Moss v Crown Equipment Pty Ltd
[2013] VCC 677
•13 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00821
| LIONEL HENRY MOSS | Plaintiff |
| v | |
| CROWN EQUIPMENT PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 May 2013 | |
DATE OF JUDGMENT: | 13 June 2013 | |
CASE MAY BE CITED AS: | Moss v Crown Equipment Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 677 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the neck – concession that the pain and suffering and loss of earning capacity consequences are “serious” – denial of a causal connection between the neck injury and the consequences
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b) and (38)(c)
Judgment: A declaration that the plaintiff suffered a compensable injury to his neck.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Melbourne Injury Lawyers Pty Ltd |
| For the Defendant | Mr N Horner | Minter Ellison |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 24 February 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering and loss of earning capacity.
3 Mr A Ingram Counsel appeared for the plaintiff and Mr N Horner of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the cervical spine.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff and the defendant tendered documents from a Joint Court Book (“CB”), pages 6 to 33; 41 to 106B; 107 to 123; 123 to 279; 284 to 317; 327 and 352 to 354: Exhibit A;
· The clinical notes of Dr Lim, general practitioner: Exhibit B.
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The statutory scheme
7 The defendant made two concessions. Firstly, that it would make no submissions impugning the plaintiff’s credit; and secondly, that if I was satisfied that the plaintiff had suffered a compensable injury to his neck, then the defendant conceded that the plaintiff had suffered pain and suffering and loss of earning capacity consequences which were “serious”.
8 Therefore, the only relevant consideration which applies to this application is that the plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
Background
9 The plaintiff was born in 1966. He is now forty-six years of age. He is divorced. He has three children who are about twenty-three, eighteen and eight years of age. The plaintiff was born in India. After completing his schooling he trained as a motor mechanic.
10 The plaintiff migrated to Australia in March 2000. He initially worked as a factory worker before obtaining work as a motorcycle mechanic for about four years, before taking up employment with the defendant as a field service technician on 11 May 2005. His work involved servicing forklifts.
11 In his first affidavit sworn 16 June 2011, the plaintiff described the circumstances which he says resulted in him suffering an injury to his neck:
“ I believe that I sustained the injuries the subject of this application as a result of repeated carrying of heavy equipment and jolting and straining of my spine through the operation of a modified Rodeo ute vehicle which I was required to operate during the course of my employment. The vehicle was usually loaded with heavy items of equipment both for the purpose of effecting repairs to forklifts and also the tools and equipment used to undertake those repairs. The difficulty with operating the vehicle, which I drove throughout metropolitan Melbourne to wherever my skills and services were required, was that it was subject to frequent jolting. I was seated on a non-adjustable bench seat which lacked any or adequate suspension with the result that my spine was constantly being jolted. I complained on numerous occasions but up until the time that I was forced to cease work in mid 2006 nothing was done to alter the vehicle in any way to alleviate the problems to which I have referred … In addition to all of the foregoing matters, were the long hours of work which I was required to undertake working 12 hour shifts and frequently driving for six hours a day in the course of my duties.” [1]
[1]CB 8
The relevant medical treatment
12 In order to determine whether the question of causation is established, it is necessary for me to trace through the medical evidence which both Mr Horner and Mr Ingram referred me to.
13 The plaintiff said that he first sought treatment from Mr Hutchison, physiotherapist, on 5 May 2006 for a work-related injury. Mr Hutchison confirmed that in his report dated 2 July 2007.[2] However, there seems to be some confusion regarding how the plaintiff found his way into the care of Mr Hutchison. In that report, Mr Hutchison refers to the plaintiff seeing Dr Lim, who subsequently referred the plaintiff to him. Mr Hutchison said he first saw the plaintiff on 5 May 2006; however, Dr Lim did not see the plaintiff for a work-related injury until 15 May 2006. It is unclear to me whether the plaintiff saw Mr Hutchinson and then Dr Lim, and was later referred back to Mr Hutchinson. In any event, I accept the plaintiff’s evidence that he saw Mr Hutchinson first.
[2]CB 50-54
14 On 5 May 2006, Mr Hutchinson obtained a history from the plaintiff that he was suffering from pain in his lower back which was more on the right side than the left, and that the plaintiff indicated to him that he had pain and tightness in his left cervico-thoracic region extending down his left arm to his wrist. He examined the plaintiff’s neck and found it to be restricted, particularly on rotation and at 70 degrees to the left and 75 degrees to the right, rotation produced neck pain.
