Moor v H J Heinz Company Australia Ltd
[2013] VCC 389
•15 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT WANGARATTA
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05869
| CHRISTOPHER MOOR | Plaintiff |
| v. | |
| H J HEINZ COMPANY AUSTRALIA LTD | Defendant |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2013 | |
DATE OF JUDGMENT: | 15 April 2013 | |
CASE MAY BE CITED AS: | Moor v H J Heinz Company Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 389 | |
REASONS FOR JUDGMENT
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Catchwords: Accident compensation – Serious injury – Plaintiff fell at work and suffered injuries to his head and neck – Whether impairment to cervical spine satisfies the statutory test – Section 134AB Accident Compensation Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Jewell SC with Mr G. Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Ms K. Galpin with Ms L. Glass | Wisewould Mahoney |
HIS HONOUR:
1Christopher Moor was injured as he left his workplace on 19 May 2009. He was riding his bike home. As he exited the carpark, the boom gate malfunctioned resulting in the arm of the gate coming down suddenly and striking him, causing him to fall off his bike. He apparently hit his head and was unconscious for a short period.
2As a consequence of this incident, the plaintiff suffered a head injury and his neck became symptomatic. The plaintiff was off work for a period of approximately six weeks until late June 2009, and although he returned to work, he had difficulty coping with his previous duties. In December 2010, he took a redundancy package. He tried other employment as an accountant. Since May 2012, he has been employed at the correctional facility at Junee, New South Wales, as a finance manager.
3The plaintiff seeks leave pursuant to section 134AB of the Accident Compensation Act 1986 for leave to issue a proceeding limited to pain and suffering damages. Initially, the application was opened by his senior counsel, Mr Jewell SC, on the basis of permanent and serious impairments of the body functions of both his cervical spine and his brain. In final submissions, Mr Jewell limited his submissions to the cervical spine.
4The issues for determination in the application are:
a.the effect of a subsequent fall the plaintiff suffered at work in mid October 2010;
b.whether the fusion surgery the plaintiff may require arises from the initial work place accident;
c.whether the plaintiff has non-organic consequences of the injury to his cervical spine which need to be disregarded;
d.whether the consequences of the cervical injury suffered in the initial work place accident satisfy the statutory test for “serious injury”.
The plaintiff’s credibility
5There was no attack on the credit of the plaintiff. In his later neuropsychological assessments, the plaintiff performed surprisingly poorly. It was not suggested, however, that the plaintiff was not genuinely participating in the testing. Mr James Drury stated in his report dated 21 January 2013 that, “one possible explanation for an insufficient response on [the measure of evaluating motivation and effort] can be due to malingering, my preferred opinion is that in this instance the reduced response is consistent with a mild degree of sick-role behaviour, with a sense of feeling overwhelmed, but also including his own acknowledged lack of motivation. He also feels that his medication regime is clouding his thinking at times”.
6I consider that both in his oral evidence and in his histories to doctors, the plaintiff was careful, accurate and consistent. In the circumstances, his statements, particularly those relating to his symptoms and the effect of his neck injury on his activities of daily living, should be accepted.
The plaintiff’s medical treatment, diagnosis and prognosis
7Following the accident on 19 May 2009, the plaintiff was taken by ambulance to the Shepparton Hospital. He had apparently hit his head and lost consciousness for a period of time. The plaintiff’s condition suggested a “post-concussive” injury and possible brain injury. These matters were the primary concern of both the plaintiff and his medical treaters, particularly as there were a number of symptoms he experienced which appeared to be referrable to his head injury. These included headaches, affected vision, fatigue, poor concentration and memory and increased anxiety.
8However, the plaintiff immediately complained of pain in his neck and back and, in hospital, was placed in a neck brace. On 20 May 2009, the plaintiff’s general practitioner Dr McQueen-Thompson believed he had “a soft tissue injury to the neck and shoulder area”. He referred the plaintiff for physiotherapy.
9The “pain in the mid to upper back” persisted and on 15 June 2009, the general practitioner referred the plaintiff for a CT scan of the thoracic spine. This appeared to show a problem at T2. Mr Nicholas Maartens, a neurosurgeon, first saw the plaintiff on 11 September 2009. The initial focus of his examination was the upper thoracic spine. However, an MRI of the cervical spine on 23 October 2009 showed “multilevel degenerative spondylosis of the cervical spine with…severe bilateral foraminal stenosis at C5/6 and severe left foraminal stenosis at C6/7”.
