Moat v Bendigo Access Employment Inc

[2011] VCC 1397

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BENDIGO
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-06197

GRANT MAURICE MOAT	Plaintiff
v
BENDIGO ACCESS EMPLOYMENT INC	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Bendigo
DATE OF HEARING:	7 and 8 November 2011
DATE OF JUDGMENT:	21 November 2011 (revised 25 November 2011)
CASE MAY BE CITED AS:	Moat v Bendigo Access Employment Inc
MEDIUM NEUTRAL CITATION:	[2011] VCC 1397

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION ––serious injury – pain and suffering – injury to spine and lower back – significance of existing chronic fatigue syndrome condition – significance of failure to tender treating doctor’s notes – leave granted. Accident

Compensation Act 1985, s.134AB

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with	Winn Legal Pty Ltd
Mr D J N Purcell
For the Defendant	Mr A J Moulds SC with	Hall & Wilcox
Ms S Manova
HIS HONOUR:

1 Mr Grant Moat is aged forty-nine years. He claims that he injured his lower back or spine on 28 August 2006 while lifting wood for the defendant at Epsom. He seeks leave under s.134AB of the Accident Compensation Act 1985 to issue common law proceedings to recover damages in respect of pain and suffering.

2          Mr Moat was cross-examined on his two affidavits. A number of other medical reports and documents were tendered.

3          To obtain leave, Mr Moat must establish that he has suffered a “serious injury” as defined.

4          Mr Moat moved from Melbourne to Bendigo in about 2004. He lives on a four- and-a-quarter-acre block about 10 kilometres from Bendigo with his wife and two school aged daughters. His move to Bendigo was a lifestyle decision, in particular to provide a country lifestyle for his two daughters.

The Injury

5          The circumstances of the injury were as follows: Mr Moat was employed by Bendigo Access Employment Inc as a casual wood splitter at a facility which was designed to provide skills and training and work experience for injured and disabled workers. He commenced that employment in June 2006. The injury occurred when he attended at premises away from his usual work location to collect wood. He was lifting a log of wood to stand up on its end to put it into a truck. He suddenly felt a ripping sensation in his lower back instantaneously, followed by severe pain. He ceased the task he was undertaking. He rested at home for a number of days. He returned to work on 12 September 2006 and suffered further pain in his back while raking. He was unable to return to work and soon after was told by the insurer's case manager that he was dismissed.

6          It is not in dispute that Mr Moat suffered a back injury at about the time he alleges. What is in dispute is the extent and consequences of that injury and whether it satisfies the very considerable test.

7          The radiology that was performed on 20 May 2008 and obtained for Dr Carey, an orthopaedic surgeon whom Mr Moat consulted, concluded that Mr Moat had a small broad-based right paracentral L4-5 disc protrusion with annular fissure, producing a mild central canal stenosis and minimally contacts the traversing right L5 nerve but without nerve impingement. Secondly, there was a moderate bilateral L4-5 facet joint degenerative change.

Existing Medical Condition

8          An important feature of this case was the fact that in addition to this back injury, Mr Moat suffers from Chronic Fatigue Syndrome. He first showed symptoms in 1990 and was diagnosed with that condition in 1994 when he was aged thirty-two years. He receives a full disability pension because of that condition. He apparently did not work between 1994 and 1997 and then performed limited work. For instance, he undertook some cleaning work but was unable to continue because of ill health. In 1998, he injured his back after tripping at Safeway and received a $15,000 settlement.

9          In 2000, he commenced employment with La Trobe University Wildlife Sanctuary at Bundoora, where he works two days a week as a leading hand constructing nest boxes to provide habitat for native birds and fauna. He also has some duties with staff and volunteers in the management side, and some administrative work.

10        Having moved to Bendigo in 2004, he also sought employment there and that led to the short lived employment with Bendigo Access Employment Inc. At about the time that he was seeking work in Bendigo, he participated in an interview called a DPI interview with a Mr Costigan, which had some connection with Bendigo Access Employment Inc. The interview form, which seems to have been completed by Mr Costigan, referred to him having “lower back soreness, but manageable”.

