Pipe v Victorian WorkCover Authority
[2016] VCC 57
•15 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-06569
| DARREN PIPE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2016 and 5 February 2016 | |
DATE OF JUDGMENT: | 15 February 2016 | |
CASE MAY BE CITED AS: | Pipe v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 57 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury application – Pain and Suffering – Aggravation to pre-existing injury
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:Dwyer v Calco Timbers Pty Ltd (No2) [2008] VSCA 260; Sumbul v Melbourne All Toyo Wreckers Pty Ltd [2006] VSCA 292
Judgment: Application Dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Wood | Henry Carus & Associates |
| For the Defendant | Ms R Kaye | Hall & Wilcox |
HIS HONOUR:
1 This is an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (the Act) by the Plaintiff to commence a proceeding for damages in respect of the pain and suffering consequences of an injury suffered by him during the course of his employment with Bailey Personnel Pty Ltd. The injury relied upon by the Plaintiff is an aggravation to pre-existing asymptomatic degenerative change with broad-based shallow left posterolateral disc protrusion at L4‑5 and impingement upon the proximal origin of the left L5 nerve root and posterior paracentral disc protrusion at L5‑S1 of the Plaintiff’s lumbar spine. The body function relied upon by the Plaintiff is his spine.
2 In February 2011 the Plaintiff commenced employment with Bailey Personnel Pty Ltd (the employer). The employer is a labour-hire company, and the Plaintiff was placed with a host employer, Kuehne & Nagel. His duties involved forklift driving and picking stock. His usual work hours were 9am to 5pm Monday to Friday.
3 On 6 April 2011 the Plaintiff was crushed between a truck and a forklift while performing work-related duties. Following this incident the Plaintiff immediately felt pain in his back and hips, and consulted his general practitioner and underwent physiotherapy. His symptomatology settled and he was able to return to his usual work duties.
4 In 2012 the Plaintiff began to experience increased back pain when performing his work duties, and on 11 July 2012 he consulted his general practitioner, who referred him for a CT scan. The CT scan was conducted on 12 July 2012 and revealed the following:
“1. Lumbar spondylosis with disc space narrowing at L5/S1 and moderate facetal arthropathy at L4/5 (on the right) and at L5/S1 (on the left).
2. Broad based shallow left posterolateral disc protrusion at L4/5 encroaches and possibly impinges upon the proximal origin of the left L5 nerve root.
3. Posterior paracentral disc protrusion at L5/S1 encroaches upon the proximal origins of the S1 nerve roots.”[1]
[1]Amended Plaintiff’s Court Book of 3 February 2016 (PCB), page 15
5 On 14 July 2012 the Plaintiff underwent a CT scan guided nerve block procedure at the Epworth Hospital which resulted in significant improvement of his left-sided leg pain.
6 In late July 2012 the Plaintiff returned to work on modified duties. He commenced physiotherapy and was performing a mix of office duties and warehouse-related duties.
7 On 3 January 2013 the Plaintiff returned to work after a period of leave subsequent to being stood down, and he was placed in an isolated location at the workplace and required to work alone, shredding documents.
8 On 24 January 2013 the Plaintiff left his place of employment. Since that date he has not returned to employment in warehouse duties or forklift driving or other like work.
9 In support of the application, the Plaintiff has filed two affidavits sworn by him on 1 August 2014 and 4 January 2016 respectively. He also relies on an affidavit of his daughter, Christina Pipe, sworn 3 February 2016. In addition, the Plaintiff attended the hearing of the matter, gave evidence, and was cross-examined. The Defendant did not require the Plaintiff’s daughter to be cross-examined, although she was present during the proceeding. Otherwise the parties relied upon the medical reports tendered by each of them.
10 The Plaintiff is 52 years of age. He completed Year 10 at Broadmeadows High School. Since leaving school he has worked in unskilled labouring positions, primarily as a forklift driver.
