Presljak v Visy Packaging Pty Ltd
[2014] VCC 1721
•23 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01769
| NIKOLA PRESLJAK |
| v |
| VISY PACKAGING PTY LTD |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 September 2014 | |
DATE OF JUDGMENT: | 23 October 2014 | |
CASE MAY BE CITED AS: | Presljak v Visy Packaging Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1721 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the cervical spine, left upper limb) – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment:Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Forsyth | Patrick Robinson & Co |
| For the Defendant | Mr J Batten | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant in or about May 2005 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the cervical spine.
5 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”.
6 Apart from being a “serious injury”, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
14 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
15 The plaintiff is presently aged sixty seven, having been born in February 1947 in Serbia. He completed Year 11 and then became a qualified fitter and turner. He had one year in the Yugoslavian Army.
16 The plaintiff came to Australia in 1969 aged twenty two. In the first couple of years in Australia, he did tannery work and worked as a labourer. He then worked at Don Smallgoods for three months in despatch and later at Olex Cables for two and a half years as a forklift driver/spray painter.
17 The plaintiff started work with the defendant in 1977 as a full-time forklift driver. He was required to use his left hand for long periods on the circular steering wheel to control the forklift and had to frequently turn his neck and look up and down and behind the forklift.
18 The plaintiff earned $41,945 in the 2003-2004 financial year. The following year, in which he was made redundant on 4 July 2005, he earned $39,591.
19 In the week leading up to 5 May 2005, the plaintiff was required to perform duties that involved repetitive twisting and turning and strenuous work and he was required to drive his forklift into areas that had a lot of pedestrian traffic. He was constantly required to turn and look backwards to make sure he did not hit anyone.
20 On about 5 May 2005 (“the said date”), the plaintiff experienced neck pain, left elbow pain and shoulder pain with pins and needles extending to the left thumb and upwards to the left trapezius. The initial onset of pain was on the left side of his neck.[3]
[3]Transcript (“T”) 55
21 The plaintiff notified his team leader on 13 May 2005 and a WorkCover claim was completed and signed on 18 May 2005.
22 The plaintiff was cross-examined about the onset of his left shoulder and neck problems. He felt they probably came on a couple of months before May 2005, but it was when the defendant redesigned the floor and put up barriers[4] and the plaintiff had to turn his neck left and right all the time, he felt pain.[5] The pain did not come on years before, as Dr Kranz had noted.[6]
[4]T26
[5]T17
[6]T19
23 The plaintiff agreed the Claim Form completed by his team leader, Wayne Tanner, set out the plaintiff’s neck pain had come on gradually.
24 The plaintiff attended Dr Tadros, general practitioner, on 16 May 2005 and he was referred for an x‑ray of his left shoulder and neck. Anti inflammatories were prescribed and a certificate was given for light duties. The plaintiff was recommended to use a soft cervical collar at home and an orthopaedic pillow.
25 Although the plaintiff continued to work light duties, his condition did not improve and he was referred to Mr Khan, orthopaedic surgeon. Mr Khan referred the plaintiff for a cervical MRI scan and also for nerve conduction studies of his left elbow. The plaintiff was then referred to Mr Berger, orthopaedic hand surgeon, who operated on the left ulnar nerve entrapment (“the operation”).
26 After the operation, the plaintiff kept swimming and taking painkillers until funding was ceased.
27 When he swore his first affidavit in December 2012, the plaintiff continued to take Nurofen Plus and Voltaren daily. His left elbow and neck were still painful. The pain was constant but activity related. Because of his left elbow and neck pain, the plaintiff had trouble sleeping and generally, the pain was worse at night. He would often wake when he rolled over. The plaintiff swore a more detailed affidavit in August 2014.
28 The plaintiff deposed that in early 2005 there was a change in the work arrangements whereby he was given a different route and there was a great increase in the amount of reversing he had to do, which put considerable strain on his neck and shoulders.
29 The plaintiff developed pain in those areas which gradually worsened until about the said date, when he experienced severe pain in his neck, left elbow and left shoulder.
30 The plaintiff reported the injury and on 18 May 2005, he lodged a claim for compensation for the neck and left hand injury.
31 Dr Tadros certified the plaintiff for full-time light duties. These duties involved standing around doing quality control. He clocked on, had a coffee and just walked around the floor. Wayne Tanner was his supervisor at that time.[7]
[7]T54
32 The plaintiff enjoyed all his work with the defendant. He denied he declined an offer of retraining from the defendant.[8] He agreed whilst there was no retraining, there was a return to work plan.[9]
[8]T27
[9]T29
33 In June 2005, the defendant invited the plaintiff to accept a redundancy package. There was a union meeting when everyone was told about redundancies. Initially, the plaintiff was told he would have to provide a medical certificate stating that he was fit and available for work.[10] He was unable to provide a certificate of fitness for duties but the union allowed the defendant to offer voluntary redundancies to all employees, including those on WorkCover, and the plaintiff accepted the offer.
[10]T28
34 A lot of the defendant’s employees were offered redundancies. The plaintiff was not proactive in this regard. He was offered a redundancy, as were others.[11] He received a gross lump sum of about $116,000 on redundancy.
