Quintal v Victorian WorkCover Authority
[2015] VCC 125
•19 February 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05389
| FIRMINO QUINTAL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2015 | |
DATE OF JUDGMENT: | 19 February 2015 | |
CASE MAY BE CITED AS: | Quintal v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 125 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the cervical spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases Cited: Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Seeman | Ryan Carlisle Thomas |
| For the Defendant | Mr J Batten | Hall & Wilcox |
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 Timbalac Coatings Pty Ltd (“the employer”) on 21 October 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application primarily 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 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.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By s134AB(38)(c) of the Act, 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, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 The plaintiff relied upon two affidavits and gave viva voce evidence. He also relied on an affidavit sworn by his fiancée, Kelly Cipriani, on 21 July 2013 and his friend, Anthony Dobbs, on 23 July 2013. 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
10 The plaintiff is presently aged forty-three, having been born in May 1971. He attended school until Year 9. He then completed two-and-a-half years of a cabinetmaking apprenticeship. For the next twelve years, he worked with a company involved in the manufacture, assembly, delivery and installation of aluminium products.
11 The plaintiff commenced work with the employer in October 2009 as a process worker and later he worked as a delivery driver. He was given detailed instructions as to his work duties and he enjoyed interacting with customers.[1]
[1]Transcript (“T”) 9
12 In that job, goods weighing one to 25 kilograms were put on the truck by hand. The plaintiff was also required to push and pull a 200-kilogram drum from time to time after it had been mechanically loaded onto the truck.[2]
[2]T11
13 On the said date, the plaintiff felt a number of clicks in his neck whilst lifting a 25-kilogram drum of paint onto the back of a utility (“the incident”).
14 Following the incident, the plaintiff’s neck was very painful and he had pain radiating into his right arm and hand. He also had a sensation of pins and needles in his fingers and right forearm.
15 The incident occurred on a Friday. On the following Monday at work, the plaintiff was in significant pain. He reported the incident to the foreman. He attended a physiotherapist that day, who would not touch him, and told him to see a doctor.[3] The plaintiff attended a masseuse at Southland to try and obtain some relief.
[3]T11
16 The plaintiff did not think he worked normal duties that week, but he could not recall.[4]
[4]T12
17 The plaintiff saw general practitioner, Dr Wong, at Ultra Health Care on 29 October 2011. He prescribed Tramal and anti-inflammatories. Persisting neck pain radiating into the right shoulder was not relieved by this medication. On 2 November 2011, the plaintiff was prescribed stronger analgesics: Endone, OxyContin, Tramal and Voltaren.
18 Neck pain continued over the first month or so. The plaintiff also had persisting numbness in his right thumb and his grip strength was reduced.
19 After about a month, the plaintiff ceased taking OxyContin because he was concerned about addiction. He continued to manage his neck pain with Tramal and Voltaren.
20 By late November 2011, the plaintiff was not able to drive for any length of time without having to get up to try and obtain some relief from his pain. Problems with grip strength continued.
21 Initially, the employer told the plaintiff there were no light duties available. Later, he was told there were light duties, and he returned to work on about 28 November 2011 on reduced hours.
22 On that return to work, the plaintiff’s neck pain became worse. He initially started working two hours per day. He was asked to do duties he thought were inappropriate. He was required to constantly lift drums of paint weighing 20 to 25 kilograms, usually with one in each arm. Occasionally, he was required to manually manoeuvre a 200-kilogram drum off the tray of a ute.
23 The plaintiff later confirmed however that he had not worked with the 200‑kilogram drums after the incident.[5]
[5]T59
24 The plaintiff thought the employer had decided to more or less get rid of him because he was not offered any alternative duties. Another driver filled the plaintiff’s position in his absence.
25 The plaintiff had some time off work in December 2011 whilst Professor Teddy obtained the results of an MRI scan organised by him.[6] Professor Teddy told the plaintiff his symptoms should settle with conservative treatment and there was no suggestion of surgery.
[6]T16
26 The plaintiff agreed that he told Dr Wong in January 2012 that his neck and arm pain was improving, as was the strength in his right hand, but he still had numbness in his thumb.[7]
[7]T17 and T19
27 The plaintiff did not disagree that on 11 February 2012, he told Dr Wong he had no problems with his return to work, and on occasions, he lifted 12.5‑kilogram drums without any problems. Further, on 9 April 2012, the plaintiff told Dr Wong he was no longer complaining of any pain, although he still had numbness.[8]
[8]T21
28 The plaintiff accepted that by March 2012, Professor Teddy was advising him he could return to normal work.[9] He suggested the plaintiff return to work and see how he went, and there would be a review and a consideration of an alternative job if there was a significant increase in symptoms.[10] He is the only specialist to whom the plaintiff has been referred.[11]
[9]T21
[10]T15
[11]T12
29 Professor Teddy told the plaintiff that any time, whether it be as a result of sneezing or heavy work, he could have a serious aggravation which would result in an operation. He also told the plaintiff that if he had seen him in the first month after injury, he would have operated.[12]
[12]T58
30 The plaintiff agreed that in April 2012, he was certified for normal duties, starting with four hours, and increasing to six hours a day. He agreed he told Dr Wong on 23 April 2012 that he had no problems since returning to normal lifting, but then said he did not really recall, but he might have.[13]
[13]T23
31 On a number of occasions during his viva voce evidence, the plaintiff gave differing accounts of the extent of his post-injury working hours, at times agreeing he had worked eight hours a day[14] but also saying he did not think he had gone back to eight hours since the incident.[15]
[14]T27
[15]T24 and T25
32 The plaintiff’s light duties involved pouring a hardener into litre and half-litre bottles, and maybe some picking of orders. If the plaintiff lifted 12–kilogram drums, he did so with his left hand. He confirmed he could lift a 12‑kilogram tin of paint in April 2012 with his left hand only.[16]
[16]T23
33 The plaintiff agreed he felt capable of returning to pre-injury duties as a delivery driver in May 2012, working with 25‑kilogram drums and 200‑kilogram paint barrels.[17]
[17]T33
34 The plaintiff wanted to get back to his old job to see how he would cope doing his duties “full on”. The employer was not happy for him to do so until he got a clearance. The plaintiff was not given this chance, nor was he cleared by a doctor to work with 200‑kilogram drums.[18]
[18]T60
35 The employer did not want to put the plaintiff back in his old job because he had already hired someone else to do it.[19]
[19]T31
36 The plaintiff confirmed that he wanted to resume delivery duties, doing more like twelve to fourteen deliveries a day, delivering tins of paint weighing between one and 25 kilograms. If he was no good, he would move on.[20]
[20]T32
37 The plaintiff agreed on 14 May 2012, he went to work, complained of neck soreness, and then was told to work in the manufacturing plant, which he refused because of his asthma.[21] This aggravation in May probably would have occurred when the plaintiff started carrying the heavier tins.[22] He ceased work on 17 May 2012.