11 On 13 December 2012 the Plaintiff’s general practitioner, Dr Dan Kaplan, certified him as fit for alternative duties up to eight hours per day, light manual labour. He was also certified as fit to lift up to 10 kilograms with no bending or twisting.
12 On 17 January 2013 Dr Kaplan certified the Plaintiff as unfit for any duties. This certificate states:
“Sore back. Unsatisfactory return to work arrangements.”
13 On 24 January 2013 Dr Kaplan certified the Plaintiff as unfit for any duties. The description of his injury was anxiety/depression:
“Resulting from chronic back pain (accepted injury) together with socially isolated/lack of intellectual content of return to work conditions.”
14 On 6 February 2013 the Plaintiff was again certified by Dr Kaplan as fit for alternative duties. The work restrictions were noted as:
“Eight hours per day, including three hours of forklift work, light manual labour, lift up to 15 kilograms, no bending or twisting.”
15 On 5 April 2013 the Plaintiff lodged a worker’s claim for impairment benefits, stating his injury was:
“Lumbar spondylosis with disc space narrowing at L5/S1 and facet joint arthropathy at L4/5 and L5/S1.”[2]
[2]PCB 13
16 The claim was accepted by his employer, and medical and like benefits were paid to the Plaintiff until September 2014.
17 On 14 January 2014 the Plaintiff was admitted to Northern Hospital Psychiatric Unit after having taken an overdose of medication and alcohol. He was described as significantly depressed, and identified five significant stressors that had contributed to the overdose. They were:
“1) His marriage of 29 years ended 4 weeks ago
2) Increased conflict with his siblings after an incident with his younger brother
3) WorkCover injury (significant)
4) Very poor finances
5) Loss of lifestyle.”[3]
[3]PCB 23
18 Following his admission to the Northern Hospital and subsequent release on 16 January 2014 the Plaintiff underwent psychological counselling and treatment, and his mental health stabilised. He does not rely on his psychological or psychiatric condition in support of this application.
19 In August 2014 the Plaintiff commenced a security guard’s course at Complex Security in Queen Street, Melbourne, and completed that course in October 2014. On 24 December 2014 he commenced employment at Crown Casino as a security officer. He works seven 12‑hour shifts per fortnight as a doorman, greeting and checking the identification of guests and customers.
20 In mid-2015 the Plaintiff commenced a counselling course at a Broadmeadows training facility, and he intends to seek employment in the future as a counsellor.
21 It is the case for the Plaintiff that prior to the incident on 6 April 2011 he did not suffer from any lower back pain or other related symptomatology, and that since that time the pain and its consequences have been constant. Further, it is the case for the Plaintiff that the work-related aggravation to his pre-existing degenerative lumbar spine condition has had the following consequences:
(i) Restricted movement in his lumbar spine;
(ii) Constant lower back pain;
(iii) Disturbed sleep;
(iv) The breakdown of his marriage;
(v) A restriction of his recreational and social activities;
(vi) The loss of his independence;
(vii) The loss of ability to engage in pre-injury employment; and
(viii) The loss of enjoyment of life.
22 On 11 February 2015 the Plaintiff was examined by Mr John O’Brien, a consulting orthopaedic surgeon. Mr O’Brien arrived at the following conclusions:
“Currently Mr Pipe describes constant low back pain, the severity of which he states is approximately 3–4/10 on the Visual Analogue Scale. The patient stated that leg pain is now quite intermittent. Mr Pipe did indicate that his back pain was aggravated by any prolonged positions such as sitting and standing. He stated that twisting, bending and lifting also aggravated his pain which he reported was not aggravated by coughing and sneezing. The patient stated that he does find that his sleep is in fact disturbed.
At present Mr Pipe stated that he is not receiving any active treatment in relationship to his chronic back pain.”[4]
[4]PCB 28
23 And further:
“I would therefore consider this patient now presents with chronic non-specific low back pain, the signs not been diagnostic of a specific pathology but it is likely the underlying symptomatic pathology relates to aggravation of pre-existing lumbar spondylosis.
