O'Brien v VWA

[2011] VCC 1207

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IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BENDIGO
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-02264

CHRISTOPHER JOHN O'BRIEN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Bendigo
DATE OF HEARING:	10 May 2011
DATE OF JUDGMENT:	20 May 2011
CASE MAY BE CITED AS:	O'Brien v VWA
MEDIUM NEUTRAL CITATION:	[2011] VCC 1207

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 2005 – serious injury – application in respect of pain and suffering only.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with	Arnold Dallas & Macpherson
Ms E McKinnon
For the Defendant	Mr A Moulds SC with	Hall & Wilcox
Ms S Manova
HIS HONOUR:

1          In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering consequences of an injury suffered by him in the course of his employment with Nichol Trading Pty Ltd (“Nichol”). In the proceeding, the plaintiff relies upon affidavits filed by him on 21 September 2010 and 9 March 2011 respectively. In addition, the plaintiff gave viva voce evidence and was cross-examined. Otherwise, the parties rely on the medical and like material which they have tendered from their respective Court Books.

2          In his first affidavit, the plaintiff deposed as follows:

•  He was born on 4 June 1965, was married, but lived alone, and had three children – a son aged seventeen years, a son aged fourteen years and a daughter aged ten years.

•  Having left school at the completion of Year 10, he undertook generally physical work which included farming, shearing and truck driving. He said that at the time which he sustained the injury the subject of this application, he was employed by Nichol to operate a spreader truck for the purpose of delivering bulk super product to farm properties. In the course of performing this work, the plaintiff developed symptoms of back pain which, by 17 January 2004, had reached the level where he was required to cease work.

•  He consulted his local general practitioner, Dr E G Ekeanyanwu, who treated him by prescribing painkilling medication and referring him for a CT scan, which the plaintiff described as revealing that he had suffered an injury to his L3-4 and L4-5 discs. He said that after consulting a number of therapists, including an osteopath and a chiropractor, he was eventually referred to a neurosurgeon, Mr Tange, who referred him for an MRI scan and then administered an epidural injection which provided him with some short-term relief but did not cure his back pain.

• Having ceased his employment with Nichol, he subsequently commenced work with “Humes” in Echuca. His work with Humes involved mixed labouring and driving duties which he described as being relatively light. He said that whilst he was able to cope with this work, he found that by the evening he was suffering from increasing pain. He said that in February 2007, whilst still employed with Humes, he was referred back to Mr Tange, who undertook a further MRI scan and administered a further epidural injection which again provided short-term but no long- term relief.

•  That following his injury, his marriage broke down. He said:

“Before I hurt my back I thought I was in a stable marriage. For some reason the marriage seemed to unwind fairly quickly after I was injured. I was stuck at home for about eight months after first going off work. I think the stress associated with being off work and the change in my lifestyle contributed to my marriage breaking down.”

•

In April 2007, he moved to Perth and sought work in the mining industry. He said, however, that he failed the medical examination associated with that work and eventually returned to Victoria and resumed his employment with Humes in Echuca.

•

In 2010, the plaintiff applied for a position with Simplot, his current employer. He said that his reason for leaving Humes related to the fact that his job was very dirty and dusty and that he found that the driving involved adversely affected his back complaint. Further, the job was a casual one and he said that he did not feel secure in that employment.

•

As at 24 January 2010, the plaintiff deposed –

(i)	that he continued to take Panadeine Forte for pain relief;
(ii)	that in some weeks he had stronger pain than in other weeks;
(iii)	that if he spent too much time in one position he would stiffen up and suffer an increase of pain;
(iv)	that he found it difficult to drive long distances and that if he drove for more than an hour he needed to have a break;
(v)	that he had difficulty getting to sleep because of back pain;
(vi)	that he often suffered from increased pain at the end of a working day;
(vii)	that before suffering his injury, he enjoyed fishing, deposing that:

“I got a lot of use out of my boat. I now do not go out in the boat as often as I find that sitting in the boat aggravates my back pain.”

(viii)  that he was generally less active with his children than he would like to be; that he was limited in his ability to interact physically with his younger son; and

(ix)   that any activity of a domestic nature which involved bending or lifting aggravated his symptoms. He said:

“I’m living with significant pain. The pain interferes with about
every aspect of my life.”

