Naughton v Paccar Australia Pty Ltd (Trading as Kenworth
[2010] VCC 1986
•17 December 2010
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised Not Restricted |
| AT MELBOURNE CIVIL DIVISION DAMAGES AND COMPENSATION SERIOUS INJURY DIVISION |
Case No. CI-10-01582
| MATTHEW NAUGHTON | Plaintiff |
| v | |
| PACCAR AUSTRALIA PTY LTD | Defendant |
| (Trading as KENWORTH TRUCKS) |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10, 13 and 14 December 2010 |
| DATE OF JUDGMENT: | 17 December 2010 |
| CASE MAY BE CITED AS: | Naughton v Paccar Australia Pty Ltd (Trading as Kenworth Trucks) |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1986 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB – neck and left shoulder injury – whether consequences achieve the “very considerable” level – nature and extent of plaintiff’s work capacity – use of narcotic medication – plaintiff remained in employment on light duties for three years after injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC with | Maurice Blackburn |
| Mr M Cvjeticanin | ||
| For the Defendant | Mr W R Middleton SC with | Wisewould Mahony |
| Mr S D Martin | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff claims to have suffered injury to his neck and left shoulder in the course of his employment with the defendant on 12 April 2005 when he was fitting a shield onto a muffler on the outside of a large truck. He remained in employment until December 2008 when he was retrenched, albeit his duties over that period were light. Further, he did not lose any time away from work.
2 He claims to have suffered chronic neck and left-shoulder pain from that time to the present, such as to require him to take significant quantities of powerful pain-relieving medication. He has not resumed work since December 2008, and says that he may be able to undertake some light part-time work, but is incapable of returning to full-time duties.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the defendant on 12 April 2005.
4 Mr Richards, on behalf of the plaintiff, identified two body functions said to be lost or impaired, notably the neck and the left shoulder. Primarily, the plaintiff relied upon the neck as the body function most affected. The application is thus brought under sub-s.(a) of the definition of serious injury contained in s.134AB(37) of the Act, and leave is sought in respect of both pain and suffering and loss of earning capacity.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body functions.
6 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, he must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, he has suffered a loss of earning capacity of 40 per cent or more, when a comparison is made between his without injury earnings in that part of the three-year period before and after injury as best reflects his earning capacity, with his earning capacity at the present time from suitable employment.
7 The plaintiff and his treating neurosurgeon, Mr Armin Drnda, were the witnesses called to give evidence and be cross-examined. In addition, medical reports, radiology reports, vocational assessments and other material was tendered into evidence. I have read all the tendered material.
Relevant Background
8 The plaintiff is now forty-seven years of age. He had a somewhat fractured childhood. His family moved around when he was a child, as his father was a dentist with the Australian Army. He attended technical school and left part way through Year 8. He then travelled around Australia for a period, and became involved with the use of drugs and alcohol. He smoked marijuana on a regular basis from about age fourteen. He worked as a brickie’s labourer, furniture polisher, and in a range of other manual jobs. He began using heroin at approximately age eighteen.
9 He became a self-employed motor mechanic, although without any formal qualifications, and undertook machinery and truck repairs, operating a “backyard” business. The work was not consistent. He entered a long-term relationship in 1985 and became significantly depressed in 1993, and was treated by a psychiatrist with anti-depressant medication.
10 In 1993, he started a fitting and turning apprenticeship and attended trade school. In the course of this work, he suffered a blow to his head by a crane carrying a load of steel, and lost consciousness. He made a full recovery. He had a daughter by his first relationship, but the relationship broke down in November 1998.
11 He obtained fitting and turning and mechanical work through an agency. He formed another relationship and married in 2002. Over this period, he worked in various mechanical workshops. His second daughter was born in October 2003. Throughout this period, he was occasionally using illicit drugs.
12 In December 2003, his medical/clinical records show that he suffered some back pain when lifting one of his children. Again he made a full recovery.
13 He commenced working with the defendant at its Bayswater factory in January 2004 as an assembler. This work involved fitting and turning and motor mechanic skills. The work was heavy, but he enjoyed the work, and enjoyed using the skills he had acquired over a considerable period.
