O'Shannassy v Victorian WorkCover Authority
[2017] VCC 546
•3 May 2017
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-03466
| GRAHAM ANTHONY O’SHANNASSY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 26 April 2017 | |
DATE OF JUDGMENT: | 3 May 2017 | |
CASE MAY BE CITED AS: | O’Shannassy v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 546 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – serious permanent impairment of function – aggravation of pre-existing condition – impairment consequences – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Woolworths Ltd v Warfe [2013] VSCA 22; Davies v Nilsen [2014] VSCA 278, Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
Judgment: The plaintiff is granted leave to bring a proceeding at common law for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E A Macnab with Ms R Dal Pra | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr A J McG Moulds QC with Ms M Tate | Wisewould Mahony Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff is a forty-three-year-old man who was injured in the course of, and within the scope of, his employment with Holcim (Australia) Pty Ltd.
2 The employer operates a quarry. The plaintiff was employed by the employer in 2006 as a machine operator. The tasks involved in that job involved processing sales orders, loading trucks and driving a sales loader. This vehicle was used to load different kinds of product as ordered by customers of the employer using a loader which the plaintiff described as being a large front-end loader with a bucket used to collect the relevant material which was then loaded into a delivery truck. He undertook other tasks as required, but the sales work was the work on which he was principally employed.
3 The plaintiff suffered an injury to his lower back. The work which was responsible for the infliction of that injury was heavy lifting and driving a loader which jolted and jerked him as he operated it. Additionally, in about April/May 2010, he set about removing a large and heavy metal segment from a crusher, with the result that he experienced severe pain in his lower back. Lastly, on 14 January 2013, he suffered a severe flare-up of his lower back when the seat of a front-end loader he was operating bottomed out.
4 The plaintiff brings his claim for serious injury based upon the definition of “serious injury” in paragraph (a), that is, he contends that he has suffered a serious permanent impairment of the function of his lower back.
5 There were essentially two issues agitated by the parties: Firstly, the state of the impairment of the function of the plaintiff’s lower back prior to the infliction of the work-related injury, and, secondly, whether the impairment resulting from aggravation of the pre-existing condition of the plaintiff’s lower back has consequences which are “serious”.
The prior back condition
6 Under cross-examination, counsel for the defendant referred the plaintiff to clinical notes and medical reports in an effort to demonstrate that the plaintiff had suffered a chronic and disabling lower back condition since he was a teenager.
7 The first of that material was a clinical note of Dr Henderson, general practitioner. The plaintiff saw him on 31 May 2002. It would appear that the plaintiff saw him for treatment for lower back pain. Dr Henderson recorded that the plaintiff had been seeing Ashley Connell, chiropractor, “for years” for treatment for his lower back. Dr Henderson considered that the plaintiff had some problems at the L4 level of his lower back. He referred him to have a CT scan which was undertaken on 4 June 2002.
8 The second of that material which the plaintiff was taken to was the clinical notes of an osteopath.[1]
[1]Defendant’s Court Book (“DCB) 8-16
9 On the first occasion, which was probably in 2004,[2] the plaintiff consulted the osteopath. He gave a history that he first remembered suffering from lower back pain, and perhaps hip pain as well, fifteen years beforehand. In 2002, the plaintiff was twenty-nine years of age. Therefore, he was about fourteen years of age when he first experienced lower back pain and perhaps hip pain.
[2]The first entry does not contain a date, but the next entry is 16 July 2004, which appears to be a follow-up consultation, which suggests that the plaintiff first saw the osteopath in 2004
10 I propose to refer to each of the entries in the osteopath’s clinical notes with only a brief summary of what each note contains:
·16 July 2004[3] – the plaintiff had niggling lower back pain which was improving.
[3]The date is probably incorrect, because the next date is 7 July 2004. Although determining the actual date is not overly important, it was probably 16 July 2002
·7 January 2004 – the plaintiff had recently carted hay, which resulted in him throwing his back out. He was complaining of lower back pain.
