Reisch v Victorian WorkCover Authority
[2025] VCC 77
•14 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-05093
| YVES VINCENT REISCH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2024 | |
DATE OF JUDGMENT: | 14 February 2025 | |
CASE MAY BE CITED AS: | Reisch v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 77 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the neck – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kesper v Victorian WorkCover Authority [2024] VSCA 237; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Jiwani v 7 Chefs Pty Ltd [2023] VCC 1127; Davidson v Transport Accident Commission [2015] VSCA 12; Stijepic v One Force Group Aust Pty Ltd& Anor [2009] VSCA 181
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Ms K Liu | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr B R McKenzie | TG Legal + Technology |
HER HONOUR:
Introduction
1Mr Yves Reisch, the plaintiff, is a forty-nine-year-old former groundskeeper. He seeks leave to issue proceedings claiming pain and suffering damages as a result of an injury to his neck which he alleges he sustained in September 2018.
2This application is made pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
3The body function relied upon is the spine.
4Mr J B Richards KC of Counsel appeared with Ms K Liu of Counsel on behalf of the plaintiff and Mr B R McKenzie of Counsel appeared on behalf of the defendant.
Issues in dispute
5The defendant accepted that the plaintiff suffered a compensable injury to his neck as a result of his employment.
6Given the defendant’s concession that the plaintiff suffered injury in compensable circumstances, the plaintiff must prove the following on the balance of probabilities:
· That the injury and resulting impairment must be permanent – in the sense that it is likely to last for the foreseeable future; and
· That the consequences of the impairment in relation to pain and suffering must be “serious”. In other words, the impairment or loss of body function, when judged by comparison with other cases, in the range of possible impairments, may be fairly described as being “more than significant or marked, and as being at least very considerable” (“the narrative test”).[1]
[1]Section 325(2)(b) and s325(2)(c) of the Act
7The defendant contested the issues of “range”; that is, the narrative test, and ongoing causation.
8The legal principles are well known and were not in issue.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
9When considering whether the “serious injury” test has been met, the Court of Appeal in Kesper v Victorian WorkCover Authority[3] recently said:
“The determination of the degree of the seriousness of the consequences of an injury is not to be determined by the use of a checklist, nor by reference to a plethora of cases with a myriad of different factual circumstances. Rather, it requires a holistic assessment of the nature of the injury, the consequent level of … neck impairment and its effect, if any, on his activities — now and into the future — and then to determine whether that level of impairment meets the statutory requirements.”[4]
[citations omitted]
[3][2024] VSCA 237
[4] Ibid at paragraph [86]
10The question of whether the impairment consequences of an injury satisfy the narrative test is generally one of impression or value judgement.[5]
[5] Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]; Kesper v Victorian WorkCover Authority (supra) at paragraphs [77] and [85]
11I have considered all the tendered evidence, the plaintiff’s oral evidence and submissions of Counsel but shall only refer to the materials to the extent necessary in these reasons.
12For the reasons that follow, I find that the plaintiff has not satisfied his onus of establishing that the permanent impairment consequences of his neck injury can be fairly described as being “more than significant or marked and as being at least very considerable” when compared to the range of possible impairments.
Background
13The plaintiff has lived a peripatetic life. He currently lives with a housemate in a rented house in Carlton.
14The plaintiff was born in Belgium. He moved to Australia when he was aged ten and returned to Luxembourg when aged fourteen. He completed schooling in Luxembourg, after which he worked as a filing clerk and translator.
15In 1999, he moved to Australia and worked in various jobs such as a professional musician, pizza store manager and performing garden labouring work. He toured with several bands between 1999 and 2009.
16After touring, he ran his own music production business offering online mixing and mastering services.
17In 2016, the plaintiff commenced with Super Gardens Pty Ltd (“the employer”) as a full-time groundskeeper at the Caulfield Racecourse. His duties involved driving a tractor to water and irrigate the track, mowing the track with a ride-on mower and filling in divots in the turf.
18On 4 September 2018, the plaintiff awoke with pain in his right shoulder and numbness extending down to his fingers. He alleges this occurred in the context of his employment as a groundskeeper at the Caulfield Racecourse. He alleges his duties were heavy, and in the three days before 4 September 2018, he was required to use a hand-held rake around the Racecourse grounds.
19Following the injury in September 2018, the plaintiff continued working for the employer until approximately March 2020. Initially he worked light duties and was then transferred by the employer to work at Melbourne Airport. The nature of the work at Melbourne Airport is unknown, although the plaintiff says it was too physically demanding for his neck.
20The plaintiff was then unemployed for twelve months, before working in a variety of jobs, including as a delivery and freight driver. He also unsuccessfully attempted to establish a music recording/mixing business. It was unclear whether this was a different business to his pre-accident music production business.
21The plaintiff returned to Luxembourg in mid 2023, where he remained for a year. During this time, he worked casually for a music venue.
22In 2024, the plaintiff returned to Australia and secured full-time employment as a water truck driver.
The evidence
23The plaintiff tendered two Affidavits, affirmed 8 May 2023 (“the first Affidavit”) and 22 November 2024 (“the second Affidavit”), various documents relating to his WorkCover claim, radiological scans of the cervical spine, reports from two treating doctors, correspondence from a General Practitioner (“GP”) and reports from two medico-legal practitioners.
24The defendant tendered medico-legal reports, a copy of the plaintiff’s résumé, a clinical note of a consultation with a GP and the plaintiff’s letter of resignation addressed to the employer.
The medical evidence
The plaintiff’s medical evidence
25The reports are summarised below in chronological order.
Radiology
26A CT scan of the plaintiff’s neck on 28 September 2018 was reported to reveal degenerative disc disease at C5-6 and C6-7, with maximal stenosis on the right at C5-6.[6] The CT scan report referred to the plaintiff undergoing an epidural injection on 8 November 2018.
