Pirret v Victorian WorkCover Authority
[2018] VCC 139
•23 February 2018
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-05635
| COLIN CARL PIRRET | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 28 and 29 June 2017 | |
DATE OF JUDGMENT: | 23 February 2018 | |
CASE MAY BE CITED AS: | Pirret v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 139 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury to the cervical spine – pain and suffering damages – whether the aggravation caused by work injury has resulted in a “serious injury” to satisfy the threshold test
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Church v Echuca Regional Health (2008) 20 VR 566; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12
Judgment: The application for serious injury certificate for pain and suffering damages in respect of the cervical spine is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Scanlon QC with Mr A Saunders | Maurice Blackburn |
| For the Defendant | Mr P B Jens QC with Mr J L Batten | Lander & Rogers |
HIS HONOUR:
Introduction
1 This application is brought by Originating Motion dated 16 December 2016 in which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for an injury suffered by him arising out of, or in the course of, his employment with his employer, Reflex Glass Pty Ltd (“the employer”). The plaintiff relies on two dates of injury, being 22 March 2011 and an unspecified date in August of 2012.
2 The application made by the plaintiff seeks to rely on a physical injury to his cervical spine as a result of his employment with the employer.
3 The plaintiff seeks leave to bring proceedings for pain and suffering damages only as a result of the injury to his cervical spine.
4 The following evidence was adduced in the course of the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 19 – 25 inclusive; pages 38 – 68 inclusive and pages 76 – 83 inclusive
§Exhibit B, report of Professor Teddy dated 17 February 2015
§Exhibit C, the plaintiff’s invoice book between the dates of 12 October 2016 and 29 May 2017.
·The defendant tendered the following documents:
§Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1 – 11 inclusive
§Exhibit 2, DVD surveillance film for the dates of 2, 9, 13 and 14 June 2017
§Exhibit 3, DVD surveillance film for the dates of 4, 5 and 6 December 2016
§Exhibit 4, Application by the plaintiff to Centrelink dated 9 September 2008
§Exhibit 5, Ovens Medical Group clinical notes between 28 February 2007 and 10 May 2010.
5 Mr Jens QC, on behalf of the defendant, identified the issues in this application as follows:
(i) The plaintiff’s condition immediately prior to the compensable injury and his condition now do not satisfy the statutory test for “serious injury”. The aggravation to the plaintiff’s neck as alleged by the plaintiff does not satisfy the statutory test;
(ii) The credibility of the plaintiff is in issue.[1]
[1]Transcript (“T”) 11
6 In the course of the hearing, it was clear that from the DVD surveillance film and the cross-examination of the plaintiff on the contents of those films, together with his ongoing work as documented by the invoice book, that the plaintiff’s credit was in issue. I shall return to this matter under the heading of ‘Credibility’.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”. In this case, the loss of body function is to the plaintiff’s cervical spine.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of, or in the course of, his employment on or after 20 October 1999;[2]
[2]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
[3]Barwon Spinners (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering which, 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”;
(e) Sub-section 38(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) In conformity with Barwon Spinners & Ors v Podolak,[4] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[4]Supra
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
10 I have read the exhibited material and taken into account the evidence of the plaintiff in this case in arriving at the decision.
The Plaintiff’s background
11 The plaintiff was born in 1969 and at the time of the hearing he was forty-eight years old. The plaintiff has a somewhat complex family constellation. He has three children from his first marriage. He has two stepdaughters from his current marriage. He also has three children of the present marriage, aged fourteen, thirteen and nine.[5] ‘
[5]PCB 29
12 The plaintiff was educated to Year 9 at Hurstville Boys High School in New South Wales. He was not a good student on his own description and had difficulty reading and writing.[6] The plaintiff continues to have difficulties with literacy. It is one of the bases for his Disability Pension status.
[6]PCB 20
13 The plaintiff has done painting works from an early age, and subsequently labouring-type employment.[7] The plaintiff was placed on a Centrelink pension for alcoholism at the age of twenty-five.[8]
[7]PCB 20
[8]T19
14 The plaintiff commenced work with the defendant as a general handyman in 2009.[9] After some period of employment, he was later offered an apprenticeship as a glazier.[10]
[9]PCB 20
[10]PCB 21
15 In February 2013, the plaintiff’s employment with the employer was terminated and he has not performed any employment as an employee since that time.[11]
[11]PCB 23; DCB 3
Injury with the employer
16 The plaintiff’s role with the employer was initially as a general handyman. He was then offered an apprenticeship as a glazier and proceeded to work in that capacity with the employer.
17 The plaintiff, in his affidavit dated 11 July 2016, sets out two separate incidents which have caused injury to his neck. The first incident the plaintiff relies upon occurred on 22 March 2011. He describes the incident as follows:
“I was handling large wardrobe panels that were 2.4 by 1.2 metres in size. The area was very cramped. I had to get these panels out of a rack and then lift them over head height to get them over a panel saw. In the process of doing this I felt severe and sharp pain in my neck.”[12]
[12]PCB 21
18 The plaintiff attended his general practitioner, Dr Matthew Byrne, on the same day, and was granted a WorkCover Certificate. The plaintiff was off work for approximately one week and then attended physiotherapy.[13] The plaintiff then returned to work.
