Neal v M C Herd Pty Ltd
[2012] VCC 328
•28 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-11-04709
| VAUGHN JAMES NEAL | Plaintiff |
| v | |
| M C HERD PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 21 & 22 March 2012 | |
DATE OF JUDGMENT: | 28 March 2012 | |
CASE MAY BE CITED AS: | Neal v M C Herd Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 328 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of a low back injury – whether those consequences are fairly described as being more than significant or marked and as being at least very considerable.
LEGISLATION CITED – Accident Compensation Act s.134AB
CASES CITED – Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird and Mr I Fehring | Maddens Lawyers |
| For the Defendant | Mr P Elliott SC and Mr J Batten | Lander and Rogers |
HIS HONOUR:
1 Vaughn Neal alleges that he suffered an injury to his low back on or about 6 September 2006 in the course of his employment with the defendant. He seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
2 His right to do so is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is a “serious injury”.[1]
[1]Section 134AB(19)(a).
3 The term “serious injury” is defined in sub-s.134AB(37) of the Act, in so far as is relevant to this application, as a “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of the lumbar spine.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at [18] to [19].
6 The term “serious” is to be satisfied by reference to the consequences to Mr Neal of any impairment or loss of function of his lumbar spine with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b).
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application, unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[4]
[4]Section 134AB(38)(c).
8 The application relates solely to the pain and suffering consequences of Mr Neal’s injury.
9 Counsel for Mr Neal submits that the consequences of his lumbar spine injury can fairly be described as more than significant or marked and as at least very considerable. Counsel for the defendant denies that this is so. It is this issue which falls to be determined.
Background
10 Mr Neal is aged 37 years. By way of education he successfully completed Year Eleven. He attempted but did not complete Year 12.
11 Since leaving school, he has worked in a number of different occupations including that of apprentice dairy farmer, farm labouring, boilermaker, plumber’s assistant, assistant cheese maker and vineyard labourer.
12 In approximately June 2006, Mr Neal commenced employment as a labourer with the defendant, which conducted an abattoir near Geelong. He described his duties with the defendant as physically demanding with heavy lifting and repeated bending. He was required to load trucks by hanging large meat portions on hooks. As a consequence of performing that work, he developed neck pain and some mild mid and low back pain in about July 2006. He had some physiotherapy and this pain settled after a few weeks.
13 On or about 6 September 2006, he was engaged in filling bags with offal and then lifting those bags onto a bench to be weighed. He then lifted the bags off the bench and placed them into a bin. Whilst he was engaged in lifting those bags, he felt a “pop” in his low back and developed low back pain. He continued working, hoping the pain would abate, but it did not. He reported the incident and was placed on light duties.
14 Approximately one week later, he attended Dr Bell at the Bannockburn surgery. He was put off work and was prescribed anti-inflammatory and analgesic medication. He was referred for physiotherapy. He was off work for about a week and then certified fit for alternative duties. He resumed, but soon afterwards was put off for a further week. Again, he returned on restricted duties. His back pain continued. He had pain and tingling radiating into the back of his right leg and foot.
15 Dr Bell arranged for a CT scan of his lumbosacral spine which showed degenerative changes in his low back. He had a further CT scan in May 2008 and June 2009 and an MRI scan in May 2010. The parties are agreed that radiology showed pre-existing degenerative changes at various levels of his lumbar spine but not more.
16 Mr Neal submitted a WorkCover claim in respect of the injury which was accepted. He received WorkCover weekly payments during periods of incapacity. His medical and like expenses were paid.
17 In late 2006, he resigned his employment with the defendant, stating that he was unable to handle his duties.[5]
[5]PCB 4.
18 In November 2006, he commenced employment as a labourer with a firm known as Bartruss, in Geelong. The company constructed prefabricated timber walls. Initially he was employed as a casual. In April 2006 he became permanent. His duties there involved working with timber, cutting lengths and constructing frames. His evidence was that he was generally able to avoid the heavier lifting tasks whilst in that employment. He resigned from that position in May 2008, at about the time that he suffered a temporary increase in low back pain after working on his car.[6] In November 2011 he suffered another temporary increase in back pain when lifting wet washing.
[6]PCB 5
19 He was unemployed for more than two years. In about August 2010, he commenced employment with Bamganie Environmental Services (“Bamganie”) at Lethbridge, situated just out of Geelong and quite close to where he was then living in Bannockburn. He has remained in employment with Bamganie until the present time. Initially, he worked in its medical waste collection division which involved collection of various medical waste products from hospitals, surgeries and the like. After three to four weeks, a vacancy occurred in a different division of Bamganie. His duties then changed to that of driving to pick up deceased animals from various centres including the RSPCA, the Lort Smith Home, the Lost Dogs Home, and a large number of veterinary clinics.