10This was a significant finding and has been reaffirmed in subsequent radiological investigations. It is the basis for Dr Maartens’ opinion that, as a consequence of narrowing at C5/6 and C6/7, “it is very likely at some later stage” the plaintiff will require cervical surgery in the form of “an anterior cervical disectomy and fusion surgery at C5/6 and C6/7”. Dr Maartens’ view in March 2010 was that the plaintiff “still has symptoms of post concussion syndrome and also significant symptoms related to his cervical spondylosis”. In February 2013, Mr D’Urso considered that the disectomy and fusion could be considered, if the plaintiff’s “symptoms were to deteriorate or worsen”, although currently there was “no urgency to consider surgical intervention”.
11Contemporaneously, the plaintiff’s head injury was being investigated. An MRI of the brain in July 2009 was normal. The plaintiff’s general practitioner, Dr Peter Tisdall, referred the plaintiff to a neurologist, Dr John King, who first saw the plaintiff on 5 August 2009. Dr King reported that the plaintiff’s “main problem is his lack of concentration and his inability to absorb details at work”. The neurological examination was “entirely normal”. Dr King noted that the plaintiff had “sustained a concussion which is persisting, probably due to his poor sleeping pattern”. Dr King did not regard “the head injury to have caused any permanent damage”.
12The plaintiff was referred for assessment examinations as follows:
a.to Associate Professor John Balla, a consultant neurologist, on 22 September 2009. He considered the plaintiff’s head injury was “post-concussional in nature”. He said the way the plaintiff presents “is clearly on an organic basis rather than due to psychological factors”. He expected the plaintiff to improve but suggested a neuropsychological assessment;
b.Professor Michael Saling, a clinical neuropsychologist, carried out a neuropsychological examination on 24 April 2010. he said the neuropsychological picture “is consistent with the effects of a concessional head injury”. Professor Saling said that he “did not gain the impression that [the plaintiff] was exaggerating his difficulties and there was nothing about his presentation which was inconsistent with his condition”;
c.Ms Faye Simpson, a clinical neuropsychologist, assessed the plaintiff on 6 February 2012. She concluded that, “The initial injury was a head injury but the longer term sequela appears to be one of low grade chronic pain [associated with his neck injury] and cognitive inefficiency associated with medication side effects and depression”;
d.Mr James Drury, a clinical neuropsychologist, assessed the plaintiff on 15 January 2013. Mr Drury considered that the plaintiff had “sustained at least a mild concussive head injury” with the “possibility of mild damage”. He considered that the plaintiff’s “current pattern of cognitive deficits is predominantly due to factors unrelated to organic brain damage”. The plaintiff’s “overall prognosis is likely to be dependent largely on his pain and fatigue, and the effect this has on his psychological state”.
13These reports confirm that the longer term effect of the head injury was limited and the plaintiff’s ongoing symptoms were primarily attributable to his neck injury and any emotional response to that injury.
14In respect of the neck injury, the plaintiff has been treated with:
a.physiotherapy and remedial massage;
b.laser acupuncture performed by Dr Kuen Chan, a general practitioner who treated the plaintiff between July 2011 and April 2012;
c.medication including Endep, Fenac, Lyrica, Voltaren, Norspan patches and Panadol Osteo;
d.pain management strategies suggested in February 2012 by the specialist Dr Saleem Khan involving keeping fit with gym work and walking, and relaxation during periods of waking at night.
Effect of the cervical spine injury of the activities of daily living
15In relation to his current symptoms, the plaintiff says that:
a.he continues to “suffer from pain in my neck radiating down into my shoulders”. The pain is “constant”;
b.the pain “often wakes me during the night and I have difficulty getting back to sleep”;
c.he wakes up in the morning “feeling very fatigued and foggy. The fatigue tends to worsen as the day goes by”;
d.he suffers from “symptoms of dizziness”;
e.he has difficulties with his memory;
f.he lacks confidence;
g.his “level of motivation remains low” and he has lost his “spark”;
h.he has difficulty “sustaining concentration”;
i.he suffers symptoms of “depression and anxiety”;
j.he regularly feels “overwhelmed when I am overloaded with tasks”.
16The plaintiff’s pre-accident activities have been affected:
a.his recreational reading has declined because of his “concentration lapses”;
b.his involvement in an amateur theatre group now excludes performance roles because of “difficulty learning my lines”. Acting had been “such a big part of my life”;
c.bike riding is now “too severe on my neck”. Before the accident, he rode 30km each day travelling to and from work and further distances recreationally and socially;
d.“driving for long distances” is difficult;
e.planned caravan trips with his wife around Australia have not eventuated. They have not travelled overseas since the accident. This was something they previously enjoyed;
f.socialising is restricted;
g.the plaintiff has “difficulty performing domestic tasks around the home”. Previously he had enjoyed regular cooking.
Employment history
17The plaintiff had been employed by the defendant for about 6 years prior to his accident. He qualified as a Certified Practicing Accountant in 2008 and expected to progress to more senior management roles with the defendant.
