Saunders, Trevor Arthur v Kawarren Logging Pty Ltd &
[2009] VCC 855
•22 June 2009
Recreational activities Condition has stabilised and he is permanently limited in the performance of work involving bending and lifting
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARNAMBOOL
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-04931
| TREVOR ARTHUR SAUNDERS | Plaintiff |
| V | |
| KAWARREN LOGGING PTY LTD | First Named Defendant |
| CGU Workers’ Compensation | Second Named Defendant |
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| JUDGE: | JENKINS |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 3 4 & 5 June 2009 |
| DATE OF JUDGMENT: | 22 June 2009 |
| CASE MAY BE CITED AS: | Saunders, Trevor Arthur v Kawarren Logging Pty Ltd & CGU Workers Compensation |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0855 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985, s.134AB; Serious injury: permanent serious impairment of cervical spine; Claim for Pain & Suffering only; pre existing genetic predisposition to skeletal hyperostosis; query aggravation of pre existing degenerative process; applicant working in labouring jobs; question of causation; question whether serious injury test satisfied; Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.G. Brookes SC with | Stringer Clark |
| Mr I. Fehring | ||
| For the Defendant | Mr P.A. Scanlon QC with | Lander and Rogers |
| Mr P.B. Jens |
TABLE OF CONTENTS
Nature of Application ..........................................................................................................2
Significant Issues for Determination .................................................................................2
Relevant Statutory Provisions............................................................................................3
Evidence...............................................................................................................................5
Plaintiff’s Affidavits .............................................................................................................5
Personal Background, Education and Employment .........................................................5
Workplace Incident...........................................................................................................6
Investigations and Treatment ...........................................................................................6
Consequences of the Workplace Incident ........................................................................7
Financial Consequences ..................................................................................................8
Present Position ...............................................................................................................9
Medication and other Treatment.....................................................................................10
Plaintiff’s Oral Evidence....................................................................................................10
Investigations ....................................................................................................................11
Clinical Notes –Extracts from Hospital Records.............................................................13
The Evidence of Treating Doctors....................................................................................14
Medico-Legal Opinions requested by the Plaintiff..........................................................17
Medico-Legal Opinions requested by the Defendant .....................................................18
Lay Evidence......................................................................................................................20
Video Surveillance.............................................................................................................20
Submissions of Defendant’s Counsel .............................................................................21
Submissions of Plaintiff’s Counsel..................................................................................23
Analysis of the Evidence and Findings ...........................................................................25
Plaintiff’s Presentation....................................................................................................27
What was the injury which occurred to the Plaintiff on 16 December 1999? ..................28
Attendance upon doctors following the workplace incident ............................................29
Work history before and following the workplace incident. .............................................30
Assessment of Treating Specialists................................................................................31
Medico Legal Opinions...................................................................................................33
Summary ............................................................................................................................34
Conclusion .........................................................................................................................35
Orders.................................................................................................................................35
HER HONOUR:
Nature of Application
1 This is an application for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 (“the Act”) made by Originating Motion pursuant to section 134AB(4) on 19 November 2008 by the Plaintiff, in respect of injuries which he alleges occurred in the course of his employment with the Defendant on 16 December 1999.
2 The Plaintiff seeks a declaration that he suffered a serious injury as defined within section 134AB(37)(a), by reason of a traumatic injury to the head and neck which aggravated underlying degenerative change in the cervical spine rendering that condition symptomatic. Leave is sought in relation to damages for pain and suffering only.
3 The particulars of injuries identified are:
a) traumatic injury to the neck causing either a fracture or a possible fracture at either C5-6 and/or C3-4 and/or C4-5; b) aggravation and the rendering symptomatic of the degenerative condition in the spine from C3 to C6; c) cervical nerve root impingement at C6; and
d) production and/or aggravation of anterior longitudinal ligament in the cervical spine. Significant Issues for Determination
4 The Defendant concedes that the Plaintiff suffered an injury in compensable circumstances. However, they deny that the Plaintiff has suffered a serious injury as defined. In particular, the Defendant claims that the work place injury no longer affects the Plaintiff and any pain and restriction of movement are a consequence entirely of his underlying progressive degenerative condition. In any event, the consequences of any impairment to his cervical spine do not qualify as a serious injury.
5 Clearly the Plaintiff carries the onus of establishing that he suffered serious injury, namely a permanent serious impairment or loss of function of the cervical spine.
6 I will now deal with this application as follows:
a) I will briefly deal with relevant statutory provisions;
b) I will briefly summarize relevant evidence from the Plaintiff’s affidavits and oral evidence which attest to the occurrence, nature and extent of his injury and the effect upon him; c) I will refer to relevant medical opinions which characterise such injury and clinical findings made at various times subsequent to the workplace incident; and d) I will then give my factual findings and reasons as to the nature of the injury suffered and the consequences for the Plaintiff. 7 The Plaintiff bears the overall burden of proof.