20 When he first commenced working for Bamganie, he lived in Bannockburn. In September 2011, he moved to nearby Gheringhap. Bamganie operates from Lethbridge, about fifteen minutes away.
21 His duties with Bamganie, for most of the period over which he has been employed by it, involve him driving to Lethbridge from where he takes a three tonne truck to various pick-up places in Melbourne and in various regional centres of Victoria. His job is to collect deceased animals which have been stored in freezers. These are animals that have either died or have been put down. They are generally household pets - cats and dogs. From Geelong, he will drive as far as Yarram in Gippsland, north as far as Bendigo, west as far as Warrnambool and Port Fairy and also to Ballarat. He generally works a four day week, but sometimes works five days. He works long hours, sometimes up to sixty hours per week.
22 It was accepted that since August 2010, he had averaged forty nine hours per week. He works on his own. Every morning, he is given a list of premises from which he must collect deceased animals. Generally, on any one day, he would pick up from fifteen or twenty different locations around Melbourne or regional Victoria. Generally, he is required to lift bags containing deceased animals from freezers and place them in a bin and into his truck. The weight of such animals depends on type and breed. They could weigh up to twenty kilograms. The heaviest he has loaded was a deceased Mastiff, which weighed nearly one hundred kilograms. On that occasion he was able to use an electric hoist to lift it. Deceased Labrador dogs can sometimes weigh up to thirty kilograms. Often, he received assistance at the various clinics that he attended, to lift the deceased animals. This was not always the case. Generally, the weights that he was required to manually lift were between ten and fifteen kilograms.
23 His hours of work at Bamganie varied. He commenced work at various times between about 5:00 am and 8:30 am. He generally finished between 6:00 pm and 8:30 pm. On any view, he worked long hours and drove long distances. At each place from which he was required to collect animals, he was able to alight from his truck and move around.
Diagnosis of Injury
24 Counsel for both parties were in agreement that the injury diagnosed by medical practitioners was best described as an aggravation of pre-existing degenerative change in Mr Neal’s lumbar spine. It is the case that the earlier CT scan referred to a probable contact with nerve roots,[7] however, the later MRI reported no such involvement with nerve roots.[8]
[7]PCB 112.
[8]PCB 115.
25 Counsel for both parties agreed that this was what is generally referred to as a “range” case, where the Court is required to look at all the evidence and reach a determination as to just how serious the consequences of the injury are for Mr Neal.
26 Counsel for Mr Neal referred to his three attendances at hospital as a consequence of low back pain, each resulting from what appear to be relatively innocuous incidents. The first of these occurred after he had bent to pick up a motor vehicle mud guard. The second occurred picking up some wet washing. The third occurred after he left a brothel and whilst apparently intoxicated. There are also references in the evidence to attendances at the Timboon Hospital[9] but there is no evidence concerning what these attendances related to.
[9]PCB 90.
27 Counsel referred me to the evidence of Mr Neal that often following a day’s work he would lie on the floor on his return home as a consequence of back pain. Further, he referred to evidence that he spent weekends mainly recovering so that he could work on the following week.
28 In this application, the onus is on Mr Neal to satisfy the Court that, on balance of probabilities, the consequences of his low back injury are such that they can fairly be described as more than significant or marked and at least as being very considerable. I am not satisfied that Mr Neal has discharged that onus.
29 I have read all of the medical and other evidence. I consider that the following matters are important in reaching my conclusion:
(a) There is relatively little radiological evidence explaining on-going pain.
(b)Mr Neal has not undergone any form of surgery and there is no suggestion that surgery will be performed in the future.
(c)Mr Neal is employed in a job which requires a great deal of driving. Further, it is a relatively physical job involving lifting deceased animals weighing on average ten to fifteen kilograms from freezers. From time to time they weigh up to twenty kilograms and he often lifts them without assistance. He is working on average about fifty hours per week, four days per week. On occasions, he works a five day week and works up to sixty hours per week.
(d)He is able to drive for distances of up to two hours from Geelong without a break. His employment requires him to drive from the Geelong area over a wide portion of Victoria including Warrnambool, Ballarat, Bendigo and Yarram in East Gippsland.
(e)He appears to enjoy the work and there was nothing in the evidence before the Court to indicate that he is experiencing difficulties with his job such as would prevent him from continuing indefinitely;
(g)He has been a keen player of darts in the past. He was apparently very good. He played competition darts which involved him playing at one hotel or another on Thursday and Friday nights. He described the posture adopted by a darts player - leaning forward and staying still - as causing him problems with his low back. He no longer plays competition darts but he does continue to play social darts, generally on a weekly basis. I find that his reduced level of involvement with darts is a consequence of his back injury. However, I note that Mr Neal’s family arrangements have altered considerably since he was injured. He now has a household consisting of a partner and four children and, on occasions, an extra two children from his previous marriage. I consider it unlikely that, in those circumstances, he would now be playing darts two nights a week at hotels around the area, regardless of injury.