[13]PCB 21
19 In August of 2012, the plaintiff was injured for a second time. The plaintiff described the second incident in the following terms:
“… I was lifting large glass panels that were 2.4 metres by 1.2 metres in size, with the glass being 10 millimetres thick. I was lifting these panels along with a co-worker up some stairs. My co-worker shifted his weight and the way he was holding the panel without warning me and this suddenly placed most of the weight of the panel on me. This caused me to stumble backwards and I again felt sharp and severe pain in my neck and also in my left arm.”[14]
[14]PCB 22, paragraph 14
20 The plaintiff continued working after the August 2012 incident and continued to do so until February of 2013, when he attended the Wangaratta Hospital complaining of a heart attack. The plaintiff’s employment with the employer was terminated in February 2013 and he has not worked as a paid employee since that time.[15]
[15]PCB 23
21 The plaintiff filed and served his Worker’s Injury Claim Form in relation to the 22 March 2011 incident after his employment was ceased. The date of the Claim Form is 28 February 2013.[16]
[16]DCB 12-13
22 In relation to the injury incident alleged by the plaintiff to have occurred in August 2012, he submitted a Worker’s Injury Claim Form on 27 June 2013.[17]
[17]DCB 16-17
23 The plaintiff received a Certificate of Incapacity from his general practitioner, Dr Matthew Byrne, for the period of 23 March 2011 to 27 March 2011.[18] This Certificate of Incapacity was for four days’ time off work. The plaintiff was subsequently certified as suitable for normal duties from 13 April 2011.[19]
[18]DCB 18
[19]DCB 23
24 The plaintiff was involved in a motor vehicle accident in December of 2012 which occurred between the second work-related incident and his attendance at the Wangaratta Hospital with a suspected heart attack in February 2013.[20]
[20]PCB 22, paragraph 16
25 The defendant in this case disputes that the symptoms complained of by the plaintiff in respect of his neck have been aggravated by his work with the defendant.
History of medical treatment
26 The plaintiff was involved in a motor vehicle accident in 2004 and he was admitted to the North East Health Wangaratta as a result of that accident. His general practitioner, Dr Andrew Hadjitofi, in his report dated 3 May 2013, stated that he did not have any access to the relevant medical records relating to that transport accident. There were no records from the Wangaratta Hospital in relation to the plaintiff’s treatment or admission following that transport accident in 2004 tendered in this proceeding.
27 On 28 February 2007, the plaintiff attended Dr Chandar Varane at the Ovens Medical Group complaining of left arm pains, with tightness in the left infraclavicular area. There was numbness after he had seen a chiropractor. The numbness was in his left thumb. Dr Varane ordered a CT scan of the cervical spine.[21]
[21]Exhibit 5
28 A copy of the CT scan report relating to the plaintiff’s cervical spine prepared on 1 March 2007 was in the Plaintiff’s Court Book.[22] It reports as follows:
[22]PCB 68
“C5/6 Level: [23]
[23]PCB 68
There is disc bulge osteophyte complex, which does not appear to impinge directly on the cordon. There is no significant central stenosis.
Uncovertebral joint OA change has resulted in bilateral foraminal stenosis at this level, which is of a moderate degree on the left and mild on the right.
C6/7 Level:
There is a smaller disc-osteophyte complex at this level. No central stenosis. The foramina appear adequate.
Comment:
Signs of cervical spondylosis is noted in the lower cervical spine. The changes are most evident at C5/6. No overt cord compression or significant central stenosis. There is bilateral foraminal narrowing at this level. This is more prominent on the left where it is of a moderate degree.”
29 In March of 2007, Dr Varane prescribed the plaintiff with Panadeine Forte and Losec, and referred him to physiotherapy.
30 The plaintiff applied for a Disability Support Pension on 9 September 2008. The basis for the plaintiff’s application for a Disability Support Pension was:
· Condition 1 – Learning disability.
· Condition 2 – Cervical spondylosis.