14 His relationship with his wife became strained. He had curtailed his use of marijuana and heroin. He enjoyed bushwalking, and his mechanical skills allowed him to work maintaining and refurbishing cars. He was a passionate motorcycle rider.
15 His income over the relevant years is summarised in taxation documentation.[1] In addition, for the year ended June 2009, he earned the sum of $34,312 which included not only income from employment with the defendant, but also WorkCover payments.
[1] Plaintiff’s Court Book (“PCB”) 33
The Injury and its Consequences
16 In the early hours of the morning of 12 April 2005, the plaintiff was required to fit a shield onto a muffler on the outside of a truck cab. He had done this job on a number of occasions the previous day, and had felt some soreness. He states he was required to climb on the outside of the truck and hang onto it as best he could while fitting the shield, using both hands above shoulder height. The position was awkward, and he was reaching overhead. In that process, he felt what he described as intense pain. He reported the injury and was treated at work by the company physiotherapist. While initially he felt pain spread over a wide area, it localised to his neck and left arm. He left work, and the next day went to see his general practitioner, Dr Foster. He was prescribed anti-inflammatory medication and Panadeine Forte.
17 He had no time off work, and on 12 May 2005, was referred by Dr Foster for a CT examination of the cervical spine.[2] The report noted disc protrusion at C3-4, C4-5, and C5-6. There was foraminal stenosis at C4, and left paracentral extrusion impinging on the thecal sac at C5, thought to account for left C5 radiculopathy.
[2] PCB 87
18 From June 2005, in addition to the prescription of Panadeine Forte, Dr Foster prescribed Endone, a morphine-based pain-relieving medication. The plaintiff also received treatment from an osteopath on a weekly basis for about two years. Dr Foster referred the plaintiff to Dr Sam Engel, rheumatologist, in May 2005. He obtained a history of the development of neck and left-shoulder pain while fitting an exhaust pipe some two months before. Dr Engel arranged an MRI of the cervical spine[3] which showed a left paracentral disc/osteophyte complex at C4-5 which contacted the cord. There was moderate foraminal narrowing at C5-6 and C6-7 contacting the C6 and C7 nerves. The plaintiff did not attend a review appointment with Dr Engel. Dr Engel considered there was nerve-root compression secondary to disc protrusion as a result of the workplace activity.
[3] PCB 88
19 In May and June 2005, the plaintiff attended another general practice, Warburton Medical Group. He was referred to, initially, Mr Frank Thien, neurosurgeon, and subsequently, Mr Armin Drnda, whom he saw on 20 June 2005. The plaintiff has seen Mr Drnda on only one occasion. He received a history that the plaintiff had undertaken labouring work with the defendant which required a lot of lifting, particularly using his arms outstretched and above the level of his chest. Mr Drnda gave evidence and was cross- examined. He explained that when he first saw the plaintiff, he was not concerned with obtaining an accurate employment history, as his focus was the treatment of his condition. Mr Drnda reviewed the MRI scan of June 2005, and noted that the discs at C3-4, C4-5, C5-6 and C6-7 were significantly degenerate, with osteophyte complexes and disc protrusions. He said the C4-5 disc caused canal stenosis, reaching the cord. At C5-6 and C6-7 there was significant foraminal stenosis, and he judged that these discs were responsible for the referred pain to the left arm. He raised the possibility of surgery to treat those discs, but told the plaintiff that would not necessarily help his neck pain.
20 Mr Drnda diagnosed the plaintiff as suffering cervical spondylosis, particularly at C5-6 and C6-7, with left-sided radiculopathy. He thought that condition was consistent with his heavy work for the defendant over a number of years. At the time, he thought the plaintiff was not capable of returning to pre-injury work, but that he would have the capacity for work in lighter employment, providing certain restrictions were put in place. He thought the prognosis for the condition was relatively good.