(h)With the exception of the alteration to his darts arrangements, there is no evidence of any other recreational or social activities that have been affected in any way by his injury.
(i)Counsel for Mr Neal submitted that he was impaired in the mowing of lawns at his home at Gheringhap. I do not accept that this was reflected in the evidence. Mr Neal lives on a two acre allotment. It is made up almost entirely of grass. His evidence was that to mow such an area of lawn required a ride-on mower and that he would have been capable of mowing the lawn had he owned such equipment. He does not own a ride-on mower and employs a person to bring such equipment onto the property to mow the lawns.
(j)He has not taken pain killers or any anti-inflammatory medication since 2010 notwithstanding the nature and hours of work previously referred to.
(k)Mr Neal has received relatively little in the way of medical treatment since the injury. In 2007, while he was employed by Bartruss Pty Ltd he did not consult any practitioner in respect of his back. As previously referred to, he has had some visits to the casualty department of hospitals. The defendant tendered the records of the Geelong Hospital relating to Mr Neal’s attendance there on 20 January 2010. The presenting problem was described as lower back pain exacerbation. The notes indicate that he was intoxicated and asleep and that hospital staff were unable to assess his back pain and were to await him becoming more sober for further assessment. The later note is that he was mobilising without significant pain. He was given a script for pain relief and discharged home. Such attendances have been relatively few. He appears to be receiving little, if any, medical treatment at present.
(l)The defendant showed DVD film of Mr Neal taken on 9, 10 and 11 September 2011. The film depicted Mr Neal loading his car and a removal van with a variety of items of household furniture and luggage. Mr Neal agreed that at the time, he was in the process of moving home from Bannockburn to Gheringhap and had rented a removal van for that purpose. The film depicted him commencing such work at about 11:00 am. Mr Neal recalled that the process of loading and unloading continued until about 3:15 am on the following morning. During the course of the film, Mr Neal was depicted bending without difficulty on a number of occasions and lifting various boxes and items of relatively heavy furniture. The film conveyed no impression that he was in any pain or was restricted in any way. He appeared to move freely. He did not appear to guard his back at any time.
(m)Although Mr Neal has complained of sleeping difficulties, he has not sought any medication over the years since his injury to assist with that problem.
(n)Clinical notes of his general practitioners are of little assistance to Mr Neal. Dr Andrew Bell saw Mr Neal soon after his initial complaints of back pain in September 2006. He had certified he was fit for alternative duties. By November 2006, Mr Neal was noted to have requested a return to normal duties, stating that his back had improved with only mild left lumbar discomfort and no leg pain. He was able to touch his toes.[10] As previously indicated, he sought no medical treatment at all throughout 2007 but did consult the Newcomb Central Medical Clinic in Geelong on occasions in 2008. Dr Asif’s report of January 2010 indicates that the Centre’s records do not suggest that any of those consultations were related to any work related trauma. His clinical examination of May 2008 did not suggest any neurological deficit.
(o)Notwithstanding various histories provided by Mr Neal to medical practitioners of prior diagnoses of a disc prolapse, I consider there is no evidence of such a diagnosis or condition.
[10]PCB 73.
30 Mr Neal saw Dr James Reed at Cobden in late 2008 and 2009. He appears, at times, to have prescribed Tramal and Valium for him, but did not proffer any diagnosis or prognosis.
31 Mr Neal was seen by two specialists, Dr David Mitchell, orthopaedic surgeon, and Mr Brendan O’Brien, neurosurgeon. Neither of their reports assisted the submissions made on Mr Neal’s behalf that the consequences of his back injury were more than significant or marked.
32 Mr Neal stated that he had purchased a 750cc motor cycle for $3,500 about twelve months ago. His evidence was that he had never ridden the motor cycle other than briefly on the front lawn of his home and whilst holding his young daughter. He maintained that he had not ridden it on the road at all. I found that evidence implausible. I think it highly unlikely that he would purchase a large motor bike unless he thought he would be able to ride it and equally implausible that he did not even attempt to ride it in order to establish whether or not it caused him any back problems.
33 In summary, I consider that it is likely that Mr Neal did suffer a soft tissue injury which probably consisted of an aggravation of pre-existing degenerative changes to his low spine. However, I am not satisfied that he has discharged the onus of establishing that the consequences of that injury are more than significant or marked and can fairly be described as at least being very considerable.
Conclusion
34 For the reasons set out above, I am not satisfied that Mr Neal has suffered a serious injury as defined in the Act.
35 Accordingly, the application will be dismissed.
36 I shall hear the parties as to costs.
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