3          In a further affidavit sworn 9 March 2011, the plaintiff deposed:

•  That his back continued to give him significant trouble and that his symptoms could fluctuate quite widely:

“…there being days when I feel not too bad and other times when I feel quite acute and constant pain. This is commonly related to the activities in which I have been engaging although there are times when my back seems to get particularly painful for no apparent reason.”

• That he continued to work at Simplot where he had commenced employment working on the production lines. He said that he had made a successful application for a cleaning job with Simplot in which capacity he was employed as a casual until the end of October 2010, when he was made a permanent employee. He said that his work involved nightshift work, that he was able to cope with the work, but that the aspects of the work which involved bending, such as cleaning underneath the lines, aggravated his symptoms.

• That whilst he had been able to reduce his weight to approximately 80 kilograms by January 2010, he now weighed 108 kilograms and he felt that this increase in weight was associated with his requirement to work nightshift and his inability to exercise.

• That he had aspired to obtain employment in an “all rounder role” with Simplot, the attraction of that employment being that he would be able to work dayshift but, having been offered that job he found that it involved a considerable amount of forklift driving which he could not cope with by reason of back pain. Accordingly he was forced to resume his previous position as a cleaner on nightshift. The plaintiff said he was –

“… profoundly disappointed that I was unsuccessful in my effort to move from nightshift cleaning to dayshift work of a more all round nature.”

4          The plaintiff concluded his affidavit with a statement in the following terms:

“I attribute the fact that I have only been able to obtain suitable

employment as a nightshift worker to my injured back. The impact of working nightshift upon me has included my weight increasing by about 20 per cent which concerns me significantly as a greater strain is put on my already injured back by virtue of working nightshift and I find it more difficult to exercise appropriately.

I remain concerned about my limitations in relation to my employment due to my injured back and remain very deeply saddened about the impact of my back injury upon my private life including the role it played in the separation from my wife.”

The Viva Voce Evidence of the Plaintiff

5          In evidence-in-chief, the plaintiff said that he would have preferred working dayshift because working nightshift affected his children and his social life. He described continuing to suffer from low-back pain which extended into his groin and into his bottom. He described the presence of this pain as occurring “most nights”. He said that he was never totally pain-free.

6          In the course of cross-examination, the plaintiff said:

• that in August 2010, he had attended a netball tournament in which his daughter was playing and that the activity he engaged in on that day between 9.00 am and approximately 3.30 pm; namely standing, moving around and going back to the car every now and then, aggravated his condition such that he was required to consult his general practitioner;

• that on average he made use of four to six Panadeine Forte tablets every week and that the pattern of his use of Panadeine Forte may be such that he would take two or three tablets on one day and two or three tablets on another day and have no need to resort to medication for the remaining five days;

• that in October 2010, he had consulted his general practitioner with respect to the presence of a rash and it was possible that on that day he did not complain of back pain because the presence of the rash was his main concern;

• that his back pain had definitely improved from the time at which he had first sustained his injury and that his ability to lose weight and to exercise had helped in that process;

• that he did not consult his general practitioner on each occasion when he had an exacerbation of his back pain and that generally his reason for consultations was to obtain a further prescription for Panadeine Forte;

• that after sustaining his injury, he had worked for Humes for four years and that his work involved –

“… mainly helping on the batch and moving the truck from the

batch plant to the mould.

Q:	And some forklift driving as well?---
A:	Yes, and a bit of mobile crane.”

• He said that he had been motivated to move to Perth to work in the mines, but that he had failed the medical examination for that work because the doctor had noticed an issue with the way he was standing:

“He picked it up and quizzed me and that was that.”

• That on returning to Victoria he recommenced his employment with Humes and subsequently applied for employment at Simplot. It was put to the plaintiff:

Q:	“And you decided that you’d apply …… for a job with them because the money was similar but according to your affidavit, the job was less dirty and you thought you’d have more job security. Do you agree with that?---
A:	Yes.”