·14 March 2005 – the plaintiff fell off a weighbridge, resulting in him suffering lower back pain.
·13 June 2005 – the plaintiff had undertaken some concreting work, resulting in him suffering lower back pain.
·17 June 2005 – the plaintiff was suffering lower back pain, which was said to be “stagnating”.
·8 December 2005 – the plaintiff woke up with severe lower back pain.
·16 December 2005 – the plaintiff was improving over the previous week.
·5 January 2006 – the plaintiff suffered lower back pain after stretching. It was noted that he was using Nurofen.
·2 February 2006 – the plaintiff suffered lower back pain while getting out of bed.
·16 February 2006 – the plaintiff was suffering from lower back stiffness. There is a note of the plaintiff’s left thigh, calf and foot suggestive of pain in that limb, but it is difficult to interpret.
·30 March 2006 – the plaintiff was throwing ropes over a truck, resulting in him suffering lower back pain. There is a note that he was seeing a chiropractor named “Sonia” in Aireys Inlet.[4]
[4]The plaintiff obtained a report from Dr Sonya Gwosdezki. There was a chiropractor practising in Aireys Inlet who had treated a man named Graham O’Shannassy, but who had no records to demonstrate that it was the same man as the plaintiff (Plaintiff’s Court Book (“PCB”) 57)
·2 February 2007 – the plaintiff was complaining of lower back stiffness relevant to his job at the quarry.
·1 September 2007 – the plaintiff had aggravated his lower back.
·8 September 2007 – the plaintiff’s lower back was much better.
·[indecipherable] October 2007 – the plaintiff’s lower back was much better.
·[indecipherable] 2008 (probably before April 2008) – the plaintiff experienced severe low-back pain as a result of being jolted in a vehicle.
·1 April 2008 – further presentation for the same issue referred to in the last entry. On this occasion the osteopath considered whether the plaintiff required scanning of his lower back.
·22 April 2008 – the plaintiff’s lower back was better.
·15 July 2008 – the plaintiff complained of lower back pain which was improving.
·17 November 2008 – the plaintiff complained of niggling lower back pain which had flared up.
·[indecipherable] November 2008 – the plaintiff complained of a stiff lower back resulting from driving a loader.
·1 March 2009 – there are two entries bearing this date which do not appear to relate to the plaintiff’s lower back as far as I can tell.
·January 2010 – the plaintiff complained of being okay but “not great” in the previous week due to chronic lower back pain.
·3 February 2010 – the plaintiff complained of lower back pain.
·2010 (probably before May 2010) – the plaintiff experienced some improvement.
·9 May 2010 – the plaintiff complained of soreness through his lower back.
·25 May 2010 – the plaintiff complained of having a very sore lower back.
·1 June 2010 – the plaintiff was much the same as described in the previous clinical note.
11 These clinical notes are difficult to read. I have only summarised those parts of the notes where I am confident that I understand what the note-taker recorded.
12 There are notations where it is apparent that the osteopath turned his mind to whether the source of the plaintiff’s pain was disc or facet-joint related. Counsel informed me that they had inspected the clinical notes of the Corangamite Medical Clinic, which is a medical clinic the plaintiff attended between 31 May 2002 and 1 February 2010. Counsel for the defendant was called upon to make an admission, and he did so, that those clinical notes do not demonstrate any attendance by the plaintiff for treatment for a lower back condition nor the prescription of any medication for such a condition.
13 So, from the foregoing it would appear that the plaintiff was troubled by a lower back condition from the time he was a teenager which was sufficiently troublesome for him to seek treatment from Dr Henderson on 31 May 2002, but thereafter from an osteopath and a chiropractor.
14 I should add at this point that under cross-examination, the plaintiff said that he did not remember attending an osteopath on the occasions referred to in the clinical notes, nor how many occasions he attended a chiropractor; however, he did not contest that he had attended the osteopath on those occasions, and had sought treatment from a chiropractor.