[11]T26
35 In re‑examination, the plaintiff explained he took the redundancy because it was a good offer and good money. Others on WorkCover took redundancies. It was good money. He could no longer do his job driving a forklift which he loved.[12]
[12]T53
36 When the plaintiff told Mr Khan he left work because of problems with his vision, the plaintiff was describing the problems he had moving his head around to see behind him in the restricted space once barriers had been put up. It was not a problem with his vision as such.[13]
[13]T23
37 The plaintiff did not register with a labour hire company or CRS after he took the redundancy.[14]
[14]T30
38 After he left the defendant’s employ, as well as playing golf locally and in Swan Hill, the plaintiff went to the cinema and the leisure centre in Sunshine. He was also looking after his wife, because she was ill.[15]
[15]T41
39 The plaintiff continued under Dr Tadros’ care and was referred to various specialists. He did not see Dr Tadros between July 2008 and June 2013 because there was nothing further that could be done for his neck. He continued to take Nurofen Plus for pain relief and just resigned himself to putting up with his neck pain.
40 The plaintiff returned to Dr Tadros in July 2013 because he was no longer able to cope with his neck pain which had gradually increased over that period. The plaintiff had physiotherapy and was prescribed Celebrex.
41 During the five years he did not attend Dr Tadros, the plaintiff saw his family doctor, Dr Brophy, for unrelated problems.
42 The plaintiff now sees Dr Tadros every four or five weeks. The plaintiff denied he had gone back to him in 2013 because of his court case.[16]
[16]T52
43 The plaintiff explained he was not seeing his doctor for prescriptions in the five-year gap because he was stubborn. He is the sort of person who put up with the pain and he was determined to achieve what he wanted to do, and he thought nothing else could be done so he just had to live with it.[17]
[17]T56
44 The plaintiff’s main problem is now in his neck, although, following surgery, he still had a weak grip in his left hand and had sharp pains in the tops of some of his fingers.
45 The plaintiff’s neck pain extends into his shoulders and is worse on the left. When the pain is severe, he gets headaches and regularly has difficulty sleeping. The pain varies in intensity and worsens with physical activities. Lying down with his neck in an awkward position brings on pain, as does overhead use of his arms.
46 In examination-in-chief, the plaintiff confirmed he still wears a neck brace in bed. He has sexual problems because of his neck pain.[18]
[18]T13
47 The plaintiff deposed that the one activity that had been severely affected by his injuries was golf. For many years, he had been a member of the Sunshine Golf Club which was located next door to his house. Golf was what he lived for and he could not play enough.
48 For some years up to 2004, the plaintiff played pennant golf until he was unable to commit to the five-month program and younger golfers took his place. He continued to play regularly until he suffered the injuries to his neck and elbow.
49 Even after the surgery in April 2007, the plaintiff managed to play golf weekly. He took Panadeine Forte before, during and after a game to ease the pain, which at times was both in his neck and elbow.
50 The plaintiff tried playing golf again about four to five months after the surgery. He was determined to keep going despite the neck pain when swinging the club. He had to keep his head still and move his shoulders when swinging the club. That action always caused pain in both sides of his neck but mainly on the left, rotating his head. He kept playing because he just loved the sport.[19]
[19]T56
51 After every game of golf, the plaintiff needed a rest, and had to take further medication.
52 At the beginning of 2007, the plaintiff’s handicap was about 7. He thought he did not play golf for about four or five months after the April surgery, then, when shown the record, he agreed he played six times in May of that year.
53 As of 2008, the plaintiff was playing golf twice a week. He denied he retired from work to be more active in golf. He did not retire.[20]
[20]T32
54 The plaintiff persevered and even won a couple of senior trophies in 2012 and 2013. He liked golf, and lived for it.[21] He probably won the John Style Spring Cup in 2013.[22]
[21]T49
[22]T40
55 However, the plaintiff’s neck pain was becoming more and more severe and he had to return to Dr Tadros for treatment. He could not play golf any more and he needed stronger prescription medication. He was then referred to a physiotherapist.
56 Despite being put on further prescribed medication, the plaintiff was not able to continue playing golf and last played in January 2014. This was a devastating blow to him.
57 The plaintiff agreed that he had essentially played about twice a week in competition, all the way through till January 2014. He played less frequently in 2008 and 2012 when he went overseas.
58 The plaintiff’s Golflinks records from 2007 to 2014 set out that during that time, he played almost twice weekly, and his handicap varied from 7 to 10.
59 The plaintiff did not stop playing golf because of his court case. No doctors told him he should stop playing.[23]
[23]T50
60 The plaintiff had also been unable to engage in other activities and hobbies he did before the injury. He used to enjoy regular fishing and camping trips to various lakes and the Murray River. He found casting caused too much pain and he had not had any trips since his injury.
61 The plaintiff stopped camping and fishing before he suffered injury in 2005.[24]
[24]T50
62 The plaintiff had been a pool swimmer since coming to Australia. He enjoyed swimming 1,000 metres a couple of days a week in winter when golf was not on. He is no longer able to do so any more. He now attends the Sunshine Leisure Centre basically for exercise, walking in water on his doctor’s advice. He does not exercise at home.[25]
[25]T51
63 The plaintiff is unable to do regular house maintenance and has to pay for the lawn to be mowed if family members are unavailable. Although he does what he can around the house, he has to seek assistance in home maintenance which he previously would have done.