31 The plaintiff nominated that the cervical spondylosis had commenced in February of 2007. This documentation is exhibit 4 in the proceeding. The plaintiff, in his Application for Disability Support Pension, has confirmed his reported condition to his general practitioner in February and March of 2007 as cervical spondylosis. The plaintiff was assessed as a suitable person for a Disability Support Pension on the basis of his learning difficulty and his cervical spondylosis. The plaintiff, in his evidence, agreed that he was in receipt of the Disability Support Pension for his literacy difficulties and neck pain.[24]
[24]T24
32 The plaintiff commenced work with the employer in 2009.[25]
[25]PCB 20
33 After the initial incident of injury, the plaintiff attended his general practitioner, Dr Byrne, on 22 March 2011.[26] The plaintiff was certified for four days off work at that time.[27] The plaintiff was able to return to full-time normal duties on 13 April 2011.[28]
[26]PCB 56
[27]DCB 18
[28]DCB 23
34 The plaintiff then returned to work and continued working up until he suffered a second injury in August of 2012.[29]
[29]PCB 22
35 In December 2012, the plaintiff was involved in a motor vehicle accident. He gave a history to Dr Ales Aliashkevich that there was no significant deterioration in his neck condition after this transport accident.[30]
[30]PCB 39
36 The plaintiff then returned to work and continued work until he attended at the Wangaratta Hospital on 25 February 2013 complaining of cardiac symptoms.[31] I note that in the general practitioner’s report prepared by Dr Andrew Hadjitofi dated 3 May 2013, that he does not have a record or report of the transport accident involving the plaintiff in December of 2012.[32]
[31]PCB 62
[32]PCB 56
37 On 25 February 2013, at the referral of Dr Andrew Kingston, the plaintiff had an MRI scan of the cervical spine. The results of that MRI scan of the plaintiff’s cervical spine were as follows:
“Disc degenerative changes, mild narrowing of the C3/4, C4/5 and moderate narrowing of the C5/6 and C6/7 disc spaces. The C6 neural exit foramina are moderately narrowed. There is also a broad right paracentral and posterolateral C6/7 annular protrusion and osteoarthritic changes of the neurocentral joint compromising the right C7 nerve root.”[33]
[33]PCB 62
38 The plaintiff did not return to work with the employer after 28 February 2013.[34] On that same day, the plaintiff submitted a Claim Form in relation to the alleged injury to his neck on 22 March 2011.[35] He continued to be treated by his general practitioner, and on 27 June 2013, the plaintiff completed a Claim Form in relation to the August 2012 injury.[36]
[34]DCB 3
[35]DCB 12
[36]DCB 16
39 On 16 February 2015, the plaintiff was seen by Professor Teddy, a neurosurgeon. Professor Teddy prepared a report dated 17 February 2015. Professor Teddy noted in his examination as follows:
“… he was a big, heavily-built man who had a generalised restriction of neck movements and particularly of right lateral tilt and rotation. Power was normal in all four limbs and the reflexes symmetrical and quiet, but he did have a rather vague sensory impairment to light touch and pinprick”[37] in the thumb, first finger and ring finger of the left hand.”
[37]Exhibit B
40 Professor Teddy went on to state that:
“It could be that he has a predominantly left-sided, mild sensory radiculopathy but I am not at all sure that his residual symptoms warrant neurosurgical treatment. Nevertheless, I felt it reasonable to investigate him further by means of MRI of the cervical spine combined with some flexion-extension radiographs. … .”[38]
[38]Exhibit B
41 On 15 April 2015, the plaintiff had a repeat of the MRI scan of the cervical spine. The conclusion of the MRI scan was as follows:
“Disc and uncovertebral degenerative pathology at C5/6 and C6/7 is associated with disc osteophyte complexes narrowing the neural foraminae at both levels and on both sides. The greatest degree of compromise is at C5/6 on the left and C6/7 on the right. No significant central canal narrowing.”[39]
[39]PCB 46
42 There was no report from Professor Teddy in relation to his review of the MRI of the cervical spine dated 15 April 2015 tendered in this proceeding.
43 On 23 August 2016, the plaintiff attended his general practitioner complaining of bilateral arm and shoulder pain. He complained of pins and needles in his left hand. At that time, his general practitioner, Dr Andrew Kingston, was of the opinion that there may be some difficulty with the rotator cuff injury to his right shoulders. An ultrasound showed a right tear of the plaintiff’s right supraspinatus tendon, and the plaintiff was subsequently injected with a corticosteroid injection to the right shoulder on 21 September 2016.[40] At that time, the plaintiff was taking Lyrica for neuropathic pain, and Zoloft for Depression.
[40]PCB 43
44 The latest reporting of treatment by the general practitioners to the plaintiff was on 4 April 2017. The plaintiff had been complaining about neck pain, which was really sore, and numbness and tingling every day in his left hand. At that stage – that is, April 2017 – the plaintiff had been taking Panadeine Forte, which did not help. He was then prescribed Norspan patches of 10 micrograms per hour. On the medical reports, the plaintiff has not received any further general practitioner involvement. He gave evidence that he was still using the Norspan patches for pain control.
45 It is instructive and relevant to summarise the attendances by the plaintiff on his general practitioners at the Ovens Medical Group prior to 22 March 2011.[41] They are as follows:
[41]Exhibit 5
· 28 February 2007 – The plaintiff attended complaining of left arm pains and tightness and numbness in the left hand.
· 7 March 2007 – The plaintiff attended for review of left arm pains. He had an MCA in April 2004 and was in the Northeast Health Wangaratta.
· 20 March 2007 – The plaintiff had a fall that morning, injuring his right elbow and right shoulder blade.
· 9 September 2008 – The plaintiff needed a Centrelink document prepared. His issues at that time were asthma, neck pain and learning difficulties.
· 1 February 2010 – The plaintiff complained of waking with numbness and tingling in the right little finger and left thumb. He related this to a motorcar accident in 2007 which was prior to any arm symptoms starting. It was noted that he was on a Disability Support Pension for literacy and neck pain.
· 8 February 2010 – The plaintiff attended Dr Andrew Kingston complaining of twinges between the neck and shoulder, and waking with numbness in the fingers.
· 3 May 2010 – The plaintiff attended concerning lower thoracic tenderness related to a similar pain with his motorcar accident.
46 The aforementioned history of prior treatment and complaints concerning neck and left and right arm symptoms are set out in exhibit 5 in the proceeding.