15 Despite what appears to be an impressive number of occasions that the plaintiff obtained medical, osteopathic and chiropractic treatment, it is important to put that treatment in its proper perspective.
16 The issue of over emphasising the impact and utility of clinical notes was the subject of comment by Kaye J in Woolworths Ltd v Warfe[5] of the limitations which attach reliance on the clinical notes of medical practitioners, and, of course, paramedical practitioners as well.
[5][2013] VSCA 22 at paragraph [112] and Davies v Nilsen [2014] VSCA 278
17 Certainly, the clinical notes demonstrate that the plaintiff attended for treatment for a lower back condition, and on the occasions that he did, the notes reveal the reason for the consultation; however, the clinical notes have the potential to seduce the reader into concluding that the plaintiff had a more disabling lower back condition than he described in his oral evidence.
18 Against the potential impression created by the clinical notes of the degree of disablement caused by the plaintiff’s lower back condition is the fact that the plaintiff worked full time after ceasing his schooling without any absences from work nor resort to a medical practitioner to obtain prescriptions for painkilling medication.
19 Furthermore, under cross-examination, the plaintiff was asked to describe the work he did before 2010. It was consistent with the description I have given of his work earlier, reasonably arduous manual work.
20 Counsel for the plaintiff conceded that the claimed injury is an aggravation of the plaintiff’s pre-existing lower back condition. Therefore, the onus is borne by the plaintiff to identify the nature of that pre-existing lower back condition, the impairment consequences of it, and the additional impairment caused by the aggravation of it in order to establish that the plaintiff has suffered consequences which amount to a “serious injury”.[6]
[6]Petkovski v Galletti [1994] 1 VR 436 and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
21 The conclusion I have reached at this point is that the pre-existing lower back condition had troubled the plaintiff since he was a teenager, but not to the extent that it disabled him in any material way. He certainly required intermittent treatment, but there is a clear absence of factors suggesting that it was an injury of serious magnitude, because he did not resort to any conventional medical treatment by way of radiological investigations,[7] referral to specialist examination and treatment, and rehabilitation. It did not disable him in any way from the work which he undertook. It was rather more an intermittent niggling lower back condition of longstanding which the plaintiff had obviously been able to tolerate.
[7]Except for the CT scan in 2002
The claimed injury
22 It would appear that the plaintiff first obtained treatment from Dr Allardyce, general practitioner at the Newtown Medical Centre, on 15 May 2010. He initially suffered acute lower back pain which prevented him from working. He steadily recovered and returned to full-time work with minor restrictions which were: no heavy lifting; provision of a table and chair for paperwork; short periods operating machinery of one to two hours and to undertake other light duties as available. Dr Allardyce expected the plaintiff to recover fully.
23 Dr Allardyce referred the plaintiff to have a plain x-ray and then a CT scan which was undertaken on 1 June 2010. It demonstrated minor bulging in the discs at L4-5 and L5-S1. The CT scan which the plaintiff underwent on 11 June 2002 on referral by Dr Henderson demonstrated a similar finding.
24 Dr Seward, general practitioner, of the Newtown Medical Centre, took over the plaintiff’s treatment. He first saw the plaintiff on 4 March 2011.
25 It was during 2011 and into early 2012 that the plaintiff underwent significant medical treatment. He was referred to have an MRI scan which was undertaken on 15 March 2011. It demonstrated a similar problem with L4-5 as was demonstrated on the CT scans. The plaintiff then underwent a CT-guided injection into his L4-5 and L5-S1 facet joints on 22 March 2011, a further CT-guided injection into the L4-5 and L5-S1 facet joints on 16 May 2011 and a CT-guided medial branch radiofrequency denervation procedure performed by Dr Connell, physician, on 25 July 2011. The plaintiff underwent a further radiofrequency denervation into the L4-5 and L5-S1 facet joints performed by Dr Comin on 24 April 2012.
26 Dr Seward provided three medical reports dated 14 May 2014, 25 January 2017, and 24 April 2017. In his first report, he traced the chronology of the treatment which he provided the plaintiff, and in particular, the invasive treatment which I summarised in the preceding paragraph.