11        It was put to Mr Moat in cross-examination that he had a significant lower back problem before he started at Bendigo Access Employment. He disagreed. The extent of his evidence was that from time to time, he had suffered some back strain, but he did not recall having any persistent back pain over the years of his life prior to the injury. I accept his evidence in that regard.

12        As I have mentioned, an important issue in the proceeding was the fact that Mr Moat suffers from Chronic Fatigue Syndrome. He stated in evidence:

“I have got used to living with this chronic fatigue, it has become part of my life, and basically Dr Oldmeadow told me that … I must have routine in my life to keep my health at a serviceable level.”

13        It seems the Chronic Fatigue Syndrome is fairly stable. A letter from Dr Oldmeadow, the treating physician for the Chronic Fatigue Syndrome, received particular attention in submissions. Mr Moat commenced to be treated by Dr Oldmeadow after having spent some time under the treatment of Dr S Freund, a practitioner in Forest Hill, but who moved to other areas of medical practice. Mr Moat’s evidence was that he had trouble finding a general practitioner in Bendigo who knew much about Chronic Fatigue Syndrome.

14        Dr Oldmeadow states in his report of 19 November 2010, that:

“Mr Moat continues to suffer significant symptoms due to the illness

known as Chronic Fatigue Syndrome.”

15        He described it as a “difficult illness”.

16        He recorded that on at least two days a week Mr Moat needs to sleep one to two hours in the afternoon. He recorded that Mr Moat told him that he was more frustrated and depressed and on a “short fuse” and suffers from low moods. He had struggled to find appropriate support management and he had suffered some stresses from the illness of a member of his immediate family. He spends a good deal of his limited energies in travelling to Melbourne and working some 25 to 30 hours a week at La Trobe University. He gave a guarded prognosis, as symptoms had been there for a long period of time, and they will continue to be significant stresses for him to live with.

Medical Treatment

17        After the back injury, Mr Moat consulted a general practitioner, Dr Saeed, once or twice. He also consulted a chiropractor on a number of occasions, a masseur and an osteopath and had sessions of physiotherapy. He then consulted Dr Tenni, Dr Ooi and then more recently Dr Pitts and Dr Stoyanova in Bendigo.

18        He went by reference from the La Trobe Medical Centre at Bundoora to see Mr Carey, the orthopaedic surgeon to whom I mentioned. Dr Carey considered that surgery was not appropriate and referred him for Pilates.

19        One of the important features of the case was the fact that Dr Stoyanova's medical records relating to Mr Moat were not in evidence. She is Mr Moat's current general practitioner whom he sees every two to three months, particularly in connection with medication.

20        The fact that the plaintiff did not tender her medical reports was an unusual feature of the case. The defendant invited the Court to draw an inference in accordance with the commonsense approach discussed in Jones v Dunkel[1] and O'Donnell v Reichard,[2] which is that where a party, without explanation, fails to call a witness, or equally fails to tender documents, that it might reasonably be expected to call or tender, then the court can take that into account:

[1] (1959) 101 CLR 298

[2] [1975] VR 89

(a)	in deciding whether to accept any particular evidence which has been in fact given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and
(b)	in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given again, in relation to which matters with respect to which the person not called as a witness, or documents not tendered, could have spoken.

21        I do take into account that I do not have Dr Stoyanova's notes in deciding whether to accept Mr Moat's evidence and whether to draw any inferences of fact which are open on the evidence. But I consider that that inference does not greatly weaken Mr Moat's evidence, for these reasons:

• Firstly, there is ample specialist opinion as to Mr Moat's current condition, albeit that there is some conflict between it;

• Secondly, there is no direct issue as to his credit, although I accept that the defendant's case was that he was at least unconsciously exaggerating his symptoms and failing to allocate them fairly between the Chronic Fatigue Syndrome and the back condition;

• Thirdly, the defendant also has had access to the documents. There is a distinction between the present case and a case where a witness has not been called who is in the camp of a party. Here the documents could have been tendered by either party;

• Fourthly, most of the medication that Mr Moat takes is referred to in specialist medical reports.

22        I have mentioned the general practitioners who have treated Mr Moat. He is on the waiting list to go to the John Lindell Clinic in Bendigo, which will provide a form of pain management and rehabilitation treatment.