18After the accident, the plaintiff was off work until late June 2009. He returned to work on a graduated program. He was, however, given limited work. In December 2010, the plaintiff accepted a redundancy package.
19In early 2011, the plaintiff commenced work for the Northern Victorian Irrigation Renewal Project. The role was a lesser one to his pre-injury employment and did not provide “much job satisfaction”. The plaintiff had “increasing difficulties in carrying out the tasks associated with that job”. He resigned in August 2011. He had trouble completing tasks, had memory problems and felt that he was “unable to cope”.
20In March 2012, he worked for Bega Cheese. The job involved “a lot of straight number crunching, which I simply could no longer manage”.
21Since May 2012, the plaintiff has been employed as the Finance Manager at Junee Prison. The position “involves more managing of staff. The number crunching is done by accounting staff”, which the plaintiff finds “a lot more manageable”.
22In 2009, the plaintiff was earning $85,500 per annum together with a $18,500 car allowance, participation in a bonus scheme and significant superannuation benefits. He currently receives $115,000 per annum.
Effect of the later fall in October 2010
23In late October 2010, the plaintiff had a further fall at work. The plaintiff said he was walking through the office and tripped on a trolley beside the walkway. He said the accident occurred late in the day when he was feeling “foggy and tired” and was suffering reduced concentration. As a result of this further accident, there was an increase in neck pain and although by that time he was working his pre-injury hours, he was required to reduce these to 4 hours a day.
24When he left the employment of the defendant in December 2010, the plaintiff thought he had increased his hours to 7 or 7.5 hours a day. He accepted, however, that notes of a return to work meeting on 29 November 2010 stating that he was to remain on 4 hours a day from 6 to 31 December 2010, were probably accurate.
25 Mr Jewell SC submitted that:
a.the subsequent fall was causally connected to the initial accident as the later fall arose from the “foggy state” induced as a result of the first accident;
b.the effect of the subsequent fall was finite and, although the plaintiff’s neck had been aggravated in the subsequent accident, he had returned to the condition he had attained immediately before the second accident;
c.if the plaintiff’s neck injury had been aggravated as a result of the second fall, his impairment prior to the second fall (and disregarding any further impairment resulting from that fall) was sufficient to satisfy the test for serious injury.
Further submissions
26Mr Jewell SC submitted that the consequences of the cervical spine injury the plaintiff had suffered were serious, by reason of the following matters:
a.the plaintiff suffered constant, although fluctuating, pain in his neck which required regular medication on a daily basis;
b.the plaintiff had adhered to an extensive exercise program, in the form of attendances at the gym 5 times a week and walking 6 kilometres daily;
c.the plaintiff suffered severe sleep deprivation. The pain in his neck wakes him from his sleep most nights restricting his sleep to 3-4 hours and resulting in daily fatigue and poor concentration;
d.the medication the plaintiff has taken for his cervical spine injury has also affected his ability to concentrate and work efficiently. Lyrica, which he took until early 2012, caused him to feel “fogginess and dizziness”. Endep, a relaxant which assists him with sleep, results in a “hungover” feeling which affects his ability to concentrate. The neuropsychologist, Ms Faye Simpson in her report dated 6 February 2012, that the side effects of the plaintiff’s medication resulted in “cognitive inefficiency”;
e.as a result of his neck injury, the plaintiff had been required to change his vocation. In 2008, shortly prior to the workplace accident, the plaintiff had obtained qualifications as a certified practicing accountant. He had been a long term employee of the defendant and expected significant advancement in his career before retirement. As a result of the injury, whilst he presently had what he described as a “good” job, the tasks were more limited and the lack of flexibility in his work capacity meant that his career opportunities had been significantly restricted;
f.it was likely that a fusion of his cervical spine would be required at some stage. This was directly related to the work place injury which resulted in his cervical spine becoming symptomatic;
g.the effect of the plaintiff’s activities of daily living had been significantly affected. He was unable to pursue his bike riding, which at the time of the accident was very significant to him. The plaintiff was actively involved in an amateur theatre group and was no longer able to accept performance roles. The plaintiff’s domestic tasks including cooking, cleaning and gardening were now severely limited.