27 In addition to that invasive treatment, the plaintiff was referred to physiotherapy, massage and hydrotherapy, and was prescribed analgesia.
28 Dr Seward then described the state of the plaintiff’s lower back in these terms:
“Due to the back injury Graham’s capacity for ongoing work is significantly restricted. His future work capacity is limited to tasks that place only minor strain on his lower back so he is restricted from repetitive bending, heavy lifting or repeated twisting and turning. I recommend that he continue to have supportive musculo skeletal treatment, Hydrotherapy and a supervised Gym program.”[8]
[8]PCB 51
29 In his last report, Dr Seward was asked a number of questions, and the relevant answers to those questions disclose that he was of the opinion that the plaintiff was:
“… unable to undertake repetitive lifting or carrying duties, prolonged sitting including prolonged driving, or prolonged standing, so his employment in manual work for which he is skilled is limited.”[9]
[9]PCB 53.1 – 53.2
30 And later, in the same report:
“… he is limited by his back injury in normal domestic duties including house work and gardening and maintenance, and attempts at these activities leaves him in considerable pain. He is also unable to undertake normal recreational [a]ctivities such as kicking the football with his sons without experiencing significant pain.”[10]
[10]PCB 53.1
31 Dr Seward was aware, when he offered the opinions from which I have just quoted, that the plaintiff was retrenched on 21 January 2014, but was re-employed in 2014 with Colac Landscape Supplies on a full-time basis.
32 Under cross-examination, the plaintiff described the work he undertook before he was retrenched. He worked in the office, on a weighbridge, and when a relief worker was needed, he operated the crusher and the sales loader, working about 50 hours per week which involved some overtime. He described the work he was doing as “very light duties”. After he suffered the major flare-up on 14 January 2013, he did not return to operating the sales loader. He was mostly working at the weighbridge which he described as involving answering the phone, taking orders and “basically filling in the days”.
33 At present the tasks which the plaintiff undertakes with his present employer are to bring out a small loader from where it is housed overnight. His employer, a man named Ray, loads a tip truck which the plaintiff drives to various destinations outside Colac in order to make deliveries. Apart from the physical components of his present work, he takes orders by phone which are hand recorded. Under cross-examination, he described his capacity to undertake these duties as “just manageable”.
34 In the plaintiff’s affidavits, when under cross-examination and re-examination, he described the consequences to him of suffering the injury:
·pain on a subjective scale of 2 out of 10 before he was injured, but since suffering injury, it has been as high as 6 or 7 out of 10 and it can be worse, particularly in colder weather.
·Sleep is interrupted by the pain in his lower back, with the result that he feels “exhausted during the day”. He tried using Valium to assist him to maintain his sleep, but it was not very effective.
·The need to use a form of Panadeine, for which a prescription is needed, Ibuprofen and Panadeine Forte for pain relief. He takes Ibuprofen and the Panadeine most mornings. He takes the Panadeine Forte a few times a month. It has side effects, making him “dopey” and causing him constipation. I gathered that he prefers not to take it unless he needs to.
·Capacity to undertake general household activities, such as vacuuming, mopping, scrubbing, carrying loads of washing and similar activities has been reduced.
·Difficulty kicking a football with his two sons, one of whom plays Australian rules football and the other plays soccer.
·He could not operate a sales loader now, nor perform any maintenance on it. After a day’s work his physical state is “pretty ordinary”, and he added that his lower back is pretty sore after working a 10-hour day.
·An inability to stand for very long, for example standing at parties or on similar occasions. His capacity to sit and walk are likewise limited.
·Before he suffered injury he owned a 6-acre property with his former wife. He was able to undertake fencing, slashing and maintaining and renovating the house on the property and other work that was required, but he could not do that sort of physical work now. He sold 3 acres of that land with a house on it after his marriage breakdown. There are other physical tasks that he could not undertake now, for example concreting and hay carting.