21 Mr Drnda displayed the MRI scan of June 2005 with the assistance of a viewer, and pointed to the degenerate cervical discs. He said that he would not have expected to see discs in such a degenerate state in a person of the plaintiff’s age. He described the discs, and their compression of the exiting nerve roots, as being well capable of accounting for the plaintiff’s complaints of chronic neck pain, and referred pain down the left arm. When the incident of 12 April 2005 was described to him, he said that was a “trigger” for the onset of the plaintiff’s symptoms. He noted, in the course of his examination, that there were some subjective findings, but also the plaintiff had a left triceps jerk which was an objective neurological finding, indicating radiculopathy at C6-7.
22 Mr Drnda agreed that the changes seen on the MRI scan had been present for many years when he examined the plaintiff in June 2005. However, he said that the incident of April 2005 had triggered the onset of symptoms in a previously asymptomatic spine. He said that working with arms outstretched for prolonged periods of time was known to give rise to the risk of injury in the cervical spine.
23 Mr Drnda was examined and cross-examined at length as to the plaintiff’s current work capacity. At the time he examined the plaintiff, he was still working in full-time employment. In my view, it was difficult for Mr Drnda to form an opinion as to work capacity at the present time, given that he had not examined the plaintiff for five years and even then on only one occasion. Further, he did not have available any up-to-date radiology. The plaintiff’s course of employment after the injury was described to him, together with his complaints of chronic pain, pain into the left arm, and the intake of significant quantities of pain-relieving medication.
24 Mr Drnda accepted that the plaintiff would be capable of carrying out a range of employment, including as a car or truck salesperson, a sales representative in motor-vehicle parts, a clerk in various capacities, and a motor-vehicle parts interpreter. He said that any such employment would have to have the following restrictions:
• The plaintiff would have to be able to sit or walk as required; • He could not be required to carry heavy objects, over, say 5 kilograms; •
His neck would not be able to be placed in awkward positions for long periods of time;
•
His workstation would have to be ergonomically assessed to accommodate his neck condition.
25 In relation to the hours of work which the plaintiff would be presently capable of undertaking, in the course of evidence-in-chief Mr Drnda suggested four hours per day, four days per week, based upon the information he was provided in the witness box. He said it would be necessary to see how the plaintiff went with such hours, with the possibility of increased hours if he was able to cope with the work. In his responding letter to the general practitioner in June 2005, Mr Drnda had suggested that the plaintiff would be capable of working as a forklift driver on a paved area for short periods of time. In cross- examination, when the plaintiff’s work duties over the period from 2005 to 2008 were described, Mr Drnda said that would be an indicator of the sort of work the plaintiff was capable of doing at the present time.[4] He said the plaintiff had the capacity to work in the various jobs suggested by the defendant’s rehabilitation assessor. Mr Drnda also described that, particularly as a result of the plaintiff’s retrenchment, there could be psychological factors at work which would considerably enhance the plaintiff’s perception of pain.
[4] Transcript (“T”) 73
26 In re-examination, Mr Drnda, having had described to him the pain that the plaintiff complained of, agreed that the maximum hours he was capable of working, even with the restrictions provided, would be sixteen hours per week.[5] He further suggested the plaintiff ought to have the benefit of some psychological treatment, and any return to the workforce would need the input of rehabilitation specialists. He said it was unwise for the plaintiff to consume the narcotic medication, and he would attempt to wean him away from it.
[5] T 79-80
27 It is difficult to know what conclusions ought to be drawn from Mr Drnda’s evidence as to work capacity. In cross-examination, he said the plaintiff’s previous employment, or work like it, would be appropriate at the present on a full-time basis, and then in the course of re-examination, he said the plaintiff’s capacity would be restricted to sixteen or so hours per week. In the end, I find my self unable to be satisfied that I can draw any real conclusions from this part of his evidence. To form a concluded view, he would have to examine the plaintiff, view recent radiology and then give careful consideration to the various jobs set forth in the vocational reports. It is not satisfactory that long questions be put to him in the harsh glare of the witness box and he then be asked to form a view.
28 In 2006, the plaintiff was referred to Dr Van Wetering, an exercise and sports physician.[6] Dr Van Wetering’s assessment and treatment was to the plaintiff’s left shoulder. He noted that the plaintiff’s neck condition was complicated by the development of adhesive capsulitis of the left shoulder. In his report of September 2008, he said he was unable to comment on the plaintiff’s then work capacity, as he had not seen him for fifteen months.