23        So far as specialists are concerned, Mr Moat was referred to Mr Carey, an orthopaedic surgeon. In May 2008, Mr Carey reported that:

“Mr Moat continues to have back pain, more right sided than left, this travels up the thoraco-lumbar region and across to both hips and latterly into the groin area, but he has never had sciatica.

He has a restricted and irritable range of motion of the lumbar spine, quite significant deep lumbo-sacral tenderness, but no evidence of nerve limitation or conduction deficit and no long tract signs. He's able to do a sit-up albeit with some pain.”

24        After the MRI was obtained in July 2008, Mr Carey referred to the fact that Mr Moat has some chronic lower back discomfort which extended upwards on the right side and down to the upper anterior thighs but not to the knees. He did not sleep well.

25        Mr Carey's opinion was that:

“Mr Moat had sustained a lumbar disc injury, producing back pain which

has gone on for nearly two years.”

26        Mr Carey saw Mr Moat again in March and August 2009 and in a later written report referred to the fact that over the relevant period:

“… he has continued to have the same complaints as outlined in my report and has continued to have problems with funding for various treatments.”

27        Mr Moat takes a range of medications. It is important to bear in mind that some of them are referrable to the fact that he suffers from Chronic Fatigue Syndrome, for instance, Temazepam, helping him sleep, and Diazepam, are both medications which appear equally applicable to his Chronic Fatigue Syndrome.

28        For his spine or back pain, however, he also takes Voltaren, an anti- inflammatory, Panadeine Forte, Tramadol, Panadeine Osteo and also applies Deep Heat and Emu Oil rubs. He stated:

“I find that these medications provide only temporary levels of relief with respect to my spinal pain. The pain is consistent, although the level of symptoms which I suffer varies in accordance with my activities and the medication which I use.”

29          Mr Moat also stated:

“I have been concerned about the level of medications which I am taking because I did have some kidney function tests and there were some irregularities observed, so I have been careful to try and limit my medication usage as much as I can however this is difficult.”

Mr Moat’s Evidence

30        Mr Moat gave evidence about the effects of the pain. He described it as:

“Pain in the lower right L4, L5 area. It varies. It affects my sleep. I have recurring episodes of more significance where there've been occasions when I have been resigned to bed and using sticks to get around, but it varies so much.”

31        Mr Moat has occasions when he is not able to straighten up and walk. He stated that he had “grabs”. He said:

"If I jar it [meaning his lower back] I have to be very guarded in what I do, my movements. I've become very robotic in … how I move and do things, and in an actual fact, with my job, I have, in my opinion, I have instilled like a memory of how I do things, like making a bridge when you lift things. I will not lift things away from my body. It’s just - it becomes so habitual - it's my way of life, way I move now, because it's been five years ... .”

32        Mr Moat said in effect that his back pain had become worse and it added another dimension of stress to his life. He stated that it limited his activities around the house that he might have once done. He no longer carries out anything that requires vigorous activities, such as cleaning gutters and similar house maintenance. He stated that he can no longer cut wood or dig holes. He is limited in the gardening he can do. He stated that he had moved to Bendigo to enjoy the bush block, but now finds it difficult to maintain. He says he suffers from loss of sleep of a different dimension from the Chronic Fatigue Syndrome. That Syndrome would often mean that he woke up feeling like he had been hit by a truck and had not slept, whereas the back pain wakes him in the middle of the night often.

33        Mr Moat gave some evidence of limitations on his ability to play sport, but that did not seem to be a particular feature of his life to any great degree. He stated:

“Everything I do is measured and I take into account the condition of my back. I have medication that I take. I have learnt to tolerate - I have a level of pain permanently which I have learnt to tolerate over the time, and that's how I get through it. I have a determination not to let things beat me. I have been brought up with a sporting background and a winning background, and I don't like to let these things beat me and I'm determined not to- not to give in to this back injury.”

34        It was put to Mr Moat in cross-examination that he had been on two recent and fairly extensive holidays, one in October 2010 to Malaysia and Thailand, and the second, a Pacific Island cruise in March 2011. He stated that he had not had a holiday for some time before those two holidays. I do not place particular weight on the fact that he was able to go on those two holidays.