47 The plaintiff’s current treatment is by way of medication of Norspan patches prescribed by Dr Andrew Kingston. The plaintiff’s previous prescriptions of Lyrica have been ceased, as they were ineffective in controlling his symptoms.[42]
[42]PCB 41
48 The plaintiff gave evidence that he had been seeing doctors on a number of occasions between the year 2000 and 2010 for neck pain and left arm pain.[43] The detail of the treatment he received from the medical practitioners was not part of the evidence given by the plaintiff.
[43]T79
Medical opinions
The Plaintiff’s doctors
Dr Andrew Kingston, General Practitioner
49 Dr Andrew Kingston prepared three reports in relation to this proceeding. The reports are dated 5 August 2014, 31 January 2017 and 4 May 2017. Dr Kingston is the plaintiff’s current treating general practitioner.
50 In his report dated 5 August 2014, Dr Kingston diagnosed the plaintiff with discogenic pain from his C6-C7 annular disc protrusion as seen on the MRI dated 25 February 2013.[44] In Dr Kingston’s opinion, the plaintiff’s injuries are consistent with the stated cause, being his work, in that the injury aggravated a previously documented problem in the CT scan of 2007.[45] Dr Kingston had, at that stage, prescribed the plaintiff with Panadeine Forte, Panadol Osteo, Celebrex and Norspan patches. Norspan patches and other pain medication had been prescribed in the past.[46]
[44]PCB 47
[45]PCB 48
[46]PCB 47
51 On 10 May 2014, Dr Kingston commenced the plaintiff on Lyrica to help with the neurological component of his pain. The plaintiff also had a secondary diagnosis of Depression for which he was prescribed Sertraline.[47]
[47]PCB 47
52 In his report dated 31 January 2017, Dr Kingston reported that the plaintiff attended him on 23 August 2016 complaining of bilateral arm and shoulder pain. The plaintiff stated that he had pins and needles in his left hand. Dr Kingston was of the opinion the plaintiff had a rotator cuff injury to his shoulders, and ordered an ultrasound which showed a right tear of the right supraspinatus tendon. The plaintiff was subsequently injected with a corticosteroid injection on 21 September 2016.[48]
[48]PCB 43
53 In August 2016, the plaintiff was prescribed Lyrica for neuropathic pain, and Zoloft for Depression. At that stage, Dr Kingston noted that the plaintiff was conducting a security door manufacturing business for approximately eight hours per week. He also stated that, in his opinion, the plaintiff should not work more than twenty hours per week.[49]
[49]PCB 44
54 In his final report dated 4 May 2017,[50] Dr Kingston noted that his last examination of the plaintiff was on 4 April 2017. Dr Kingston stated that on 23 February 2017, the plaintiff attended complaining of “really sore” neck pain. The plaintiff also complained of numbness and tingling every day in his left hand, which would last up to three hours. Dr Kingston ceased the prescription of Lyrica as it was not having any effect. The plaintiff was then recommenced on Norspan patches of 10 micrograms per hour.[51]
[50]PCB 41
[51]PCB 41
55 A fair reading of Dr Kingston’s opinions lead to the conclusion that, in his view, the plaintiff suffered an aggravation of a pre-existing injury to his neck as a result of his employment with the employer. The current treatment for the plaintiff in respect of that injury is the prescription of Norspan patches of 10 micrograms per hour. Dr Kingston does not mention the effect or history of the motor vehicle accident which occurred in December 2012. Dr Kingston does not set out the level of aggravation, which is caused by the employment, to the pre-existing injury in 2007.
Dr Andrew Hadjitofi, General Practitioner
56 Dr Hadjitofi has prepared two reports dated 18 June 2013 and 3 May 2013 in respect of this application. The reports are effectively identical.
57 Dr Hadjitofi had a history from the plaintiff of a minor motor vehicle accident in 2012 which was described to him as inconsequential after the plaintiff had hit the back of a box trailer which had stopped abruptly in front of him.[52]
[52]PCB 56
58 Dr Hadjitofi first saw the plaintiff in February of 2013. At that stage, Dr Hadjitofi prescribed 5 micrograms of Norspan patches, applied once weekly, together with Lyrica.
59 Dr Hadjitofi’s report is somewhat dated in relation to this application and it would be fair to describe the general tenor of his report as one of an advocate.
Dr Nyi Nyi Lwin, General Practitioner
60 Dr Lwin was a general practitioner at the Ovens Medical Group. He prepared two reports dated 29 August 2013 and 18 October 2013.
61 In the initial report, Dr Lwin states that the plaintiff was prescribed Lyrica, 75-milligram capsules twice a day, and Setraline for Depression.[53]
[53]PCB 51
62 In his report dated 18 October 2013,[54] Dr Lwin set out the history in relation to the treatment by the general practitioners at the Ovens Medical Group. Dr Lwin stated that the pain-relief medications of Lyrica, Panadeine Forte, Panadol Osteo and Norspan patches were prescribed for the plaintiff at that time. He also gave the following diagnosis:
“According to clinical assessment and MRI done on 25/02/13 …, most likely diagnosis would be neck pain due to cervical canal stenosis with nerve root involvement.
Anxiety and depression- worsening most likely due to the stress contributed by worker compensation claiming process.”[55]
[54]PCB 49-50
[55]PCB 50
63 Dr Lwin does not set out an opinion in relation to the aggravation of the plaintiff’s condition caused by the alleged incidents at the plaintiff’s work after his initial injury in 2007 as a result of the transport accident.