·Difficulty lifting objects weighing more than 5 kilograms, and when he has done so he said he has paid “for it big-time; I’ll be very sore”.
·He did some fishing and went camping, but it was my impression that these were infrequent recreational activities engaged in by the plaintiff, but they were no doubt enjoyable.
35 The plaintiff struck me as being a very straightforward, truthful witness. I have no hesitation in accepting his evidence.
36 I consider that the reports of Dr Seward are based upon an accurate account of the nature and extent of the plaintiff’s injury and its consequences in terms of the plaintiff’s work and the impact upon his domestic, social and recreational activities.
37 Counsel for the plaintiff referred me to the reports of Professor Richard Bittar, neurosurgeon, dated 16 January 2017 and 24 April 2017. He examined the plaintiff on 16 January 2017. He was of the opinion that the plaintiff had suffered an aggravation of lumbar spondylosis based upon a plain x-ray taken on 1 June 2010 the MRI scan performed on 15 March 2011. Both demonstrated degenerative disc disease, most prominent at L4-5, and facet-joint arthropathy at L4-5 and L5-S1. He provided a very similar opinions to Dr Seaward relevant to the plaintiff’s capacity for work and the general interference that the injury was likely to cause the plaintiff.
38 The defendant had the plaintiff examined by Mr Michael Dooley, orthopaedic surgeon, who provided two reports dated 19 July 2016 and 3 February 2017. He examined the plaintiff on 18 July 2016 and again on 30 January 2017. His opinion does not appear to me to differ much from the opinions of Dr Seaward and Professor Bittar. He was of the opinion that the plaintiff had suffered an aggravation of underlying degenerative musculoskeletal condition, but appears to be equivocal as to whether the symptoms complained of by the plaintiff are causally related to his work, but otherwise he considered that the plaintiff was only fit for light physical work or clerical duties.
39 Neither counsel submitted that there is any controversy in any of the medical evidence, and I agree that that appears to be so.
40 I will now return to the authorities which I referred to earlier. Firstly, I find that the plaintiff suffered a relatively modest intermittent niggling lower back injury from the time he was a teenager which did not incapacitate him for work or in his domestic social and recreational activities.
41 There is some reference in the clinical notes of the osteopath to possible disc and facet-joint involvement, but the notes do not make it clear to me what the basis for that thinking might have been. I am not prepared to elevate the mere mention of those possibilities to much more than being just possibilities in the absence of medical opinion which is clearer and more certain. I note that the plaintiff told Professor Bittar that he did not have a prior back problem, although he did tell Mr Dooley that he had experienced intermittent lower back pain which I think is an accurate assessment of the nature and extent of his pre-existing lower back condition.
42 It is probable that the source of the plaintiff’s pre-existing lower back condition was degeneration in his spine at around the L4-5 level, but again, that is difficult to determine with any certainty.
43 What is certain is that following the occurrence of the plaintiff’s injury, there are now several opinions of medical practitioners of eminence of a diagnosis of an injury.
44 The extent that the plaintiff’s prior medical condition resulted in an impairment of the function of his lower back was relatively modest for reasons which I think I have now made plain. When that state of affairs is compared with the impairment caused by the aggravation, then it is plain enough to me that the plaintiff has been incapacitated for his pre-injury work, then experienced constant pain requiring invasive medical treatment, general medical treatment, paramedical treatment and prescription of medication, and he was rendered fit for light work only, and I accept that he is struggling with that work. None of these consequences were present prior to the plaintiff suffering injury.
45 The comparison which the evidence discloses demonstrate to me that the impairment resulting from the aggravation of the pre-existing medical condition is an additional impairment which has consequences which are “serious”.
46 Therefore, I consider that the plaintiff has suffered an injury to his lower back which has impaired the function of his lower back and has consequences which are “serious”, and I have reached that conclusion by making the relevant comparison with like impairments as required.
47 It is for these reasons I will grant the plaintiff to leave which he seeks.
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