64 The plaintiff’s wife looks after their three-year old granddaughter twice a week. The plaintiff feels quite distressed that he is unable to run and jump with his granddaughter as she would like him to.[26]
[26]T43
65 The plaintiff has not been able to consider a return to any work because he believes his neck pain prevents it. When he ceased work, he did a retraining course as a security officer arranged by the insurer. After two days, he had to cease because the physical training, similar to judo, was too painful. No other attempts have been made to assist in his rehabilitation. He still has his forklift licence but he would not be able to work in this role.[27]
[27]T45
Golf
66 Chris Saldanha, captain of the Sunshine Golf Club (“the Club”), provided a letter of 22 August 2014 confirming the plaintiff had been a longstanding member of the Club.
67 Mr Saldanha noted the plaintiff had played off single figure handicaps for most of the time he had known him, represented the Club in pennant and had won numerous club competitions and major trophies, noting his prominence on the Club honour board with the most recent addition in March 2013 when he won the “over fifties”.
68 Mr Saldanha noted the plaintiff’s longevity as a top A Grade golfer was a great achievement considering his age.
69 Up until this year, the plaintiff remained a very active member of the Club and the Club enjoyed seeing him on the course every week. He remained very competitive and recorded some excellent results; however, he had not been able to play competitively since January 2014, something he loved to do and did so religiously every Saturday.
70 When the plaintiff approached Mr Saldanha earlier this year to let him know he was not able to continue playing, he was personally saddened to hear the news, noting the plaintiff is an absolute gentleman and a very well respected Club member and he would be dearly missed.
71 All at the Club wished the plaintiff well with his recovery from his injury and hoped he could not only return to the golf course but return to his competitive best in the future.
Investigations
72 X‑rays of the plaintiff’s cervical spine and left shoulder were taken in May 2005.
73 It was reported that no bony joint or soft tissue abnormality was outlined in the left shoulder. In the cervical spine, there was a vast narrowing of the C6-7 disc and minor narrowing of the C5-6 space. Anterior and posterior lipping of endplates was seen at C4, 5, 6 and 7. Oblique views showed minor narrowing of the neural foramina on both sides in the lower cervical spine. The joints appeared satisfactory.
74 In June 2006, Mr Khan organised a left shoulder x‑ray, which was normal. An ultrasound at that time also showed no demonstrated tear or tendinopathy of the rotator cuff tendons or of the longhead of biceps. There was no bursal thickening or fluid and no demonstrated bunching.
75 It was reported that following an MRI scan of the cervical spine of July 2006, that there was foraminal stenoses at the left C6-7 and right C4-5, C5-6 and C6-7 levels.
76 A nerve conduction study carried out in September 2006 showed a left ulnar nerve lesion at the elbow.
77 A right C3-4-5 medial branch block was performed on 19 June 2007.
78 Dr Tadros organised a CT scan of the plaintiff’s cervical spine on 5 August 2013.
79 It was reported there was severe right C4, right C5-6 and, to a lesser degree, right C6-7 bony foraminal stenoses which could impinge onto the traversing nerve roots at those levels.
Treating Doctors
80 When Dr Tadros saw the plaintiff on 16 May 2005, the plaintiff advised that on 13 May 2005, he reported at work having a sore shoulder with pins and needles and pain that went down to the left thumb and up to the left trapezius.
81 After examination on 16 May 2005, the plaintiff was sent for x‑rays of his neck and shoulder. He was given a certificate for light duties and prescribed anti inflammatories.
82 The plaintiff’s condition did not improve and he was given further light duties certificates, especially no forklift driving. Dr Tadros recommended the use of a soft collar at home and in bed, together with an orthopaedic pillow.
83 As the plaintiff’s condition did not improve, he was referred to Mr Khan, who took over his care, and Dr Tadros kept providing anti inflammatories and painkillers. Mr Khan ordered an MRI scan and referred the plaintiff to other specialists such as Mr Berger who operated on his left ulnar nerve entrapment. Dr Tadros noted that surgery was a success and the plaintiff improved, although he was not back to normal as of May 2008.
84 Dr Tadros noted that the plaintiff was working as a forklift driver for many years, during which time he sustained neck and left elbow injuries in the form of wearing out of neck cervical discs and irritation of the left ulnar nerve on the left. Surgery to that nerve had been a success, although not spectacular.
85 Dr Tadros noted to keep his spine mobile, the plaintiff was currently swimming and taking mainly Panadeine which he found he needed when the pain worsened which was usually daily. On many occasions, he woke at night with pain and had to take painkillers.
86 From 18 July 2008 until June 2013, the plaintiff was not seen and Dr Tadros was not aware of what was happening medically in that period. On his return, the plaintiff complained of a flu-like illness.
87 On 2 August 2013, the plaintiff was complaining of headaches and neck pain. The latter was episodic, depending on the weather and what he did in his daily activities, which was not much as the pain was restricting them.
88 The plaintiff advised that his condition had stabilised and he had intermittent neck pain depending on the use and abuse of his neck (within the limitations). He advised he was taking anti inflammatories such as Nurofen which were not helping him much and also he was having problems with sleeping because of pain.
89 Dr Tadros sent the plaintiff for a CT scan which showed severe C5-6 narrowing and foraminal stenosis.
90 On 7 August 2013, Dr Tadros referred the plaintiff for physiotherapy on his neck to Mr Johnson.
91 Dr Tadros continued to provide the plaintiff with painkillers and anti inflammatories such as Celebrex, 200-milligram tablets, and also for other medical conditions.
92 Dr Tadros noted there was not much progress with the plaintiff’s condition over the years and he found no room for improvement due to the lapse of time.