Dr Ales Aliashkevich, Neurosurgeon
64 Dr Aliashkevich prepared a report dated 24 April 2017 in respect of this application.[56]
[56]PCB 38-40
65 Dr Aliashkevich took a full history from the plaintiff in relation to the 2004 transport accident. The plaintiff stated that he complained of moderate neck pain.
66 Dr Aliashkevich noted the results of the CT scan performed in March of 2007 showed cervical spondylosis of the lower cervical spine.
67 Dr Aliashkevich then took a history from the plaintiff of the two incidents at work, and noted the results of the MRI scan on the plaintiff’s cervical spine dated 25 February 2013.
68 Dr Aliashkevich’s diagnosis was:
“Chronic and refractory axial mechanical neck pain
Intermittent left brachialgia
Cervicogenic headache
Cervical spondylosis with intervertebral disc degeneration/osteophytic formations C5/6 and C6/7.
… .”[57]
[57]PCB 39
69 Dr Aliashkevich also noted the plaintiff was suffering from Depression.
70 Dr Aliashkevich’s opinion was the plaintiff’s condition is consistent with the stated work-related exacerbation of the pre-existing degenerative disease of his cervical spine.[58] Dr Aliashkevich noted that the plaintiff was unable to work due to his ongoing neck pain and headaches. I note that the plaintiff was able to perform work as exhibited in exhibit 2, the surveillance films for the dates between 2 and 14 June 2017.
[58]PCB 40
71 Dr Aliashkevich was of the opinion that the plaintiff’s prognosis was guarded, given the history of work-related injuries in his opinion are all negative long-term outcome predictors.[59]
[59]PCB 40
Professor Peter Teddy, Neurosurgeon
72 Professor Teddy prepared a report dated 17 February 2015. Professor Teddy’s report was exhibit B in the proceeding.
73 Professor Teddy took a history from the plaintiff of his development of pins and needles in the left upper arm whilst driving in 2011 and 2012. This was the occasion immediately before his admission to the Wangaratta Hospital complaining of cardiac difficulties in February 2012.
74 The plaintiff’s history to Professor Teddy in February 2015 was that his medications were Lyrica, Nexium, Voltaren and Panadeine. Professor Teddy’s opinion was the plaintiff suffered from a generalised restriction of neck movements. Professor Teddy described a rather vague sensory impairment to light touch and pinprick in the thumb, first finger and ring finger of the left hand. Professor Teddy ordered a further MRI examination of the cervical spine. Unfortunately in this case, there is no follow-up report from Professor Teddy in respect of the MRI scan that he ordered for the examination of the plaintiff’s spine.
75 Professor Teddy, in his report, has not distinguished or referred to the transport accident in 2004 or the injury to the plaintiff’s neck which was noted in the CT scan of 2007. In terms of assessing the aggravation of the pre-existing neck injury, Professor Teddy’s report is of limited assistance to the Court.
The Defendant’s doctors
Mr Clive Jones, orthopaedic surgeon
76 Mr Jones prepared a report dated 31 October 2014.[60] He examined the plaintiff on behalf of the defendant on 10 September 2014. Mr Jones found, on examination:
“He does have some muscular tenderness in the left side of the neck, and a little restriction of rotation to the left, but appears to have full and normal flexion[,] extension and rotation to the right side. Shoulders are normal with a full range of movement, without restriction. There is no muscle wasting when the left arm and left forearm are compared to the right side.”[61]
[60]DCB 64-68
[61]DCB 66
77 Mr Jones’ opinion was stated as follows:
“I found Mr. Pirret difficult to evaluate. The complaints are essentially of neck pain and referred pain in the left arm (also referred to in Dr. Graham’s report), where as the reported MRI pathology is clearly right sided rather than left. With these findings, the left arm pain is difficult to reconcile with the MRI. I note Dr. Graham, who saw Mr. Pirret in March 2013, postulated a C7 nerve root lesion on the left side, but I was personally unable to confirm these clinical findings when I saw this man.”[62]
[62]PCB 66
78 Mr Jones also stated:
“It seems reasonably clear that the worker does have a degenerative condition in the cervical spine and possibly a right sided C7 disc protrusion. It is possible that heavy handling may have caused some aggravation, but I would judge this now to have disappeared.”[63]
[63]DCB 68
Dr Geoffrey Graham, Occupational Physician
79 Dr Graham saw the plaintiff on 27 March 2013. He prepared a report dated 27 March 2013.[64]
[64]DCB 56-61
80 Dr Graham noted that the plaintiff was, at that time, being treated with a 10-microgram analgesic patch (Norspan). The plaintiff gave Dr Graham a history that he had no problems with his neck prior to 2011.[65]
[65]DCB 58
81 In relation to the two injuries alleged to have occurred at work, Mr Graham gave the opinion that:
“He now appears to have a C7 nerve root compromise which, from the history provided, occurred 11 months after the initial injury, with no direct relationship with his employment.”[66]
[66]DCB 59
82 Dr Graham concluded as follows:
“Mr Pirret first suffered neck pain in March 2011. He suffered intermittent recurrences, the most recent in February 2013. He currently has evidence of a left C7 nerve root compromise, which is presumably related to the previous episodes but this cannot be stated with certainty without further information relating to the precise location of the previous problems.