Medico-Legal Evidence

35        There is then the substantial medico-legal evidence from both sides. For the plaintiff there was evidence from Dr Horsley, an occupational physician, who recorded Mr Moat's symptoms of ongoing chronic back pain as follows:

“When his back is not aggravated, it varies on the visual analogue scale from 1 to 3 ½ out of 10. When his back is aggravated, which generally occurs when he is working, the discomfort varies from 3½ to 8 out of ten. He self manages.”

36        Dr Horsley stated that Mr Moat’s functional tolerances were relatively good. That was a reference to standing, driving and walking tolerances. Her diagnosis was that Mr Moat suffers from mechanical back pain. He had no radicular pain. He does have a reduction of muscle bulk on the right side, but no other radicular features. Radiologically he has a discal disruption at L4-5 with a right paracentral disc protrusion and an annular fissure. She stated that the “symptoms were likely to persist”. She stated that:

“Discal disruptions heal poorly. He is likely to have ongoing pain. He will benefit from learning to self-manage his level of disability. He appears to have coped well since his injury."

37        Dr Moran, an orthopaedic surgeon, in May 2011, prepared a medico-legal report that recorded Mr Moat's symptoms and on examination recorded:

“I have found Mr Moat a pleasant gentleman who showed no tendency to exaggerate or embellish his clinical activity. On the contrary, he is inclined, I suspect, to understate his predicament.

I note that during the examination, he struggled removing and replacing his shoes and socks and trousers.

In the lower back there was flattening of the normal lumbar lordotic posture in association with significant symmetrical paravertebral muscle spasm. Forward bending was limited to 40 degrees and extension to 20 degrees, with right and left lateral flexion measured at 15 degrees and 20 degrees and right and left rotation measured at 15 and 30 degrees.

Straight leg raise was to 60 degrees bilaterally and neurological examination in the lower limbs was normal.”

38        Dr Moran's opinion was that the physical impairment resulting from the injury has been significant and would persist indefinitely.

39        Mr M Khan, an orthopaedic surgeon, examined Mr Moat in July 2011. His diagnosis was that:

“As a result of [the injury Mr Moat], had been left with significant residual disability. He was unable to perform heavy, strenuous type of work requiring excessive bending, twisting and turning of his spine, extending the spine after forward flexion repetitively or lifting weights more than 5 kg at a time.

He also had flared up pre-existing facet joint arthropathy at L4/L5 and L5/S1 levels and had flared-up pre-existing disc degenerative disease in lower part of the lumbar spine.”

40        He stated that:

“The long term prognosis is guarded. His condition is likely to deteriorate with the passage of time. As he continues to remain active and gets the facilities for further treatment, as submitted above, he is likely to perform his alternative duties until retiring age. He has been fortunate enough to find suitable alternative duties, which he had been doing at the time of my examination, but he continues to have persistent ache in his lower back, which radiates intermittently down the buttock and thigh."

41        The defendant provided medico-legal opinions from Mr McInnes and Mr Dooley. Mr McInnes is a general surgeon, who in 2008 reported that Mr Moat had suffered from:

“… a soft tissue injury of a musculo-ligamentous nature of his lower lumbar spine. This has been partly debilitating him for some time but I believe has now stabilised.”

42        A later report from Mr McInnes that year did not add much to that report.

43        Mr Dooley's report in August 2011 stated:

“In the work-related episode, Mr Moat aggravated the underlying degenerative disc disease. I remain of the view that the constancy and intensity of Mr Moat's ongoing pain and his described disability are greater than I would expect to see for the injuries sustained and for the degree of underlying degenerative disc disease.

I remain of the view that the loss of lumbar spine function resulting from the compensable injury has been mild. The loss will persist for the foreseeable future.”

The Parties’ Submissions

44        Counsel for the plaintiff submitted that there was no challenge to the consistency of Mr Moat's evidence. He was a man who cannot do anything physically. Before he could do anything heavy physically, he just did not have the endurance. He is now affected in what he can do around his home and around his block and in the type of employment that he could now contemplate looking for. He is, in effect, so it was put, “trapped” in the employment because of the fact that his employment would have to be light, flexible, variable work. He is a man who needs treatment and can be expected to continue to have treatment. Reference was made to the high levels of medication and loss of sleep and the additional effects of the lower spine injury.