[21]T26
[22]T60
38 Dr Wong wrote a letter on 18 May 2012 certifying the plaintiff suffered from asthma, for which he used an inhaler. He noted the plaintiff had been asked to work in the paint manufacturing plant where he would be exposed to fumes from the manufacturing process. Dr Wong advised the plaintiff should not be assigned to the manufacturing plant, as exposure to the fumes could result in a detrimental effect on his asthma.
39 Following the issue about working in the manufacturing area, the plaintiff decided to resign in June 2012, and he agreed to waive his compensation rights.[23] He denied he was angry at the employer.[24]
[23]T29
[24]T46
40 The plaintiff then decided to buy his own vehicle. About a month or so later, he started working for Kings Transport as an owner/driver, delivering pallets and boxes which were forklifted on and off his vehicle.
41 The plaintiff agreed he could work up to 50 hours a week at Kings, and mostly he worked between 30 to 35 hours and maybe twice he worked 50 hours.[25] He did not work the long hours Mr Kossmann noted, but he may have.[26] The plaintiff agreed he told Mr Kossmann he coped with his work and tried to avoid heavy lifting.[27] The plaintiff agreed he mainly used his left hand at work.[28]
[25]T44
[26]T46-7
[27]T47
[28]T48
42 The plaintiff deposed he did not have to do any lifting at all in this job but during his viva voce evidence, he added that he did not have to do any heavy lifting but he had to do some parcel deliveries.[29]
[29]T7
43 As of 3 June 2013, when he swore his first affidavit, the plaintiff was not having any treatment or taking any medication. He agreed he had not seen his general practitioner between May 2012 and May 2013 but did not need to as he had Tramal prescriptions.[30]
[30]T41
44 Every morning when he woke, the plaintiff knew he had a crook neck. It was stiff and he rated the pain at two or three out of ten. He woke with headaches every day. Hot showers in the morning helped him become mobile and relieved his pain a little; however, he continued to have very little strength in his right arm. He needed assistance from his wife to adjust the showerhead.
45 The plaintiff could then drive his ute but he relied on his left arm. After driving for 15 to 20 minutes, he had to rest his right arm on the door. Throughout the day, if he lifted his right arm, he immediately felt pain in his neck. If he put his right arm behind his back, his arm sort of died and just collapsed. If he fiddled with his thumb or fingers, he felt numbness and weakness up his right arm.
46 In late March 2013, the plaintiff did some gardening, which was not heavy. He was just trying to put in some wooden edging which involved digging a shallow trench. When he finished this work at four o’clock, he felt some pain in his right arm and neck but a short time later, when he went to have a shower, he could not move his arm at all. The plaintiff continued to have some pain but the main problem was a sort of helplessness or numbness in his right arm that did not go away for about four or five hours.
47 The plaintiff confirmed this flare up when raking in May 2013, which caused a recurrence of pain for a month. He agreed it was pretty heavy physical work, shovelling and raking bark.[31]
[31]T43
48 The plaintiff often became caught out like that at work – having such a flare up – and usually got by by simply avoiding activities he knew would cause that lack of feeling. Often when holding a cup of coffee, his arm would give way and he would spill it. If he helped his wife lift a roast out of the oven, he had to hold his arm in a particular way or else it would give way.
49 When the plaintiff had a flare up of pain in the right side of his neck, he took Voltaren.
50 The plaintiff’s main problem as of June 2013, was almost total lack of strength or feeling in his right arm. He knew how to adjust his posture to hold his arm in order to avoid that sensation but several times during the day, he felt as if he only had one arm.
51 In the meantime, apart from the sort of flare up that he had when gardening, the plaintiff found his life was affected some time or another in some way every day as a result of his condition.
52 The plaintiff confirmed his complaint of neck and shoulder pain when delivering a mattress in August 2013, after which he attended the doctor and advised him he had used his last Tramal.[32]
[32]T39
53 The plaintiff deposed that he continues under the care of Dr Wong. The plaintiff now takes two to three Tramadol on most weeks and uses an inhaler for asthma.[33]
[33]Originally deposed he took Tramal two to three times per week
54 The plaintiff’s right arm and shoulder are painful all the time and he has lost strength in his arm. He cannot work above shoulder height or away from his body with his arm. If he does too much, his arm plays up and the pain increases. He also gets headaches daily and cramps in his arm at least three to four times a day.
55 In August 2014, the plaintiff resigned his subcontracting work with Kings. He then obtained work with Elite Windows as a driver and labourer. He works in the factory and also does deliveries. He needs help to do his work but he knows the boss, who understands his situation.
56 The plaintiff is paid $25 an hour and works about 30 hours a week. He does not believe he could work more hours because his shoulder would become too painful. He has not been able to work for a full week. He does not believe he worked more hours with Kings, although occasionally he might have worked five days.
57 In his current job, the plaintiff drives a 4.5‑tonne gross vehicle about four hours a day. Any items weighing in excess of 25 kilograms are loaded by other workers in the factory, and he has been told not to touch such items. The plaintiff straps and packs the items and lifts them onto the truck with a forklift.[34]
[34]T9
58 The plaintiff enjoyed his first job with the employer. His current job is a lot different.[35] In the current job, there is a lot more work and thinking involved, which worries the plaintiff. Every now and again he has to do work above shoulder height.