… .”[67]
[67]DCB 61
83 Dr Graham’s report is of little assistance to the Court in determining the level of aggravation caused by the two incidents alleged by the plaintiff at his work in respect of his neck symptoms and injury. Dr Graham’s history from the plaintiff indicates that the plaintiff has some difficulty in giving an accurate history, particularly noting that he stated he did not have any neck problems prior to 2011. The medical notations and the CT scan of 2007 prove otherwise.
The credit of the Plaintiff
84 Mr Scanlon QC, on behalf of the plaintiff, submitted that the plaintiff presented as a particularly frank and honest witness.[68] The determination of his application will depend on the balance between the findings of the plaintiff’s ability to perform tasks and activities of daily living in contrast to his history of suffering pain and some interference with his sleep and his medication regime. In assessing that balance necessarily, some limited findings in respect of the credibility of the plaintiff will be made.
[68]T118
85 The plaintiff’s initial injury occurred on 22 March 2011. He attended his general practitioner, Dr Matthew Byrne, at the Ovens Medical Group, on that day. It is accepted that the plaintiff was injured on that day and that he was able to return to work and resume his normal duties.
86 The plaintiff claims that he had a second injury in August of 2012. In the medical reports prepared by the general practitioners, there is no history of the treatment specifically given to the plaintiff in relation to the alleged injury in August 2012. The medical notations and treatment appear to be relating back to the original injury said to have occurred on 22 March 2011. The treatment for the symptoms suffered by the plaintiff from the 2011 injury have fluctuated over the period of time and his medication regime and physical treatment with physiotherapists and the like has fluctuated accordingly.
87 In relation to the plaintiff’s time off work in August 2012, I accept that the plaintiff took time off work at that time but it was for the purposes of attending at an alcohol rehabilitation program.[69]
[69]DCB 2
88 The plaintiff had a transport accident in December 2012. Again, the treatment, if any, by medical practitioners as a result of that transport accident was not detailed in any of the reports. Some of the medical reportage in relation to that accident described it as a minor accident and that there was no effect on the plaintiff’s condition. Nevertheless, the plaintiff returned to work and continued to do so until 25 February 2013, when he attended at the Wangaratta Hospital with a suspected cardiac condition.
89 On that same day, the plaintiff attended at his place of work where he was confronted by his employer, Mr Jones, with a final warning. The plaintiff has not returned to work with the employer or any paid employment as an employee since that date. I do not make a determination on whether the plaintiff was in fact fired on that date or whether he elected not to return to work from that day forward. It is not necessary to make that finding in the determination of this application.
90 Since the plaintiff has no longer worked for the employer in this case, he commenced a door business known as Custom Security Doors. In fact in the surveillance films, the plaintiff is seen driving around in a Ford XH panel van with ‘Custom Security Doors’ painted on the side of the vehicle. The plaintiff gave evidence that he had only made one security door in a period of twelve months in respect of that business.[70]
[70]T27
91 The plaintiff gave evidence that he had been on a Disability Pension from approximately aged twenty-five years. He stated that the basis for his Disability Pension in the time of twenty-five years of age to the commencement of the employment with the employer, was on the basis of his inability to read and write, and alcoholism.[71]
[71]T20
92 In September of 2008, the plaintiff made an application for a Disability Support Pension to Centrelink. The plaintiff, in that application, set out the basis for his disability Condition 1, having a learning disability and Condition 2 being cervical spondylosis.[72]
[72]Exhibit 4
93 The plaintiff was in receipt of the Disability Support Pension, and continues to be so, on the basis of his literacy disability and cervical spondylosis which pre-existed the commencement of employment with the employer.
94 In the course of the hearing, the plaintiff was shown two separate DVDs of video surveillance film. The first time related to surveillance conducted on the plaintiff in December of 2016[73] and the second set of surveillance was conducted in June of 2017, immediately prior to the hearing of this case.[74]
[73]Exhibit 3
[74]Exhibit 2
95 In the early surveillance film taken in December 2016, the plaintiff is seen fixing a roof to a shed at the rear of his premises. The plaintiff is seen up a ladder, reaching across roofing panels with an electric drill in his hand. The plaintiff was using an electric drill to affix the roof to the metal frame of the shed. This activity required the plaintiff to reach across the roofing materials and with one hand, hold the screw to be affixed into the roof, with the other hand holding the electrical drill. The plaintiff agreed in his evidence that he had put the roof on the shed in the backyard. He said that it took him months to do that roof.[75] The plaintiff gave evidence that he, together with help from his family, had put up the steel structure which was the basis for the shed.[76] The plaintiff gave evidence that he saw the surveillance operator watching him with a camera.[77] He agreed that he spent some hours putting the roof on on that occasion, stating that he had nothing to hide.[78]
[75]T66
[76]T56
[77]T69
[78]T69
96 On 5 December 2016, the plaintiff was observed on video surveillance attending at a trailer hire premises. The plaintiff gave evidence that he was attending that premises to hire the trailer in order to move an old vehicle known as a Leyland P76 to his premises. The plaintiff gave evidence that he was able to perform those activities unassisted. In the course of the hearing, the plaintiff’s counsel conceded that the plaintiff had been painting at the Swan Street premises on 13 and 14 December 2016. The Swan Street premises were owned by a father of a friend of the plaintiff named Robbie. The plaintiff was cross-examined about the painting of Robbie’s “house”. He gave evidence that all up, it took probably “a couple of months, three months” to paint the whole of the house the first time round.[79]
[79]T49-50
97 The plaintiff’s evidence in this regard was that he had originally painted Robbie’s father’s house and then had to go back and do repair works on the painting because the paint material he had purchased from Bunnings had blistered. The surveillance film which is part of exhibit 2 relates to the plaintiff’s work at the premises in the repairing activities at Robbie’s house. The plaintiff is shown in the activities of sanding whilst on the roof using an orbital sander, both in a crouched position and bending up under the eaves of the house. He uses the sander in the left and right hand. He does some hand sanding. The activity is quite vigorous and performed in awkward physical situations.