27Ms Galpin submitted that the consequences to the plaintiff of the cervical spine injury did not satisfy the test of “serious injury”, for the following reasons:
a.the plaintiff’s pain was limited. Mr D’Urso, who most recently examined the plaintiff at the request of his solicitors in February 2012, noted that the plaintiff described his pain as 2.5 out of 10, whereas a year previously the plaintiff described his pain to Dr Kahn as 5 out of 10;
b.the plaintiff largely controlled his symptoms of pain through exercise programs. These had been initiated in February 2012 following the advice of Mr Kahn as part of a pain management program. The plaintiff’s medication was limited and was likely to further improve his functioning;
c.in relation to the cervical spine, apart from degenerative changes, the radiological examinations did not reveal any particular organic injury arising from the accident, no neurological signs were apparent upon examination and the plaintiff had an almost full range of movements;
d.the plaintiff was employed in a responsible position and as Chernov JA said in Sumbul v Melbourne All Toya WreckersPty Ltd [2006] VSCA 292 at paragraph 24, if a plaintiff is able to return to alternative work, in order to obtain leave to issue proceedings for pain and suffering damages, the plaintiff must show “that he experienced significant pain or that he otherwise significantly suffered physically from the injury”.
e.in relation to the possibility of future surgery, Mr Maartens said in his report dated 17 March 2010 that, whether the surgery “would have been necessary if the accident had not occurred would be difficult to determine retrospectively”. Further, it was not clear that surgery would ever be required;
f.the effect on the plaintiff’s pre-accident activities was fairly limited. He was unable to pursue bike riding, although he was still capable of regular and extensive physical exercise, both at the gym and by walking. The plaintiff was still involved in theatre activities, both in his role as Treasurer and assisting with lighting, although because of memory difficulties he could no longer accept performance roles. The limitations on cooking, cleaning and gardening did not substantially affect his enjoyment of life.
Conclusions
28The later fall in October 2010: This issue was not treated as a matter of any significance in the medical reports. It exacerbated the plaintiff’s condition causing him to reduce his hours of work at a time when he had built up to almost full time work.
29However, prior to the later fall, the plaintiff’s cervical spine was symptomatic, the radiography provided an explanation for the pain the plaintiff was experiencing and this was sufficiently clear for Dr Maartens to suggest that surgery was a viable treatment at that time. In the circumstances, the later fall has little relevance in the determination of whether the plaintiff’s cervical spine impairment constitutes a serious injury.
30The proposed disectomy and fusion: Prior to the workplace accident in May 2009, the plaintiff’s cervical spine was unsymptomatic. Later MRI’s demonstrated degenerative changes which would explain the symptoms and which Dr Maartens considered might effectively be treated by surgery.
31It might, as Dr Maartens stated, be impossible to say definitively whether the surgery would have been necessary at some stage, even if the workplace accident had not occurred. However, in the circumstances where previously the cervical spine had been unsymptomatic, the need for the surgery arose as a result of the accident, and Dr Maartens identified that need as soon as the radiographic investigations were undertaken and the explanation for the symptoms became apparent.
32Other consequences of the accident: The plaintiff complains of depression and anxiety. These psychological issues must be ignored when considering the effect of the cervical spine impairment. Similarly, in the period immediately following the accident, certain matters were thought to be an incidence of the post-concussive head injury, and at that stage should properly also have been disregarded.
33However, these matters, including the plaintiff’s fatigue, fogginess, dizziness, problems with memory, lack of confidence, motivation issues, poor concentration and feelings of being overwhelmed have persisted. It is unlikely that they are any longer, if they ever were, a consequence of the head injury, but rather a result of the cervical spine injury.
34The plaintiff’s neck pain has an organic basis. The pain has had a serious effect on the plaintiff’s capacity to sleep. The lack of sleep results in the continuing problems described by the plaintiff, in terms of his inability to appropriately engage in many activities he previously enjoyed.
35Whether the impairment is a serious injury: The plaintiff has had constant neck pain and associated symptoms for four years. The pain has been treated with a variety of prescription medications. The pain continues to affect the plaintiff, most significantly by interrupting his sleep and preventing him functioning in his day to day activities, including his employment tasks. The plaintiff has accepted that his previous career ambitions are now unrealistic and has settled for less demanding employment, albeit in a responsible and remunerative position.
36The only solution offered to the plaintiff is significant spinal surgery. The plaintiff has conscientiously pursued all non-invasive treatment options suggested to him, He has disciplined himself to undertake a rigorous exercise program. The fitness regime has had a positive effect. However, the most striking feature of the plaintiff’s presentation, particularly in the witness box, was of a person whose ability to function has been severely affected by pain and the resulting sleep deprivation and fatigue.
37In the circumstances, I consider that to the plaintiff, the effect upon him of the impairment to the body function of his cervical spine might fairly be described as “very considerable”, and that the statutory test for “serious injury” has been satisfied.
Order
38Accordingly, the plaintiff will have leave to bring a proceeding limited to pain and suffering damages arising from the workplace accident on or about 19 May 2009.
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Certificate
I certify that the preceding 10 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 15 April 2013.
Dated: 15 April 2013
Catherine Kusiak
Associate to His Honour Judge Anderson
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