93 Dr Tadros considered the plaintiff an honest, reliable person who got injured while working as a forklift driver many years ago. He had sustained neck and left elbow injuries during work and because of it. His condition had stabilised by now and he was suffering mainly from neck and left shoulder pain.
94 Dr Tadros noted the plaintiff’s pain varied from one time to the other depending on the weather, how he slept and whether he did manual work at home. He thought the plaintiff remained in need of medical help and advice for many years to come.
95 Mr Khan reported in December 2006, noting the plaintiff had been referred by Dr Tadros. The plaintiff was seen in June, July, August and October 2006.
96 As the plaintiff was having problems with his vision, in the end, after 28 years in the job, he was taken off forklift driving.
97 The plaintiff told Mr Khan that his work as a forklift driver involved sitting for long periods, reversing, driving a forklift along narrow corridors and using his left hand for long periods on the steering wheel. He had to frequently turn his neck and look up and down during the work. He thought he had strained his neck over a period of time doing this repetitive and strenuous work and he reported an episode on 13 May 2005.
98 As of December 2006, Mr Khan thought the plaintiff’s employment was contributing to his present condition, as it has not only flared up pre-existing degenerative arthritis in his neck, but had also resulted in left brachial neuralgia with irritability of the nerve root in the left side of the neck at the level of the intervertebral foraminae. Also, due to the repetitive use of his left arm, the plaintiff had developed symptoms of ulnar nerve lesion which Mr Khan thought required surgery.
99 Mr Khan then thought the long-term prognosis was guarded as the plaintiff’s condition had been longstanding and the chances of him getting complete relief from pain were not very bright.
100 At that stage, Mr Khan thought the plaintiff was not fit for pre-injury duties. He considered he could perform suitable light duties avoiding lifting excessive bending, twisting and turning of his cervical spine and repetitive use of his arm. He was to avoid excessive bending and straining of his neck and repetitive straining and heavy lifting with his left arm. He thought the prognosis was guarded in view of the plaintiff’s advancing years and multi-focal joint pathology. He considered the plaintiff had a partial permanent impairment of function and still required further treatment.
101 In a subsequent report of March 2007, Mr Khan noted the MRI scan had confirmed that as a result of disc degeneration and prolapse at C6-7, the plaintiff was compromising the right C7 nerve root which could account for referred pain down his right forearm. His left elbow symptoms were consistent with his employment and the neuritis had been confirmed by Dr Freilich, having done a nerve conduction study.
102 On that basis, Mr Khan thought the symptoms of pain and numbness in the right elbow and hand were related to the neck injury, with nerve root irritability along the C7 nerve root associated with referred pain in the right upper limb.
103 Mr Khan thought the left hand condition related to the ulnar nerve lesion at the left elbow and that was related to the work injury.
104 Dr Robert Gassin, musculoskeletal physician, reported to Mr Khan in October 2006 that the plaintiff had an injection of cortisone in the left cervical region which was of no benefit. A course of Prednisolone was also unhelpful, which suggested the plaintiff’s pain did not have an inflammatory component.
105 Dr Gassin advised that he had requested WorkCover accept liability for left mid to lower cervical medial branch blocks with a view to radiofrequency denervation of symptomatic facet joints. In the meantime, he suggested the plaintiff persevere with current management, noting that unfortunately the plaintiff had gastrointestinal symptoms from analgesics which limited their use.
106 The plaintiff first presented to Michael Johnston, physiotherapist, on 12 August 2013 for physiotherapy for chronic neck pain which dated back to 2005.
107 The plaintiff advised that from 2005 to the present, he had neck pain and headaches daily. Up until last year, he could manage to play golf a few times a week with tablets. He had pain, but could manage. He had had to stop playing in the last eight months because the pain was too severe, even with medication.
108 The plaintiff advised Mr Johnston he did not seek treatment because he was stubborn and he did not like seeing the doctor. Mr Johnston noted CT scans showed C4-5, C5-6, C6-7 severe foraminal stenosis and he thought the plaintiff’s objective assessment was consistent with that diagnosis.
109 Mr Johnston considered the plaintiff had done himself a major disservice by not seeking treatment. The goal of that treatment would be to give the plaintiff more range of movement and less pain to allow him to return to golf and swimming, noting the plaintiff was becoming depressed, as playing golf and being active was his life.
110 Mr Johnston requested twenty sessions of physiotherapy over fifteen weeks to try and improve the plaintiff’s function, noting his neck disability index was 62 per cent on 19 August 2013.
Medico-legal evidence
111 Mr Kenneth Myers, vascular surgeon, examined the plaintiff on 5 March 2014.
112 The plaintiff advised he gradually developed problems starting in his neck and extending with a feeling of numbness into his left arm, together with headaches. He reported injuries in 2005 and after a trial of work on light duties, he took a redundancy package and had not worked since.
113 The plaintiff reported his worst pain was in the neck, extending into the shoulders and arms, associated with headaches.
114 There was limited neck movement on examination, together with shoulder abduction.
115 Mr Myers thought the plaintiff suffered degenerative intervertebral disc disease in the cervical spine, together with spondylitis aggravated to cause disability as a result of his employment, with no other predisposing factors apparent. Mr Myers considered that was consistent with the plaintiff’s work with the defendant and he recommended conservative treatment.
116 Mr Myers thought there would be no improvement of the plaintiff’s condition. He would have long-term disability in the neck resulting from work which would interfere with everyday activities, enjoyment of life and capacity to perform any type of work either full or part time, quite apart from his psychiatric or psychological contribution.