15 The plaintiff first saw Dr Lim for a work-related injury on 15 May 2006. His clinical note reads:
“1.upper and middle back pain/pat thinks it is related to his job-poor truck seat has complained to the management.
2.upper back pain very bad this morning.”[3]
[3]Exhibit B/56
16 The plaintiff next attended Dr Massaud, general practitioner, who works at the same clinic as Dr Lim, on 16 May 2006. Dr Massaud recorded that the plaintiff was still complaining of ongoing upper and lower back pain. Dr Massaud referred the plaintiff to have an x-ray. The x-ray was taken on 16 May 2006. The radiologist took an x-ray of the whole of the plaintiff’s spine, including his neck. It is not clear from Dr Massaud’s clinical note whether he intended to refer the plaintiff to have an x-ray of his neck given what he recorded in the clinical note.
17 Nonetheless, the radiologist reported some developmental abnormalities in the x-ray. He noted slight narrowing of the C6-C7 space, and moderate neural exit foramen encroachment at C3-C4 on the left side, which he believed to be related to facet joint hypertrophic change.[4]
[4]CB 34
18 The plaintiff next attended Dr Lim on 17 May 2006. His clinical note reads:
“neck and back pain not improve[d]
long discussion with pt and his manager
both rqt to put on work cover capacity as work related injury
Xray show[s] minor degenerative changes on cervical spine
Advs to h[a]ve anti-oinflam and chiro trt
Reason for visit:
neck pain with referred arm pain.”[5]
(sic)
[5]Exhibit B/55
19 Following those attendances, the clinical notes of Dr Lim refer to consistent attendances by the plaintiff for treatment for neck pain. The following entries in the clinical notes either contain a direct reference to neck pain, or by inference, were attendances for treatment of neck pain: 22 May 2006; 4 June 2006; 11 June 2006; 18 June 2006; 2 July 2006; 18 July 2006, and thereafter there appear to be more attendances for lower back pain before the plaintiff returned on 7 September 2006 with a specific complaint of neck pain.[6] There were further attendances for neck pain through 2007 until 26 July 2007.[7] Mr Horner submitted that there are no other attendances between 6 July 2007 and 31 December 2009. Mr Ingram did not contest that assessment of the clinical records of Dr Lim.
[6]Exhibit B/48-55
[7]Exhibit B/42
20 The plaintiff lodged a WorkCover Worker’s Claim Form signed by him on 19 May 2006[8] in which he described the injury he suffered as:
“BACK SPINE.”
[8]CB 274-276
21 Mr Ingram urged me to conclude that the reference to spine was intended by the plaintiff to refer to his whole spine, including his neck. I accept that submission. It seems to me, in any event, that the clinical notes of Dr Lim make it clear that the plaintiff was complaining of neck pain throughout May and June 2006 which aids me in interpreting what the plaintiff meant when he referred to back and spine on the form.
22 The next medical examination was conducted by Mr Marshall, surgeon. Mr Marshall was engaged by the insurance agent for the defendant. Mr Marshall examined the plaintiff on 17 May 2006. The plaintiff told him that by May 2006 he was experiencing very severe neck and arm pain and residual pain in his lower back.[9] Mr Marshall was of the opinion that the plaintiff suffered a muscle strain which had resolved by the time the plaintiff saw him.[10]
[9]CB 222
[10]CB 223-224
23 Dr Lim provided a report dated 14 May 2013[11] which appears to be a report describing the treatment provided by him from the first occasion the plaintiff saw him complaining of a work-related injury. In that report he referred to the plaintiff seeing him on a regular basis for upper and lower back pain, complaining that the condition of his upper and lower back were worsening, with pain often radiating down his upper and lower limbs.[12]
[11]CB 91-93
[12]CB 92
24 Dr Lim referred the plaintiff to Dr Thomas, consultant in rehabilitation and pain medicine. The plaintiff first saw Dr Thomas on 20 March 2007. Dr Thomas did not obtain a specific history of neck pain, but what he did obtain was a history from the plaintiff that he developed pain in his lower back and in his left arm.[13] It is not clear whether the left arm pain was a reference to referred pain from the plaintiff’s neck. Dr Thomas treated the plaintiff for his dominant complaint, which was lower back pain. He examined his neck and found that it seemed to be quite good.[14]
[13]CD 64
[14]CB 65
25 Dr Thomas provided a number of reports dated 22 March 2007;[15] 11 April 2007;[16] 20 June 2007;[17] 7 April 2008[18] and 25 November 2008.[19] Dr Thomas appears to have last treated the plaintiff on 13 November 2008.[20] On my reading of his reports, it does not appear that the plaintiff complained of neck pain at any stage, nor did Dr Thomas treat him for the neck or arm pain.
