, fluctuating in intensity, always of ‘moderate to severe’ degree and on a scale of naught to ten he classifies the thoracolumbar back pain as being always at least ‘seven to eight’. Any sort of physical exertion, particularly bending and attempts to lift markedly aggravate the symptoms.
2.As a lesser problem he has a generalised ache in the left buttock, thigh and calf and a feeling of some numbness in the left thigh and calf region.
Mr King recorded his examination of Mr Mitchell in the following terms:
ON EXAMINATION:
A stocky, muscular, formidable, young man – forceful, articulate and seemingly strongly motivated. He seems to be frustrated by his inability to work.
Cervical Spine:
A full painless range of movements.
Thoracolumbar Spine:
No localised deformity. Moderate limitation of thoracolumbar spinal movements by pain and spasm, particularly at the thoracolumbar junction – approximately two thirds of the normal range of all movements were present. I can find no evidence of exaggeration.
Lower Extremities:
Straight leg raising: 80° right and left. No neurological abnormality.
Mr King gave the following opinion:
Mr Mitchell is a very clear, detailed and straightforward historian and the history which I have recorded above is the same history that has been obtained by all the medical practitioners who have examined him and who have supplied reports – which I have read today. The overall impression is of a strongly built very fit, active man who not only did very heavy manual work for some years by choice but also did multiple jobs including not only being an abattoir worker but also a truck driver at various times, pizza chef, and also ran his own small wood supply business. He also played a lot of active sport.
The first injury to the back following the motor bike accident in 1997, apparently caused a wedge fracture of T1 and presumably some damage to cervicothoracic discs and associated ligamentous structures. He states categorically, and his statement seems to be supported in the histories supplied by all other treating doctors, that he made a full recovery from this cervicothoracic spinal injury and an injury to the left shoulder in 1997 and he thereafter eventually went back to very heavy work in the abattoirs without difficulty combining this with multiple other jobs. It is therefore a reasonable assumption that there were no long term effects from the injury to his upper spine in 1997.
His clear description of the second accident which occurred in the abattoirs on 11.12.06 is consistent with an assumption that his thoracolumbar spine was exposed to a very severe crushing concertina-like force when the 220 kg carcass fell from an overhead rail over a height of 2 metres striking him what would appear to have been a massive blow to the top of his head, to the top of his left shoulder, and then to the thoracic and lumbar spine before crushing him to the ground. It must be assumed, on normal clinical grounds, that the whole of his spine was exposed to a major degree of crushing, flexing and rotating force. It must be assumed that he sustained multiple injuries to cervical, thoracic and lumbar discs and associated ligamentous structures at multiple levels and the overall evidence suggests strongly that the wedge fracture of T5 occurred at this time. Such widespread trauma to the spine would adequately explain the immediate onset of very severe thoracolumbar and sternal pain (the sternal pain presumably radiating from the mid thoracic region) and would also be consistent with the persistent severe disabling pain in the thoracolumbar region ever since associated with some mild and persistent left sided sciatica. Rather surprisingly his initial neck pain settled down.
It is puzzling why there seems to have been so much argument about whether or not the T5 fracture occurred at the time of the first or second incidents of trauma. On the evidence available to me today it obviously occurred on 11.12.06 as the force applied to the spine on this occasion must have been massive and there was no previous record of any T5 fracture (the initial wedge fracture was at T1 according to the document I have read). From the point of view of assessing his overall severe impairment of spinal function the fact that he has a wedge fracture of T5 is of no particular importance in itself. What matters here, if the history is to be accepted at face value as it appears to have been by all treating doctors, is that the crushing force on his spine on 11.12.06 was massive and widely distributed and is consistent with the ongoing severe generalised thoracolumbar spinal pain since then.
This young, previously very fit and active man is chronically and severely disabled by generalised severe thoracolumbar back pain as a direct result of injuries sustained to discs and associated ligamentous structures at multiple levels at the time of the accident on 11.12.06.
He is almost desperately keen to continue working and it is unfortunate that the light part time supervisory job that he was doing as a personal carer and supervisor has been suspended by the Health Department in the letter he received this week. He feels he could manage this light supervisory work and would very much like to get back to it. He is going to consult his general practitioner to see if appeals could be made on his behalf.
He is permanently unfit to go back to heavy manual labouring work in an abattoirs or to any other sort of work that involves lifting, bending and straining and he is permanently unfit to do multiple jobs of the sort he was doing prior to the second accident. He is permanently unfit to go back to his sporting activities of cricket and running. His condition seems to have stabilised and there is no indication for surgical treatment – the source of his pain is too diffuse to expect any improvement with any form of spinal surgery.
I can find no evidence of any sort of psychological overlay and this man seems to be very strongly motivated to work within the marked limitations of his present physical impairments.[12]
[12]Emphasis added.