117 Mr Myers also diagnosed left ulnar neuritis resulting from irritation of the nerve with repetitive use of the arm in the course of employment with no other known predisposing factors.
118 Mr Myers considered there was no evidence of injury to the left shoulder itself and considered the pain in that area was referred from the neck.
119 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff on 2 April 2014.
120 The plaintiff told him that in early 2005, there was a change in work arrangements where he had to take a different route and thus there was a greater amount of reversing and putting strain on his neck and shoulders. He developed pain in those areas which gradually worsened, and in May 2005, he started having pins and needles down his left arm.
121 The plaintiff reported constant pain on both sides of his neck of variable severity. There was radiation of pain, also variable, to the outer side of the left upper arm, forearm and dorsum of the hand with some right hand pain at times.
122 On examination, there was some restriction of cervical movement. There was a full range of shoulder movement but the plaintiff complained of significant pain towards the extremes of abduction and internal rotation.
123 Mr Brearley diagnosed multilevel degenerative disc disease of the cervical spine. He noted the plaintiff’s job over twenty eight years involved a very great deal of repetitive twisting of the neck, particularly to look backwards to avoid hitting employees on the premises, who were always close by. He noted the plaintiff now had gross restrictions of cervical movement resulting solely from his work.
124 Mr Brearley advised conservative treatment and thought the prognosis was not good. He considered the plaintiff’s condition had stabilised.
125 Mr Brearley noted there had been significant interference with domestic and recreational activities and also the plaintiff’s enjoyment of life. In particular, he had a passion for golf and played with a very low handicap and pennant. He was no longer able to play because he could not rotate his neck at all. He could not work in the garden.
126 Mr Brearley thought the plaintiff was not capable of performing any work because of his ongoing neck symptoms, and that would be permanent. Mr Brearley was not aware of any psychological consequences at all of any functional overlay. He also diagnosed left ulnar neuritis which was work related and required no further treatment. He considered there was no likelihood of any deterioration or improvement in the long term.
127 Mr Brearley noted the left elbow was not preventing the plaintiff enjoying all of his previous activities and the limitations were resulting from the neck injury.
128 Mr Brearley thought there was no specific or serious injury to the left shoulder and the symptoms were the result of radiation of pain from the neck.
Incident report
129 An incident analysis report set out that the incident was reported on 13 May 2005 with the plaintiff having an injury from his left arm/hand/shoulder/ radiating pain from left hand to left shoulder. It was noted the plaintiff had been experiencing discomfort for a couple of weeks. Pain was radiating from the left hand and arm through to the shoulder.
Claim documentation
130 The plaintiff signed a Claim for Compensation on 18 May 2005, completed by his superior Wayne Turner.
131 The injury was noted as “neck strain affecting the neck and left hand. Radiating pain from the left hand to the left shoulder”. The date of injury and the date injury was first noticed was 5 May 2005. The answer “Yes” was given to the question: “Did your injury condition arise gradually over a period of time?”
132 It was noted that the plaintiff noticed pain when he was putting stillage boards in turnover units. The injury was reported to Mr Tanner on 13 May 2005.
133 By letter dated 27 March 2008, CGU advised the plaintiff of the Medical Panel Opinion as to permanent impairment relating to neck and arm injuries suffered on 4 May 2005 resulting in a combined whole person impairment of 7 per cent, which converted to a 10.4 impairment benefit rating.
Redundancy
134 The plaintiff was provided with an indicative redundancy quote by the defendant on 26 June 2005.
135 By letter dated 8 July 2005, the defendant noted the plaintiff had accepted a voluntary redundancy effective 4 July 2005, even though a return to work plan was available.
136 It was noted under the direction of the union organiser, the defendant was instructed to offer voluntary redundancies to all employees including those on WorkCover.
137 It was explained to employees on WorkCover that accepting redundancy would affect their entitlements. To this end, it was noted the plaintiff still decided to leave the defendant.
Vocational evidence
138 Ms Kaye Angel from Flexi Personnel reported on 19 June 2014 regarding the plaintiff’s realistic prospects of being able to find suitable employment.
139 Ms Angel considered the plaintiff had very limited prospects of suitable employment or being trained into adequately performing any alternative vocation full or part time which could be economically self sustained. She did not believe he had any work-related transferrable skills that he was capable of efficiently performing to a satisfactory standard in the workforce.
140 Noting the plaintiff’s current age of sixty seven, Ms Angel thought, in the future, the plaintiff might theoretically have some capacity to work; however, due to his neck injury, she did not believe it would be at a level that would normally make him an attractive option for an employer to hire him for light bench-type factory duties or even light office work.
The Defendant’s medical evidence
141 Dr Kranz, neurologist, wrote to Mr Malham, neurosurgeon, in August 2006, thanking him for referring the plaintiff.
142 Dr Kranz noted the plaintiff first reported symptoms at work on or about 5 May 2005. He had had those symptoms for a number of months but more probably years, and they gradually increased. The work procedures were changed and the plaintiff now had to turn his head and body more and he was aware of increased pain on that activity.
143 Dr Kranz advised Mr Malham that the plaintiff had no convincing evidence of radiculopathy either on clinical grounds or on electro diagnostic parameters. Dr Kranz noted some functional or non-organic features.
144 Dr Kranz thought the plaintiff had a degree of spondylosis with some local symptoms in the neck and shoulder area region. In his view, the plaintiff may benefit from some local physical therapy including some possible physiotherapy. He noted there were some associated elements of depression and anger.