[35]T8
59 The plaintiff has a day off a week to rest, by agreement with the boss who is his friend. The plaintiff last worked five days maybe three months ago.[36] His boss cannot pay a full-time wage and have the plaintiff take a day off every week. Depending how the plaintiff felt, if his boss could afford it, he would be working five days a week.[37]
[36]T56
[37]T57
60 The plaintiff is a little bit frustrated in his current job. He gets roughly the same amount of money as at Kings. He has difficulty with lifting doors and windows onto the back of a truck. Having to get assistance from fellow workers makes the plaintiff feel incompetent.[38]
[38]T61
61 The pain levels in the plaintiff’s shoulder and arm have increased with his present job because the work is heavier and more demanding than his previous job; however, he needs to work and he just keeps pushing himself even though work is causing a lot of problems.
62 The plaintiff finds driving duties and his current work difficult because he has to turn his neck and use some force when driving. If he has a busy day, his arm is painful by the end of the day and he will not sleep at night. He drops things occasionally because his arm is weak and because of cramping on occasions.
63 The plaintiff’s shoulder and arm pain wake him at night and the pain spreads into his neck and then he cannot go back to sleep.
64 The plaintiff’s pain is now more prominent than it was in 2012 when he told Dr Wong there was no pain. He now rates it at 3 to 4 out of 10, and of constant frequency.[39]
[39]T62
65 The plaintiff has constant numbness in his thumb. He is left-hand dominant. The numbness interferes with his ability to adjust belt buckles and buttons because he cannot feel his thumb. He has problems cutting his fingernails and tying his shoelaces.[40]
[40]T20
66 The plaintiff cannot do heavy gardening and has to be careful at work all the time and try and avoid the heavier aspects of his job.
67 Before the incident, the plaintiff was reasonably competent at home maintenance and car servicing. He could certainly service his car without any problems. Now he can change the oil if he is careful but he would not be able to do any mechanical work or fix the engine.
68 However, the plaintiff has only ever done light work on his car. He does not have any qualifications to do any more in terms of servicing it. This has always been the case.[41]
[41]T53-54
69 Around the home, the plaintiff cannot do any of the heavier things like painting, which is something he would not have any problem with before. It has been five years or more since the plaintiff did any painting, and in any event, he would use his right arm.[42]
[42]T51
70 The plaintiff last played pool four years ago and is only able to stand at the table without really taking a shot.[43]
[43]T55
The film
71 The plaintiff first saw the surveillance film on the day of the hearing.
72 The plaintiff agreed he was shown on the film putting straps and guards onto the load using his arms above shoulder height. He disagreed that he was moving in an unrestricted fashion. He saw some restriction. He saw himself “adjusting,” tilting his neck and raising his right shoulder to loosen it.[44]
[44]T49
73 The trolley the plaintiff was shown lifting weighed maybe 12 to 15 kilograms.
74 The plaintiff agreed he was shown driving a car, opening its door with his right hand, lowering the tailgate from time to time, and using and tightening the straps with the ratchet using both hands. He agreed it was a cameo of his job at Kings. He is doing similar work with Elite.[45]
[45]T50
Lay evidence
75 The plaintiff’s fiancée, Kelly Cipriani, swore an affidavit in July 2013. At that time, they had known each other for seven years and had been engaged for a year and a half.
76 Prior to incident, the plaintiff was a fun-loving guy who enjoyed cards, poker and playing pool. He used to do a lot of work on his car and he also loved driving.
77 Prior to the incident, the plaintiff did a lot of work around the house. He was a handyman and he shared the chores with her. Mowing was his job.
78 Since the incident, the plaintiff’s life had become restricted and he no longer enjoying his previous hobbies. He has not played pool since his injury and he spends notably less time working on the car and driving. He has paid to have his car serviced. He plays cards once in a blue moon.
79 Since the incident, the plaintiff has experienced pain regularly. Initially, his pain was so severe it brought him to tears. Now he has good and bad days with exacerbations on certain movements. At times, his arm gives way. He wakes with a headache most mornings.
80 To relieve his pain, the plaintiff lies in different positions. He has changed his medication because he does not want to become addicted. His sleep is affected by his injuries and he often gets up after waking during the night.
81 The plaintiff is now very careful when doing chores around the house. When he tries to do things, he experiences significant pain. He has problems with the shower and washing his hair.
82 The plaintiff also has difficulty driving the car and he tends to steer with his left arm and rest his right.
83 Since the incident, their intimate life has been affected and it is now more difficult and more painful.
84 Anthony Dobbs has known the plaintiff for about twenty years.
85 In his affidavit of July 2013, Mr Dobbs confirmed the plaintiff’s involvement in cars and playing pool and his happy-go-lucky nature before the incident.
86 The plaintiff has changed since his injury. He is constantly in pain and can barely sit still for five to ten minutes. He often fidgets and screws his face up when in pain.
87 Mr Dobbs has observed the plaintiff taking medication and the plaintiff has complained to him of lack of sleep. The plaintiff has asked him to massage his neck.
88 The plaintiff’s driving has become limited since his injury. He has difficulty doing chores around the house, such as raking the leaves, and he now tries to avoid those types of activities.
89 The plaintiff’s social life has been significantly affected and he basically does not come out any more. They previously went out a hell of a lot but now the plaintiff cannot handle it.
90 The plaintiff has reported to him having difficulties with his job.
91 Overall, Mr Dobbs has noted a significant physical and mental change in the plaintiff since his injury. He has become depressed and anxious and seems like a different person than before his injury.
The Plaintiff’s treaters
92 Dr Wong first saw the plaintiff on 29 October 2011 when the plaintiff reported the incident and complained of neck pain radiating into his right hand with pins and needles in his fingers and right forearm. The plaintiff advised he had been seeing a physiotherapist.
93 Investigations of the right shoulder and neck were organised in November 2011.
94 During late 2011, the plaintiff complained of persisting numbness in his right thumb. He ceased OxyContin and took Tramal and Voltaren for his neck pain. Light duties had become available labelling paint containers, with little lifting involved. The plaintiff was then certified to return to light alternate duties on reduced hours, which he commenced on 28 November.
95 The plaintiff returned to Dr Wong on 19 December 2011, having seen Professor Teddy, who advised no surgery was required and that the plaintiff’s symptoms would settle with conservative treatment.
96 On 9 January 2012, the plaintiff advised his neck and arm were improving but he still had numbness in his right thumb.
97 Dr Wong noted Professor Teddy had found improvement on examination on 27 January 2012. When seen by Dr Wong on 11 February 2012, the plaintiff stated he had no problems on his return to work and that, on occasions, he had lifted 12.5-kilogram containers without any problems. The weight restriction on his certificate was increased to 12.5 kilograms. The plaintiff’s hours were reduced as the employer had insufficient work for him.