Relevant Statutory Provisions
8 This application falls to be determined in accordance with Section 134AB of the Act. Sub-section 134AB(2) prescribes the conditions which must be satisfied before a compensable injury may give rise to an entitlement to recover damages:
(2) A worker may recover damages in respect of an injury arising out of,
or in the course of, or due to the nature of, employment if employment
of that nature was a significant contributing factor, and the injury is aserious injury and arose on or after 20 October 1999.”[1][1] By Act No. 95/2003 s.3(8) the words “employment of that nature was a significant contributing factor, and” were omitted from sub-section 134AB(2) as from 3 December 2003, but that was after the injury relied upon by the Plaintiff in this case.
9 For the purpose of the current application “injury” means any physical injury and includes:
[2] Reprint 12 (page 13).
(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.”[2] 10 For the purpose of the current application “serious injury” means:
[3] Section 134AB (37)
(a) permanent serious impairment or loss of a body function[3] 11 Section 134AB (38)(b), so far as it is relevant to the present case, sets out what must be shown in order to establish that impairment or loss of a body function [under paragraph (a) of the definition] is “serious”. It does this by
reference only to the consequences to a worker.
(38) For the purposes of the assessment of “serious injury” in accordance
with the sub-sections (16) and (19)-(b) the terms ‘serious’ and ‘severe’ are to be satisfied by reference to the consequences to the worker of any… impairment or loss of a body function… with respect to- (i) pain and suffering; …
when judged by comparison with other cases in the range of
possible… … impairments or losses of a body function ….
12 Section 134AB (38)(c) provides, so far as it is relevant to this case, as follows:
(c) an impairment or loss of a body function … shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence … is, 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; 13 The Court of Appeal has emphasized the necessity for a Court to analyse the evidence in terms of the statutory requirements.[4] The appropriate approach to determine serious injury has been reduced to the following questions: first, what is the injury or injuries and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, i.e., likely to persist for the foreseeable future; and thirdly, are the consequences for the Plaintiff such as to satisfy the more than significant or marked and as being at least very considerable” test.[5]
Evidence
[4] @ paragraph 71
[5] Barwon Spinners @ paragraph 33
14 In support of the Application, the Plaintiff relied upon:
(a) Exhibits identified and contained in the Plaintiff’s and Defendant’s Court Books comprising medical reports of Dr Kavanagh; Mr McNeil; Mr O’Brien; Mr Schofield, Mr Huffam; Mr Forbes and Mr Cain; radiological reports, affidavits and other documents; and (b) Oral evidence given to the Court by the Plaintiff. 15 Opposing the Application, the Defendant relied upon Exhibits identified and contained in the Defendant’s Court Book comprising the affidavit of Ian Askin; worker's claim form dated 16 August 2001; medical reports of Mr Paul Kierce; Dr A. Elliott-Smith; the clinical notes of the Hawkins Medical Centre and the Mt Gambier Hospital including entries of August 1999, September 1999 and 4 December 2004; covert video surveillance; and the Plaintiff’s taxation records for the financial years ended 1997, 1998, 1999 and 2008.
Plaintiff’s Affidavits[6] Personal Background, Education and Employment[6] 27 November 2007 and 19 May 2009
16 The Plaintiff was born on 25 May 1945 and is now 64 years old. The Plaintiff relied upon two affidavits[7] and oral evidence.
[7] dated 27 November 2007 and 19 May 2009
17 The Plaintiff was born on an Aboriginal Mission at Koonibba near Ceduna in South Australia. His father at the time was in the regular Army and his mother's occupation was home duties. He was the fifth of eight children. He attended Primary School at Port Lincoln and left halfway through Grade 6.
18 He lives with his defacto partner in Mount Gambler. He has six children, two step daughters and 16 grandchildren.
19 Upon leaving school he worked in an abattoirs in Port Lincoln for six months. He left Port Lincoln at age 15 years and did seasonal work for three years: grape picking, working on the railways and farm work. In 1963 he moved to Mount Gambier and worked in a timber mill for 12 months. He then spent 16 years in a concrete factory working for Rocla Concrete Pipes.
20 In about 1983 he commenced work as a tree feller working for various logging contractors around Mount Gambier. Apart from a short stint at Mount Shank Abattoirs he worked the next 18 years as a tree feller, consistently up to 1990 and then periodically until December 1999. Prior to the work place incident he had not suffered any serious injuries or illnesses and had no neck complaint.
21 He had always been interested in sport and prior to the work place incident would swim with his family and play soccer on a social basis.
Workplace Incident
22 On 16 December 1999 he was felling hardwood trees in the Cobbobanee Forest near Portland in Western Victoria. He had never worked in a hardwood forest before although he had been felling pine trees for the previous 17 or 18 years.
