Prior v Victorian WorkCover Authority
[2018] VCC 1538
•27 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-00726
| GLEN JAMES PRIOR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2018 | |
DATE OF JUDGMENT: | 27 September 2018 | |
CASE MAY BE CITED AS: | Prior v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1538 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – workplace injury – injury to the spine – pain and suffering consequences only
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation & Compensation Act 2013, Part 7
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Mr A Dimsey | Hounslow Lawyers Pty Ltd |
| For the Defendant | Mr T Storey | Wisewould Mahony |
HIS HONOUR:
Introduction
1 On 6 August 2015, the plaintiff was undertaking his duties as a nightshift supervisor. A conveyor belt became blocked. The plaintiff shut the conveyor down. He stood on the conveyor for the purpose of clearing the blockage when another worker inadvertently turned the conveyor on, with the result that the plaintiff fell from the conveyor several metres to the ground below.
2 The plaintiff suffered an injury to his cervico-thoracic spine which is the subject of his application for serious injury. He contends that he has suffered a permanent impairment or loss of the function of his spine. His application is limited to pain and suffering.
3 Mr A Clements QC appeared with Mr A Dimsey of counsel for the plaintiff. Mr T Storey of counsel appeared for the defendant.
The issues
4 The defendant conceded that the plaintiff suffered a compensable injury, and that the plaintiff suffers a permanent impairment of the function of his spine. Where the plaintiff and the defendant part company is whether the impairment consequences are “serious”.
The medical evidence
5 Given the concessions made by the defendant, it is unnecessary for me to summarise much of the medical evidence.
6 The plaintiff was removed from the workplace by ambulance. He was taken to the Royal Melbourne Hospital. He underwent a number of radiological investigations including an MRI scan. It revealed that he had suffered an acute fracture of the C7 vertebral body involving the superior end plate. It also revealed some anterior wedging of the T8 vertebra with 20 to 25 per cent loss of vertebral height.
7 The preponderance of the medical evidence is that the appearances at the T8 vertebra were of longstanding and not the result of the incident.
8 The plaintiff was discharged from the Royal Melbourne Hospital after about three days. He was prescribed a neck brace, and was provided with strong painkilling medication. After a few months, he commenced physiotherapy treatment a few times a week, lessening over time, and also hydrotherapy.
9 The plaintiff’s condition improved to the point where he was able to return to work with Tyre Crumb (Vic) Pty Ltd in December 2015. He was placed on modified duties on a full-time basis. He resigned from that employment because he was overcome emotionally when he came across the point at the premises where the incident occurred. Under cross-examination, the plaintiff conceded that if he had not reacted in that way he would have been able to continue performing modified duties.
10 The plaintiff was treated by Dr Touraj Oveisi, general practitioner. The plaintiff saw him relevant to the onset of a psychiatric condition. He was referred to Dr Assadi, psychiatrist, who prescribed him medication to treat both depression and interference with his sleep.
11 By mid 2016, the plaintiff obtained alternative work with Select Tiles. When that employer discovered that the plaintiff had been in receipt of WorkCover payments, he was dismissed. Subsequently, he worked with a friend as something of a trades assistant. His friend built domestic decking. The plaintiff involved himself in carrying materials and handing his friend’s tools. He was not paid by his friend.
12 In February 2017, the plaintiff obtained alternative work with Advance Aluminium Windows. At first he was casual, but eventually he became a full-time employee. At the time of trial, the plaintiff was working from Monday to Friday from 8.00am to 4.00pm as a delivery driver.
13 It is relevant to describe the work which the plaintiff undertook as a delivery driver at this point by reference to film shown to the plaintiff of him working on 13 July 2018. Essentially, the plaintiff drives a fixed tray truck to which a trailer is attached. The truck and the trailer contain a stillage into which aluminium glazed window frames are positioned. He and another man drive the truck to various building sites where they manually unload aluminium glazed windows of different sizes.
14 In summary, the film showed the following:
· 8.00am – the plaintiff walked around a yard at a reasonable rate. He then reversed a truck out of the yard.
· 8.43am – the plaintiff was out of the truck walking around.
· 8.47am – the plaintiff drove the truck with the trailer attached.
· 9.11am – the plaintiff arrived at a delivery site. He manually undid ropes. He lifted a large window with another man. He bent down to almost zero to lift a heavy gate on the back of the truck. He appeared to heave it to lift it up.
· 10.02am until about 10.18am – the plaintiff lifted and then carried five windows with another man from the truck into a building site.
· 11.01am – the plaintiff reversed the truck and, while doing so, turned his head, looking over his left shoulder.