98 Over the next month, the plaintiff’s neck pain continued to improve. On 9 April 2012, he no longer complained of any pain but he still had numbness in his thumb. Dr Wong noted Professor Teddy had advised that the plaintiff could attempt a return to normal duties, as prolonged continuation of restrictions was unlikely to offer any increased benefit in terms of his long-term outcome.
99 On 13 April 2012, the plaintiff stated there had been no further pain and he was not experiencing any difficulty lifting 12.5-kilogram drums. There was no tenderness and normal strength on examination. The plaintiff was given a certificate to resume normal duties, starting with 4 hours per day and increasing to 6 hours.
100 On 23 April 2012, the plaintiff stated he had no problems since returning to normal lifting but expressed concerns the employer had yet to inform him that he would be reinstated in his pre-injury job as a delivery driver, as he was still working in the factory only.
101 On 12 May 2012, the plaintiff returned to Dr Wong stating, after increasing his hours to eight hours a week, there had been a recurrence of his neck and right shoulder pain. Examination showed some tenderness over the right side of his neck and right trapezius muscle but a normal range of movement with only mild discomfort.
102 On 18 May 2012, the plaintiff returned in a distressed state. He stated on 14 May 2012, the employer advised him he was to be reassigned to the manufacturing plant where he would be exposed to a high level of paint fumes. The plaintiff advised the employer he suffered from asthma and that such exposure made him feel unwell and over the past month working in the factory, he had had to use more Ventolin.
103 The plaintiff felt he was capable of resuming his pre-injury duties as a delivery driver but that position had apparently been given away to another employee. After an argument with the employer, the plaintiff was advised to go home.
104 When seen on 24 May 2012, together with the Work Able officer, the plaintiff stated he had not returned to work since the argument with the employer. He had been advised by the employer there was no position available unless he was prepared to work in the manufacturing factory where the employer maintained the level of fumes was the same as where the plaintiff had been working in the factory. However, the plaintiff claimed that after working for about four hours in the factory, he started to develop symptoms of asthma with tightening in his chest. The plaintiff was given a certificate to continue with normal duties until 7 June 2012.
105 Dr Wong concluded that as a result of the incident, the plaintiff had a C6 radiculopathy as a result of a C5-6 lateral disc extrusion which compromised the right C6 nerve.
106 The plaintiff initially had severe neck and right arm pain, along with paraesthesia and weakness in his right forearm and thumb. As of May 2012, his pain and weakness had resolved with conservative treatment. However, he had had persisting numbness in his right thumb which had not changed.
107 Dr Wong noted when last seen, he thought the plaintiff was capable of resuming normal duties as a delivery driver. However, measures would have been advised to ensure there was an alternative such as a platform lift on the ute so as to avoid having to manually offload the 200-kilogram drums that the plaintiff was occasionally required to deliver.
108 At that stage, Dr Wong could not state with any certainty the plaintiff would not suffer a recurrence of his symptoms if he continued to do heavy manual type work.
109 The plaintiff was not seen again by Dr Wong until 4 May 2013, when he advised he had been paid an agreed sum by the defendant in June 2012 and had waived his further WorkCover rights.
110 Since then, the plaintiff had been self employed doing deliveries using a forklift to lift pallets on and off his vehicle but occasionally he lifted a box by hand. He still had persistent tingling in his right thumb.
111 On that examination, the plaintiff complained of a one-week history of pain on the right side of his neck, shoulder and arm after spending two to three hours using a rake and shovel in his garden.
112 On examination, there was tenderness over the right trapezius muscle and right arm consistent with the musculoligamentous strain. The plaintiff was given analgesics and anti-inflammatories.
113 The plaintiff returned on 18 May 2013. He advised his symptoms had improved significantly and he was advised to continue with his analgesics and anti-inflammatories.
114 When seen on 29 August 2013, the plaintiff advised he was working as a contractor for King Transport and two weeks prior to that examination, he had again developed pain on the right side of his neck and shoulder after having to lift a queen size mattress. He stated his pain had improved but he wanted a further prescription for analgesics.
115 When Dr Wong last saw the plaintiff in August 2013, he did not enquire as to whether the plaintiff was working full or part time. He thought it likely the plaintiff would be able to continue working doing manual light type duties but due to his recurring neck and right arm pain, he was likely to be limited in the amount of weight he could safely handle without risking an acute exacerbation of his condition.
116 When last seen, the plaintiff was able to lift 12 kilograms without any problem. Dr Wong thought prolonged repeated heavy lifting with his right arm either recreationally or vocationally could potentially result in exacerbation of the plaintiff’s symptoms.
117 Dr Wong noted the plaintiff was using simple analgesics and anti-inflammatories when required. He considered the plaintiff was likely to have continuing periods of recurrent neck pain with intermittent acute exacerbations for the foreseeable future.
118 When seen on 25 January 2014 by Dr Siapantas at Dr Wong’s clinic, the plaintiff advised he was suffering from chronic neck pain and headaches, especially upon awakening in the morning, and he was given a further prescription for analgesics.
119 Dr Wong referred the plaintiff to neurosurgeon, Professor Teddy, in December 2011.
120 The plaintiff then reported his symptoms had improved over the last ten days or so and he was substantially better, but the numbness in his right thumb was still troublesome, and increased activity tended to produce right arm pain.
121 Professor Teddy thought it appeared the plaintiff had a right C6 radiculopathy accounting for his brachialgia and dysaesthesia in the thumb. He noted the plaintiff’s CT scans showed nerve root canal narrowing at C5-6 which would be compatible with his symptoms and signs.
122 Professor Teddy had every hope the plaintiff’s brachialgia would settle with continued conservative treatment rather than the need for surgery but he thought an MRI scan was advisable and that the plaintiff might benefit from a short course of Gabapentin or Pregabalin. Professor Teddy noted he had told the plaintiff that the great majority of such cases settled spontaneously.
123 On review on 23 December 2011, the plaintiff was very much better, although he still had some numbness in the right thumb. His main concern was returning to work.
124 Professor Teddy noted the MRI scan showed lateral recess stenosis and a disc bulge at C5-6 with some narrowing of the right C6 nerve root canal but no other significant abnormalities. He noted the plaintiff would continue light duties until seen in February 2012 for reassessment, and he did not require any specific neurological intervention or treatment in the interim.