[6] Plaintiff’s Exhibit P9, Plaintiff’s Court Book (“PCB”) 65-66
27An MRI scan on 24 October 2018 was reported to reveal moderate to severe bilateral C6-7 neural exit foraminal narrowing secondary to a disc osteophyte.
Treating practitioners
Dr James Crompton, Occupational Physician, Registrar and GP
28The plaintiff tendered a referral letter dated 7 December 2018 prepared by Dr Crompton addressed to Mr Travis Smith (Chiropractor) and a report dated 20 July 2022 written by Dr Crompton.[7]
[7] Plaintiff’s Exhibit P6, PCB 75-88
29Dr Crompton is an Occupational Physician specialising in workplace injury management and occupational rehabilitation at the Essendon Fields Medical Centre. He was a preferred doctor of the employer and was not the plaintiff’s GP. Dr Crompton’s report was prepared at the request of the plaintiff’s solicitors.
30The plaintiff first attended the Essendon Fields Medical Centre in September 2018 and was seen twice by another practitioner (Dr Jason Wu) with complaints of neck and right shoulder pain and right-hand dysaesthesia. He then came under the care of Dr Crompton in mid October 2018. The plaintiff attended Dr Crompton on eleven occasions between October 2018 and January 2019.
31Dr Crompton did not make a formal diagnosis. He opined that radiological imaging revealed “an acute-on-chronic discopathy causing nerve root compression, a condition of likely mixed occupational and constitutional aetiology”.[8]
[8] Plaintiff’s Exhibit P6, PCB 85
32Given Dr Crompton had not seen the plaintiff for over two years at the time of preparing his report, he declined to provide an opinion regarding the status, progression or stability of the plaintiff’s condition.
Dr Yi-Lee Phang, Occupational Physician and GP
33Dr Phang prepared a report dated 31 May 2021 at the request of the plaintiff’s solicitors.[9] Dr Phang also practised at the Essendon Fields Medical Centre.
[9] Plaintiff’s Exhibit P7, PCB 89-91
34The plaintiff consulted Dr Phang on two occasions – the first time on 18 October 2018 for acupuncture, and the second time on 2 March 2018 to assist with paperwork.
35Dr Phang noted that there had been a diagnosis of degenerative disc disease of the neck with radiculopathy.
36Dr Phang said that, as far as he was aware, the plaintiff was not undergoing any treatment for his condition at the time of preparing his report.
37Dr Phang advised it was difficult to provide any comments on current symptoms or prognosis, due to the plaintiff’s limited ongoing engagement with the clinic.
38Despite that caveat, Dr Phang commented that given the duration of the plaintiff’s condition, he would be surprised if the plaintiff experienced any substantial improvement.
39He expressed the view that there was considerable uncertainty with regards to the plaintiff’s level of symptoms.
40Dr Phang suggested that a report should be obtained from a practitioner who had reviewed the plaintiff regularly.
Plaintiff’s medico-legal material
Mr Siva Chandrasekaran, Orthopaedic Surgeon
41The plaintiff tendered two reports of Mr Chandrasekaran dated 25 February 2022 and 8 March 2022.[10]
[10] Plaintiff’s Exhibit P4, PCB 46-54
42Mr Chandrasekaran first examined the plaintiff on 25 February 2022 for the purposes of an impairment assessment. During the examination, the plaintiff reported he was experiencing intermittent right-sided neck pain, worse over the last six months, and recently exacerbated by chiropractic treatment. He also reported intermittent numbness in the index finger of his right hand. He denied any right shoulder pain but said his neck pain radiated into his right upper limb.
43Examination of the cervical spine showed involuntary guarding with active range of motion of the cervical spine. Neurological examination of the upper limbs was normal in terms of tone, power, reflexes and sensation.
44Mr Chandrasekaran diagnosed the plaintiff with cervical spondylosis with bilateral C6-C7 foraminal narrowing.
45As the plaintiff reported ongoing neck pain associated with intermittent radiculopathy on the right side, Mr Chandrasekaran considered that it was likely that his pain would continue. The remainder of his report dealt with his impairment assessment and is not relevant to the current proceeding.
46Mr Chandrasekaran prepared a supplementary report dated 8 March 2022. He did not re-examine the plaintiff for this report. The report confirmed that Mr Chandrasekaran considered the symptoms reported by the plaintiff were work related.
Professor Richard Bittar, Consultant Neurosurgeon
47The plaintiff tendered one report of Professor Bittar dated 20 September 2024.[11] Professor Bittar examined the plaintiff on the same day as the report.
[11] Plaintiff’s Exhibit P8, PCB 102-107
48The plaintiff reported constant discomfort of the neck which radiated down the right side of his neck into his right upper limb. He reported moderate restriction of movement. He said the discomfort was aggravated by activities such as keeping his neck in one position for too long, performing repetitive arm movements, using his arms above shoulder height and rotating his neck.
49The plaintiff reported his neck pain was on average a “4/10” but could reach a maximum severity of “7/10”.[12] He said the pain was relieved by frequent postural changes, gentle exercise and medication. The plaintiff also reported constant numbness of the tip of his right index finger.
[12] It has been assumed that this is a reference to a self assessment of pain where 0/10 is no pain at all50The plaintiff said he was taking Meloxicam (15 milligrams)[13] and Pregabalin (25 milligrams)[14] when he found it too painful to sleep, as well as Ibuprofen (400 milligrams) once or twice a week. He said he performed regular stretches and was keeping fit by running.
[13] A non-steroidal anti-inflammatory (”NSAID”)
[14]Also known as Lyrica
51The plaintiff reported he socialised moderately less due to a combination of a sitting intolerance, the effects of his medication, concerns about re-injury and sleeping positions.[15]
[15]It is unclear what the reference to sleeping positions meant in this context
52The plaintiff said that he used to enjoy playing the guitar standing up for long periods and working on his car but that he was now restricted in these hobbies. The plaintiff said that working on his car usually involved taking pain medication.[16]
[16]In his oral evidence, the plaintiff said he did not have a car
53Based on that history, Professor Bittar stated that the plaintiff’s recreational activities were “severely impacted” as a result of his neck condition.