145 Dr Kranz organised a nerve conduction study for right-sided symptoms in August 2006. No abnormality was noted.
146 Mr Malham wrote to Mr Khan in August 2006, thanking him for referring the plaintiff.
147 Mr Malham noted that the plaintiff’s duties were primarily forklift driving, and that he had to look over his shoulder repeatedly while backing and moving the forklift. He suffered mild cervical pain for many years but developed left shoulder and left upper limb pain radiating to the thumb and fingers significantly in March 2005.
148 Mr Malham noted the plaintiff initially had left upper pain but two months ago developed right upper limb pain and that was now his predominant symptom.
149 Mr Malham thought that clinically the problem appeared to be right C5-6 and left C6 foraminal stenosis causing the plaintiff’s presentation. He noted that he had referred the plaintiff to neurologist, Dr Kranz, to deal with the ulnar nerve problem.
150 Mr Malham reported to Mr Khan on 16 August 2006, having seen the plaintiff in relation to his forearm pain.
151 Mr Malham assured the plaintiff that no surgery was required, and that he would certainly benefit from referral to a physiotherapist to improve his discomfort for his cervical spondylosis.
152 Michael Johnston, physiotherapist, noted that when he saw the plaintiff on 30 August 2013, the plaintiff had had neck pain since 2005, worse in the last six months. He used to play golf three times a week.
153 Mr Johnston noted that a CT scan showed C4-5, C5-6, C6-7 severe foraminal stenosis. The plaintiff worked as a forklift driver. In 2005, he took a package because of pain. Since then, he had has constant pain and took Nurofen, basically six a day at times.
154 The plaintiff had never had any active treatment and had an elbow operation in 2006 under the same claim.
155 The plaintiff was able to play golf with tablets and pain from 2005 to 2012. This year, his pain is just too severe to be able to continue.
Medico-legal evidence
156 The plaintiff was examined by Mr Brownbill, consultant neurosurgeon, on 31 January 2007 for the purpose of assessment of requested surgery for his left ulnar nerve transposition of the elbow.
157 The plaintiff told Mr Brownbill that he noted difficulty on 5 May 2005 turning his neck fully to drive his forklift along new lanes, and then there was some neck discomfort. He reported it but kept working. His problems continued and he was working under pressure.
158 The plaintiff then noted the gradual onset of discomfort radiating down the left forearm to the hand when he was driving the forklift. He sought medical attention.
159 When seen, the plaintiff complained of neck pain on the left side radiating to the top and back of the shoulders. Over the inner aspect of the left hand and ring and little fingers, there was pins and needles sensation.
160 On examination, there was non-uniform restriction of cervical spine movements with lower left tenderness posteriorly. There was reduced sensation on the left forearm and hand in the distribution of the ulnar nerve. There were no other objective neurological abnormalities.
161 Mr Brownbill noted radiological investigations had demonstrated multiple levels of cervical spine degenerative changes.
162 Mr Brownbill thought that in view of the described left hand discomfort, it was appropriate that decompressive surgery be offered to the plaintiff. He also noted that the plaintiff may, in the future, require surgical intervention for the cervical spine degenerative changes with signs of nerve root compression development.
163 Mr Brownbill did not consider that any arm surgery would alter the plaintiff’s likelihood of returning to work. He noted the plaintiff was then sixty, with limited work experience, and his main ongoing symptom was that of neck pain and neck movement restriction (which resulted from demonstrated multiple level cervical spine degenerative changes which were unrelated to the nerve lesion).
164 Mr Brownbill noted that the plaintiff had been made redundant and had not worked since 2005. He considered that with his limited work experience and ongoing cervical spine problems, the plaintiff would not be able to return to work.
165 Mr Michael Troy, general surgeon, examined the plaintiff twice in 2007.
166 The plaintiff told Mr Troy that on 5 May 2005, he made his claim, but that months before that he had had difficulty moving his neck and in actual fact sitting on the forklift was his full-time job and he had to rotate his whole body.
167 Further, at the time of his acute symptoms, the plaintiff was experiencing pain in his left hand, which he reported to his team leader.
168 Mr Troy noted the plaintiff’s attendances at his general practitioner and investigations being arranged.
169 Mr Troy also noted that the plaintiff had not played golf with his acute symptoms on Dr Tadros’ advice. Before the surgery, the plaintiff continued to garden and do the lawn.
170 Mr Troy diagnosed aged-related degenerative changes at multiple levels from C3-4, C4-5 and C5-6 uncovertebral facet joints plus discs. He also noted an ulnar nerve causing entrapment at the medial left elbow.
171 Mr Troy noted the circumstances arose in 2005 from the referred work practices. The condition of the neck and left ulnar nerve lesion had been work related and the circumstances arose from employment with a significant contributing factor to the plaintiff’s neck and left ulnar nerve palsy.
172 On re-examination in November 2007, the plaintiff said his neck pain was the same. He now had almost full movement of the left elbow.
173 Mr Troy confirmed his previous conclusions about the work relationship and noted that the symptoms and findings had stabilised. His assessment related to the left upper limb. He did not examine the plaintiff’s spine.
174 Mr Robin Williams, orthopaedic surgeon, has examined the plaintiff three times.
175 On initial examination in February 2008, the history taken was that the plaintiff first began to experience difficulty turning his head and neck to the left when he was driving a forklift in May 2005. He said that the floor plan where he worked had recently been changed and he reported the problems to his team leader on the said date.