23 While he was felling a tree a limb fell on his head and knocked him unconscious for a minute or two. A fellow worker took him to his vehicle and they subsequently reported the incident to the operations manager who drove him to the Mount Gambier Hospital where he stayed overnight.
Investigations and Treatment
24 Upon arrival at Hospital X-rays were taken of his neck. The next day he saw Mr Forbes, Orthopaedic Surgeon and was certified off work for one month.
25 For the first 2 ½ weeks following the incident he could not move his neck. He slept mainly upright in a recliner chair. He had a cervical collar, but it caused him pain and discomfort so he ceased wearing it after a few hours.
26 When the month expired he saw Mr Forbes again and was told there was not much he could do in terms of treatment. He was still in a lot of pain and had very restricted movement. Mr Forbes certified him fit to return to work.
27 He returned to work on 17 January 2000 but only managed to last a month. He had neck pain and restricted movement of his neck. He could not look up using his neck, which was essential for safety in the job.
28 Although he loved his work in the forest and had been doing it for most of his adult working life he felt he had no alternative but to give it away.
29 He then commenced working for the Burrandies Aboriginal Corporation (an Aboriginal "work for the dole" scheme) until it closed down in June 2007. When not working for Burrandies he did seasonal vineyard work including pruning vines, grape picking and general maintenance.
Consequences of the Workplace Incident
30 The Plaintiff experiences constant pain and stiffness in his neck. His range of motion from side to side and up and down is more restricted than previously. He has a constant dull ache in his neck. The pain comes from the base of the neck and up to above the ears and then into the forehead. He continues to get mild headaches and has constant numbness in the little and ring fingers of the right hand.
31 When he is driving a car and comes to an intersection he cannot hold his neck in a fixed position to the left or right for long before feeling an onset of pain and becoming disorientated. When he talks to someone he turns the whole top half of his body.
32 He can only sleep with a very flat pillow and usually only sleeps 2 or 3 hours at a time.
33 If he attends a sporting event as a spectator he finds it uncomfortable to keep turning his head to follow the play and becomes disorientated after 20 minutes or so.
34 He is now unable to play any kind of sport or physical activity with his sons and extended family.
35 He cannot sit for long with his head in a fixed position. If he sits for about 30 minutes he will feel slightly "foggy" and have pain in the neck.
36 Since his injury he has not been swimming or diving in the Little Blue Lake with his family or cousins.
Financial Consequences
37 The Plaintiff has little formal education and has always worked in unskilled seasonal jobs. He does not feel able to cope with further education or retraining.
38 The Plaintiff cannot get a full time job now because of the injury to his neck. Most of the vineyard work is at eye level.
39 He obtained a semi trailer driving licence but cannot drive a semi because he is unable to drive several hours non stop because of stiffness and cramping in his neck. He is also unable to look from side to side easily.
40 He attempted pine pruning at one stage. However, he was required to prune trees between levels of 2.4 metres and 6 metres and found he could not look above 2.4 metres.
Present Position
41 He does not enjoy any physical, recreational or social activities and this depresses him. Although he had ceased playing soccer prior to his injury, at the age of 42 years, he still had the occasional kick with family members.
42 He continues to perform vineyard work as a Vine Pruner from June to mid- September each year around the Penola area in South Australia. He works for a Contractor. The majority of the pruning is done by machine and then the pruners do the final touches. He finds that when he has warmed up and working the pain in his neck is less than normal. However at night and first thing in the morning he experiences more pain because of the previous day's work. He also finds that he has a more disturbed sleep when he has been doing the pruning.
43 From late November to late January each year he also does hay carting for a number of Farmers. He drives a small truck which has a conveyor attached to the side while another man stacks the bales that come up the conveyor onto the back of the truck. He finds that his neck pain increases while doing the driving and he has to be careful to have a break between loads.
44 He also obtained some work from Baptist Community Services in the Mount Gambier area moving small pieces of furniture between houses that they own. He also does light maintenance work like replacing light bulbs or locks and other general light repairs. He is careful not to attempt to move anything too heavy and as most of the furniture moving is limited to bed frames and mattresses he copes with the little bit of work that he gets from Baptist Community Services.
45 All of the work that he performs affects his neck and the level of pain. However he enjoys the work and the variety of jobs that he performs. He is very careful to work within his limitations.
Medication and other Treatment
46 He currently takes Panadol about once per week and takes Aspirin about twice per week. He will see a masseuse, Heather Badenock, 2 or 3 times a year [about 6 times in 2008]. Initially the sessions were for one hour but he could not tolerate lying face down and now has a half hour massage sitting up.
Plaintiff’s Oral Evidence
47 Under cross examination the Plaintiff confirmed that he used his own small truck in his hay carting business which he performed between mid November and end of January. This includes grass hay and lucerne and the bales will weigh between 15 and 20 kg. He agreed that he would drive the truck all day, but very slowly, and would also help loading bales onto the elevator and stacking them. The working day starts at 5 am so that they can finish by midday usually carting about 800 bales per day. There will be at least two and sometimes three males working together, but the Plaintiff mostly drives the truck. He does not find this work particularly heavy compared to what he is used to.