· 12.52pm – the plaintiff carried two small windows, one in each hand. On three further occasions he carried large windows with another man. He carried a pack of four small windows with another man.
· 13.56pm – the plaintiff carried quite large windows hoisted up against his right shoulder with his arms outstretched on four occasions. He manhandled a large window. He dragged a window from the tray of the truck.
· 14.04pm – the plaintiff and another man carried large windows on three occasions. He carried a single window on his own.
· 14.35pm – the plaintiff carried a largish window against his right shoulder with his arms outstretched. He carried two largish windows with another man.
· 14.43pm – the plaintiff carried a largish window against his right shoulder with his arms outstretched.
· 15.53pm – the plaintiff backed the truck into premises.
15 The plaintiff described what was seen on the film as being a typical day’s work. It is very obvious from the film that he is a very well built man with a large frame. It appeared to me that he was easily able to lift windows of all sizes on his own, and larger ones with another man. There was nothing evident on the film that demonstrated any limitation on his part in undertaking what was required to lift and carry those windows. The plaintiff considered that the windows were not heavy. He estimated that the larger ones weighed about 25 kilograms and could be as heavy as 35 kilograms.
16 Since taking up employment with Advance Aluminium Windows, the plaintiff has had very little medical treatment. The clinical notes of the Tristar Medical Group from 3 January 2017 to 3 November 2017 were tendered. His only attendances during that period were on:
· 21 March 2017, when he saw Dr Ahmed, general practitioner, who noted that the plaintiff was still experiencing pain, presumably in his neck. He told Dr Ahmed that he was undertaking modified duties which is not the case, but otherwise expressed the view that he was happy to engage in the work he was doing and that he was feeling okay.
· 17 May 2017, when he saw Dr Oveisi, who noted that the plaintiff was still experiencing neck pain. He prescribed him Celebrex, with one capsule to be taken daily. He also provided him with a certificate of capacity which was not produced in evidence.
· 6 June 2017, when he saw Dr Oveisi, who noted that that the plaintiff was experiencing neck pain with radiculopathy. The nature and extent of the radiculopathy was not noted. There was no prescription of any medication.
17 The plaintiff had difficulty remembering the last occasion on which he saw a medical practitioner for treatment. He was referred to the clinical notes, and in particular, he was asked whether he remembered that the last occasion he saw a medical practitioner was 6 June 2017. He said he could not remember, but he did say that he is no longer attending any medical practitioners for treatment and has not been in receipt of any prescriptions for painkilling medication. It would appear that has been the case now since probably the middle of 2017.
18 Most of the plaintiff’s medical reports predate November 2016. The most recent are the medical reports of Dr Horsley, occupational physician, dated 23 April 2018 and 9 May 2018, and Mr Jones, orthopaedic surgeon, dated 9 July 2018.
19 Dr Horsley examined the plaintiff on 23 April 2018. She recorded that the plaintiff told him that he experienced ongoing discomfort in his neck occurring once a day and lasting for 30 to 60 minutes. He denied any peripheral radiation, paraesthesia or numbness. He described the pain as 4 to 5 out of 10 and up to 8 to 9 out of 10. He described the need to avoid repetitive overreaching, pushing, pulling and above shoulder activities; avoiding repetitive lifting except with an offsider; prolonged static postures; repetitive above shoulder activity and checking for a blind spot when driving.
20 Dr Horsley found some restriction on examination of extension, left lateral flexion and rotation and right lateral flexion, but otherwise no other abnormality.
21 Dr Horsley considered that because of the length of time over which the plaintiff had experienced the symptoms he described to her, that they were likely to persist. She considered that he required the imposition of the following work restrictions:
· Avoidance of repetitive overreaching
· Avoidance of repetitive pushing and pulling
· Avoidance of repetitive above shoulder activities – he should work between shoulder and waist height
· Avoidance of lifting items greater than 15 to 20 kilograms, except on an occasional basis
· Good manual handling technique even when lifting light items
· Avoidance of forceful activities involving the left shoulder girdle
· Avoidance of static postures involving the cervical spine
· Avoidance of repetitive neck rotation
· Caution when getting on and off a forklift
· Avoidance of jarring.
22 Dr Horsley noted that the plaintiff’s current functional tolerances were:
· A sitting tolerance of one hour
· A static standing tolerance of 30 to 60 minutes – he then needs to move
· A dynamic standing tolerance of an hour; and
· A driving tolerance in his current 3-ton van with a trailer of about an hour.