I note that in the plaintiff’s affidavit he had also identified a reason for his decision to leave Humes as being that he found the driving adversely affected his back complaint. I do not regard the failure of the plaintiff to mention that fact in the course of providing the answer in cross- examination to which I have referred, as diminishing the evidence given by him in his affidavit in the circumstances in which the issue was not specifically put to him.

• That in his employment with Simplot, he initially worked on the beetroot line in a job which involved cutting off the end pieces of beetroot. He said that the process involved in that work provided him with regular rest breaks and that in undertaking the work, he did so for a matter of weeks before applying for cleaning work on nightshift because he was aware that nightshift work led more quickly to full-time employment.

• That as a cleaner he worked a nine-day fortnight and that he occasionally worked additional hours on a Saturday or on a rostered day off. He said that he was able to perform his work without having any time off, and was asked:

Q:	“Is there anything that you can’t do now when it comes to sitting, standing, bending, those sorts of activities with your back?---
A:	No, I don’t think so.”

• That the condition of his back was not getting better and that he had his good days and his bad days. When it was put to the plaintiff that he had completed health questionnaires both in 2008 and 2009 in which he said he was able to sit for two hours without difficulty, the plaintiff said that the information within the questionnaire was wrong and that he had always had difficulty sitting for two hours. When asked why he had ticked the relevant box, the plaintiff responded:

“I’ve got no idea”.

• That he tried to remain as active as possible and that if he was not working shift work at Humes he would have hoped to have been more active, but that he was limited in this regard by the lifestyle associated with working nightshift

• That following his accident, he did not use his boat to go fishing as much as he did before; that in the last two years he had done less camping but that this had also been influenced by his nightshift work; that his level of pain fluctuated between the presence of mild discomfort on some days and more severe pain associated with a heavy day at work. In this regard he explained:

“Like, if it’s a fairly busy day and then, like, drive home and have a shower and, yes, usually when you’ve relaxed and sat down, yes, it’s like hard to get up and there’s a lot of pain then, a lot of the time.”

(sic)

The plaintiff was asked:

Q:	“Mr O’Brien, the pain that you have even when it’s particularly bad, makes your activities more uncomfortable but it doesn’t cause you to have to completely give up any particular activity, does it?---
A:	No.”

7          In re-examination, the plaintiff said that having sat for twenty minutes whilst giving evidence, he was experiencing a lot of discomfort and that he often sat or drove in the manner that he was sitting as he gave evidence, namely supporting his weight with his left hand in order to relieve his symptoms. In this regard, I noted that whilst the plaintiff was giving evidence, he continually shifted in his seat and it was apparent to me when he was being questioned as to the level of pain which he was experiencing, that he was obviously very uncomfortable.

8          The plaintiff described sitting for an extended period of time as causing similar symptoms to those which he was experiencing while giving evidence and said that whilst working, he experienced symptoms of pain which he graded as varying to six or seven on a level between one and ten. I did not understand the plaintiff to be giving evidence that this level of pain was always present in association with his work however.

9          The plaintiff said:

•  that the level of pain which he was experiencing whilst giving evidence occurred often and that he suffered from pain most nights after finishing work. commenting:

“But I wouldn’t say it was as bad as, as this a lot of the time.”

• that by reason of his injuries, he was no longer fit to undertake the work which he had previously undertaken, such as driving for Murray Goulburn and working as a farm labourer.

• that he did not resort to the use of Panadeine Forte until the level of his pain reached “probably about seven” out of ten.

• that his symptoms interfered with his sleep in that –

“I toss and turn a fair bit, wake up. When it’s bad, like going to
sleep is a problem sometimes too.”

The plaintiff said however that when woken by his symptoms, he could

usually get back to sleep.

• that he had not been as active over the last two years but that his back did not prevent him from doing anything. He explained:

“I’m not going to let it stop me.”

10        He was asked:

Q:	“Leaving aside stopping you, but are there things that you do less frequently or less intense now that you used to do?---
A:	Definitely my fishing, probably involvement with my young bloke’s footy.”

11        The plaintiff said that his pain also affected his ability to exercise and to support his children in their sporting activities. He said that activities of this nature increased his level of pain.

12        The plaintiff said that if he had his choice, he would definitely be working dayshift and further, that working as a cleaner did not involve his preferred occupation.