48 In relation to pruning vines, the Plaintiff works at waist height using foot long shears.
49 He continues to experience numbness in the right hand little and ring fingers and that had been the case since his workplace accident.
50 The Plaintiff agreed that there are no sporting activities that he has given up, and if he wants to he is able to go fishing on the jetty or in an appropriate boat. He works effectively full-time and is working longer hours than prior to his workplace incident. He receives no medical treatment or physiotherapy.
51 The taxation records of the Plaintiff indicate that in the two financial years preceding the workplace incident he derived gross income from personal exertion as follows: 1998- $2,300; and 1999 - $4,516. In both years he did not receive any income form tree felling and he received Government benefits in excess of his earned income.
52 In the financial year 2008 the Plaintiff derived gross earned income from four employers totalling $17,020 plus $11,433 from his hay carting business. Accordingly , gross earned income in the year immediately prior to the work place incident was about $4,500 compared to about $28,500 in the most recent financial year and about $19,500 in 2007.
Investigations
53 An X-Ray of the Cervical Spine on 16 December 1999 was reported as follows:
There is quite marked ossification of the anterior longitudinal ligament of the C4 to T1 levels with a prominent anterior syndesmophyte at the C3 level. There is suggestion that there may be pseudo articulations of these ossified structures at the C3-4, C4-5 and C5-6 levels however the possibility of a recent fracture at least one of these levels (particularly possibly the C5—6 level) cannot be excluded.
No definite bony fracture is seen with no definite pre-vertebral soft tissue swelling seen to suggest a pre-vertebral haematoma.
There is tilting of the cervical spines to the left with reduction in normal cervical lordosis. Cervical intervertebral disc spaces appear normal
54 An X-Ray of the Cervical and Lumbar Spine on 7 September 2004 was reported as follows:
Cervical Spine: there is gross anterior osteo phytosis from C3 down to T1. There also appears to be at least partial fusion of some of the mid-cervical facet joints bilaterally. There is mild generalised narrowing of all foramina below C2-3 on each side…
Lumbar Spine: no scoliosis. Again there are large extensive osteophytes but no entirely typical of Ankylosing spondylitis. These are more typical of diffuse idiopathic skeletal hyperostosis. There is no evidence of significant disc space narrowing though there does appear to be disc degenerative change at the L3-4 level and there is some degenerative change seen generally within the facet joints.
55 A CT scan of the Cervical and Lumbar Spine on 7 September 2004 was reported as follows:
Cervical Spine C4 to T1: C4-5 - large anterior osteophytes. Small posterior midline osteophytes but no disc protrusion or canal narrowing. No foraminal stenosis. Bilateral facet joint arthropathy.
C5-6 - disc degeneration and anterior osteophytes are noted with small posterior midline osteophytes. No disc protrusion. No significant foraminal stenosis. Prominent facet joint andropathy is noted.
C6-7 - there is disc degeneration and there is some bony narrowing of the left foramen secondary to osteophytes but no significant right foraminal stenosis. No disc protrusion or canal narrowing.
C7-t1 -image quality is somewhat degraded by shoulder artefact. I cannot see definite evidence of disc protrusion at this level and there is no significant foraminal stenosis demonstrated. There is facet joint andropathy.
56 An X-Ray of the Cervical Spine on 17 July 2008 was reported as follows:
There is a smooth cervical lordosis. No vertebral body compression fracture. There is prominent ossification of the anterior longitudinal ligament bridging the anterior disc spaces from C3 to C7. The disc heights are preserved. There is moderate to advanced facet joint degeneration at all levels. No bony foraminal stenosis. The paraspinal soft tissues appear unremarkable.
57 A CT scan of the Cervical Spine on 17 July 2008 was reported as follows:
Multislice helical scans with axial and sagittal reformations were performed from the base of skull to T1. No focal disc protrusion is seen. As seen radiographically, there is prominent ossification of the anterior longitudinal ligament from C3 to T1. There is no significant bony encroachment into the central canal. There is facet joint degeneration at all levels but no significant bony foraminal stenosis. The paraspinal soft tissues appear unremarkable.
Clinical Notes –Extracts from Hospital Records
58 Hawkins Medical Clinic – Clinical Notes record multiple visits relating to binge drinking and ear infection, the only other relevant notations being:
17 May 1996 4.06pm Tingling in arms and chest when at rest…
25 Sep 99 9.29 Sense of numbness ulnar distribution R Hand – no
objective sensory loss59 Mt Gambier Hospital Clinical Notes record the Plaintiff’s admission on 16 December 1999 following his work place incident. At his initial presentation it is noted to the effect that he came to the Hospital by a private car after a branch of a tree fell on top of his head with loss of consciousness for a short period. He walked into the Hospital complaining of neck pain and dull headache. He had minor grazes to his nose with normal movement and sensation present in his limbs. There was redness evident across his forehead. He also complained of numbness in left little finger … States R
fingers have been numb for years.