[6] PCB 54–56
29 In August 2006, Dr Van Wetering performed a hydrodilatation to the plaintiff’s left shoulder. This led to significant improvement to the pain and restriction in that area.
30 In September 2006, the plaintiff’s marriage broke down. He was very distressed, and began seeing a psychologist. Around this time, his father became ill and subsequently died.
31 At the present time, the plaintiff still sees Dr Foster, his general practitioner. He prescribes a range of medication which includes – Endone, Tramadol, Panadeine Forte taken occasionally, and Valium.
32 As stated, the plaintiff remained at work with the defendant from April 2005 until December 2008. He admitted he had had no time off work in respect of either his neck or left shoulder injuries. Initially, his return to work duties included stamping and filing, and working in the canteen. He worked full-time from 8.00 am to 4.00 pm each day.
33 Of his own volition, he applied for work in the engineering department of the defendant. This provided him with better pay and better employment prospects. Dr Foster provided him with certificates that he was fit for modified duties up until the time of his retrenchment. Further certificates tendered[7] showed Dr Foster continued to certify the plaintiff as fit for modified duties from December 2008 to June 2010. From June until December 2010, Dr Foster certified him as unfit for any duties. The plaintiff’s work in the engineering department was as a “definer”. He worked on a computer with a keyboard, undertaking mechanical design work upon trucks to comply with customers’ requests. He taught himself computer skills, and agreed that he was good at his job. His employer was satisfied. The work involved preparing computer models and interpreting a customer’s engineering requirements. He needed extensive product knowledge and an understanding of the parts necessary to fulfil the customer’s contract. He said it would be difficult to transfer these skills into another job, as the defendant was the only company who did this type of work. In December 2008, he became retrenched, along with a number of other workers, in the course of a job-rationalisation program.
[7] Exhibit 3
34 He said that throughout the period from 2005 to 2008, he was in constant pain at work. He was only able to do the job by taking pain-relieving medication. He said he took eight to twelve Panadeine Forte per day. This claim seems somewhat at odds with Dr Foster’s clinical notes which show one only prescription for Panadeine Forte from June 2008 to December 2008, although he was prescribed other pain-relieving drugs.[8] He regularly saw a psychologist at work, in part for the pain he was in, but also for other problems in his life, including his father’s death and his marriage break-up. He said that this period took a psychological toll upon him. He was only “just hanging on by a thread”. Because of various factors, including his work, he relapsed into heroin use for a period in 2009 over six to eight weeks. Such was the psychological strain at the time that, when it was put to him he would be able to return to a similar form of work at the present time or in the near future, he said “I don’t want to go there again”.
[8] PCB 34-36
35 This claim of the plaintiff that he was only just able to remain at work appears inconsistent with the albeit brief notes in Dr Foster’s clinical records.[9] While over the period April 2005 to his retrenchment in December 2008, the plaintiff did complain to Dr Foster of neck pain, there is no reference in the notes of any inability to cope with his work duties. In fact, the following entries appear:
[9] PCB 36-40
• 22 February 2008 – “managing Ok generally …” • 3 June 2008 – “still having pain but managing ...” • 28 November 2008 – “managing Ok generally. Neck painful still ...” • 19 December 2008 – “Continued pain, fluctuates, overall stable. Managing to cut back on Tramal”.
36 There is no reference in Dr Foster’s reports[10] to any difficulty maintaining his work duties. In his report, however of the 10 December 2010,[11] Dr Foster said:
“…Of course it is not possible to be absolutely certain, but I frankly do not believe this man will be able to work more than 20 hours a week now or in the future.”
[10] PCB 42, 47
[11] PCB 49a
37 Further, other doctors who examined the plaintiff at the relevant time received no complaints.[12]
[12] Mr Drnda - PCB 58; Mr Nye - DCB 2-3; Dr Barton - DCB 6-7; and Mr Elsner - DCB 18.