125 On review on 27 January 2012, the plaintiff told Professor Teddy he had continued to improve and had pain now only when sleeping on his side. The numbness in his thumb persisted and he had headaches. He felt at least 50 per cent better than when last seen, although he had some neck pain when lifting too high. He was taking no medication.
126 Professor Teddy found the plaintiff still had reduced sensation in the right thumb and some reduction in the right biceps reflex. Power in the right arm was pretty much normal, noting the plaintiff is left handed.
127 Professor Teddy thought it perfectly in order for the plaintiff to embark upon his return to work program, noting that duties had been found within the factory and he would start with a 5-kilogram lifting restriction. The plaintiff had been told he should avoid, if possible, working for prolonged periods with his neck extended and his arms raised above his head, and he should also avoid lifting weights above shoulder height.
128 On the last examination on 23 March 2012, Professor Teddy noted the plaintiff had been back at work on a reduced hours, light duties basis for some time and there seemed to be clear debate as to how long this should persist and at what level. He noted the plaintiff’s employers were seemingly somewhat concerned regarding the kind of work that was available to him on this restricted basis.
129 Professor Teddy thought clinically, the plaintiff had no pain but some sensory blunting in the left forearm and thumb. On examination, there was a minimally reduced right biceps reflex but with normal power in the biceps.
130 Professor Teddy noted a decision had to be made some time when the plaintiff might reasonably return to normal duties, stating there was no hard and fast rule in this regard.
131 Professor Teddy concluded the plaintiff had now been going five months since his injury and Professor Teddy was not sure at all that very prolonged continuation of the plaintiff’s restrictions would offer any increased benefit in terms of his long term outcome.
132 Professor Teddy thought the plaintiff needed to try increasing his working activities to see how he gets along. This was explained carefully to the plaintiff and to Kate Gilling from Work Able.
133 Professor Teddy concluded that if the plaintiff found his working duties bring about significant increase in his symptoms once more, then the position would have to be reviewed, both in terms of any operative management and of his finding of an alternative occupation. He noted, whilst he could not guarantee the plaintiff would leave the room, sneeze and have abrupt onset of similar symptoms to those he had experienced, there was, equally, no clear evidence to suggest a return to work at this stage would result in substantial exacerbation of his symptoms or neurological deficits.
Medico-legal evidence
134 The plaintiff was examined by Mr Thomas Kossmann, orthopaedic surgeon, initially in July 2013 and more recently in September 2014.
135 On the first examination, the plaintiff told Mr Kossmann of a life of physically demanding work and the injury on the said date. Mr Kossmann noted subsequent investigations and referral to Professor Teddy, with the plaintiff’s choice to undergo conservative treatment.
136 Mr Kossmann noted the plaintiff had changed his job and bought himself a vehicle and he now worked as a subcontractor for Kings Transport doing deliveries. He was working full time from 7.00am to 7.00pm five days a week. He told Mr Kossmann he coped with his work and tried to avoid heavy lifting.
137 The plaintiff complained that he still has numbness in his right forearm and suffers from headaches.
138 Mr Kossmann diagnosed radiculopathy of the cervical spine at the C5-6 level with pins and needles in the right arm on the basis of significant narrowing of the right-sided intervertebral foramina at C5-6 level with a compromise of the exiting right C6 nerve root.
139 Mr Kossmann thought the plaintiff may suffer from radiculopathy on the right side for the rest of his life. Whilst there was a possibility the issues may improve, he could not give a guarantee. He noted there was also a possibility that the plaintiff may suffer from a catastrophic disc prolapse where he suffers increasing neurology. In that case, he may have to undergo surgery.
140 Mr Kossmann thought the plaintiff unable to lift heavy items weighing any more than 5 to 10 kilograms. Further, he should avoid working in a repetitive way with his upper extremities or turn or bend his head. This incapacity was for the foreseeable future. The plaintiff is not able to perform pre-injury duties.
141 Mr Kossmann thought the plaintiff had a capacity for suitable employment, noting he was then working as a self-employed delivery driver subcontractor by a delivery company, and he seemed to cope with that.
142 Mr Kossmann also thought the plaintiff’s social, domestic, recreational and sporting activities had been restricted due to his cervical spine condition. The plaintiff told Mr Kossmann that he performed gardening two months earlier. However, he developed severe neck pain and had to have treatment from his general practitioner. Since then, he had not returned to gardening.
143 Mr Kossmann considered the plaintiff has to undergo further treatment in the form of pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture, particularly if he has the onset of pain. He thought the plaintiff then still suffered clinically from radiculopathy with dysesthesia in the C6 distribution on the right.
144 Mr Kossmann noted the plaintiff was working full time and seemed to cope quite well with his employment.
145 On re-examination in 2014, the plaintiff complained he still had numbness in his right forearm and suffered from headaches, the latter which appeared to be a major concern for him.
146 Mr Kossmann confirmed his earlier diagnosis and his views as to further treatment, noting the plaintiff’s symptoms seemed to have stabilised since the earlier examination.
147 At that stage, Mr Kossmann thought the plaintiff had a work capacity, noting he worked full time in window deliveries and seemed to be coping in that type of work. He was working at least four days a week or even more. He noted time would tell if the plaintiff would be able to continue with his work.
148 Mr Kossmann confirmed restrictions were appropriate on the plaintiff’s employment and his social, domestic, recreational and sporting activities as they had been affected as a result of his cervical spine injury. Mr Kossmann noted that the injury had had an impact on the plaintiff’s private life and he had separated from his partner and had moved back into his parents’ house where his parents did all household duties.
149 Mr David Brownbill, consultant neurosurgeon, first saw the plaintiff in October 2013 and re-examined him in September 2014.
150 At the time of the first examination, the plaintiff had been working since July 2012 with a courier company as a driver loading and unloading by forklift and no heavy lifting was required over 12 kilograms. He was not receiving any physical treatment and took Tramal occasionally, as well as his asthma medicine.
151 The plaintiff complained of headaches in the mornings. Neck pain was situated posteriorly on the right side, present all the time, with fluctuations, and it plateaued over the last year. He also complained of pins and needles and numbness in his right thumb and index finger.