176 The plaintiff told Mr Williams that his neck was stiff and sore on the left side and that the discomfort extended to the suprascapular region.
177 On examination, there was some restriction of left shoulder abduction and flexion. Head and neck posture were normal but the plaintiff had restricted movement in all directions, complaining of pain, particularly on the left side.
178 Mr Williams then diagnosed cervical spondylosis. He thought the contributing factor was the plaintiff’s cervical spine condition, which was primarily degenerative in nature. He doubted if the condition of the plaintiff’s work significantly altered that condition. He thought the forklift driving contributed to some degree to the left ulnar neuritis.
179 On re-examination in July 2014, the plaintiff told Mr Williams that he tolerated his symptoms, hoping that they would resolve over a long period of time, but when he developed more headaches, he consulted his general practitioner in 2013.
180 The plaintiff continued to complain of restricted movement of his neck and pain, particularly on the left side, and also of persistent headaches.
181 On examination, there was general restriction of movement associated with discomfort, particularly on the left side of the neck. There was diffuse discomfort over the top of the left shoulder.
182 Mr Williams confirmed the diagnosis of cervical spondylosis and a minor degree of left ulnar neuropathy.
183 In a supplementary report of September 2014, Mr Williams was asked to elaborate on his conclusion that the cervical spondylosis suffered by the plaintiff was basically a degenerative condition.
184 Mr Williams noted that the symptoms the plaintiff presented came on gradually and there was no mention of any specific injury related to the neck. He noted the condition affected several areas in the plaintiff’s cervical spine and was typical of the naturally occurring degenerative process.
185 In Mr Williams’ view, the plaintiff had developed symptoms because he had the underlying condition and not because of any specific damage done to his cervical spine by injury or physical activity.
Lay evidence
186 Mr Wayne Tanner, team leader, for the defendant, swore an affidavit on 3 September 2014.
187 Mr Tanner worked in the same area as the plaintiff on a day to day basis, with the plaintiff driving a forklift and Mr Tanner running the press. The plaintiff worked under his supervision and instruction and from the late 1990s also under the instruction and supervision of the department manager.
188 Mr Tanner recalled employees were offered redundancies in 2004-2005. The defendant first asked for voluntary redundancies and then there may have been some forced ones. From his recollection, both the plaintiff and his wife applied for a voluntary redundancy.
189 At no time did Mr Tanner believe the plaintiff ceased work as a result of any injury. He always believed the plaintiff ceased work as a result of applying for a redundancy.
Redundancy
190 There was a Termination Advice Form dated 28 June 2005 addressed to the plaintiff setting out a voluntary redundancy, with employment terminated on 30 June 2005.
Training
191 There was a letter from the plaintiff to the defendant enclosing a copy of a receipt dated 18 August 2005 for a course with ATC which the plaintiff had paid for himself.
192 There was an invoice from the defendant dated 19 August 2005 setting out the plaintiff had paid $120 for a traffic controller’s course.
Overview
193 Whilst there are differing histories as to the circumstances of injury, I accept that the plaintiff suffered an injury to his cervical spine during the course of his employment in 2005 as a forklift driver, in particular when the floor plan was changed at the defendant’s premises and his driving required greater movement of his neck.
194 Discomfort for a number of weeks operating a forklift and a report of injury on 13 May 2005 was noted in the Incident Analysis Report.
195 I am mindful of the fact that the defendant accepted liability for the plaintiff’s statutory benefits, together with a claim for permanent impairment for an injury to his neck and left arm suffered on the said date.
196 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[28] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[28][2006] VSCA 171
197 No such explanation has been forthcoming in the present case.
198 The impairment relied upon is of the cervical spine, with referred pain to the left arm. There was no separate application relating to the left ulnar nerve root problem.
199 It was conceded by the defendant that there was obviously pre-existing cervical spondylosis[29] and that the plaintiff clearly had pathology in his neck.[30] However, at its highest, there was a temporary aggravation.[31] It was conceded at best if there was an injury in this case it was “salt” on an underlying condition, and it was temporary in nature.[32]
[29]T82
[30]T65
[31]T66
[32]T78
200 The case on the plaintiff’s behalf was that that condition has been aggravated by the extraordinary movements of his neck and continues to be symptomatic to the present day.[33]
[33]T82
201 I accept the effects of that work-related condition are ongoing, as confirmed by Mr Brearley, Mr Myers and the plaintiff’s general practitioner, Dr Tadros.
202 Mr Williams is alone in his view that the plaintiff’s cervical spondylosis is primarily degenerative in nature, doubting if his work significantly altered that condition. Mr Williams’ view can be explained to some extent however by the limited history he recorded as to what was involved in driving the forklift, particularly when the layout of the premises was changed.
203 Although Mr Troy last examined the plaintiff in 2007, he found an ongoing work contribution to the plaintiff’s neck condition some two years after he ceased work.[34] Mr Brownbill reached a similar conclusion, having also seen the plaintiff in 2007.
[34]T84
204 There is no suggestion in this case of any pre-existing symptomatic neck problem or the presence of any non-organic factors in the plaintiff’s current presentation.
Credit
205 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[35]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[35](2010) 31 VR 1 at 12
206 I accept that the plaintiff presented as a straightforward, honest witness prepared to answer questions.[36]
[36]T89
207 Although there was no corroboration from the wife or family,[37] the Club captain confirmed the plaintiff’s good character and fine record as a Club member.