54The plaintiff told Professor Bittar that his sleep was moderately impacted (presumably by pain) resulting in daytime tiredness. He also reported restrictions on his domestic activities, specifically his ability to undertake shopping, cleaning, cooking and gardening.
55On clinical examination, Professor Bittar found a full range of cervical spine flexion, extension and rotation on each side. He found moderate restriction of lateral flexion of the neck on the right side. There was a slight reduction of the right brachioradialis reflex and the right triceps reflex. The biceps reflex was normal. There was mild weakness in the right C7 myotome with altered sensation to light touch in the right index finger. There were no long “track” (sic) signs.
56Professor Bittar opined that the examination findings were consistent with a diagnosis of right C7 radiculopathy. He also diagnosed aggravation of cervical spondylosis.
57It was his opinion that the plaintiff was likely to continue to experience significant pain and disability into the foreseeable future. He recommended he continue with his current treatment and if his condition worsened, he recommended review by a specialist.
58Professor Bittar opined that the plaintiff was incapacitated for his full pre-injury duties but had the capacity to undertake suitable employment. He said that the plaintiff had a partial incapacity for work which was permanent.
Defendant’s medico-legal evidence
59The defendant tendered five medico-legal reports summarised below in chronological order.
Associate Professor Peter Doherty, Consultant Psychiatrist
60The defendant tendered a report of Associate Professor Doherty dated 29 August 2024 relating to an examination which took place on 26 August 2024.[17]
[17] Defendant’s Exhibit D3, Defendant’s Amended Court Book (“DCB”) 42-52
61The defendant tendered the report for the purposes of the history provided by the plaintiff during the examination.
62The plaintiff reported constant neck discomfort, even when not doing anything. He said the tip of his right index finger was numb. His self-assessment of his pain levels were similar to those reported to Professor Bittar in September 2024.
63He reported walking, sitting and dressing was fine but putting on a heavy jacket and pushing downwards with his right arm caused some discomfort. He said he did not undertake household chores but did prepare meals.
64In contrast to what was said to Professor Bittar, the plaintiff said he had no issues falling asleep and said the quality of his sleep was good.
65He said that he struggled in Luxembourg, referring to his socialisation. He said he undertook more activities, was more outgoing and connected with people better in Melbourne. He reported his plan was to have his own music recording business in the next five years.
66The plaintiff said he was not taking medication and that he was not a fan of using pain-relieving medication. He reported he had a “stash” of painkillers and might take Pregabalin or an Ibuprofen occasionally if he had mild pain.
67He confirmed he had not been attending a GP regularly in Australia as he had been away in Luxembourg. He said whilst in Luxembourg, he had no regular treatment or appointments. He said he had no immediate plan to contact any clinicians.
Dr Charles Allen, Consultant Orthopaedic Surgeon
68The defendant tendered a report of Dr Allen dated 11 September 2024 relating to an examination which took place on 2 September 2024.[18]
[18] Defendant’s Exhibit D5, DCB 61-67
69The plaintiff told Dr Allen that his shoulder and neck was much improved but that he still had some numbness in the tip of his right index finger.
70Dr Allen recorded that the plaintiff was not taking medication.
71On clinical examination, Dr Allen found a full and free range of motion of the cervical spine with no tenderness or spasm. He found a full range of motion in both shoulders and arms. Neurological assessment of the upper extremities was entirely normal, other than a report of slightly diminished sensation in the tip of the right index finger.
72Dr Allen concluded the plaintiff had constitutional arthritis within his neck. Dr Allen considered that whilst symptoms of the arthritic condition may have manifested whilst working for the employer, this did not infer causation. It was his view that the plaintiff did not have a work-related condition. Dr Allen opined the condition was degenerative and independent of employment.
73Dr Allen considered the condition would gradually evolve and progress as part of the natural history of a constitutional condition.
Dr Matthew Tagkalidis, Consultant Psychiatrist
74The defendant tendered a report from Dr Tagkalidis dated 19 September 2024.[19] Dr Tagkalidis examined the plaintiff via Telehealth at the request of the plaintiff’s solicitors on 19 September 2024.
[19] Defendant’s Exhibit D1, PCB 92-101
75The defendant tendered the report for the purposes of the history provided by the plaintiff during the examination.
76The plaintiff reported intermittent pain in his neck, typically reaching “7-8/10” intensity. He reported constant numbness in the tip of his right index finger and occasional aches in his right shoulder blade. He reported “fair” sleep but had middle insomnia during exacerbations of pain. He said he would get six to seven hours of variable sleep per night.
77The plaintiff said he took Ibuprofen as needed and was also taking Finasteride[20] daily.
[20]This appears to be a hormone blocker
78At the time of the examination, the plaintiff was working as a water tank driver. He said when he was away from work, he spent most of his time making music and playing his guitar. He was playing guitar daily but no longer wore a strap on his neck. He said his ability to play the guitar was affected when his pain escalated.
79The plaintiff said he had often thought about his goal of opening a recording studio business. The plaintiff explained he was yet to decide if he would return to Luxembourg but felt better off in Melbourne. He was independent in all personal activities of daily living, including showering, dressing and shaving, and had no driving restrictions. He said he could manage basic paced chores and took rests between tasks. He said he did no gardening but there was no need for any gardening at his residence.
80He said he enjoyed the company of people and had a few good friends but had withdrawn somewhat. It was unclear whether the plaintiff was attributing his social withdrawal to his compensable injury or to his avoidance of events where alcohol was served.
Dr David Barton, Consultant Occupational Physician
81The defendant tendered two reports from Dr Barton dated 2 October 2024 and 30 October 2024.[21] The first report related to an examination which took place on 1 October 2024 and the second report was a supplementary report.