60 It was at this stage that the Plaintiff was first seen by Mr Forbes for review and a soft neck collar was provided.
61 On 5 December 2004 the Plaintiff attended the Mt Gambier and District Hospital when it is recorded that he was: Complaining of right flank pain for a period of ten days. He is doing heavy lifting as well for the last ten to 12 days.
The Evidence of Treating Doctors
62 Mr Henry Forbes Orthopaedic Surgeon first saw the Plaintiff upon his admission to Hospital following his work place injury. He diagnosed severe progressive syndesmophytosis and ankylosis of the entire spine consistent with DISH (diffuse idiopathic skeletal hyperostosis). Mr Forbes reviewed the Plaintiff in January 2000 and next saw him in September 2004 when he sought further specialist opinions from Professor Julian McNeil Rheumatologist and Mr Christopher Cain Spinal Surgeon.
63 Dr Julian McNeil Rheumatologist first examined the Plaintiff on 29 April 2004 at the request of Mr Forbes Orthopaedic Surgeon. When he reviewed the Plaintiff in May 2005…[8]
… he complained of pain at the base of his neck radiating up around his ears and the sensation of “ pins and needles” in the C8 dermatome of his right arm. He found that his symptoms are worse at the beginning of the day and he is particularly stiff when he gets out of bed. Prior to the accident he said that he didn't have any morning stiffness and no significant low back pain, nor did he have any pain in his childhood or young adult years. He did not have a requirement to use non-steroid or anti-inflammatory drugs or analgesics prior to the accident.
On examination … he had reduced motion in his spine, in particular reduced lateral flexion to both sides of his lumbar spine…
I reviewed x-rays of his spine from December 1999, which showed profuse osteophyte formation extending up to about the C3 level and looked to me initially like a fractured osteophyte was probably the opposition of two osteophytes at the C4-5 level… more recent x-rays taken in September 2004 show progression of this osteophyte development such that he has fusion of osteophytes from C3 through to C5. He really has quite marked osteophyte formation in excessive form of diffuse idiopathic skeletal hyperostosis. The osteophytes look horizontally oriented and broad typical osteophyte rather than thin and vertically oriented like syndesmophytes that would be seen with alkylosing spondylitis. Furthermore his sacro iliac joints are quite apparent and have some moderate degenerative changes but no fusion. I therefore agree that the x-ray appearance is that of DISH (diffuse idiopathic skeletal hyperostosis).
It would appear as though his DISH is particularly affecting his cervical spine and was present prior to the accident… but the accident clearly removed any residual neck mobility upon which he depended. Lack of neck mobility and spinal pain will severely limit his ability to do manual work.[9]
[8] PCB 29
[9] PCB 30
64 Mr Christopher Cain Spinal Surgeon examined the Plaintiff on 15 March 2005 when his main concern was stiffness with some discomfort in his neck associated with certain movements and some numbness extending into the ulnar digits of the right-hand. Mr Cain noted that neurological assessment had been undertaken without evidence of local neural compression. At that time the Plaintiff did not take any regular analgesics or anti-inflammatories.
65 On examination the Plaintiff presented with a normal posture and had no focal tenderness.
All spinal movements were quite limited, with cervical movements limited to the upper segments. Pain was localised to this region without referred symptoms into the upper or lower limbs.
Plain x-rays revealed extensive diffuse skeletal hyperostosis with complete fusion extending from C4 distally with near if not fusion of C3/4. This leaves only the upper cervical motion segments for any movement, which is consistent with his clinical features.
In the lumbar spine there appears to be solid fusion down to L3 and features of gradual progression of similar process more distally.
I have explained in some detail that I am unable to attribute the features evident to the injury that occurred in 1999, but do not dispute the fact that this incident led to the initiation of symptoms and ongoing limitations. I believe his ongoing complaints is that of a genetic predisposition to this process of skeletal hyperostosos and it is in fact this condition which is now causing his ongoing symptoms and limitations.[10]
[10] DCB 21-22
66 Dr Letitia Kavanagh General Practitioner first examined the Plaintiff on 10 June 2004 when he gave a history of long-standing neck trouble following a tree limb falling on his head in 1999. The Plaintiff was then under the care of Mr Forbes. No medication was prescribed on this first attendance. The Plaintiff did not consult Dr Kavanagh again concerning any musculoskeletal issues until 23 February 2006 and again on 1 June 2007. On both of these occasions he presented with pain between the shoulder blades which were considered unrelated to his neck and resulted from his use of manual pruners.