38 The plaintiff has been unable to resume his motorcycle riding, save for one occasion recently when he rode for 15 kilometres, and suffered a sore neck. He still drives regularly, and has driven interstate on a number of occasions. He lives by himself, and is recently engaged. He does not socialise as much as he did previously. He still mows the lawns, but has difficulty starting the mower. He carries wood into his house for heating during winter. He tries to walk occasionally. He can move his neck, although he needs to be careful. His main problem is his neck pain and referred pain into the left arm. His left shoulder after treatment by hydrodilatation is improved.
39 He still uses illicit drugs from time to time, but mostly his drug problems are behind him.
40 He accepted that he did have a work capacity for light duties, possibly two to three hours per day, two to three days per week.
Consultant Medical Opinions
41 The plaintiff was examined by Associate Professor Boling, neurosurgeon, in November 2010. He obtained a history of the onset of neck and left arm pain in April 2005 in the course of the plaintiff’s employment. He noted the report of the CT scans. He assessed the plaintiff as suffering a “pain syndrome” in his neck consistent with discogenic pain and radiculopathy. Given the onset of pain in April 2005, he considered that his work activities had caused a disc prolapse in addition to aggravating discogenic disease in the cervical spine. Professor Boling considered it was unlikely the plaintiff would return to the workforce in the foreseeable future. He noted the plaintiff as having limited employment opportunities in non-labouring positions, and that his level of education was low. He considered there was the prospect of injections to the spine, and even surgical intervention, subject to up-to-date MRI scans.
42 On behalf of the defendant, the plaintiff was examined by Mr Daryl Nye, neurosurgeon, in July 2005.[13] This opinion is of limited assistance, given its age. Upon examination, there was general restriction of cervical movement, and positive neurological finding. Mr Nye concluded the plaintiff had suffered a cervical disc prolapse with resulting radiculopathy as a result of his employment. He thought the plaintiff’s employment capacity was considerably reduced, although he noted, to the plaintiff’s credit, he had returned to light duties. He considered that surgery by way of cervical discectomy, possibly with fusion, may be required.
[13] Defendant’s Court Book (“DCB”) 1-4
43 The plaintiff was examined by Dr David Barton, occupational physician, in February 2006.[14] Again this opinion is somewhat dated. At the time the plaintiff was working full-time, and the plaintiff described his neck pain as occasional, and radiating down the left forearm. Dr Barton considered the plaintiff had suffered a disc injury with resulting radiculopathy as a result of his employment. At the time he thought that the plaintiff was able to continue his light duties.
[14] DCB 5-8
44 Dr Wendy Bernard, osteopath, provided a report of her treatment of the plaintiff. She thought the plaintiff would not be able to return to his pre-injury duties, and that he would be capable of work only with restrictions which included:
• No lifting over 2 kilograms; • No repetitive lifting;
• No repetitive work with arms at or above shoulder height; • No prolonged neck flexion or postures away from midline; • Frequent breaks and change of position, e.g. sitting to standing. 45 She observed that although the plaintiff was working full-time, he was still experiencing moderate pain and taking strong analgesia to manage his condition. She noted that the plaintiff’s sleep was significantly affected.
46 The plaintiff was examined by Mr Keith Elsner, orthopaedic surgeon, in May 2009.[15] He obtained a description of the injury on 12 April 2005 in the course of the plaintiff’s employment. He noted that the plaintiff had been working in full-time modified duties until December 2008, despite ongoing neck and left- arm pain. He said the plaintiff was coping quite well “once the ergonomics had been sorted out”. He said that despite the prescription of high doses of potent analgesic medication, the plaintiff’s pain was not controlled. He noted a restriction in a wide range of activities of daily living. He thought that the plaintiff had suffered an aggravation of cervical degenerative disease with left C6 radiculopathy as a result of his work for the defendant. There were no symptoms before the event of April 2005. He thought that the plaintiff’s injury and level of impairment had stabilised.
[15] DCB 16-20
47 The plaintiff was examined by Dr Robert Lefkovits, physician, in August 2009. He noted a good range of cervical movements without undue pain. He considered that the plaintiff had developed severe pain in his left arm and neck in April 2005 which was likely to be an aggravation of cervical disc degenerative disease. He noted the plaintiff was able to maintain a good work record until retrenchment in December 2008 but had continued to suffer chronic pain requiring pain-relieving medication each day.
