Reddick v Locurio Nominees Pty Ltd (Trading as Allied Towing Services)
[2014] VCC 1217
•1 August 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-06638
| STEPHEN REDDICK | Plaintiff |
| v | |
| LOCURIO NOMINEES PTY LTD (Trading as ALLIED TOWING SERVICES) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 30 July 2014 | |
DATE OF JUDGMENT: | 1 August 2014 | |
CASE MAY BE CITED AS: | Reddick v Locurio Nominees Pty Ltd (Trading as Allied Towing Services) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1217 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine and right hip – pain and suffering only – whether consequences related to workplace injury, or underlying degenerative process
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Case law: Ansett Australia Ltd & anor v Taylor [2006] VSCA 171
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Ms S A Lean | Maurice Blackburn |
| For the Defendant | Mr R Meldrum QC with Ms G-J Cooper | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 The plaintiff claims to have suffered injury to his lower spine, and his right hip when he was undertaking heavy lifting in the course of his work duties on 4 March 2008.
2 As a result of his hip injury, he has undergone a number of bouts of surgery, including hip replacement. In relation to his lower back injury, he has been treated conservatively. He claims a range of social, recreational, employment and domestic duties have been lost or curtailed.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of the plaintiff’s employment on 4 March 2008.
4 There are two body functions said to be impaired, one being the lower spine, and the other the right hip. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
5 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, affidavits of his wife and sister, and various radiological and medical reports, and clinical notes were tendered into evidence. I shall not refer to all of this material in the course of this judgment, but those parts of the evidence and reports which appear to me to be of most relevance and which I have relied upon in coming to the conclusion later referred to in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principle authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
6 The plaintiff was born in 1954 and is now sixty years of age. He attended school to Year 10 and then completed an apprenticeship as a chef. He worked as a chef for a number of years, and then worked as a bus driver for about twenty-seven years.
7 He took up employment with the defendant in September 2006. The defendant company is owned by the plaintiff’s daughter and son-in-law, and he has continued to work with that company, albeit on lighter duties, through to the present time.
8 According to the plaintiff’s affidavit, he enjoyed cooking, which he had done over the years, and did most of the outside maintenance work at his house. He mowed the lawn and did the garden, including looking after a large vegetable garden which he was particularly proud of. He would walk with his wife and dog frequently and occasionally play a game of golf. He had a small boat in which he would go out fishing and was able to play in an unrestricted manner with his grandchildren.
9 According to his first affidavit, he had no pain nor restriction in his low back or hip prior to the workplace accident. However, in his second affidavit, when shown clinical records, he accepted there were a number of attendances upon his general practitioner in relation to both the back and the hip. He said that he had not disclosed these matters in his first affidavit as he had not remembered them.
10 According to the clinical records of his treating general practitioner, Dr Unkenstein, the plaintiff attended in relation to prior lower back problems on one occasion. The clinical note reads:
23 March 2004
“Presents with history of acute onset of low back pain on 12/3/2004 after changing the bus he drives. After three days he could bear it no longer and visited the physio, Elise, at Portside as well as asking his boss to change buses. The pain is gradually resolving. OE [on examination] tender R [right] paravertebral muscles from L1 upwards to supraspinatus with palpable spasm. Pain in lateral flexion on the R [right] and flexion forwards and rotation to RHS [right hand side]. SLR [straight leg raising] and PNS NAD [no abnormality detected].
IMP [impression] posture change driving caused intervertebral joint mal-alignment and spasm. Patient refused anti-inflammatories so continue with current TX [treatment]. R/V [review] if symptoms persist.”[1]
[1]Defendant’s Court Book (“DCB”) 52
11 In cross-examination, the plaintiff said that he had forgotten about this episode. He further accepted that from time to time, he had pain in the lower back, which he described as “muscle pain”. He said he would occasionally go to a chiropractor and attended two physiotherapists. Most of the chiropractic treatment was for his low back and he would attend each month or six weeks. This went on for possibly four years. He put the pain in his lower back down to constant driving of buses.