67 At a subsequent attendance on 7 March 2008 the Plaintiff complained of neck pains which were getting so bad he could not sleep. He was prescribed a short course of Temazepam. The Plaintiff did not receive any further treatment from Dr Kavanagh and she notes that he was receiving GP services elsewhere, at the Hawkins Medical Clinic. I note that the only report provided from the Hawkins Medical Clinic relates to an attendance by the Plaintiff for an ear problem.[11]
Medico-Legal Opinions requested by the Plaintiff
[11] DCB 18
68 Mr John O’Brien Orthopaedic Surgeon examined the Plaintiff on 7 May 2008 when he described constant pain in the neck in both sides posteriorly which radiates proximally to the occipital and temporal areas. This pain is associated with significant restriction of neck movement, in particular elevation and rotation. Physical use of the arms tends to aggravate pain. In addition he is aware of some numbness which affects the right fourth and fifth fingers. He is unable to lie prone and as a consequence suffers sleep disturbance and generally wakes with severe pain and stiffness. At that time he took no medication for pain and his only treatment comprised massage about every two months. The Plaintiff reported that he attempted to remain active and live with the pain, although he was unable to perform heavy physical tasks.
69 Upon review of the September 2004 cervical and lumbar spine x-rays Mr O’Brien also confirmed a diagnosis of DISH [which was also apparent in the early December 1999 X-rays] and further noted that… in the cervical spine
there appeared to be ankylosis extending from C3 to C6 and in the lumbar spine extensive ankylosis although there appeared to be some mobility at the L4/5 motion segment.
70 Mr O'Brien concluded that the severe injury sustained by the Plaintiff precipitated symptoms associated with spondylitic change in the cervical spine, which could account for the diffuse nature of the symptoms. Although there were some described sensory change in the right hand possibly of a C6 distribution, he could not find any other clinical evidence of nerve root compromise.
71 In view of the Plaintiff's pain and restricted neck movements Mr O’Brien concluded that the Plaintiff was incapable of returning to his pre-injury occupation and incapable of undertaking any heavy manual employment.
72 Mr SF Schofield Orthopaedic Surgeon examined the Plaintiff on 6 June 2008 when he complained of neck pain and extreme stiffness with marked restriction of movement, worst in extension. The pain is felt on both sides of the neck and radiates up to the side of the head. He continues to suffer sleep disturbance obtaining only 2 to 3 hours sleep per night. He also experiences numbness in the fourth and fifth fingers of the right-hand.
73 The Plaintiff reported that he is unable to play with his many grandchildren, play social soccer or run. He has difficulty performing home maintenance and gets pain when he tries to cut lawns.
74 After examining the Plaintiff, Hospital records and radiological reports Mr Schofield concluded that the… onset of symptoms does suggest that there
was a fracture in this mass of bone. The ongoing symptoms are not fully explained on the investigations to hand. There is evidence of neurological deficit on the right side with an absent right biceps jerk and possible radiculopathy on the right side due to numbness of the forearm and fourth and fifth fingers. Further investigation is required to clearly explain the reason for his ongoing symptoms and I therefore suggest that MRI scan of the cervical spine should be arranged. In addition I believe that he should have up-to-date x-rays of the cervical spine, including functional views to determine if there is any excess movement in the area of the previous anterior ossification[12]
Medico-Legal Opinions requested by the Defendant
[12] PCB 42
75 Mr Paul Kierce Orthopaedic Surgeon first examined the Plaintiff on 12 October 2001 when the Plaintiff reported that his neck hasn’t come good… and that he gets neck pain on each side mainly during the day and especially when he is cold. Pain is produced when he looks over either shoulder. After examining the Plaintiff and X ray reports Mr Kierce concluded that the Plaintiff suffered a permanent impairment in his cervical spine function but did not believe that this is due to his work injury. In particular, the significant
degenerative change in his cervical spine is not due to his injury sustained during the course of his employment with Kawarren Logging…[he]… does have a capacity for work and appears to be managing in his current employment as a labourer…[he]… is not receiving any medical treatment. He seems to have some resistance to seeking such treatment.
76 Mr W. Huffam Orthopaedic Surgeon first examined the Plaintiff on 28 March 2002 when the Plaintiff reported that he had noticeable loss of neck movement and discomfort. He was unable to look over his shoulder and has difficulty reversing a vehicle. His neck pain radiates up the back of the head to the frontal regions. He has noted some numbness and tingles in the little and ring fingers of his left hand.