48 He thought that clinically the plaintiff suffered radiculopathy involving C7. His condition had become entrenched and was unlikely to improve. Surgical intervention was not warranted. He suggested an active exercise program, and it was likely the plaintiff would require analgesics in the long-term. He thought the plaintiff had suffered permanent injury as a result of the work incident.
49 Finally, the plaintiff was examined by Mr Kevin Siu, neurosurgeon, in October 2010.[16] He obtained a similar history of the onset of neck symptoms, as did the other practitioners. He noted the plaintiff had been on analgesia for five years. He noted the plaintiff did some creative writing on and off for a period of eighteen months. He thought the plaintiff had suffered a soft-tissue ligamentous injury to his neck, and that it was unfortunate that he was placed on narcotic medication. He noted the MRI of 2 June 2005 showed a small left paracentral disc bulge with no nerve-root compression. He thought there were degenerative changes at C5-6 and C6-7. He could find no evidence of radiculopathy. Given the plaintiff’s symptoms, Mr Siu said it was inappropriate, at the present time, to consider him as fit for work. He suggested that the plaintiff undergo a spinal rehabilitation program and that he be weaned off narcotics.
[16] DCB 26-30
50 In terms of work capacity, Mr Sui considered the plaintiff not fit for work,[17] although with rehabilitation and re-training, he “certainly” would have a work capacity. The type of jobs the plaintiff could do would be best determined by an occupational physician.
[17] DCB 29
51 A number of vocational assessment reports were tendered into evidence. Ms Margaret Leitch of Evidex provided an assessment.[18] She formed the view that the plaintiff was capable of working for a maximum of six hours per day, three days per week. When regard was had to the plaintiff’s injury, his work history, his education, and the definition of “suitable employment” as contained in the Act, she concluded the plaintiff had no capacity for any form of employment. She investigated a number of areas, including as a builder’s labourer, furniture finisher, delivery driver, motor mechanic, supervisor, truck driver, machine operator and fitter and turner. She also considered alternative employment, including console operator, telemarketer, ticket collector and various clerical and administration areas. None of these jobs, said Ms Leitch, was suitable.
[18] PCB 67-86
52 In addition, WorkStreams provided a vocational assessment report on behalf of the defendant.[19] That report identified a range of areas of employment said to be suitable, including car or truck salesperson, sales representative, motor vehicle parts interpreter, clerk, call-centre worker.
[19] DCB 38-45
53 While these reports were of some assistance in identifying the various areas of employment which it was said the plaintiff could be capable of undertaking, in my view, the determination of whether or not the plaintiff has the capacity for such work lies within the opinion of the medical practitioners who have examined the plaintiff, rather than vocational assessors.
Credibility of the Plaintiff
54 Mr Middleton suggested I ought to have reservations as to the plaintiff’s credibility. Video-surveillance of 6 November 2010 was shown. The plaintiff was seen to walk around a shopping centre, and sit for a period of time with his fiancée and daughter. He was observed to move in a relatively free manner. I did not detect any restraint in movements of his neck, nor any obvious pain.
55 When asked by Mr Middleton as to whether he had any time off, the plaintiff said he did, as a result of indirect causes. This, said Mr Middleton, was not correct.
56 There was no mention, said Mr Middleton in the plaintiff’s affidavits, that he was “hanging on by a thread” at work up until December 2008. If that was the case, it would have been referred to. As a result, I ought not be satisfied there was any such difficulty.
57 Generally I found the plaintiff to be a reasonably credible witness, giving a fair account of the neck injury and the consequences to him as a result. However, for all the reasons referred to above, I have distinct reservations as to his claims he was only just able to cope with the modified duties he was undertaking at the time of the retrenchment in December 2008.
Conclusions from the Medical Evidence
58 I was impressed with the evidence of Mr Drnda as to his description of the various degenerate discs in the plaintiff’s cervical spine from the MRI film. I accept his evidence that the discs at C3-4 through to C6-7 are significantly degenerate and that there is canal stenosis as a result. I further accept that the discs at C5-6 and C6-7 do give rise to the left-arm referred pain of which the plaintiff complains.