The Medical Evidence

13        In a report dated 4 July 2007, Mr Damien Tange reported the MRI scan of the plaintiff’s lumbar spine as revealing the presence of a degenerate disc at L4-5 with a small left-sided foraminal prolapse and bilateral foraminal changes at L5-S1 with a degenerative L5-S1 disc. Mr Tange commented:

“I felt that these were the cause of his symptoms and he might respond to a lumbar epidural injection on the left side to try and get rid of his major symptoms.”

14        Mr Tange reported that the epidural injection administered to the plaintiff had improved his leg discomfort although he had continued to experience back pain. He said that he had advised the plaintiff that surgery would not benefit him and that he should undertake weight reduction as this was the most appropriate management course.

15        The plaintiff’s treating general practitioner, Dr Ekeanyanwu, in a report dated 10 October 2007, opined that the plaintiff had suffered lower back pain as the result of a bulging disc; that his prognosis was uncertain and that his symptoms had fluctuated from periods of quiescence to periods of increased severity and pain.

16        In a report dated 16 March 2011, Professor Peter Disler, a specialist in internal medicine, rehabilitation medicine and geriatrics, opined that the plaintiff suffered from chronic non-specific low-back pain which was likely to continue in the long-term and that his condition had stabilised.

17        In a report dated 21 March 2011, Mr David Murphy, a consultant in physical and rehabilitation medicine, opined that the plaintiff’s injury involved an aggravation of degenerative disease of the lumbar spine, that he was capable of employment in which he was not expected to sit or stand in one position for more than an hour and was not subjected to a repetitive jolting of the spine, lifting of more than ten kilograms, or repetitive bending and twisting. Mr Murphy concluded his report, opining that the plaintiff’s condition had stabilised but that –

“I’m concerned, however, that he is quite susceptible to developing further problems with his lumbar spine during the course of his current employment, particularly if he is exposed to a situation in the workplace where he may have a fall or be expected to lift, push or pull a heavy item.”

18        Dr Clive Kenna, consultant in musculoskeletal pain management, examined the plaintiff on 24 June 2008. He opined that the plaintiff had suffered a discogenic injury to his back, that his condition had stabilised and that he had been left with residual back symptoms and reduced activity tolerance limits.

19        Mr Michael Dooley, orthopaedic surgeon, in a report dated 25 March 2010, opined that the plaintiff had aggravated underlying degenerative disc disease of the lumbar spine and that –

“… unable to work, became depressed and moody. He gained weight and became unfit. Essentially, intuitively, he has realised what is the best treatment for him. He began to improve his fitness and lose weight with a combination of exercise and sensible diet.”

20        Mr Dooley opined that the plaintiff was unfit to carry out regular heavy, physical work and that he had suffered a moderate loss of lumbar spinal function which would persist for the foreseeable future. He opined that the plaintiff would continue to note intermittent low-back pain and left lower limb pain which he could keep under control by modifying his activities. Mr Dooley concluded his report by commending the plaintiff upon his motivation to rehabilitate himself and return to work.

21        In a further report dated 6 April 2011, Mr Dooley obtained a history from the plaintiff that he had noted some increase in low-back pain, left buttock pain and groin pain, that the plaintiff had increased in weight, that it was important that the plaintiff increase his levels of activity and reduce his weight, and that it was “imperative that he remains in stable employment”.

Findings

22        Given the medical evidence to which I have referred and the period of time during which the plaintiff’s condition has persisted I am satisfied that his condition has stabilised at its current level. I am further satisfied that the plaintiff’s irregular attendance upon his general practitioner does not attest to the insignificance of his symptoms but rather to the fact that the only medical management available to him is that of pain control.

23        In deciding the issue which arises in this case namely, whether the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him and determine where the facts of this case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving “a value judgment, in which matters of fact and degree, and of impression, are operative,”[1] and one in which I am required to take into account –

“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[2]

[1]            Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

[2]             Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260

24       The plaintiff presented as an honest, reliable and stoic person. It was not contended that he in any way exaggerated his level of symptoms or the adverse affect which his injury has had upon his life. The manner in which he gave his evidence (see for example his evidence as to the level of pain he was experiencing as he gave evidence at T47 and his evidence as to the impact of his pain upon his ability to sleep at T51). My strong impression of the plaintiff was that his nature was such that he tended to downplay the level of symptoms from which he suffered and my impression in this regard is consistent with the plaintiff’s positive attitude both in returning to work, attempting to ameliorate his symptoms by reducing his weight and employing an attitude with respect to activity in which he was not prepared to allow his symptoms to rule his behaviour. In these circumstances I am confident that I can accept the plaintiff’s evidence as to the impact of his injury without qualification.