77 Mr Huffam noted that the Plaintiff held his neck stiffly and had quite marked limitation of movement of the cervical spine. Examination revealed well muscled arms of equal circumference and he had good power of all muscle groups. However he had quite marked paresthesia and hyperesthesia of the right index finger, thumb and thenar region and hyper procedure which was consistent on repeated examinations. The Plaintiff… would really jump with pain on lightly scratching this area…This correlates with a distribution from the 6th cervical nerve root
78 Mr Huffam noted that X-rays of the cervical spine dated 16 December 1999 demonstrate quite marked spondylitic bridging in the bodies of the 3rd 4th 5th and 6th cervical vertebra… which will be of long standing and which would
have expected to have limited movement of the cervical spine but if this limitation of movement had come on slowly and was not associated with pain it may well have been symptomless.[13]
[13] DCB 12
79 Mr Huffam subsequently recommended re examination of the Plaintiff to confirm definite signs of radiculopathy.
80 I note that Dr McNeil, Mr O’Brien, Mr Schofield and Mr Huffam record that the Plaintiff ceased working for the Defendant because of his neck pain and stiffness and inability to look up. Mr Kierce records that he ceased work because of the dangers involved and his fear of receiving another hit on the head.
Lay Evidence
81 Ian Askin was a director of the Defendant at the relevant time. In his affidavit he states that the Plaintiff had been working for the Defendant for about 2 to 3 months. He was present and witnessed the branch striking the Plaintiff on his hard hat and saw him fall to the ground on one knee. He states that the Plaintiff remained conscious but received a fright. He escorted the Plaintiff out of the forest and remained with him whilst he sat and took a cup of tea. He was later taken to Mt Gambier Hospital for observation. He remained off work for one month and when he returned he resumed his normal pre-accident employment. Mr Askin further states that the Plaintiff’s work output did not drop off and he did not mention that he was having difficulty looking up due to a sore neck. Shortly after, the Plaintiff resigned in an amicable way and said that he had a truck to cart hay and he would be doing this for local farmers.
82 Under cross examination I note that the Plaintiff agreed he did not complain to Mr Askin after returning to work but denied telling him that he was leaving to cart hay.
Video Surveillance
83 Defendant’s Counsel admitted that covert surveillance was conducted on 24 May 2009 for a spot check at 6 p.m.; 25 May 2009, nine hours; 26 May 2009, six hours; 3 February 2009, 2.30 to 4.45; 4 February 2009, 5.30 to 2.30, and 5 February 2009, 5.45 to 1.15. On the latter two days there is 20 minutes of film of the Plaintiff driving the truck.
84 Video surveillance taken on 25 and 26 May 2009 was shown to the Court. In the first video the Plaintiff is shown working on the rear of his utility attaching a steel metal plate to the inside using a screwdriver and then a cordless drill. In the process of performing this work the Plaintiff is seen to move about quite freely and look into the Ute moving his head down. He is also seen to turn his head to some extent without moving his whole body.
85 In the second video the Plaintiff is shown walking to and getting in to his car and driving away. Later he is shown attending an ATM and then walking fairly briskly along a street to where he gets into his car.
Submissions of Defendant’s Counsel
86 Defendant’s Counsel submitted to the effect that the evidence simply does not support any causal connection between the workplace incident and the Plaintiff’s current cervical impairment. Furthermore, the Plaintiff’s current presentation is not consistent with a serious injury. Counsel made the following main points:
a)
The primary treating specialist, Mr Forbes, was not called upon to provide a current opinion of the Plaintiff’s condition and its relationship, if any to his workplace incident. I agree that this is a surprising and significant omission.
b)
The analysis of the X Rays by the various specialists, indicates that at the time of the workplace incident the Plaintiff already exhibited long-standing profuse osteophyte formation, extending up to about the C3 level. By the time he was examined by Mr Cain in March 2005, he exhibited multilevel fusion of his cervical and lumbar spine consistent with his clinical symptoms. In my view, the radiological features, together with the preponderance of medical opinion, including that of treating specialists, explain the Plaintiff's cervical pain and restricted movement in terms of his underlying degenerative disease.
c)
The Court is required to make an assessment of the Plaintiff now. Accordingly, to the extent that there may have been earlier symptomatology which is no longer present, then this must be ignored for the purpose of such assessment. Defendant’s Counsel submitted that this was the case in relation to the Plaintiff's earlier presentation to Mr Huffam who identified a marked paresthesia and hyperesthesia of the right index finger, thumb and thenar region [base of the thumb]. This evidence of radiculopathy is consistent with nerve root impingement arising from the C6 level. However, the Plaintiff does not currently complain of such symptoms. Rather he complains of tingling in his little and ring fingers, suggesting a marked change in symptomatology. Mr Huffam had recommended a repeat examination to confirm current radiculopathy if any. I note that Mr Cain refers to a neurological assessment having been undertaken without evidence of local neural compression. I further note that the clinical notes of the Hawkins Medical Clinic in September 1999 record a Sense of numbness ulnar distribution R Hand and at the Hospital immediately following the workplace incident the Plaintiff complained that R fingers have
been numb for years.
d)
The Plaintiff is clearly capable of heavy manual labour, on any objective view, notwithstanding that he regards 30lb hay bales as relatively light compared to 180lb bags of wheat. Accordingly, the note of Mr O’Brien that he is unable to do any heavy work, must be read in that context. I agree.
e)
Notwithstanding that the Plaintiff may desist from pain relief medication for other reasons, he is nevertheless capable of performing full time labouring jobs for at least 9 months of the year. He drives his truck in the hay carting business which he changed over about 3 years ago from an earlier truck and also drives a Toyota Hilux. Taking into account that he is now 64 years old, he is remarkably active and the reduction in his social and domestic activities have been minimal. I agree.