45        Counsel for the defendant referred to the fact that the Chronic Fatigue Syndrome had obviously been very significant because of the fact that the plaintiff had received a full disability pension, which suggested a substantial incapacity. They submitted that at best he suffered from a significant injury. It was necessary to take account of that pre-existing condition. They noted that Mr Oldmeadow had not said anything about the back injury. They suggested the Court should make an adverse inference because of the failure to tender Dr Stoyanova's notes. They relied on Mr Dooley's statement. They noted that the level of pain had not stopped Mr Moat doing his lighter work.

46        I then have to determine whether the lower back spine injury was a “serious injury”, bearing in mind the evidence and submissions I have referred to.

Determination of the Application

47 Section 134AB(38) of the Act provides that an impairment or loss of body function is not to be held to be serious unless the consequence, in this case, pain and suffering, is, when judged by comparison with other cases in the range of possible impairments or losses of a body function or disfigurements, as the case may be, fairly described as being more than significant or marked and as being at least very considerable.

48        Whether or not the injury satisfies this test is largely as matter of impression and value judgment. In Stijepic v One Force Group Australia Pty Ltd,[3] Ashley JA stated:

“…The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation - because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”

[3] [2009] VSCA 181 at [42]

49        The assessment is to be made at the time the application is heard by the Court.

50         In Haden Engineering Pty Ltd v McKinnon,[4] Maxwell P stated that in respect of pain and suffering consequences, the Court must assess the intensity of the pain which the plaintiff experiences by reference to what he said and did about the pain, what the doctors said and what the objective evidence showed about the disabling effect of the pain.

[4] [2010] VSCA 69 at [12]

51          I have set out the evidence relevant to those matters and the submissions.

52        In Kelso v Tatiara Meat Co Pty Ltd,[5] Dodds-Streeton JA stated:

“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”

[5] (2007) 17 VR 592, 691

53        In my opinion, a consideration of the evidence leads to the conclusion that the plaintiff has established that the pain and suffering consequences of the injury to him are, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked and as least being very considerable. I am also satisfied the plaintiff has established that that condition and injury, will continue for the foreseeable future.

54        My reasons for reaching that conclusion are as follows:

• First, the Chronic Fatigue Syndrome has to be considered in all aspects of this application. It is a significant disability from which Mr Moat suffers. However, that fact does not necessarily prevent Mr Moat from establishing that the injury to his lower back is a “serious injury”. That determination depends on the evidence concerning the lower back.

• Second, I accept that Mr Moat is a witness of credit. I have dealt previously with the suggestion that I should draw an inference against his evidence because of the failure to produce his general practitioner's notes.

• Third, I accept Mr Moat's evidence as to the nature and extent of the pain that he suffers from his lower spine. I accept that on occasions it is quite disabling and he has been required to take to bed and has needed walking sticks. I accept his evidence that he gets pain in his lower spine which radiates to the right side, sometimes to the left and sometimes up his spine. I accept his evidence that he has particular occasions of quite significant pain. All of these effects are distinct from the restrictions imposed on him by the Chronic Fatigue Syndrome.

• Fourth, the probability on the balance of medical opinions is that his back condition will persist for the foreseeable future.

• Fifth, he has to take, and he is likely to continue to have to take, considerable medication for his pain.

• Sixth, while he has been able to continue in his part-time work at La Trobe University, he is subject to restrictions in the maintenance of his house and block and the work he could perform previously.

• Seventh, his sleep is interrupted because of back pain. Whilst his sleep prior to the back injury was not refreshing due to the Chronic Fatigue Syndrome, the sleep now is often interrupted which is a separate and equally disabling effect.

• Eighth, the back injury is likely to restrict the kind of employment that he can undertake.

55        For those reasons, I grant Mr Moat leave to bring proceedings at common law to recover damages for pain and suffering in respect of an injury arising out of and in the course of his employment and occurring after 20 October 1999.

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