152 There was an essentially full range of cervical spine movement. Upper limb reflexes were difficult to obtain but were just present on reinforcement. Sensation was decreased over the index finger and right thumb and the lower lateral aspect of the right forearm. The right elbow flexion weakness present during Dr Fish’s April 2013 examination was not present.
153 Mr Brownbill noted radiological investigations had demonstrated some longstanding cervical spine degenerative changes previously asymptomatic, with a C5-6 posterolateral disc protrusion and C6 nerve root compression.
154 Mr Brownbill considered the plaintiff, in his physical activities, sustained aggravation of pre-existing asymptomatic cervical spine degenerative change with C5-6 intervertebral disc derangement and protrusion. He noted if further signs of radiculopathy develop or pain increases further in the right arm, then consideration would need to be given to surgery. He considered some pain would continue in a fluctuating manner indefinitely, as would the pins and needles and numbness on the right hand.
155 Mr Brownbill thought in the future, the plaintiff should avoid activities involving heavy lifting, forced cervical spine mobility or holding his neck in a fixed position. He considered as a result of his injury, the plaintiff was likely to be restricted in relation to employment or related activity involving heavy lifting, forced cervical spine mobility or holding his neck in a fixed position in a moderate to marked degree and that was permanent.
156 Mr Brownbill thought the plaintiff did not have a capacity to perform pre-injury duties. The plaintiff did have a capacity for suitable employment within the described restrictions, noting that the plaintiff was working full time as a courier driver but without any heavy physical activity.
157 Mr Brownbill thought there would also be restriction in relation to social, domestic and/or recreational activities to a moderate degree. In his view, no specific treatment was indicated neurologically and the use of analgesics particularly during periods of pain exacerbation was appropriate. He considered the plaintiff’s condition essentially stabilised.
158 On re-examination in September 2014, the plaintiff indicated overall he was essentially unchanged. He was now working four days a week but had left the courier company and was now with an aluminium window factory performing assembly and deliveries. He avoided heavy lifting or straining his neck and he received assistance with loading and unloading.
159 The plaintiff told Mr Brownbill he takes two or three tablets of Tramal on a weekend and uses Ventolin. The plaintiff complained of daily headaches, pain down the inner aspect of the right forearm to the palm, pins and needles in all digits of the right hand, particularly the thumb, and numbness in the outer aspect of the right forearm.
160 Mr Brownbill concluded examination had shown a slight restriction of cervical spine movements and decreased sensation in the right forearm and hand. There were no other objective neurological abnormalities of the upper limbs or lower limbs. There were no objective signs of radiculopathy or myelopathy.
161 Mr Brownbill confirmed the views set out in his earlier report.
162 Mr Brearley, orthopaedic surgeon, examined the plaintiff in October 2013 and re-examined him in September 2014.
163 On the first examination, the plaintiff told Mr Brearley he had numbness over the back of his right thumb. He had some minimal pain in the right upper arm and also neck pain and headaches. He was then having no physical treatment and took Tramal when required, which would be about once a month or so, and then he would also take Voltaren.
164 There was tenderness over the right side of the neck posteriorly. There was slight limitation of flexion and extension. The plaintiff complained of some discomfort on movements to the right. There was a decrease in sensation to light touch over the whole of radial side of the upper arm, forearm and the whole of the right thumb. Mr Brearley was unable to elicit the biceps jerk on the right.
165 Mr Brearley diagnosed intradisc damage of the C5-6 intervertebral disc with disc prolapse and consequent foraminal stenosis, leading to C6 radiculopathy.
166 Mr Brearley thought the plaintiff was completely precluded in regard to labouring work including repetitive use of the right arm, heavy lifting and work above shoulder height. He did not have a capacity for pre-injury duties.
167 Mr Brearley thought the plaintiff was capable of doing some suitable work, noting in fact he was working as a subcontractor courier. He noted the plaintiff does deliver heavy loads but all loading and unloading is done mechanically and there is no significant lifting involved. He is working full time and should be able to do this in the long term.
168 Mr Brearley thought the plaintiff was restricted in activities of daily living. He was not likely to require interventional or operative treatment in the future. However, if his symptoms worsened, consideration would need to be given to operative treatment. On the first examination, he thought the prognosis was not good.
169 On re-examination, the plaintiff advised there had been no improvement of his neck.
170 The findings on the cervical spine and the right arm were precisely as previously described.
171 Mr Brearley confirmed his earlier diagnosis. He thought there was no capacity for pre-injury employment and a capacity for some suitable employment. He noted the plaintiff was recently working as a subcontractor courier driver but found the work was not as anticipated from the financial point of view and he was forced to cease it. The plaintiff had now started work in his old trade as a window maker and was having a trial period doing three or four days a week.
172 Mr Brearley thought it likely the plaintiff would be able to continue with that job for at least four days a week. The plaintiff would not be able to do increased hours or do overtime in the foreseeable future and, to that extent, there will be some incapacity.
173 Mr Brearley considered the plaintiff is limited in lifting or doing any work at or above shoulder height. Restrictions on his social, domestic or recreational activities will continue.
174 Mr Brearley confirmed his views as to the need for further surgery. He thought the prognosis only poor, noting the plaintiff’s condition appeared to have stabilised.
The Defendant’s medico‑legal evidence
175 Dr Fish, consultant occupational and environmental physician, examined the plaintiff in April 2013 for the purposes of an AMA assessment.
176 The plaintiff then complained of persistent right sided neck pain radiating into the trapezius and right upper arm. There was restricted neck movement, particularly rotation and right lateral flexion. The right arm was generally weak. The plaintiff had persistent sensory change in the right hand, particularly above the thumb and forearm.
177 On examination, there was neck tenderness and weakness of the biceps on the right but reflexes were normal. There was no wasting. There was decreased pinprick sensation consistent with the right C6 nerve root distribution over the thumb and radial border of the forearm.
178 Dr Fish noted the multiple reports confirmed the plaintiff had suffered a large disc protrusion compressing the right C6 nerve root. He thought the plaintiff had persistent right C6 radiculopathy with weakness and sensory change and confirmed the disc protrusion on MRI scans. He considered the plaintiff’s present condition to be stable.
179 When he was seen by Professor Davis in September 2014, the plaintiff advised he still had pain and stiffness in his neck, together with pain radiating down his right arm. There was intense numbness and tingling in the right radial forearm.