12 In relation to his right hip, a clinical notes discloses:
17 February 2006
“Describes several months of hand, hip and knee arthritis. Worse in morning and improves with use. No pains at night but some parathesia. No FHX [family history] of arthritis of note. … Hips and knees move well. Probable inflammatory arthritis. Keen to avoid medications > trial glucosamine. … “
13 In cross-examination, the plaintiff could not recall any pain in his hip or right leg area before the workplace accident. He said that for a period, he took glucosamine tablets every day. He denied regular problems, stiffness or pain with his right hip.
14 On 15 May 2003, the plaintiff was referred by his general practitioner for an x‑ray of his pelvis and right hip.[2] The x‑ray shows no abnormality and it is unclear as to the circumstances leading up to the referral.
[2]Plaintiff’s Court Book (“PCB”) 30.1A
The workplace accident and its consequences
15 For reasons I will set forth later in this judgment, I am satisfied that the consequences of the plaintiff’s right hip injury are such as to meet the statutory test of “serious injury”. It is therefore unnecessary for me to analyse the injury the plaintiff suffered to his lower spine in the course of his employment. I shall restrict my analysis to the plaintiff’s right hip.
16 On 4 March 2008, he was working at a building site, carrying pallets of steel beams. One of the straps broke and the beams fell to the ground. In the process of retrieving the beams, he felt pain in his back. He said he also felt pain in the right groin area. Over time, the pain in both his back and right hip/groin increased.
17 On 18 March 2008, he attended his general practitioner. The clinical note records:
“Two weeks of right hip and right SIJ [sacroiliac joint] pain. Not improving despite physio. No focal tenderness (feels the pain ‘inside’) full ROM [range of movement] in the lumbar spine … IMP [impression] – sciatic pain.”[3]
[3]DCB 65
18 There was a prescription for Voltaren and Panadeine Forte.
19 There was a further entry of 20 March 2008 where the plaintiff complained of two weeks of low back and right sciatica pain.[4] A further entry recorded on 25 March 2008 says:
“Little improvement – pains persist and numbness over right ASIS [anterior superior iliac spine].”[5]
[4]DCB 66
[5]DCB 67
20 The plaintiff was off work for a period, but eventually returned and instead of truck driving, undertook office-based duties which have continued through to the present time. He says he receives sympathetic treatment from his employer because of the family tie.
21 On 3 October 2008, he filed a Claim for Compensation Form. He said the delay in filing the document was explained by the fact that he did not want to make a claim involving his daughter’s company, but because of the persistent pain, she suggested he do so.[6] The Claim Form records “bulged discs (2) – back”. According to the Employer Claim Report,[7] the injury is reported as “possibly bulging discs in lower back”. The Claim Form notes that the matter was reported to the managing director on 4 March 2008.
[6]DCB 46-47
[7]DCB 48-49
22 According to the report of the general practitioner, when the plaintiff was reviewed in April 2008, “all seemed to be healing conservatively as expected”.[8] However, on 3 November 2008, the plaintiff returned complaining of persistent lower back and right hip pain which was not responding to anti-inflammatory medication, physiotherapy, hydrotherapy and osteopathy. An x‑ray had earlier been taken on 19 March 2008 of the plaintiff’s pelvis and right hip, which concluded that there was no evidence of established osteoarthritis.
[8]PCB 53
23 Because of the persisting hip and lower back pain, the plaintiff was referred to Mr Roy Carey, orthopaedic surgeon, by his general practitioner and saw him on 17 December 2008. According to the history, the plaintiff said that he “felt something go” on the right side of his lower lumbar region with pain into his right groin and thigh. To Mr Carey, the plaintiff complained of right-sided lumbosacral/sacroiliac pain without leg symptoms. Examination revealed that the plaintiff was “exquisitely tender” over the anterior hip, and hip movements were irritable. It would appear that the main reason for the referral to Mr Carey was to investigate lower back pain, and he concluded that the plaintiff had a resolving lower back syndrome with an arthritic hip on the right side. He suggested an MRI scan of the hip be undertaken and that the plaintiff should continue with exercises. He said that the back injury occurred at work but the arthritic hip could not have occurred at that time, and neither did he note any hip symptoms at the time of the incident described.[9]
[9]PCB 40
24 An MRI scan of the right hip was undertaken in January 2009 and showed:
“Moderate degenerative change at the right hip with chrondral wear, marginal femoral head osteophytic bony lipping and thinning of the anterior labral chrondal junction. Subchrondal cystic change at the medial aspect of the femoral head.