[15]CB 64-66
[16]CB 67
[17]CB 68-71
[18]CB 72
[19]CB 73-74
[20]CD 73
26 I have looked at Dr Lim’s clinical notes for 2007 and 2008 to see whether the plaintiff was being treated for neck pain in either of those years. The entries in the clinical notes for 16 March 2007, 2 April 2007 and 17 April 2007[21] are the only entries, as far as I can see, which specifically refer to neck pain. However, there are entries for apparently unrelated medical conditions and others where the plaintiff was prescribed painkilling medication. It is not clear whether the medication was relevant to the treatment of lower back pain only or a continuation of the medication which had earlier been prescribed, apparently for neck pain as well.
[21]Exhibit B/44
27 Dr Lim referred the plaintiff to Mr Pullar, neurosurgeon, in November 2009. It would appear that the plaintiff did not see Mr Pullar, but instead saw Mr Timms, neurosurgeon.[22] It would appear that the plaintiff first saw Mr Timms on 20 January 2010. On examination of the plaintiff’s neck, Mr Timms found mild stiffness in the plaintiff’s neck and mild decreased sensation in the plaintiff’s right hand.[23]
[22]CB 92
[23]CB 96
28 Mr Timms referred the plaintiff to have an MRI scan, which was taken on 16 March 2010.[24] Mr Timms interpreted the MRI scan as demonstrating neural compression foraminally at C5-6 and centrally and foraminally at C6-7. He believed that to be the source of the plaintiff’s symptoms of neck and arm pain. He advised the plaintiff to have an anterior cervical discectomy and fusion at C5-6 and C6-7.[25] Mr Timms performed that surgery on 23 August 2010 at the Epworth Hospital.[26]
[24]CB 38-39
[25]CB 97
[26]CB 103
Causation
29 Dr Lim obtained a reasonable history of the work which the plaintiff alleges was the cause of the onset of neck pain.[27] He was of the opinion that employment was a main contributing factor to the plaintiff’s injuries. He did not differentiate between the pain the plaintiff was experiencing in his neck, mid back or lower back, but he prefaced the expression of that opinion by reference to the plaintiff having recurrent neck and shoulder pain.[28]
[27]CB 79
[28]CB 92
30 Mr Hutchinson obtained a brief but reasonable history of the work which the plaintiff alleges was the cause of the onset of neck pain.[29] He was of the opinion that the plaintiff’s work was a significant contributing factor to the onset of his neck pain, and that the tasks of heavy lifting and sustained awkward postures required in his work were consistent with the causation of the plaintiff’s neck injury.[30]
[29]CB 44
[30]CB 46
31 Mr Timms obtained a reasonable history of the work which the plaintiff alleges was the cause of the onset of neck pain.[31] Part of that history was the development of pain up and down the plaintiff’s spine. He said:
“I believe that Mr Lionel Moss’ work was a contributor significant to his current symptoms. The work that he did was carrying around the toolbox and driving a van from different locations aggravated his ongoing back pain and neck pain as well as contributed to the degeneration of his cervical spine, which [was] likely to have led to his current presentation.”[32]
[31]CB 98
[32]CB 100, 101 and 104
32 The plaintiff has been examined by a number of medico-legal examiners. The first of those was Mr Wilde, orthopaedic surgeon, who examined the plaintiff on 28 June 2007. He obtained a reasonably detailed history of the work which the plaintiff alleges was the cause of the onset of neck pain. Mr Wilde directed his attention to a chronic lumbar spinal condition from which the plaintiff was suffering at that time.[33]
[33]CB 75-78
33 Mr Reid, surgeon, examined the plaintiff on 12 February 2010. He obtained a reasonable history of the work which the plaintiff alleges was the cause of the onset of neck pain. He did not accept that the driving of the vehicle could be implicated in the causation of the plaintiff’s neck pain, but he thought it was related to the stresses placed upon the plaintiff’s neck by heavy lifting which the plaintiff was required to undertake.[34]
[34]CB 124B
34 Mr Klug, neurosurgeon, examined the plaintiff on 16 March 2011. He obtained a reasonable history of the work which the plaintiff alleges was the cause of the onset of neck pain.[35] Mr Klug was of the opinion that the nature of the plaintiff’s employment was an aggravating factor and did play a role in the emergence of symptoms of neck pain. He said it was not the sole cause of the development of the plaintiff’s neck pain, but was a substantial factor in its causation.[36]
[35]CB 109-110
[36]CB 115 and 121
35 Mr Kossman, orthopaedic surgeon, examined the plaintiff on 8 February 2013. He obtained a reasonable history of the work which the plaintiff alleges was the cause of the onset of neck pain.[37] Mr Kossman appears to have obtained a more complete history of the extent of the plaintiff’s complaints of spinal injury. On reading all of the reports, it is apparent that the plaintiff complained at various times of pain in his neck, mid back and lower back, but at various times his neck pain was more dominant than his lower back pain, and at other times his lower back pain was more dominant than his neck pain. The pain in his mid back, whilst referred to intermittently in the reports, does not appear to have been dominant in his complaints to any treating or examining medical practitioners.