180 Professor Davis noted the plaintiff gave a clear history, was pleasant and cooperative. He had clear-cut depression of both the right biceps C5-6 and specifically the right brachioradialis reflex (C6) with sensory loss in the right C6 dermatomal territory.
181 Professor Davis noted the history here was really quite clear-cut and there was no diagnostic uncertainty. There was a neck strain in the incident and the plaintiff had a mild but clear cut objective right C6 radiculopathy with concordant imaging and clinical finding. There was no actual weakness and the pain syndrome had improved so that conservative management seemed to be quite reasonable at that stage.
182 Professor Davis noted it is fortunate the plaintiff seemed to be working and had worked most of the time since his accident. He had some restrictions with working above the right shoulder and in terms of heavier lifting or all aspects of lifting.
183 There were no features of any functional elaboration. Professor Davis considered conservative management was appropriate unless the right brachial neuralgia became worse, in which case a nerve root decompression would be appropriate.
184 Having been shown the surveillance film, Professor Davis noted the plaintiff was seen working in a seemingly unrestricted manner; for example, lifting objects onto the back of a ute and walking quite freely. The video showed him undertaking a range of other activities, elevating the arms in some cases above shoulder height, although most of these activities appeared to be of a fairly light nature.
185 Based on the information, Professor Davis would assume that the plaintiff’s symptoms were relatively quiescent or not particularly severe at any rate at present.
186 Professor Davis thought the plaintiff was not showing any significant functional features or elaboration when seen. The plaintiff pointed out he was managing his work but just required some assistance with loading if the task was too heavy. That was quite in line with the expected clinical picture where cervical radiculopathy can often spontaneously remit or substantially improve. Professor Davis noted that was certainly the picture shown on the surveillance.
Surveillance film
187 The defendant tendered video surveillance of the plaintiff taken of the plaintiff for about 12 minutes on both 15 April and 13 May 2014.
188 On the first date, the plaintiff loaded a trolley onto the back of his ute. He closed the driver’s door with his right hand. He later secured a load on the back of the ute attaching guards on the corners and strapping down the load using both hands at above shoulder height and tightening the load with a ratchet. He raised and lowered the tail gate of his ute using both hands.
189 On 13 May, the plaintiff was shown driving and at times, standing next to his vehicle whilst it was being loaded.
Other documents
190 By letter dated 5 June 2012, the plaintiff wrote to CGU and advised he had decided to resign his position with the employer. He advised, given his decision, he would be withdrawing his worker’s compensation claim for weekly payments effective immediately.
191 The plaintiff signed Terms of Settlement with the employer on 5 June 2012 which set out the employer would pay the plaintiff’s eight weeks’ ordinary pay, on signing of the terms, made up of the accrued but untaken annual leave entitlements, with the remainder as an ex gratia payment. Terms of Settlement involved each party releasing the other from all claims, suits and demands and causes of action including a WorkCover claim.
Overview
192 It is not disputed the plaintiff suffered a compensable injury to his cervical spine in the incident on the said date.
193 The defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[46] 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.”
[46][2006] VSCA 171
194 There is no suggestion in this case of any functional component to the plaintiff’s presentation, nor is there any history of spinal problems predating the incident.
195 As the counsel for the defendant conceded, there is probably no real dispute as to the diagnosis of the plaintiff’s condition, with Professor Davis and other medical practitioners diagnosing C5‑6 radiculopathy[47] although there were differences in their views as to its severity[48] and Mr Brownbill did not make a finding in this regard.
[47]T47
[48]T48
196 The issue is one of range – whether the consequences meet the statutory threshold.[49]
[49]T5
Credit
197 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[50]
“… 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.”
[50](2010) 31 VR 1 at paragraph [12]
198 Counsel for the plaintiff submitted the plaintiff is a witness of truth and the late changes to his affidavit do not contradict his case. Further, there was nothing damaging to the plaintiff shown in the surveillance film.[51]
[51]T51
199 Whilst these changes were only made at the start of the hearing,[52] I do not consider them to be of any major significance, with the plaintiff conceding he did some lifting working at Kings and he also reduced the intake of medication deposed to.
[52]T52
200 I agree that the surveillance film did not show any significant overhead or strenuous movement involving the plaintiff’s right arm or neck but clearly the plaintiff was able to work overhead strapping the load.
201 Whilst it was not said by counsel for the defendant that the plaintiff is malingering or there has been a genuine attack on his credit, it was submitted he did at times exaggerate the level and extent of any problems he was experiencing as a result of his neck injury.
202 Given his ability to continue working in various roles without the need for ongoing or significant treatment and little time off or modification of his duties, this submission has some merit.[53]
[53]T74; See Haden Engineering Pty Ltd (supra) at paragraph [11]
203 However, no medical examiner was of the view that the plaintiff was deliberately embellishing or exaggerating his symptoms on examination.[54] Further, the evidence of lay witnesses relied on by the plaintiff was not challenged.[55]
[54]T79
[55]T88
Pain
204 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[56]
“The evidentiary basis of the pain assessment will ordinarily comprise inter alia, what the plaintiff says about the pain both in court and to doctors”.
[56](supra) at paragraph [11]
205 The plaintiff, whilst describing constant right arm and shoulder pain, rates it at only 3 to 4 out of 10, compared to no pain on earlier examinations by Dr Wong in 2012.[57]
[57]T62
206 The plaintiff also complains of constant numbness in his right thumb; however, he is left-hand dominant. He is still capable of doing a range of tasks using his right hand.
207 Whilst he complains of ongoing headaches, the plaintiff has received no specific treatment in relation thereto, nor have any particular investigations been carried out.
208 Treating practitioners have also not noted complaints of pain at a high level.
209 Dr Wong noted continuing improvement until an aggravation in May 2012, after which a month later, he certified the plaintiff fit for normal work. He did not see the plaintiff for a year until he attended for minor flare ups of his neck pain in May and June 2013. There are no details of any examination by Dr Wong after August 2013.
210 The last note of any attendance at that Clinic was in January 2014 when the plaintiff saw Dr Siapantas complaining of chronic neck pain and headaches, and he was prescribed Tramal.[58]
[58]T40
211 When Professor Teddy last saw the plaintiff in March 2012, clinically, there was no pain and he thought the plaintiff should try to return to normal duties full time. As of December 2011, he thought the right C6 radiculopathy would settle spontaneously.[59] The plaintiff has not been sent back to Professor Teddy for an updated opinion.