The history would indicate that employment continues to be a significant contributing factor to the patient’s chronic back pain.
I would regard the clinical condition is stable. The patient certainly describes no substantial change in relationship to the nature, severity or distribution of pain over the past 12 months, during which time there appears to have been fairly minimal ongoing treatment. I certainly can find currently no indications to suggest further investigations or invasive treatment.
The nature of this patient’s chronic back pain does suggest a poor prognosis.”[5]
[5]PCB 30
24 And further:
“Certainly the patient has sustained a significant injury and as a consequence I am sure this patient’s future employment will be quite restricted. Certainly the patient’s general, social, domestic and recreational pursuits are quite limited and this I am sure will be an ongoing situation.”[6]
[6]PCB 30
25 On 8 October 2012 the Plaintiff was examined by Dr Dominic Yong, a specialist occupational physician. At that time Dr Yong concluded that:
“In summary, Mr Pipe is a man who has aggravated a degenerative back condition leading to radicular pain. This appears to be responding to treatment.”[7]
[7]Defendant’s Court Book (DCB) page 4
26 Dr Yong concluded that Mr Pipe at that time had a current capacity for work, and further:
“Mr Pipe has a current capacity to participate in a graduated return to work program with the aim of returning back to his pre-injury duties and hours. This is likely to take some months. This should occur in conjunction with an activity based recovery program to strengthen the back and to improve the function. This can be supervised by the physiotherapist.”[8]
[8]DCB 5
27 Dr Yong’s findings in 2012 were consistent with the certificates provided by the Plaintiff’s general practitioner.
28 Dr Yong again examined the Plaintiff on 25 November 2015, and during his consultation the Plaintiff informed Dr Yong that he experiences low back ache and some tightness in his buttock and groin, and that he has no significant leg pain. He informed Dr Yong that his back symptoms remained. Dr Yong concluded that:
“It is likely that his pre-injury employment does not currently contribute to his condition.
With respect to the pre-existing degenerative condition, this can have variable clinical courses. The natural course of this can be variable. It can impact on an individual’s ability to do significant manual handling tasks, leading to an individual choosing to redeploy to a role with reduced exposure to manual handling. I do note that Mr Pipe has been successfully redeployed to a role of a security guard and doorman at Crown Casino.”[9]
[9]DCB 16
29 The Plaintiff was also examined by Dr Kevin Fraser, a rheumatologist, on 21 November 2014 and on 4 December 2015. Dr Fraser concluded that the symptoms described by the Plaintiff were the result of a temporary symptomatic aggravation of pre-existing degenerative changes, and in his opinion the Plaintiff’s condition had stabilised and did not require any further treatment.
30 In my opinion, on the basis of the available evidence, the Plaintiff aggravated existing degenerative changes to his lumbar spine during the course of his employment. The aggravation was triggered by the incident on 6 April 2011.
31 It was submitted on behalf of the Defendant that any consequences of the aggravation of the underlying degenerative condition have ceased, and accordingly any current consequences of the Plaintiff’s lumbar spine pathology do not relate to that aggravation.
32 In my opinion the evidence establishes that the Plaintiff’s degenerative lumbar spine condition was asymptomatic prior to the incident in April 2011. That incident resulted in the Plaintiff experiencing increasing pain, and I accept that following the nerve block procedure in July 2012 the Plaintiff’s left-sided leg pain significantly improved. However, in my opinion the evidence establishes that he continued to experience pain and associated restrictions to his mobility. Furthermore, I accept that the Plaintiff currently experiences pain and restrictions in his mobility as a result of the aggravation to his degenerative lumbar condition.
33 Accordingly, I am satisfied that the consequences of the aggravation have not ceased, and those consequences relate to that aggravation.
34 Section 134AB(38)(c) provides as follows:
“(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
35 It is the case for the Defendant that in the event that I am satisfied that the Plaintiff has suffered compensable injury, that injury, namely the aggravation to his degenerative lumbar spine disease, cannot be fairly described as being more than significant or marked, and as being at least very considerable.