59 Various of the doctors described the plaintiff as having suffered a disc injury in the relevant incident, and others describe the plaintiff as having suffered an aggravation of the underlying degenerative disease. I accept that the plaintiff had an underlying degenerative condition which was asymptomatic prior to the incident of April 2005. As a result of that incident, whichever description is given of the injury, the plaintiff has suffered constant pain in the neck, with referred pain into the left arm, and that pain has persisted to date, and is likely to continue into the future.
60 Initially, it was considered that the plaintiff’s condition may be amenable to surgery in the form of a discectomy and possibly a fusion, but it is now uncertain whether surgery would be appropriate. Any consideration of surgery would require further radiological investigation.
61 The plaintiff’s condition has been treated by a wide range of potent analgesic medication. He has had significant problems with drug use in the past, and there would seem much merit in the opinion, particularly of Mr Siu and of Mr Drnda, that every attempt ought be made to wean the plaintiff away from particularly Endone. It is put by Mr Middleton that the plaintiff’s need for analgesic medication is because he has become addicted to the substance, rather than because his symptoms require it. However, I am satisfied that the plaintiff has required strong medication to cope with his neck pain.
Pain and Suffering Consequences
62 I accept that the plaintiff has suffered chronic neck and referred left-arm pain since the incident of April 2005. The pain has varied in intensity according to the activities in which he is involved, and is aggravated particularly by lifting activities. The performance of any manual duties which he previously was able to undertake are beyond him.
63 I accept that a range of recreational and domestic activities are reduced, or lost to him. In particular, he is unable to pursue his enjoyment of motorcycle riding. He was a person with good mechanical skills, albeit largely self-taught, and the exercise of those skills is now reduced.
64 It is clear from the medical opinions and the radiological reports that he has a number of significantly degenerative discs in the cervical spine. The bulk of the medical opinion is to the effect that these discs give rise to the chronic pain, and referred pain down his left arm. The situation was sufficiently serious for there to be consideration given to major cervical surgery at an earlier time.
65 Further, the plaintiff takes large quantities of pain-relieving medication. While there may be some addictive element, particularly in relation to his use of Endone, nonetheless I am satisfied that he takes the medication to relieve his neck symptoms. This is, again, a measure of the seriousness of the pain that he suffers.
66 According to the evidence of Mr Drnda, the plaintiff may have a psychological element to his pain. This is related to his retrenchment in December 2008.[20] However, I perceived Mr Drnda’s comments as being of a general nature and referring to persons who are dismissed rather than specifically to the plaintiff. There is nothing in the report of Dr Epstein,[21] psychiatrist, to indicate any significant psychological symptoms nor diagnosable mental disorder. I am satisfied the plaintiff’s neck symptoms have largely, if not entirely, an organic basis.
[20] T 79
[21] PCB 59-66
67 The symptoms are permanent, in that medical opinion generally is that they will persist into the future. It has now been five years since the incident, and the plaintiff still suffers significant pain. There is no medical opinion to the effect that the symptoms are likely to be relieved by any form of therapy.
68 For all of these reasons, I am satisfied the plaintiff satisfies the “very considerable” level as to the consequences of injury.
Pecuniary Loss Consequences
69 Mr Middleton in particular points to the plaintiff’s employment over the period from the incident until December 2008. It is of note that the plaintiff worked full-time over this period, without any time off due to his neck injury. Not only did he maintain this work, but, of his own volition, increased his salary and prospects by obtaining work as a definer in the engineering department. This showed significant skill and initiative. Further, throughout this period, he did not complain to his treating or consultant practitioners that he could not cope with the work. He left not because of his condition, but because he was retrenched.
70 Mr Middleton submits there is no good reason why the plaintiff could not work in full-time employment, undertaking similar duties at the present time, providing the restrictions, in particular those outlined by Mr Drnda, were imposed.