[59]T65
212 There have been no major findings on medico-legal examinations.
213 Mr Brownbill found a full range of cervical movement on examination in 2013 and there was only a slight restriction of flexion on re-examination the following year.
214 The plaintiff told Mr Brownbill of headaches, neck pain and pins and needles but he advised, as of October 2013, there had been a progressive improvement in his pain with plateauing over the last twelve months.
215 In July 2013, and on examination the following year, Mr Kossmann noted the plaintiff’s present complaints as numbness in his right forearm and headaches.
216 When re-examined by Mr Brearley in 2014, the plaintiff told him he was always aware of some discomfort or pain across the right side of his neck and sometimes this developed into a headache. Flexion was full, with other cervical movements to three quarters of full.
217 The evidentiary basis of the pain assessment ordinarily will comprise, inter alia, what the plaintiff does about the pain (treatment, medication and rest).[60]
[60]see Haden Engineering Pty Ltd (supra) at paragraph [11]
218 Save for the period leading up to June 2012, the plaintiff has attended his general practitioner infrequently, with two visits in 2013 and one in 2014. There are no details of further visits.
219 I accept there were so few attendances as the plaintiff was coping with his work and other activities save for the minor flare ups in 2013,[61] rather than he did not attend as no further treatment could be undertaken, as counsel for the plaintiff submitted.[62]
[61]T89
[62]T87
220 There was no other treatment save for one attendance at a physiotherapist and also a masseuse in the early days after the incident.
221 It was conceded that the plaintiff does not regularly and consistently have a significant intake of medication. He tended to take Tramadol at the end of the week.[63]
[63]T84
222 I accept that the plaintiff’s medication regime is not a serious consequence alone[64] and that this is not the type of situation described by Dodds Streeton JA in Kelso v Tatiara Meat Company Pty Ltd.[65]
[64]T65
[65][2007] VSCA 267 at paragraph [199]
Work
223 While there is no claim for loss of earning capacity, it was submitted that as a result of his cervical injury, the plaintiff is incapable of his pre-injury employment and has a reduced capacity for manual work.[66]
[66]T78
224 It was submitted the “classical problem” for the plaintiff is he cannot do his old job. He was then left on the open market and then had to work for himself in a less lucrative job.[67]
[67]T80
225 I am not satisfied however any employment consequences could be properly described as serious for the plaintiff when the objective evidence of the claimed disabling effect of his pain is examined.[68]
[68]T68; see Haden Engineering Pty Ltd (supra) at paragraph [11]
226 The plaintiff’s condition improved to the stage in May 2012 that he had increased his hours, perhaps to full time, and he was keen to return to his old job which involved heavy lifting on a regular basis. Of course this did not include lifting 200-kilogram drums, a task no doctor would consider appropriate.[69]
[69]T69
227 As mentioned previously, the plaintiff was certified fit to return to normal duties by both Dr Wong and Professor Teddy in the first half of 2012.
228 Just prior to and following the May 2012 aggravation, Dr Wong cleared the plaintiff for normal duties and the plaintiff was keen to resume his old job. That did not happen because his position had been filled and the employer wanted him to work in the manufacturing area – a job the plaintiff refused, because exposure to fumes would exacerbate his asthma.
229 The plaintiff did not lose his pre-injury job because of his injury. He ceased that employment because he refused to do manufacturing work which, on his account, involved exposure to fumes.[70]
[70]T74
230 The plaintiff’s subsequent work history is inconsistent with a significant neck problem.
231 In this regard, Counsel for the defendant relied on the comments made by the Court of Appeal in Sumbul v Melbourne All Toya Wreckers Pty Ltd;[71] however, as it has later been noted in many cases, each application depends on its particular facts and continuing in employment does not defeat a finding of seriousness in relation to pain and suffering.
[71][2006] VSCA 292
232 The plaintiff was able to work up to 50 hours per week with Kings in a courier role undertaking moderate lifting. He required no time off or modification of his duties. There was one instance in 2013 when he aggravated his spine lifting a mattress at work; otherwise he could perform his duties without difficulty.
233 The plaintiff left that job, not because of any physical problem but because it was not a lucrative position being self-employed.
234 The plaintiff then obtained work at Elite, performing similar duties. Whilst he is working four days per week, he would work a full week if his employer could afford to pay him.[72]
[72]T70
235 The plaintiff has not provided any affidavit material from his friend who employs him at Elite detailing any problems the plaintiff has with his current duties.
236 Whilst I accept the plaintiff does not have a capacity for unrestricted heavy manual work as medico-legal examiners Mr Kossmann, Mr Brownbill, Mr Brearley and Professor Davis agree (imposing restrictions on heavy lifting, prolonged postures and overhead work on a repeated basis),[73] the plaintiff has been able to successfully work within these restrictions on an ongoing basis since leaving the employer’s employ.[74]
[73]T69
[74]Relevance of what is retained – See Ashley JA in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
237 When he last saw Dr Wong in August 2013, Dr Wong thought the plaintiff could lift 12 kilograms without any problem.[75]
[75]T82
Other activities
238 The plaintiff has not complained to his doctor of any problems sleeping due to neck pain. He only mentioned this as an issue in his second affidavit (confirmed by his wife). The plaintiff, in any event, does not require any sleeping medication.
239 Interference with intimate relations was mentioned by the plaintiff’s wife in her affidavit but not by the plaintiff in either affidavit.
240 I accept that the plaintiff’s neck condition precludes him from engaging in very heavy work at home, as is the case at work.
241 However, as became apparent in cross-examination, the plaintiff’s ability to maintain and service cars has been unaffected by his injury. Further, whilst he deposed to being unable to do painting at home, he has not done any painting for many years.
242 Whilst there may be some difficulties driving because of right arm numbness, the plaintiff is still able to undertake driving duties in his present job, as was also the case when he worked with Kings.
243 The plaintiff’s enjoyment of playing cards and playing pool has been somewhat affected by his injury but these were not activities he previously engaged in competitively or to a significant degree.
244 Taking into account all the evidence, I am not satisfied the plaintiff has a “serious injury” in relation to his cervical spine and his application is therefore dismissed.
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