[37]T80
208 Further, whilst there was mention of surveillance film in the index, no film was shown. No doctor has suggested the plaintiff exaggerated or embellished his symptoms, nor were there inconsistencies noted on examination.
Pain
209 As Maxwell P stated in Haden Engineering Pty Ltd v McKinnon:[38]
“The evidentiary basis of the pain assessment will ordinarily comprise the following, inter alia, what the plaintiff says about the pain both in court and to doctors.”
[38](supra) at 11
210 I accept the plaintiff has suffered ongoing cervical pain of varying intensity since 2005, extending into both shoulders, worse on the left. His pain is activity related and results in difficulty sleeping.
211 The plaintiff underwent conservative treatment in the three years post injury which included referral to Mr Khan, orthopaedic surgeon, who saw him on three occasions (referring him to neurosurgeon, Mr Malham), monitoring by Dr Tadros and prescription of painkillers during that time. In 2006, the plaintiff was also referred to musculoskeletal specialist, Dr Gassin, who injected cortisone into the left cervical region and provided the plaintiff with a course of Prednisolone, neither of which was of much assistance.
212 The plaintiff explained the reason for the gap in treatment for five years until a deterioration in mid 2013 was that he self-managed, taking over-the-counter medication, having been told there was no further treatment available to him – a view supported by all practitioners in this case. He was stubborn and put up with his pain – he wanted to keep playing golf and did not like seeing the doctor.[39]
[39]T88
213 Dr Gassin noted that the use of analgesics suggested by him unfortunately resulted in the plaintiff suffering gastrointestinal symptoms.
214 There is no evidence of any improvement in the plaintiff’s condition in this five year period.
215 In my view, a serious consequence to the plaintiff of his neck injury was having to cease work in 2005 at the age of fifty eight, having been in the defendant’s employ for twenty eight years.
216 Whilst it was conceded the plaintiff had a good work record, counsel for the defendant submitted it was not clear whether he left work because of a combination of his neck, left elbow, left shoulder or left elbow or left shoulder conditions.[40]
[40]T70
217 Although the plaintiff clearly had left upper limb problems as well as his neck problem, I accept he ceased work primarily because of increasing neck pain resulting from the need to turn his head repeatedly whilst driving the forklift over the altered work floor.
218 When he examined the plaintiff in 2007, Mr Brownbill did not consider proposed ulnar nerve surgery, about which he was asked to advise, would alter the likelihood of the plaintiff returning to work given the condition of his neck. I accept Mr Brownbill thought two years after the injury the plaintiff had no work capacity because of his neck.[41]
[41]T85
219 In any event, the plaintiff’s neck continues to be his main problem. In 2014, Mr Williams thought the plaintiff suffered from a minor degree of left ulnar neuropathy. The plaintiff’s general practitioner did not mention any ongoing elbow problems in his most recent report of 2014.
220 I do not accept that the plaintiff effectively retired and withdrew his labour from the marketplace, as counsel for the defendant submitted.[42]
[42]T71
221 I accept the plaintiff took the package because it was a good offer. He was unable to do normal duties as a forklift driver, duties undertaken by him with the defendant for twenty eight years, and the light duties provided to him were not of any substance.
222 It was not a situation that the plaintiff preferred to take the package rather than keep working. I accept that he took the opportunity that arose in light of him having an injury that would have prevented him from doing a job he loved.[43]
[43]T87
223 The plaintiff’s intention to keep working was evidenced by his attempts at retraining in security and traffic control; however, he could not do the security course after two days because it was too physical.[44]
[44]T86
224 The consensus of medical opinion is that the plaintiff does not have a capacity for pre-injury work/heavy manual work. The loss of employment capacity, due to neck pain and restriction, in my view, is a serious consequence which satisfies the narrative test.
225 Whilst the plaintiff has been able to play golf at a relatively high level with a very low handicap until early this year, I accept he persevered with playing, in pain and with the use of medication, because golf was his life. It was relevant to consider how he could play, and how he enjoyed it.[45]
[45]T92
226 Despite having physiotherapy and increased medication since 2013, the plaintiff was unable to continue playing golf in January 2014, a situation he found devastating, with his love for the game being confirmed by the Club captain.
Loss of earning capacity
227 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
228 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
229 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
230 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
231 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
232 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
233 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect. See Barwon Spinners Pty Ltd & Ors v Podolak.[46]
[46](supra) at 70
234 There were no figures put in this regard by either counsel. I note, however, that limited wage rates available indicate the plaintiff earned nearly $42,000 in the 2003-2004 financial year and nearly $40,000 the following year.
235 To establish the requisite loss of 40 per cent, I must be satisfied the plaintiff does not have the capacity to earn in excess of approximately $25,000 per year on a permanent basis.
236 Counsel for the plaintiff submitted the plaintiff has no capacity for suitable employment, based on Mr Brownbill’s 2007 view, confirmed in recent times by Mr Brearley, Mr Myers and the plaintiff’s general practitioner. Reliance was also placed on the Flexi Personnel assessment that the plaintiff has no current work capacity.
237 There was very little challenge as to whether the plaintiff had a work capacity.[47]
[47]T92
238 I accept this is the case. Because of his neck condition, the plaintiff has not had the capacity for suitable employment since 2005. In those circumstances, he has suffered the requisite 40 per cent loss.
239 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
240 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
241 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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