71 The onus is clearly upon the plaintiff to prove that he has suffered a loss of earning capacity in excess of 40 per cent. That onus is only satisfied if, in accordance with s.134AB(38)(g) of the Act, that 40 per cent loss of work capacity would remain were the plaintiff to undertake appropriate rehabilitation and re-training.
72 The most recent report from the general practitioner, Dr Foster, is that the plaintiff would be able to work in modified employment for approximately twenty hours per week, which would represent approximately 50 per cent of the hours which he previously worked. As stated, I am not assisted by the evidence of Mr Drnda in determining the plaintiff’s work capacity.
73 The only other practitioners who have offered an opinion of recent times as to work capacity are Associate Professor Boling,[22] who said:
“In my opinion, he would be very unlikely to be able to return to the workforce in the foreseeable future. His ability to return to the workforce would be dependent upon his gaining employment in a skilled, non- labouring-type of position which would be very unlikely given his previous training, experience and low level of education.”
[22] PCB 66c
74 Mr Kevin Siu said:[23]
“As the worker has symptoms, it is inappropriate to consider him fit to work. He has been able to do light duties for a number of years but I am not sure if the narcotics have contributed to the control of the symptoms. However, it is important to consider that he should be treated and the best way is through a spinal rehabilitation program and first and foremost he must be weaned off the narcotics. … I would have thought that (after) undergoing a spinal rehabilitation program and retraining, he certainly has a work capacity. … Irrespective, I think he should have a spinal rehabilitation program, be weaned off the narcotics and to be re- trained to some extent along the lines proposed. In terms of what job he is best suited to do, that question should be directed to an occupational physician.”
[23] DCB 29-30
75 I have not found it an easy task to determine the plaintiff’s current work capacity. On the one hand:
• The plaintiff has suffered a significant neck injury, involving a number of discs, which has produced chronic neck pain and referred left arm pain; • That pain has required the prescription of significant quantities of pain- relieving medication, including narcotic medication; • His general practitioner, who has treated him over a considerable period, has assessed his work capacity at twenty hours per week; • He has only a modest education and formal training. His mechanical and computer skills are self-taught. 76 On the other hand, the following factors are relevant:
•
The plaintiff was able to work from April 2005 until December 2008 in full- time modified duties without any time off and without any complaint that the duties caused him particular pain or difficulty;
•
The employment was terminated because he was retrenched, and not as a result of any incapacity;
•
He has made no real attempt to obtain alternative employment and not undertaken any re-training or rehabilitation over the last two years;
•
In the absence of any demonstrated significant deterioration in his condition, or increase in symptoms since December 2008, there appears no rational explanation as to why the plaintiff would not be able to resume that or similar employment at the present time.
77 Mr Richards relies upon the opinion of the general practitioner that the plaintiff can work only twenty hours per week. That opinion is contained in a brief report of December 2010.[24] There is no explanation offered by Dr Foster as to how it is he comes to that conclusion. There is no reference to any examination, or assessment of the plaintiff’s work capacity. There is no explanation as to why, given that he had certified the plaintiff as fit for modified duties up until June 2010, that the situation has since changed and what was a full-time work capacity is now significantly reduced. Absent any such explanation, I am not able to rely upon the opinion of the general practitioner.
[24] PCB 49a
78 There is no medical evidence that the plaintiff’s condition has substantially deteriorated, or any other explanation as to why the plaintiff’s position at the present time is significantly different to what it was in December 2008. Bearing in mind the plaintiff bears the onus of proof, I am not satisfied that the plaintiff has a reduced work capacity to the extent of 40 per cent or more. There is no explanation as to why the plaintiff would be unable to resume his previous employment, or like work in modified duties on a full-time basis.
79 While the plaintiff alleges his shoulder injury also reaches the ‘serious injury’ level, there was little if any evidence the shoulder injury affected his work capacity. The hydrodilatation procedure has lead to the improvement of shoulder pain and function. The plaintiff’s neck injury with referred pain into the arm is the more serious of the two conditions.
80 In these circumstances, the plaintiff’s application as to pecuniary loss fails.
81 As stated, the plaintiff’s application as to pain and suffering succeeds.
82 I shall make appropriate orders.
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