98 The plaintiff is also seen during that same series of surveillance painting various areas of the house using both his left and right hands with the paintbrush. The painting activities involved the plaintiff reaching above his head with both his left and right hands holding the paintbrush, painting around a meter box and other obstacle related to parts of the house. The plaintiff appears to be performing these tasks without any difficulty and for extended periods of time.
99 The last day of the surveillance was 14 June 2017. The hearing was conducted on 28 June 2017.
100 The plaintiff was cross-examined about his painting activities, and stated that he had never said he could not use his left arm.[80] He stated that in June, he had spent four to five days, or something like that, seven days perhaps, redoing the painting job.[81] All of the painting works performed at Robbie’s house were to the external part of the house. The plaintiff agreed that on 2 June 2017, he spent a total of five hours at the premises painting.[82] The plaintiff stated that he was “Good with my hands with painting”.[83]
[80]T38
[81]T38
[82]T41
[83]T43
101 The plaintiff stated that in relation to the first painting of Robbie’s house, that it took him a couple of months, probably three months.[84]
[84]T50
102 The plaintiff, once shown the surveillance films of his activities as a painter and worker on the structure of the shed and attending at the trailer-hire premises, frankly admitted that he could do the tasks that were shown in the film footage. He stated in his evidence that he was in pain whilst he was doing those things. To the casual observer, it was not obvious that the plaintiff was in pain when he was working as a painter or when he was performing the tasks of constructing the shed and affixing the roof to it.
103 The plaintiff was cross-examined about his invoice book which was exhibit C in the proceeding. The invoices contained in that invoice book were from 12 October 2016 to 29 May 2017. There were other undated invoices contained in that invoice book. The invoices are for works performed in various premises throughout Wangaratta. Some of the work is for wire screen doors, the installation of cabinets, painting works, glazing works at Riley Street in Wangaratta, and painting works and repairs to architraves at Riley Street in Wangaratta. The invoice book and the plaintiff’s admissions as to those works, clearly indicate that he is conducting a business as a handyman. His evidence is that he can maintain his Disability Pension and work up to thirty hours per week.[85] I note that Dr Kingston, in his report dated 4 May 2017, stated that the plaintiff was fit to work no more than twenty hours per week. Dr Kingston also noted that the plaintiff told him that he believed he could work twenty-eight hours per week.[86]
[85]T19
[86]PCB 42
104 The plaintiff is able to work part time to the extent of 28 hours per week on his own admission to the general practitioner, Dr Andrew Kingston, or as much as he can obtain in the marketplace, which is indicated by his invoice book and his own evidence about his part-time work. At the time of his initial injury in March of 2011, the plaintiff was a part-time worker with the employer. At that time, he was a Disability pensioner with one of the conditions being cervical spondylosis. The plaintiff still has that condition and still works part time.
105 I am conscious that the Court of Appeal in the authority of Church v Echuca Regional Health[87] set out that when a court is reliant upon surveillance film to assess the credibility of a plaintiff, that detailed reasons need to be given. In this particular case, I have outlined the general observations of the surveillance film but, more importantly, the plaintiff accepts, in his evidence before the Court, that he can perform all of the tasks shown on the film and that he has performed those tasks at times when filming is not taking place. In short, the plaintiff has stated he is conducting a handyman-painting business in conjunction with being a disability pensioner.
[87](2008) 20 VR 566
106 Having observed the plaintiff working in such difficult physical conditions relating to the sanding whilst on the roof and or the painting around the house at Robbie’s house, it was not apparent that he was in any physical discomfort or pain and he seemed to be actively partaking in that work. The same observation applies for the time that the plaintiff was under surveillance in affixing the roof to the shed at the rear of his home. Those activities were difficult physical manoeuvres and the plaintiff persisted with them for some considerable time.
The consequences
107 Mr Scanlon, on behalf of the plaintiff, submitted that there are three dominant consequences in relation to the plaintiff’s application for serious injury. The three consequences were persistent pain, medication regime and the interruption to the plaintiff’s sleep.