Anterior and superior labral appearances favour a focal degenerative labral tear.
Insertional tendinosis involving the gluteus minimus and lateral facet gluteus medius flores. Minor superficial trochanteric bursopathy.”[10]
[10]PCB 31-32
25 It would appear the plaintiff was referred by Mr Carey to Mr David Bowyer, orthopaedic surgeon, whom he saw on 6 April 2009. He gave a history of the lifting incident of March 2008 and of experiencing low back and right groin pain. Mr Bowyer said that x‑rays and MRI scans suggested the presence of early osteoarthritis, and a tear of the acetabular labrum. He referred the plaintiff to Mr Robert Woods, surgeon, to address the acetabular tear. He said:
“Whilst degenerative disease is usually multifactorial in origin it can be the case that specific mechanical injuries can exacerbate or inflame all of these above pathologies and a worsening of symptoms. Tearing of the acetabular labrum in particular may be related to a specific injury.”[11]
[11]PCB 34
26 On 6 April 2009, the plaintiff underwent an x‑ray of his right hip which showed early changes of osteoarthritis in accordance with the earlier MRI scan finding.
27 According to a report of Dr Peter Aghatanious, osteopath, of 13 January 2010, he treated the plaintiff for five sessions from 9 October 2008, when the plaintiff complained of pain in his lower back and right hip region.
28 The plaintiff saw Mr Robert Wood, orthopaedic surgeon, for the first time in April 2009. He arranged for the plaintiff to have a CT scan of the right hip, and said he spoke to the plaintiff of the option of a hip arthroscopy. He described the hip as becoming more degenerate. A right hip arthroscopy and arthrotomy was performed by Mr Wood on 1 June 2009. He said that at the time of the procedure, there was a significant amount of bone removed and it was clear there was a large labral tear which was resected. He said that the femoral and acetabular surfaces were damaged, although there was significant joint space still available.
29 He reviewed the plaintiff on a number of occasions throughout 2009 and after a slow recovery from the surgery, the plaintiff continued to complain of worsening right hip pain. Further x‑rays[12] showed what he said was a “significant change” with a “huge amount of chrondral loss in that time”. He advised the plaintiff that it was likely he would require a hip replacement.
[12]PCB 32.2, 32.1
30 Right hip replacement surgery was carried out on 23 November 2009. Mr Wood continued to review the plaintiff over 2010 and 2011. A problem developed with the metal hip joint.
31 In his report of 12 May 2014,[13] Mr Wood noted that upon review in February 2012, the plaintiff’s right hip problems, although initially thought to have progressed, were getting worse. A further MRI scan showed a tear in the abductor tendons and significant bursitis, which he said meant there was fluid collecting around the hip. Further hip replacement surgery was undertaken on 8 May 2012 with the implant of a ceramic hip. Mr Wood said that the ultrasound finding before the surgery indicated metallosis rather than just straight bursitis. This was as a result of some defect in the initial metal hip joint.
[13]PCB 47
32 Upon review in June 2012, he said the plaintiff was progressing well, although by February 2013, while the x‑ray undertaken looked good, the plaintiff’s right hip was still very sore. Mr Wood noted significant trochanteric bursitis. At the time of his last review on 7 February 2013, Mr Wood said:
“With respect to his current prognosis it is quite good when considering his hip joint. Ceramic on ceramic hip replacement has a longevity of 20 years in most people. We haven’t had these particular ceramics around for longer than that so we can’t really comment but at 20 year survivorship assessments, it would appear that 95 per cent at least are still operating at the expected level.”[14]
[14]PCB 50
33 Mr Wood referred to the prospect that the plaintiff would require further surgery to repair the abductor tendon and may require intermittent physiotherapy. He said the following:
“If he has not settled to this point or if it flares again in the future and I would very strongly relate that back to the original injury and the subsequent soft tissue breakdown secondary to metallosis from the metal on metal hip.