[37]CB 196, 199 and 200
36 However, Mr Kossman had a large body of radiological investigations, the plaintiff’s first affidavit and some reports[38] which no doubt assisted him in coming to grips with the injury complex complained of by the plaintiff. In the end, he was of the opinion that the plaintiff had suffered discogenic pain with radiculopathy based upon a C6-7 disc osteophyte complex causing bilateral C7 neural foraminal narrowing and a C7-T1 Grade 1 anterolisthesis, resulting in a moderate narrowing of the left C7-8 foramen. He was of the opinion that the injury had been caused by the plaintiff’s work.[39]
[38]CB 199
[39]CB 202
37 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 12 June 2012 and 21 February 2013. He obtained a very brief history of the work which the plaintiff alleges was the cause of the onset of neck pain.[40] Mr Dooley considered that it was feasible that the plaintiff’s work aggravated degenerative changes in his spine. He referred to documentation he was provided, but nowhere in his report does he set out what that documentation was. It would appear that it was on the basis of that documentation that he observed that the plaintiff’s treatment was mainly for his lower back, and that some time later the plaintiff complained of neck pain. However, he said that he accepted that he did not see the plaintiff at that time, which I take that to mean that he is not in a position to question whether the neck pain was caused by the plaintiff’s work or not.
[40]CB 246
38 Mr Dooley next observed that it was perplexing that the plaintiff has undergone such radical and serious surgery to his neck given that he considered that the plaintiff’s presentation was unusual, as was the distribution of the pain reported by the plaintiff. He accepted that the plaintiff sustained some aggravation of underlying degenerative disc disease in his spine, but he expected it would have settled following the removal of the source of the aggravation.[41]
[41]CB 248-249 and 253
39 Mr Nye, neurosurgeon, examined the plaintiff on 24 January 2013. He obtained a very brief history of the work which the plaintiff alleges was the cause of the onset of neck pain.[42] He considered that the relationship between the onset of the plaintiff’s neck pain and his work to be “questionable”. However, it would appear that the main purpose served by Mr Nye’s examination of the plaintiff was to consider whether the plaintiff should undergo further surgery proposed by Mr Timms, and that would appear to be so, by some of the questions which were posed for Mr Nye’s consideration. In answering other questions, he said that the plaintiff’s neck condition represented naturally progressive constitutional and age-related cervical disc degeneration.[43]
[42]CB 256
[43]CB 263
The Plaintiff’s evidence
40 The plaintiff’s evidence contained in his affidavits does not appear to be overly controversial relevant to causation. The account he has given of the onset of neck pain, and the dominance of his lower back condition when treated by Dr Thomas, is stated in an unexceptional manner and compares well with the reports of Dr Lim and Dr Thomas. Inherent in the plaintiff’s description of the pain he was experiencing is a reference to spinal pain continuing from the time he first saw Dr Lim, which I infer includes neck pain.[44]
[44]CB 8-12
41 Mr Horner quite properly challenged the plaintiff’s evidence in a broad manner not just on the question of causation. I do not propose to summarise that challenge at all because of the concession made by Mr Horner that a finding on causation will see the defendant concede that the pain and suffering and loss of earning capacity consequences contended for by the plaintiff are “serious”.