Pain
108 The plaintiff has sworn one affidavit dated 11 July 2016. The plaintiff, in his affidavit, states that he suffers from pain and sensory disturbance in his neck and cervical spine.[88] He also stated that he had suffered occasional back and neck pain from time to time for some years.[89] The plaintiff was attributing those symptoms to his work injuries with the employer. I accept that the plaintiff has pain in cervical spine on an intermittent basis. However, the plaintiff has had those difficulties of pain going back to his transport accident in 2004. The plaintiff has been on a Disability Pension for his cervical spondylosis since 2008. I do not accept that the exacerbation or aggravation of his pain symptoms arising from his employment with the employer satisfy the statutory test of being “very considerable”.
[88]PCB 20
[89]PCB 21
Medication
109 The plaintiff is currently prescribed Norspan patches of 10 micrograms per hour. Mr Scanlon relies on this fact, and submitted that the requirement for frequent medication to manage pain, according to human experience, raises a real prospect of a very considerable consequence. He relied on the authority of Tatiara Meat Company Pty Ltd v Kelso[90] for that proposition.
[90][2010] VSCA 12
110 The evidence in this matter relating to the plaintiff’s medication regime is complex. In his report dated 19 March 2013, Dr Andrew Hadjitofi, general practitioner, stated that he had commenced the plaintiff on Norspan patches, 10 micrograms, and Lyrica, with quite unsatisfactory results.[91]
[91]PCB 59
111 The same doctor, in a report dated 3 May 2013, stated that in March of 2013, the plaintiff was prescribed “paracetamol, and low dosage 5-mg Norspan patch applied once weekly”.
112 In a medical report by Dr Lwin dated 29 August 2013, the plaintiff was then medicated on Lyrica capsules of 75 milligrams, one capsule twice a day. There was no Norspan patches at that time.[92]
[92]PCB 51
113 Later in that same year, Dr Lwin prepared a report dated 18 October 2013 and he set out the medications at that time for the plaintiff as being Lyrica, Panadeine Forte, Panadol Osteo and Norspan patches in relation to his physical injuries.[93]
[93]PCB 50
114 In a report by Dr Kingston dated 5 August 2014, the plaintiff was prescribed Lyrica on 10 May 2014. Dr Kingston noted that he had commenced the plaintiff on Lyrica on that day.[94] In that report, Dr Kingston noted that the plaintiff had previously been prescribed Panadeine Forte, Panadol Osteo, Celebrex and Norspan patches. It was clear as at August 2014 that the plaintiff was not taking Norspan patches or Panadeine Forte.
[94]PCB 47
115 In the report of Dr Kingston dated 31 January 2017, he notes that a Dr Minsheng Ye had restarted the plaintiff on Lyrica in March of 2016. He noted it was not clear when the plaintiff had stopped Lyrica.[95] He noted that the last prescription for Lyrica was on 6 June 2016.[96]
[95]PCB 43
[96]PCB 44
116 In the final report dated 4 May 2017, shortly before the hearing of this proceeding, Dr Kingston reported that the plaintiff had been ceased on the Lyrica medication. Dr Kingston stated that the plaintiff’s pain improved after first trying Panadeine Forte and then was placed on Norspan patches, 10 micrograms per hour.[97]
[97]PCB 41
117 The plaintiff, in his evidence, stated that he was on Norspan patches at the time of the hearing. The plaintiff, in his evidence, stated that he commenced on Norspan patches in 2011 and said that it lasted for about three months. He said that he stopped the Norspan patches when he “went to the rehab”.[98] I note that the rehabilitation took place in August of 2012, not 2011 as remembered by the plaintiff.
[98]T95
118 I accept that the plaintiff has, over a period of time, taken various medications for the relief of pain and or neuropathic complications (Lyrica). It is clear on the evidence and the history just outlined about the plaintiff’s pattern of taking medication, that he goes on and off medications over time. This aspect of the consequences for the plaintiff has to be seen in the context of him having a long-term neck or cervical spine spondylosis and symptoms arising from it. I am not satisfied that the plaintiff has, or will be required to take, pain-relief medication on a consistent basis for the foreseeable future. Further, I am not satisfied that the plaintiff has proved, on the balance of probabilities, that the need for this medication has arisen as a result of the aggravation to his neck symptoms occasioned by his employment with the defendant.
Sleep
119 The plaintiff gave evidence that his sleep was disturbed by the neck pain. In his affidavit, the plaintiff sets out[99] that his sleep is interfered with as a result of the pain in his neck. He says it is hard to get to sleep and that the pain wakes him during the course of the night. The plaintiff has not stated that he previously had a full night’s sleep before his alleged injury in March of 2011. I am unable to be satisfied to the requisite standard that the plaintiff’s interference with his sleep at this stage is any different from the pattern of his sleep relating to a time prior to his employment with the employer and his injury in March of 2011.
[99]PCB 24
Conclusion
120 I do not accept that the consequences as set out in these Reasons and put forward on behalf of the plaintiff amount to consequences upon the plaintiff that are properly described as “more than significant or marked” and are “at least very considerable”. The plaintiff has not proven that the aggravation to his pre-existing neck condition has caused, or resulted in, consequences which are properly described as “at least very considerable”. The plaintiff has failed to satisfy the statutory test for serious injury certification in respect of pain and suffering damages arising out of the two incidents alleged to have caused injury to his neck in the course of his employment with the defendant.
121 The application for serious injury certification is dismissed.
122 I will hear the parties on costs.
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