36 In the Plaintiff’s affidavit sworn 4 January 2016 he states that he has moved on with his life and has made adjustments and learnt to live with the limitations caused by his back injury. He states he is not seeking active treatment, but undertakes stretching and goes for walks to ease his pain. He states that he is unable to stand for prolonged periods of time due to pain, and following a shift of work at Crown Casino his back is very sore. He has had five days by way of sick leave since being employed in 2014. He states that he is no longer as active as he was, and much less fit. He further states he experiences constant aching in his back, and medicates himself with Nurofen as and when required. He further states he is restricted in his ability to carry out domestic tasks, and he cannot play with his grandchildren or socialise and undertake like activities.
37 The contents of the Plaintiff’s affidavit sworn 4 January 2016 are supported by the contents of the affidavit of his daughter, Christina Pipe. I accept that the Plaintiff suffers from ongoing pain and that this pain has had a considerable impact on his capacity to live an independent and active life. I do not accept that his daughter’s evidence, as contended for by the Defendant, should be accorded little weight by me. She resides with the Plaintiff and is able to closely observe the impact his pain has upon him.
38 Furthermore, the Plaintiff’s credibility was not seriously tested in the proceeding or placed in issue and, in my opinion his evidence was cogent and truthful.
39 In cross-examination the Plaintiff gave the following evidence:
(i) He was able to successfully complete two security-guard courses.[10]
[10]Transcript (“T”) 38
(ii) He had commenced a counselling course while working full-time.[11]
[11]T41
(iii) He worked full-time at Crown Casino, and his employment required him to be standing or walking for lengthy periods of time.[12]
[12]T40
(iv) He was able to travel by car or public transport to and from work.[13]
[13]T53
(v) He regularly attended AFL matches and socialised with friends.[14]
[14]T52
(vi) He had recently travelled to regional Victoria by vehicle.[15]
[15]T56
(vii) He was able to carry out some domestic tasks, including washing and tending to a vegetable patch.[16]
(viii) He is not receiving any present treatment and has not had any physiotherapy since 2013.[17]
[16]T54
[17]T43
40 It is clear from this evidence that despite his pain and impaired mobility the Plaintiff has recovered or retained the ability to engage in a range of activities including full time employment that involves him performing 12 hour shifts.[18]
[18]See: Dwyer v Calco Timbers Pty Ltd (No2) [2008] VSCA 260; Sumbul v Melbourne All Toyo Wreckers Pty Ltd [2006] VSCA 292
41 It is the case for the Plaintiff that one of the consequences of his injury is the breakdown of his marriage. He and his wife separated in December 2013. If the breakdown of his marriage is a consequence of the compensable injury, in my opinion that consequence may properly be described as current.
42 The evidence discloses that the Plaintiff met his wife when he was seventeen and she was twenty years old. At that time she had two children of her own. After she and the Plaintiff married they had four children, and currently have eight grandchildren. They were married for 28 years, and resided in the same house in Lancefield for a period of 26 years. The evidence discloses that the marriage was happy and stable prior to the separation. In cross-examination the Plaintiff stated that he did not know the reason for the deterioration of his marriage or the ultimate separation from his wife,[19] and in my opinion it is likely that the breakdown of a marriage of such long standing is a matter of great complexity and it is unlikely that it would be a direct consequence of the injury relied upon in support of this application.
[19]T60
43 I do not doubt that the evidence in this application reveals that the pain and suffering consequences relied on by the Plaintiff can be fairly described as both marked and significant. It was also submitted on behalf of the Plaintiff that he should not be treated less favourably by reason of his stoic response to the consequences of his injury, and I have taken this into account in considering this application.
44 I have carefully considered the evidence relied on by the Plaintiff, but I am not satisfied that the pain and suffering consequences can be fairly described as being more than marked or significant, and as being at least very considerable.
45 In the result, the application must be dismissed.
46 I will hear the parties as to the appropriate orders in respect of costs.
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