Disposition
42 Essentially, Mr Horner submitted that the plaintiff initially suffered a spinal injury which manifested itself in symptoms of neck pain; however, the neck pain receded. Mr Horner submitted that the medical records of Dr Lim did not disclose any attendances by the plaintiff complaining of neck pain after 26 July 2007 until he came under the care of Mr Timms. He submitted that 26 July 2007 is a critical date because it coincides with the examination of Mr Marshall, who found that there was little wrong with the plaintiff’s neck when he examined him on 28 June 2007.[45]
[45]CB 227-228
43 Mr Horner submitted that any assessment of the plaintiff’s evidence and the medical evidence must inevitably lead to the conclusion that the initial complaints of neck pain had receded. Further, Mr Horner submitted that the dominant injury was the injury to the plaintiff’s lower back, and that when the plaintiff saw Mr Timms, what Mr Timms treated the plaintiff for was the onset of degenerative changes which had become symptomatic, and not an injury to the plaintiff’s neck. That thesis is consistent with the opinions of Mr Dooley and Mr Nye.
44 Mr Ingram, in answer, submitted that the preponderance of the medical evidence of Dr Lim, Mr Hutchins and Mr Timms is that the injury to the plaintiff’s neck was caused by his work.
45 Furthermore, he submitted that it is difficult to go beyond not only the opinions of Dr Lim, Mr Hutchins and Mr Timms, but the well considered opinions of Dr Reid, Mr Klug and Mr Kossman, who were given a reasonable description of the work which the plaintiff alleges caused the injury to his neck, and who are collectively of the opinion that causation can be established.
46 Mr Horner constructed a thesis which is superficially attractive. It can only succeed if I find that the plaintiff suffered an injury to his neck from which he recovered, and its re-emergence is due to age-related degenerative changes.
47 The impression I have of the plaintiff’s evidence, contained in his affidavits and his oral evidence, is that he suffered an injury to his neck as a consequence of his work, which did not resolve. The absence of attendances on Dr Lim are explicable by the onset of more serious lower back pain evident in the opinions of Mr Wilde and Dr Thomas which dominated his treatment. However, when the plaintiff saw Mr Timms it was very evident to Mr Timms that the plaintiff was suffering disabling pain in his neck which Mr Timms had no difficulty causally linking to the plaintiff’s work.
48 I think the point made by Mr Ingram is well made, that it is difficult to accept that the opinions on causation of Dr Lim, Mr Hutchins, Mr Timms, Mr Klug and Mr Kossman should be ignored in preference for the opinions of Mr Dooley and Mr Nye.
49 Exposing treating medical practitioners and medico-legal consultants to a history of work said to be the cause of an injury is no novelty. It is a step which is part and parcel of the inquiry into whether a worker has suffered a serious injury. Ultimately, whether the opinion of the treating medical practitioner and/or the medico-legal consultants is persuasive on the issue of causation must depend upon the history upon which they relied and whether it was sufficient to found such opinion.
50 I do not think there can be much doubt that Dr Lim is in the most advantageous position to understand how the plaintiff came to suffer the injury to his neck, because he had more exposure to the plaintiff than anyone else. I think his reports and his clinical notes make clear the depth of that understanding. Similarly, Mr Hutchins treated the plaintiff and probably developed a similar depth of understanding. The histories of the plaintiff’s work upon which Mr Timms, Mr Klug and Mr Kossman relied appear to me to compare very well with the description of the work undertaken by the plaintiff which the plaintiff alleges was the cause of his neck injury.
51 On the basis of this analysis, I see no reason why I should ignore the opinions of those medical practitioners in preference for the opinion of Mr Marshall, and then the later opinions of Mr Dooley and Mr Nye. In relation to Mr Dooley, he recognised that he perhaps did not have a full understanding of the basis upon which Mr Timms considered there was a causal link with the plaintiff’s work and the injury to his neck and the reasons for the surgery. Mr Nye blithely dismissed the causal connection with the plaintiff’s work, and that approach is also apparent to a degree in Mr Dooley’s analysis.
52 I prefer the evidence of Dr Lim, Mr Hutchins, Mr Timms, Mr Klug and Mr Kossman for the reasons which I have outlined above. In summary, it appears to me that the plaintiff did have an injury to his neck. It was not always the dominant injury requiring treatment, but it is my strong impression from the plaintiff’s evidence that it persisted, and once his lower back injury was under some control it is clear that when he came under the care of Mr Timms, that his neck injury became the dominant injury requiring dramatic and extensive surgical treatment.
Conclusion
53 Consistently with the concession made by the defendant, I find that the plaintiff has suffered a compensable injury to his neck. I will now leave it to the parties to inform me of the orders that are required including any order for costs.
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