[21] Defendant’s Exhibit D4, DCB 58-60
82The plaintiff reported ongoing numbness in the right index finger which varied depending on his physical activity. He also reported discomfort on the right side of his neck. His assessment of his pain levels was consistent with what he told other examiners – for example “3-4/10” at the time of the examination which could increase to “7/10”. He then said the pain could go as high as “10/10” which was not consistent with other reports. He reported that if he limited his neck movements, this prevented the pain from worsening.
83The plaintiff said he occasionally took Ibuprofen and other unspecified tablets but was not attending a doctor. He said he could do lighter chores and completed his own activities of daily living without difficulty.
84Upon clinical examination, Dr Barton recorded mild tenderness around the right paraspinal muscles and mid-cervical region with a full range of neck movements. There were complaints of discomfort on lateral flexion to the right side of the neck. There was no reported increase in symptoms with gentle axial loading.
85Dr Barton considered that the clinical examination did not reveal any particular problems of note. It was his opinion that the reports of numbness in the right index finger did not accord with any particular radiculopathy or neck injury. Dr Barton said that the plaintiff appeared to have a fairly strong sense of injury and entitlement.
86Dr Barton accepted the plaintiff had developed some temporary soft tissue discomfort in various areas as a result of his work with the employer. He considered that any such condition had resolved by the time of his examination. Dr Barton further accepted there was a degree of cervical degeneration which, in his opinion, was constitutional and unrelated to employment.
87Dr Barton considered the prognosis was excellent.
88Dr Barton’s supplementary report contained his opinion on a range of alternative employment options. Dr Barton considered the plaintiff had the physical capacity to undertake all of the roles on a full-time basis.
Dr Khayyam Altaf, Occupational Medicine Physician
89The defendant tendered a report of Dr Altaf dated 31 October 2024.[22] Dr Altaf examined the plaintiff via Telehealth on 10 October 2024 at the request of the plaintiff’s solicitors.
[22] Defendant’s Exhibit D2, PCB 108-121
90The examination took place in unusual circumstances – the plaintiff was in a work vehicle at a worksite. The plaintiff told Dr Altaf he was employed as a water truck driver on a full-time basis. The plaintiff said that his current job was less physically challenging than some of his previous roles, but he experienced increased discomfort in his neck as the day went on. His current employer was unaware of his neck injury.
91In terms of symptoms, the plaintiff reported that the pain down his right arm and into his hand had ceased but that his neck pain persisted. The plaintiff complained of constant discomfort in the mid-neck region. He said he tended to keep his head tilted for comfort, particularly at night when the pain worsened. He said his symptoms were aggravated by physical activity, especially tasks such as dragging hoses, lifting his arms, and looking to the right. He reported that the tip of his right index finger remained numb and that his sleep was occasionally affected by his neck pain which he managed by adjusting his position.
92The plaintiff advised he was still playing the guitar but was limited as to how long he could play for and needed more regular breaks.
93The plaintiff said he carried painkillers with him but generally avoided using them. He said the last time he took any pain relief was Ibuprofen which he had used twice in the past two months.
94Dr Altaf recorded the plaintiff complained of discomfort in right lateral neck flexion but otherwise appeared to have a normal range of motion, albeit a physical examination was not possible given the appointment was via Telehealth. Dr Altaf recorded the plaintiff’s arm movements also appeared functional, although he was unable to fully lift his arms due to being in the truck.[23]
[23]It appears that Dr Altaf was using the word “functional” to refer to the physical range of movement of the arm rather than implying that the plaintiff was feigning restrictions
95In terms of his activities of daily living, Dr Altaf recorded the following:
· Sitting tolerance was fine but he did neck stretches whilst seated
· Standing and walking were manageable. He completed a 14-kilometre hike whilst in Luxembourg without issues
· Running was fine so long as it was not on a hard surface such as concrete
· Could wash and dress independently but after a physically demanding day at work this could be more of a challenge
· Could manage household chores unless he experienced a flare-up
· Had no garden to manage
· Shopped for only a few grocery items at a time; could reach the higher and lower shelves fine
· His driving tolerance was fine
96Dr Altaf diagnosed an aggravation of pre-existing asymptomatic cervical spine degeneration, with no clear evidence of ongoing radiculopathy and acute right shoulder tendinosis and bursitis which was not causing an ongoing issue.
97Dr Altaf considered the plaintiff had made a relatively good recovery and was experiencing mild ongoing symptoms which could be exacerbated by physical activity. He recommended ongoing self-management, including home-based exercises, with physiotherapy for any flare-ups. He did not consider any other treatment was required.
98Dr Altaf reported the plaintiff was likely to continue to experience ongoing pain and some level of impairment, but he did not anticipate that any significant deterioration was likely.
Claimed Impairment consequences
Work
99The plaintiff’s evidence about his post-injury work was confusing.
100The plaintiff took some time off work after the onset of his pain and then returned to modified duties with the employer. He resumed normal duties in January 2019. He resigned on 23 February 2020.[24] The plaintiff said he resigned because the work was too physically demanding. His last day of work was some time in early March 2020.
[24] Transcript (“T”) 22, Line/s (“L”) 16-21
101He was unemployed for about a year. Since then, he has undertaken a range of roles for a range of employers. He worked as a warehouse assistant. There was some uncertainty as to when he commenced in the position, but the plaintiff suggested it was around November 2020.[25] He said the role was meant to be full time, but he was often sent home early, so he ceased in March 2021.
[25] T23 L9-16
102Despite the plaintiff saying he worked as warehouse assistant until March 2021, he said in his first Affidavit that he worked as a driver and art handler from January 2021 until June 2021. In cross-examination, the plaintiff said he worked at this job for a short period but could not recall the exact dates.[26] In cross-examination, he said he left that job as it caused him a lot of pain.
[26] T25, L12-16
103According to his first Affidavit, he then worked as a truck driver but left this role due to the impacts of the COVID-19 lockdowns. Dr Tagkalidis recorded that the plaintiff told him that he ceased truck driving due to a toxic work environment. When asked about this in cross-examination, the plaintiff said there was a mistake in his Affidavit.[27] Not much turns on this point, given the plaintiff admitted that he ceased for reasons unrelated to the compensable condition.