…..”[15]
[15]PCB 51
34 The claim by the plaintiff to the WorkCover insurer in respect of his right hip injury was accepted and all of the surgery was carried out by Mr Wood was undertaken with the approval of the WorkCover insurer (save for the final hip replacement).
35 It is clear from Mr Wood’s report that the right hip injury was related to the workplace incident. He said:
“The diagnosis is one of labral tearing and degeneration of the right hip sustained or exacerbated in a twisting injury whilst lifting steel as part of his work duties. He did have a back problem at the same time and it was questionable whether buttock and thigh pain was coming from a spinal injury or from the hip in a situation such as this one.
The onset of symptoms certainly is well related from a time perspective to his incident at work and one would suspect that if it didn’t actually cause a degenerative process to be being in the hip, it certainly would not have helped. I do believe it has significantly contributed to the onset of his symptoms. Noting that he did tear his labrum at that stage, it is a distinct possibility it would have led to more rapid deterioration in the hip whether it was destined to deteriorate or not.”[16]
[16]PCB 45
36 The plaintiff said that at the present time, he takes several Panadol Osteo daily and occasionally obtains prescriptions from his general practitioner for Tramadol, which he takes when the pain becomes more significant.
37 According to his affidavits, he says he is restricted in a wide range of activities. The pain in his right hip has persisted and he is unable to cook in the manner he enjoyed before. He said at the present time, he rarely cooks, is unable to drive for longer periods, although to Mr Jones he said that he had driven for two hours to attend an appointment. He said he is not able to go on the long walks he enjoyed before and almost all of the maintenance work he used to carry out around the house is beyond him. His large vegetable garden has been abandoned, and he does less work in the garden. He does some wood turning work but is significantly restricted in interacting with his grandchildren. He has sold his boat as he could not control it. His sleep is affected and he suffers pain during the night, both in his low back and hip area. He has become depressed and anxious about his future. Despite this, he has remained in work, working full time, although in administrative duties. He sees his general practitioner every three or four weeks.
Opinions of the consultant medical practitioners
38 At the request of the defendant, the plaintiff was examined by Mr Peter Kudelka, orthopaedic surgeon, in September 2009. Clearly, he examined the plaintiff before the conclusion of all the surgery, and without all the radiological reports, nor clinical notes of prior hip pain. He noted there was two centimetres less on measurement of the right thigh to the left. The right hip was very irritable, particularly in rotation. Mr Kudelka said the plaintiff had moderate arthritis in the right hip which was aggravated by the workplace injury. The radiology he saw showed osteoarthritic changes in both hips, with the right symptomatic. He said he thought the plaintiff should have a total hip replacement.
39 The plaintiff was examined by Dr David Fish, occupational physician, in November 2012, after the second bout of hip replacement surgery. To Dr Fish, the plaintiff complained of occasional twinges of pain in the right hip with pain upon waking in the morning and towards the end of the day. The plaintiff had a sitting tolerance of 10 to 15 minutes because of his hip and was able to walk for 400 metres, albeit slowly. The plaintiff said that he used a handrail to mount stairs. He described pain in the right hip as between 2 and 3 out of 10 on the VAS Scale. The plaintiff said he limped occasionally and had difficulty putting on his shoes and socks.
40 Dr Fish concluded that following the plaintiff’s injury, he suffered low back symptoms and then developed right hip pain, and was found to have osteoarthritis of the right hip. He said:
“I concluded that he is suffering from aggravation of lumbar disc degeneration and lumbar spondylosis relevant to the accepted low back injury and he is suffering from the residual effects of a right hip replacement relevant to the accepted right hip injury.”[17]
[17]DCB 24
41 Finally, the plaintiff was examined by Mr Ian Jones, orthopaedic surgeon, in November 2013, and July 2014. On the first occasion, the plaintiff complained of right hip pain, although said it was improving and was difficult to distinguish form his lower back pain. On the more recent occasion, the plaintiff complained of ongoing pain in the right groin area, aggravated particularly by sitting. Having reviewed the various radiology, Mr Jones said the subsequent changes seen on the x‑rays and MRI scans of the right hip were likely to have predated the workplace injury. He concluded that he was unable to establish any relationship between the workplace injury and the onset of right groin pain. .