25       I accept the plaintiff’s evidence that he suffers from symptoms of pain which varies in intensity and which is such that on a weekly basis he experiences bouts of intense pain which require him to resort to the use of Panadeine Forte, and that on most occasions the plaintiff suffers from significant levels of discomfort at the end of his working day. It is appropriate to record my impression of the plaintiff that it was likely that by reason of his reluctance to resort to the use of Panadeine Forte unless his pain level was in the vicinity of 7 out of 10 that his pain threshold was probably relatively high

26        I accept that the plaintiff’s symptoms impact adversely upon his ability to sleep although this impact is at a relatively modest level when considered in the context of the range of evidence given on this issue;

27         I accept that the plaintiff has lost his ability to engage in unrestricted forms of employment; that his work on nightshift substantially interferes with his ability to exercise, to socialise and to interact with his children; and that he has been forced by his injury to engage in employment which is not to his preference. These losses are, in my opinion, significant ones.

28        I accept that the plaintiff’s symptoms also adversely impact upon his ability to engage in his hobby of fishing and that he is restricted in his ability to drive for long distances or to stand or sit in one position for long periods of time. Whilst these restrictions must adversely interfere with his day-to-day life, clearly the extent of that interference would vary in accordance with the waxing and waning of the plaintiff’s symptoms.

29        Having regard to the plaintiff’s evidence, I am satisfied that other than for the effect which the accident has had to preclude him engaging in unrestricted work, his injury has not precluded him from engaging in any activity, although it has had the effect of limiting his ability to engage in strenuous activity and causing him to experience pain associated with such activity if he is to engage in it. The fact that the plaintiff’s symptoms can be exacerbated by the activity engaged in whilst watching his daughter playing netball is informative of the level of activity which the plaintiff is able to tolerate before he suffers a severe exacerbation of his symptoms and suggests that levels of activity which the plaintiff is able to engage in without exacerbating his symptoms are, on occasion, relatively modest .

30        The plaintiff’s evidence that the injury to his back was a significant contributor to the breakdown of his marriage was not challenged and I accept the plaintiff’s perception in this regard. When I take into account the inability of the plaintiff to identify the precise relationship between the breakdown of his marriage and the his injury however, whilst I am satisfied that it is the plaintiff’s perception that his injury was a contributing factor to the breakdown of his marriage, I am not satisfied that this was actually the case.

31       Against the matters to which I have referred I balance:

(i)	the fact that the plaintiff is able to work on a full-time basis and that he has the capacity to work some overtime;
(ii)	that he did not, in the course of his evidence, identify any activity which was completely denied to him by reason of the presence of his symptoms;
(iii)	that the plaintiff is generally able to perform his household tasks;
(iv)	that the plaintiff is able to manage his symptoms without a need for constant recourse to medication.

32        In undertaking the weighing exercise which I am required to employ, and focussing upon the effect of his injuries upon the plaintiff with respect to work, pain and lifestyle, and assessing those effects by comparison with other cases in the range of possible impairments or losses of body function, I am left with the overriding impression of a person whose symptoms are always with him and have a constant and deleterious impact upon the pattern of his life.

33        Although I consider this case to fall at the very borderline of that which may be judged as satisfying the criteria imposed by the Act, I am satisfied that the impact of the plaintiff’s symptoms upon his life is such that it is appropriate to describe his impairment as being more than significant or marked and as being at least very considerable.

34        In these circumstances, I am satisfied that the plaintiff’s impairment meets the high threshold test which is imposed by s.34AB(38) of the Act and accordingly, that the plaintiff has made out his case as to his entitlement to the order sought in this proceeding.

35        I will hear the parties as to the order which I should make in the proceeding and also upon the issue of costs.

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