[27] T26, L2-19
104The plaintiff then worked with another employer as a driver from April 2021 until April 2022. The plaintiff ceased this role as he said the loading and unloading of trucks became too much for his neck.[28]
[28] T27, L15-23
105For the next two to three years, the plaintiff was self-employed and focused on his music business which was unsuccessful.
106From May 2022 until January 2023, he worked as a full-time casual freight delivery driver. He said he coped with this job as he did not have to perform any heavy lifting. As a casual worker, he did not receive any income over the Christmas period. He resigned from this job to find more secure work. In his first Affidavit, he said he ceased the job due to unrelated calf pain. In cross-examination, he said his calf was one of the reasons he ceased. He agreed he that he did not cease this job due to the compensable injury.
107His next job was as a truck driver. He was required to fill machinery with fuel at construction sites. He said he ceased after only a few weeks as the duties aggravated his neck pain.
108In mid-2023, he returned to Luxembourg and worked a few days a week on a casual basis at a music venue as a production runner. This job involved picking up bands and production teams from hotels and taking them to and from venues and assisting with catering.
109Whilst in Luxembourg, he attempted to secure a civil service job but failed the requisite exam. In cross-examination, the plaintiff confirmed that if he had passed the exam, he would have been able to apply for sedentary, office-based work and that he considered himself capable of such employment.[29]
[29] T16, L9-31
110The plaintiff moved back to Australia in July 2024. In September 2024, he commenced as a full-time water tank truck driver, driving to new housing developments to water plants. In the period leading up to the hearing, he had been working six days a week.
111In re-examination, the plaintiff said he had been told his condition was not going to get any better. It was his view that this meant he had no security in his life. He said the condition had caused him to jump from job to job and that whilst he did not dislike his current role, he was already looking for a new role as his current job was not sustainable for him.[30]
[30] T55, L12-24
Pain
112The plaintiff’s first Affidavit recorded ongoing pain and discomfort in his neck. He deposed to having good days when he could better manage and bad days when the pain made it difficult for him to do heavier physical activities. The pain was aggravated by heavy lifting, pushing, pulling, lifting his arms above shoulder height and with any jiggling or tweaking of his neck. He deposed he must be careful when turning his neck or tilting his head.
113He deposed that pain radiated into his arms and could intermittently cause numbness in his left index finger. He felt that there was something stopping his neck from moving when turning his head from side to side. He reported that he used yoga and stretching to assist but it felt as if his neck was locked.
114In his second Affidavit, the plaintiff deposed that he was still having good days and bad days but that the bad days were increasing since starting work as a water tanker truck driver. He said this work was causing pain and stiffness in his neck and that he could not turn his head as freely. He otherwise reported that his pain continued to be aggravated by lifting, particularly above shoulder height. He said he was riding a bicycle as he did not have a car.
115During cross-examination, the plaintiff maintained his evidence that his work aggravated his neck pain. He confirmed that his current employer was unaware of his neck condition and that he had not required any sick leave due to his neck.[31]
[31] T52, L6-10
116In re-examination, the plaintiff was asked to explain what his neck was like at the end of a working day. He confirmed it was very painful, very uncomfortable, affected his mood and forced him to take medication.[32]
[32] T53, L11-21
Sleep
117In the plaintiff’s first Affidavit, he deposed that his neck pain caused him to wake throughout the night, resulting in feelings of tiredness the next day.
118In his second Affidavit, the plaintiff reported his neck was not causing too many problems with his sleep, as he had learned how to elongate his neck in his sleep so that it does not cramp up and cause pain.
Treatment and medication
119The evidence regarding treatment and medication was sparse.
120Reviewing the limited material before the Court it appears that:
· The plaintiff attended Essendon Field Medical Centre in September 2018. In September or October 2018, he was prescribed Pregabalin by Dr Wu of that Centre;
· He attended four physiotherapy sessions between October 2018 and November 2018 (approximately). No material was tendered from the physiotherapist;
· On 16 October 2018, he attended the Essendon Fields Medical Centre to report his neck and shoulder pain had not improved. His main concern was an abnormal feeling in his hand;
· The plaintiff, in his first Affidavit, referred to attending Dr Amir Sedeh (GP) in late 2018 but no material was tendered from this doctor;
· He had laser and needle acupuncture on referral from Dr Crompton, performed by Dr Phang at the Essendon Fields Medical Centre. The plaintiff said the benefits of acupuncture were short-lived;
· Dr Crompton then commenced the plaintiff on Tapentadol;
· In November 2018, the plaintiff had an epidural cortico-steroid injection but reported no benefit;
· He commenced attending an osteopath in late 2018 for neck manipulation and reported some benefit from this treatment. No material was tendered from the osteopath. I am unable to determine how many sessions he had with the osteopath and over what period;
· In January 2019, the plaintiff told Dr Crompton that he continued to improve. He said he had ceased massage therapy due to the cost, was playing music again and was running. Dr Crompton examined him and found a full range of cervical movement and only trivial lateral index finger dysaesthesia. He was certified fit for full duties;
· The plaintiff returned to the Essendon Fields Medical Centre on three more occasions – two of which were for unrelated conditions and the third time in March 2021 when he sought assistance with paperwork, seemingly in relation to the compensable injury;
· The plaintiff told Professor Bittar that Dr Crompton prescribed Panadeine Forte on a few occasions in late 2018 and increased the plaintiff’s Pregabalin prescription from one tablet to two tablets daily in late 2018. Dr Compton did not refer to such events in his report;
· The plaintiff said he attended a GP in Australia in May 2023, before he left for Luxembourg, to obtain a prescription for Mobic (with five repeats) and a prescription for Pregabalin.[33] No confirming material was tendered;
[33] T32, L31- T33, L1-9; Defendant’s Exhibit D7
· The plaintiff said he did not see a doctor in Luxembourg on a regular basis, nor undergo any regular treatment because it was expensive;[34]