Later, Mr King was provided with the radiological films. He thought they were consistent with his clinical opinion and did not change his opinion.
There is a real difficulty with Mr King’s reports. He obviously accepted the whole of the history given to him by Mr Mitchell as both honest and complete. However, it appears from the reports that he was not told about the sequence of events in the immediate aftermath of the workplace accident. In particular, Mr King was not told that Mr Mitchell: (1) drove to and from Perth over Christmas 2006; (2) returned to work on 4 January 2007 and performed the same duties as before the workplace accident; (3) on 24 January 2007, sought a medical certificate to support his WorkCover claim until only 21 December 2006; (4) did not seek any further medical advice or assistance until 27 March 2007 – at which time he told the emergency doctor that his pain at that time had arisen ‘since last 3 days’; (5) had re-commenced strenuous wood cutting activities during March 2007; and (6) continued those wood cutting activities after complaining of pain on 27 March 2007. These circumstances strongly suggest, despite histories which he later gave, that Mr Mitchell was effectively symptomless from 21 December 2006 until shortly prior to 27 March 2007. If Mr King had appreciated this, he would not have referred to Mr Mitchell’s symptoms as ‘persistent severe disabling pain in the thoracolumbar region ever since [the workplace accident] with some mild and persistent left sided sciatica’. Nor would he have described Mr Mitchell as suffering ‘ongoing severe generalised thoracolumbar spinal pain since [the workplace accident].’ These statements or assumptions by Mr King were not the fact. Accordingly, Mr King’s reports were rightly given little weight by the trial judge, and the opposing reports were rightly accepted.
Conclusions as to the nature of the workplace injury
In summary, putting Mr King’s report to one side for the reasons given, the combination of the above facts concerning the immediate aftermath of the workplace accident and the medical evidence as a whole, supports the trial judge’s findings that Mr Mitchell’s workplace injury was ‘essentially in the nature of a soft tissue injury’ and that ‘such injury effectively resolved over a short period of time’.[13] Those findings were clearly open on the evidence and no error has been shown. Further, if s 134AD of the Act requires this Court to decide the appeal against these findings for itself, I would make the same findings.
[13]Reasons, [43(3)].
These conclusions are reinforced by a number of factors affecting Mr Mitchell’s credibility as an honest and accurate historian of events and his symptoms:
(1) The trial judge recorded an observation in his reasons concerning Mr Mitchell’s demeanour in Court. He stated:
22The applicant presented to this court as a markedly disabled young man of his stated years. His upper body appeared to be bent over forward in a rather contorted position. He had a most unusual gait. He appeared healthy, with a particularly well developed upper torso. When giving his evidence, the applicant adopted a most unusual position in the witness box, namely, a forward flexed seated position.
23In cross examination, the applicant informed the court that he could not fully extend his body and that he moved around in a stooped position all of the time. The applicant's presentation in court was in stark contrast as to how he, the applicant, presented on surveillance film of him taken on 24, 26 and 31 August 2009 and on 1 September 2009. The only significant disability observed on film was a noticeable left leg limp. The applicant, at all times, appeared to be able to stand erect and to move in a normal manner.[14]
[14]Reasons, [22]-[23].
I have viewed the surveillance film and, accepting the trial judge’s record of his in-court observations, agree with the trial judge’s conclusion that there is marked difference between Mr Mitchell’s presentation in court and on the film.
(2) In his reasons, the trial judge recorded his observation that Mr Mitchell was an evasive and guarded witness during cross-examination, particularly as to the extent of his wood chopping activities. That observation is supported by reading the transcript of Mr Mitchell’s cross-examination. I agree with it.
(3) Mr Mitchell admitted prior convictions for dishonesty, relating to the failure to disclose his true income from his wood-chopping activities to Centrelink at a time he was receiving benefits, and the misuse of a fuel card provided by an employer. When that misuse was discovered, he resigned from that employment. Mr Mitchell frankly admitted these prior convictions, without any evasion, and I would not accord them significant weight. However, they do add to the overall picture when considering his reliability as an honest and accurate historian of his symptoms.
Does Mr Mitchell presently suffer from a serious injury?
The reasons given above are sufficient to conclude that Mr Mitchell’s appeal should be dismissed. However, I would add that, deciding for myself, I would nevertheless find that Mr Mitchell is not presently suffering from a serious injury within the meaning of the Act. Taking the evidence as a whole, the medical evidence does not justify such a conclusion. Further, since about June 2009 Mr Mitchell has been conducting a business involved the selling and installing of insulation batts. From the transcript of Mr Mitchell’s evidence as a whole, and the video surveillance film, I find that Mr Mitchell is physically active in this business in a number of respects. This level of activity is inconsistent with his claims as to the severity of his symptoms and their consequences.
Conclusion
For the above reasons, the appeal should be dismissed.
---
0
5
0