Credibility of the Plaintiff
42 The plaintiff’s credit was attacked by Mr Meldrum on several bases. He said the plaintiff had failed to disclose the previous episodes of lower back and right hip pain. He suggested the plaintiff’s explanation that he simply had forgotten about these episodes was unlikely, in particular given the physiotherapy and chiropractic treatment he received.
43 Further, the plaintiff told Dr Kornan, psychiatrist, in the course of his history, that his sex life was good prior to the accident, but significantly affected because of his injuries, afterwards. This stood in contrast, said Mr Meldrum, to various attendances with the plaintiff’s general practitioner complaining of impotence and in respect of which medication was prescribed.
44 Further, Mr Meldrum said that when he first attended his general practitioner on 18 March 2008, there was no history provided of the lifting incident as a source of the back and right hip pain.
45 However, in the course of cross-examination, I observed the plaintiff to be responsive to the questions asked, and to give a fair account of the onset of his symptoms. I accept his explanation that he had simply forgotten about the one or two prior episodes of lower back or right hip pain. Even although he had some treatment for his back before the incident, I accept the problem was of a different nature. Further, it is clear that the plaintiff did report the injury, as is clear from the Employer Claim Report, a short time after it occurred.
46 All in all, I accept the plaintiff as a credible witness and find I can rely upon the statements and histories in his affidavit and those provided to the medical practitioners.
Conclusions
47 The key issue in relation to the plaintiff’s right hip problems is the causative relationship between the pain, disability and subsequent surgery, and the incident of March 2008. I am satisfied, on the balance of the medical opinions, that there is that causative relationship. In particular, the treating surgeon, Mr Wood, has seen the plaintiff on a large number of occasions, obtained an extensive history, and undertaken the three operative procedures. It is clear the second hip replacement surgery was because of a defective metal hip joint and that surgery was carried out at the expense of the medical company responsible for the joint. The claim was accepted by the insurer and medical expenses met. As Ashley JA said in Ansett Australia Ltd & anor. v Taylor[18] acceptance of a claim by an insurer should stand as an admission that the subject injury occurred in compensable circumstances, albeit not a conclusive admission.
[18] [2006] VSCA 171
48 The causative relationship between the incident and the development of subsequent hip problems is accepted by all of the practitioners, save for Mr Carey and Mr Jones. The defendant’s consultants, Mr Kudelka and Dr Fish, accept the relationship. Mr Carey saw the plaintiff largely in respect of his lower back. While Mr Jones did have available all of the relevant materials, he nonetheless saw the plaintiff only on one occasion, and I prefer the opinion of Mr Wood. There is clear reference in the general practitioner’s notes on the 18 March 2008 to the onset of hip pain from the time of the incident, and it is referred to again on the 25 March.
49 I accept that it is likely the plaintiff had ongoing largely asymptomatic arthritis in his right hip at the time of the workplace incident. I am satisfied, however, that the lifting incident significantly contributed to the onset of the plaintiff’s symptoms. In particular, I am satisfied it is likely, in accordance with the opinion of Mr Wood, that there was a tear to the labrum at that time.
50 While it was distinctly possible the plaintiff would go on to suffer arthritis absent the workplace injury, that injury significantly aggravated and accelerated that process which has led to several major bouts of surgery.
51 I accept at the present time, the plaintiff suffers ongoing persistent pain in the right hip which restricts him in a number of activities. He faces the prospect of future surgery and although his current medication in not substantial, he is required to take pain-relieving medication on a daily basis.
52 In these circumstances, I am satisfied the consequences of the right hip injury meet the “very considerable” level as required by the legislation.
53 I shall make consequent orders.
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