· The plaintiff has not seen a GP since arriving back in Australia in July 2024.[35] He said this was because he still had prescription medication left from a GP in Luxembourg. He could not recall the name of this GP.[36] This evidence was confusing and contradictory, given that he had previously said he did not attend a GP in Luxembourg. He said that he intended to see a GP in Australia soon, as his medication was beginning to run out;
· The plaintiff gave evidence that he was taking Ibuprofen and Mobic daily. The plaintiff said he commenced taking Mobic daily in the two weeks leading up to the hearing, due to pain caused by his work.[37] The plaintiff said his housemate recently gave him some Panadeine Forte;
· In his second Affidavit (which was sworn two days before the hearing), the plaintiff confirmed that he was taking Mobic but did not say why he was taking it or when he started it;[38]
· Counsel for the defendant put to the plaintiff that his oral evidence regarding his medication use was contrary to what he reported to Dr Altaf in September 2024 when it was recorded he carried painkillers but generally avoided using them and that the last medication he had taken was Ibuprofen which he had used twice in the past two months. In response, the plaintiff said he did not take medication if he was not working. He accepted that he was working when he was seen by Dr Altaf, as per the report recording he was at a worksite, in a work vehicle, during the Telehealth examination with Dr Altaf;
· When asked to clarify his medication regime, the plaintiff confirmed that since he had returned to Australia, he had mainly used Ibuprofen but more recently had started to take Mobic again as a “last resort” to assist with sleeping;[39]
· Counsel for the defendant put directly to the plaintiff that he did not take Mobic daily. The plaintiff remained steadfast in his evidence that he took Mobic daily and had done so for the two weeks before the hearing;
· It was also put to the plaintiff that his oral evidence regarding his sleep was contradicted by his second Affidavit which recorded that his neck issues were no longer causing too many issues with his sleep. The plaintiff maintained his neck was causing trouble with his sleep and had been for the last two weeks;[40]
· It was also put to the plaintiff that the reason he had not seen a doctor since returning to Australia was that he did not have any significant problems with his neck. He maintained he did intend to get a further prescription for pain medication but that he knew no one could fix his neck, unless he had surgery, which he wanted to avoid;[41] and
· In re-examination, the plaintiff confirmed he had a few Mobic tablets left and that once those ran out, he intended to buy some more.[42]
[34] T49, L12-15
[35] T32, L10-14
[36] T49, L9-11
[37] T35, L4-5
[38] A NSAID
[39] T37, L23-30
[40] T38
[41] T52, L14-25
[42] T56, L1-6 – In that regard, there is no evidence that any treating doctor has suggested surgery
Music
121The plaintiff is a keen musician. He has played guitar for most of his life and before the compensable injury, he toured in bands, had a music business and released an album. After the injury, he stopped playing and producing music for about 12 months.
122The plaintiff has returned to playing music but said that he struggled because looking down at the chords for long periods aggravates his neck. He also said that whilst he used to play standing up, he must now sit down to reduce the strain on his neck. He also struggled to play the guitar and sing at the same time, because holding his head into the microphone placed too much strain on his neck. He deposed that playing the guitar could be “a very painful experience” which made him upset because it was an activity he used to get a lot of joy from.
123In terms of his music business, he said he has received minimal income since 2019. The reasons why this was so were not entirely clear.
124During cross-examination, the plaintiff confirmed that when he was not at work, he mostly spent his time playing music as a way to relax. He confirmed he owned a number of musical instruments, including several electric guitars, which he continued to play; however, much of his equipment and instruments were still in Luxembourg awaiting shipment back to Australia.[43]
[43] T13, L14-26
125He confirmed he played the guitar on a daily basis but was restricted in that he could not wear a strap around his neck and his playing was affected if his pain increased.[44] He said he had “learned to work around” his neck condition in order to keep playing guitar.[45] The plaintiff confirmed he completed a three-month course in Mastering Engineering in 2021 and confirmed he still had aspirations to start his own music studio business. He did not suggest his neck condition hampered him from doing so.
[44] T50, L1-5
[45] T29, L18-23
126In re-examination, the plaintiff said that when his pain escalated, it reduced his productivity, made him stop playing guitar and forced him to find another distraction to relax.[46] He did not say how often this occurred.
[46] T54, L1-3
Biking, hiking and running
127The plaintiff currently rides a bicycle from his residence in North Carlton to his current employer’s premises in Yarraville a few mornings a week. This takes approximately 35 minutes. He then catches public transport home, as he is too tired after work to ride home.
128The plaintiff commenced running regularly in 2019. He said he did this to help control his pain. In his first Affidavit, he said that running took his mind off pain but if he ran for long periods or extended distances, it would cause some neck stiffness and pain.
129During cross-examination, the plaintiff said he was not currently running due to his work schedule. He last went running whilst in Luxembourg. He said he would run over soft surfaces, such as hiking trails, rather than concrete. He said the longest run he went on whilst in Luxembourg was 14 kilometres which was a mixture of running and walking.
130The plaintiff reported to medico-legal examiners that he could hike with no issues. The plaintiff said he had not been on a hike since returning to Australia due to his work commitments.
Socialising and relationships
131The plaintiff was in a relationship at the time of the injury in September 2018. He deposed in his first Affidavit that he became irritable because of the pain, and this impacted on his relationship. The relationship ended in late 2018.
132It appears difficulties in the relationship pre-dated the injury in 2018, as the plaintiff deposed that he had previously broken up with his partner in May 2018. After the dissolution of the relationship in late 2018, his partner took out an intervention order against him. In 2019, his then housemate also took out an intervention order against him. I make no findings about the circumstances surrounding these intervention orders – they are not relevant to the current application.