23 It would appear that Dr Horsley expressed an opinion based upon the subjective history given to her by the plaintiff, and her opinion of the work restrictions and functional tolerances. She regarded the work the plaintiff was doing was appropriate. She added that the degenerative process in the plaintiff’s neck would accelerate and would impact upon his functional tolerances and limit his vocational options in the long-term.
24 Dr Horsley was asked to consider whether the plaintiff was fit to work in a warehouse. She provided the second report relevant to that question, and in the composition of the report, she repeated what she considered to be appropriate work restrictions and functional tolerances as she had in her first report.
25 Mr Jones examined the plaintiff on 9 July 2018. He considered that the compression fracture was minor and resulted in the plaintiff suffering some symptoms which the plaintiff described as posterior neck ache and stiffness, particularly in relation to neck rotation. The plaintiff appears to have told him that he was advised to limit the amount of heavy lifting in which he engages and to avoid jolting or jarring his neck. Mr Jones did not consider that the plaintiff was unfit for his present work.
26 In the course of an exchange between myself and counsel for the plaintiff, counsel conceded that the day’s work undertaken by the plaintiff as demonstrated on the film shows him exceeding the restrictions which Dr Horsley would place on him, and probably exceeding what she described as his functional tolerances.
27 I will return to the medical evidence after I have dealt with the evidence of the plaintiff.
The Plaintiff’s evidence
28 The plaintiff described the following impairment consequences in his affidavits and in oral evidence:
· Intermittent pain in his neck
· Increased pain after standing for extended periods of time
· Increased pain on engaging in any heavy lifting at work
· Difficulty driving after a hard day’s work because of tiredness and soreness in his neck
· Needing to rest after a day’s work because of stiffness and soreness in his neck
· Increased stiffness and soreness in his neck in cold weather
· Difficulty turning his head to do head checks, presumably when driving
· Interference with sleep
· An inability to use his boat to go fishing. He sold the boat as a result. He is fishing less often and for shorter periods of time.
· Difficulty walking over rough ground when fishing
· Difficulty going camping, especially sleeping on an airbed
· Difficulty playing games with his children, such as netball and cricket
· The need to take Celebrex once a week, Panadol Osteo every second day and a few Panadol tablets every day for pain relief.
Findings
29 Firstly, the defendant did not raise any significant issue relevant to the plaintiff’s creditworthiness and reliability. To the extent that it did, it was an invitation to compare the day’s work which the plaintiff presently undertakes with the impairment consequences which he described in his affidavit and oral evidence.
30 Secondly, there is probably little difference in the opinions of Dr Horsley and Mr Jones. It is apparent to me that the plaintiff’s subjective complaints of pain, the level of pain and the extent to which it interferes with his capacity to work and function generally, influenced the ultimate opinion expressed by Dr Horsley. Those conclusions reached by her appear to me to have underpinned her opinion. Logically, if Dr Horsley was aware that the plaintiff does not have the need for those work restrictions and does not have any interference with functional tolerances, then her opinion would be different.
31 I am, therefore, more inclined to accept the opinion of Mr Jones, who has described the problems the plaintiff has with his neck as being relatively minor. What the plaintiff does during his day’s work is a clear demonstration of a man who has significant unimpaired physical ability to undertake arduous physical work. The only deficit that was identified was shrugging by the plaintiff of his shoulders as if to relieve stiffness and pain in his neck. After reviewing the film at the times which were identified, I found it difficult to see anything of that kind which was significant.
32 I do not accept that the plaintiff has the level of pain which he described to Dr Horsley. There was no moment in what I saw in the plaintiff’s day’s work which suggested he has pain upwards of 8 or 9 out of 10 or even 4 or 5 out of 10. I do not accept that he has much interference, if any, with his functional tolerances, because he was able to walk, stand, push, pull and lift and carry windows of up to 35 kilograms, and otherwise drive a heavy vehicle with a trailer, which he was able to reverse into driveways when that was required.
33 It is difficult to accept that if the plaintiff is able to engage in that daily work which he described as typical, that he would have any significant interference with his capacity to function physically when outside of a work setting.
34 Furthermore, in recent years, the plaintiff’s resort to medical treatment has been modest at best, and is now no longer required.
Conclusion
35 In the end, I have paid due regard to what the plaintiff says about the pain he experiences, what he has done about the pain in terms of medical treatment and the use of medication, what the relevant medical practitioners say about the extent and intensity of the plaintiff’s pain, and the objective evidence relevant to the disabling effect of that pain.
36 I do not accept that the impairment consequences contended for by the plaintiff are much more than relatively minor, but not reaching the standard of being moderate and certainly not “serious”.
37 Therefore, I order that the plaintiff’s Originating Motion be dismissed.
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