133Recently, the plaintiff said he keeps in contact with a few good friends.[47] Since returning to Australia he has visited some friends, but said his socialising was limited due to his work schedule.[48] When he does catch up with friends, he generally goes over to their place for dinner and avoids socialising where it involves drinking alcohol.
[47] T50, L6-12
[48] T47, L7-13
Activities of daily living
134The plaintiff is independent in his activities of daily living, including showering, dressing and toileting, as well as household chores, including vacuuming, mopping, sweeping and gardening. He said he takes breaks between certain chores, only shops for a few items at a time and sometimes struggles with heavier jackets or clothing himself after a day at work.
The plaintiff as a witness
135The defendant did not submit that credit of the plaintiff played a role in this case.
136The plaintiff readily accepted many matters put to him in cross-examination and generally made appropriate concessions.
137It was not my impression that the plaintiff was deliberately lying about any of the matters covered in his evidence.
138However, I have considerable doubt about the reliability of some of what he says. There were a number of confusing and unclear aspects to his evidence which impact upon his reliability. For example:
· The status of the music production business pre-and post-accident
· His pre-and post-accident work history
· The nature and extent of medication use
· The nature and extent of his current treatment
· The extent of any current work restrictions
139The passage of time and intervening events (including his trips to and from Luxembourg) have, in my view, interfered with the reliability of his recall of relevant details.
140I do not find that he was deliberately exaggerating, but he does appear to be heavily focussed on his health and what he sees as the consequences of his work injury. This has, in my view, impacted the reliability of his description of the extent of pain and its interference with daily living activities.
141I find that the plaintiff overall presented as a truthful but unreliable witness.
142I have therefore looked for other evidence to evaluate the extent of his symptoms and their impact on his life.
Plaintiff’s submissions
143Senior Counsel for the plaintiff submitted the following:
· The plaintiff suffered an aggravation of a previously asymptomatic degenerative cervical spine and such an aggravation persisted as at the time of the hearing;[49]
· There was medical opinion to the effect the plaintiff’s condition would continue to decline. The plaintiff relied upon the recommendation of Professor Bittar that he may need review by a neurosurgeon or pain specialist as part of an interventional treatment approach. Senior Counsel did not address the Court on whether Professor Bittar’s recommendations could impact upon the issue of permanence;
· The plaintiff had been forced to cease work in various roles due to his pain and that whilst he was currently employed, he was impacted by neck pain at the end of each working day;
· It was conceded that there was no current material from any treating practitioner, but it was asserted that the plaintiff was a stoic man, who had done his best to soldier on and remain in whatever employment he could find despite his ongoing pain;
· The Court should accept the plaintiff’s evidence regarding his pain medication and specifically, that he had relied on prescriptions from an unnamed doctor in Luxembourg that had effectively tided him over to the time of the hearing and that he now intended to get a further prescription as the medication was running out;
· His passion for music had been curtailed and that this was significant for him, as he could not play as much or in the manner he would like to; and
· Both what the plaintiff did for a living and what he did for enjoyment were significantly impacted by his very painful neck and such consequences could be fairly described as being “more than significant or marked and as being at least very considerable” when compared to the range of possible impairments.
[49] T6, L28 – T7, L7
Defendant’s submissions
144The defendant did not dispute that the plaintiff had suffered an injury in the course of his employment in September 2018 but submitted the following:
· The plaintiff failed on range;
· The plaintiff had limited conservative treatment from chiropractors and physiotherapists and one epidural injection in 2018;
· There was no definitive suggestion that the plaintiff required further treatment or intervention;
· The plaintiff was not currently attending a GP. The lack of any current treatment or engagement with a treating practitioner spoke to the lack of seriousness of the plaintiff’s condition;
· The last prescription for medication obtained by the plaintiff and recorded within the tendered material was on 16 May 2023;
· The plaintiff’s oral evidence about medication use was contradicted by his reporting to various medico-legal practitioners and should not be accepted;
· The plaintiff had retained his main passion for music. The defendant accepted whilst the plaintiff may now avoid using straps and had to remain seated whilst playing the guitar, by his own evidence, he had completed a certificate in Mastering Engineering after the injury, continued to play the guitar daily and aspired to set up his own music business. His music hobby had not been curtailed to any significant extent;
· The plaintiff had gained a new hobby since the injury – in the form of running – and that he had run as far as 14 kilometres. The plaintiff’s evidence was that he was not currently running due to work commitments;
· There was no clear evidence of any social restriction stemming from the neck condition. At most, the plaintiff was socialising moderately less due to reduced sitting tolerances, as reported to Professor Bittar; however, this was contradicted by the plaintiff’s Affidavits and oral evidence which did not suggest he was socialising less due to the injury;
· The plaintiff’s evidence about sleep was contradictory;
· The plaintiff had retained the capacity for a range of employment positions, including his current full-time role. The plaintiff may experience some discomfort as his workday progressed but he had not informed his current employer of his condition and had not required any time off because of it. This suggested that he was not suffering from a serious condition;
· There was no suggestion the plaintiff’s current duties were beyond his capacity or that he was at risk of his condition worsening if he remained in such employment;
· There was no suggestion the plaintiff had suffered any upset or disappointment at not returning to his pre-injury role, meaning his lack of a return to labouring work was not relevant to his pain and suffering application;[50]
· The plaintiff admitted that his pre-injury role was one he undertook out of financial necessity to pay the bills whilst he pursued his real dream of running a music business; and
· The plaintiff had retained a lot, and whilst he may have some consequences, they fell well short of being at least very considerable.
[50] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Analysis and findings
145When considering whether pain and suffering consequences could reach a level where the plaintiff’s impairment consequences fall within the range of possible impairment, I adopt what was said by Judge Purcell (also adopted by Judge Ginanne)[51] to the effect that there are some cases that are clearly serious, there are some that are clearly not and there are those that fall somewhere in the middle of the range of possible impairments and impairment consequences. The present case falls within the third category.
[51]Jiwani v 7 Chefs Pty Ltd [2023] VCC 1127; Kesper v Victorian WorkCover Authority (supra) at paragraphs [207]-[208] (case at first instance)
146An impairment is not to be held to be serious unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.
147The Court must not only consider what has been lost but also what has been retained.
148When considering whether a plaintiff’s consequences meet the serious injury threshold, it is relevant to consider the plaintiff’s life expectancy and the likely period for which that plaintiff will continue to experience those consequences.[52]
[52]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [39]; Davidson v Transport Accident Commission [2015] VSCA 12 at paragraph [50]
149As per Ashley JA and Beach AJA in Stijepic v One Force Group Aust Pty Ltd & Anor:[53]
“All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
[53][2009] VSCA 181 at paragraph [43]
150As such, the plaintiff’s life expectancy is one of the factors I can consider in determining whether his consequences meet the serious injury threshold.
151The plaintiff was forty-two years old in 2018 and is now aged forty-nine. He can therefore be fairly described as a relatively young man.
152The plaintiff has had minimal treatment and has not tendered any evidence of treatment for his neck since early 2019 when he last attended Dr Crompton.
153It is not clear whether he did or did not attend a doctor in Luxembourg. If he did, he has not tendered any material about this. He told Associate Professor Doherty that he did not attend any doctors in Luxembourg. Given the contradictory state of the evidence, I am unable to make a finding on this point.
154It is difficult to determine the amount of medication taken by the plaintiff. He gave evidence that he obtained prescriptions from a GP in Luxembourg – there are no records before the Court to support this. He gave conflicting evidence to medico-legal practitioners as to the type of medication he was taking and the frequency. Taking his evidence at its highest, he is now taking Mobic. Once more, given the unsatisfactory state of the evidence, I am unable to make a finding as to the type of medication taken by the plaintiff and the frequency of such medication.
155In summary, over the last six years, the plaintiff has had virtually no treatment.
156I accept that the plaintiff will continue to experience intermittent pain and symptoms in his neck and limited curtailment upon enjoyment of his life for the foreseeable future; however, considering the whole of the evidence, I do not accept the plaintiff’s account of extent and constancy of the pain. There is little, if any, corroborating evidence to support his complaints.
157The plaintiff has returned to alternate work as a water tanker driver on a full-time basis. Although he said that he has some difficulties with his current work, he has not informed his current employer of any difficulties, nor has he sought any treatment for such difficulties. These factors have led me to conclude that if the plaintiff is suffering any difficulties in his current job, they are relatively minor.
158It was submitted that the plaintiff should succeed because he is “stoic”. It is clear that the Court will not penalise a stoic plaintiff by treating their injury as less serious simply because they are willing to endure the pain and remain more active than another plaintiff would;[54] however, stoicism, of itself, is not sufficient to meet the test.
[54]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [13]
159In this case, having considered all the evidence, I do not accept the assertion that the plaintiff is stoic.
160This is a proceeding in which there is little objective or accurate evidence to support the plaintiff’s application. Its absence is of particular importance in this case, given my finding on reliability.
161There is a shortage of treating material, and the material which is before the Court is very dated. There is nothing up to date from any treating practitioner.
162In addition, there is no supporting lay Affidavit that is often seen in these types of applications, such as from the plaintiff’s housemate.
163I have had regard to the objective medico-legal opinions. In particular, I prefer the opinion of Dr Altaf, who was commissioned by the plaintiff but relied upon by the defendant. Dr Altaf’s opinion was to the effect that the plaintiff may have suffered an aggravation of pre-existing asymptomatic cervical spine degeneration but had made a relatively good recovery.
164I reject the opinion of Professor Bittar that the plaintiff has ongoing radiculopathy. It is contrary to the opinions of Dr Altaf, Dr Barton and Dr Allen. Professor Bittar is the only medico-legal practitioner who currently expresses that view and has not provided a path of reasoning as to why he has formed the view.
165I am unable to accept the balance of Professor Bittar’s opinions as they appear to be based on a misunderstanding of the plaintiff’s position. He has assumed that the plaintiff had difficulty whilst working on his car but the plaintiff does not own a car. He has also asserted that the plaintiff has a partial incapacity for employment despite the fact that the plaintiff is currently working full time up to six days per week. It may be that Professor Bittar meant that it was his opinion that the plaintiff had a partial capacity for employment because he considered that the plaintiff could not return to his pre-injury duties but that is not what he has said.
166I note that Dr Barton and Dr Allen were of the opinion that the plaintiff’s condition was no longer work related but constitutional. For the purpose of this application, particularly in circumstances where no medical witnesses were called to give evidence, and none of the opinions of the medico-legal practitioners have been challenged, it is unnecessary and inappropriate for me to make any findings in relation to causation.
167In the exercise of the value judgment required of me, I find that this is a borderline case.
168In summary, the following factors militate against the plaintiff’s case:
· The plaintiff is not undergoing any active treatment. The most recent evidence in relation to treatment is found in Dr Crompton’s report dated July 2022 which confirmed his clinic had not seen the plaintiff in any capacity since early 2020;
· He has not produced any material from any current treaters;
· His medication regime is unclear;
· He has been able to engage in hobbies such as running and hiking;
· He continues to play guitar daily, albeit in a modified way;
· There is no evidence to suggest that his current work capacity (six days a week on a full-time basis) has in fact been impacted by his compensable injury;
· He has not needed any time off work since commencing his current full-time job;
· He has not reported any problems to his current employer;
· He has not produced any Affidavit material from his housemate to confirm the impairment consequences on domestic and social activities; and
· There is considerable uncertainty as to his current level of symptoms.[55]
[55] This was the opinion of Dr Phang in 2021
169I am not satisfied that the impairment consequences of the plaintiff’s injury can fairly be described as being “more than significant or marked” and as being “at least very considerable” when compared to the range of possible impairments.
Conclusion
170The application is dismissed.
171I will hear from the parties on the question of costs.
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and 10/10 is the worst pain imaginable
0
9
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