Submissions of Plaintiff’s Counsel
87 Plaintiff’s Counsel made the following main points:
a)
Prior to his workplace injury the Plaintiff presented with a pre-existing degenerative condition which affected his cervical spine but which was essentially asymptomatic and did not inhibit his capacity to work or undertake normal social or recreational activities;
b)
It is acknowledged that the Plaintiff, at specific times in his life, had suffered a chequered work history as a result of bouts of binge drinking, marital problems and other specific health conditions;
c)
At the time of the workplace incident he had been working for the Defendant about 2-3 months for which he earned $7,584, representing an annualised earning capacity of $30,000-$40,000;
d)
Immediately following his accident and for the next 2 ½ weeks he suffered severe neck pain and restricted movement;
e)
Although certified fit to return to work after one month, he did so while still suffering a lot of neck pain and restricted movement which prevented him from safely looking up. Consequently he left after about 3 weeks and has never returned to tree felling;
f)
Although he has engaged in a range of work since the workplace incident, the Plaintiff has consistently complained of constant neck pain, stiffness in the neck, significantly restricted neck movement; and disturbed sleep;
g)
The Plaintiff is a stoic individual who has engaged in very hard work all of his life and to whom working through pain is still preferable to not working at all;
h)
The Plaintiff resists medication to relieve his pain by reason that he acknowledges his addictive personality and susceptibility to drugs and alcohol; and
i)
This is a case where the Court must have particular regard to the nature of the Plaintiff and give effect to the principle in Ninkovic v. Pajvancek[14]…To
[14] (1991) 2 VR 427
be serious the consequences of the injury must be serious to the particular
applicant.
88 I will give a brief response to some of these submissions at this stage:
a) Although I agree that there is no evidence that any cervical pain or restricted neck movement affected the Plaintiff's working capacity prior to the workplace incident, his work history was erratic, with admittedly long periods of unemployment; b) While the Plaintiff may have had a theoretical earning capacity, based upon his earning rate at the time of the workplace incident, he in fact had never demonstrated a willingness or capacity to maintain full-time employment so as to realise such total annualised income; c) The evidence as to the circumstances in which the Plaintiff was certified fit to return to full-time employment and then ceased a few weeks later is unsatisfactory. Mr Forbes was not asked to clarify the circumstances in which he certified the Plaintiff fit to return to work; and the affidavit of Mr Askin was not directly challenged in any way; and d) The submission that the Plaintiff has consistently complained about neck pain and restricted movement since his workplace incident is not reflected in any clinical context. That is, following the workplace incident the next record made of any neck pain is in a medico legal examination by Mr Kierce in October 2001, and the first record made by a treating general practitioner is in June 2004. 89 Plaintiff’s Counsel referred the Court to the leading case of Petkovski v. Galletti[15] where in the context of an injury which aggravated a pre existing degenerative spinal condition the Court clarified the following principles:
[15] (1994) 1 VR 436
a)
an injured person is to be compensated for but only for such disabilities as are proved to have resulted from the relevant accident;
b)
an analysis must be made of the extent of impairment of a body function before and after the relevant injury and the additional impairment must involve serious long term impairment of a body function; and
c)
it is on the Defendant to do the disentangling and to show what the probable future course of the pre-existing condition will be.
90 In this case Counsel acknowledged that prior to the workplace incident the Plaintiff exhibited extensive degenerative change from C3 down to C7, and some evidence of nerve root impingement from the C6 to the C7 level. In Petkovski’s case the applicant had suffered many years from a symptomatic degenerative condition which from time to time affected his capacity to work. In this case there is no such evidence. Furthermore, Counsel submitted that there is no evidence that in the absence of the workplace incident the Plaintiff would have been in substantially the same position as he now finds himself. Mr Cain refers to the incident leading to the initiation of symptoms and ongoing limitations but does not state that the effect of the incident has ceased. In this circumstance, Counsel submitted that the onus is upon the Defendant to disentangle the consequences of the pre-existing condition from the consequences of the workplace incident. I will return to this submission shortly.
Analysis of the Evidence and Findings
91 I have set out above a brief synopsis of evidence. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence, including submissions of Counsel and the tendered documents and videos. I have also re examined certain authorities which potentially have a bearing on the correct approach to be taken in a case such as the present.[16]
[16] Humphries v Poljak [1992] 2 V.R. 129; Fleming v Hutchinson (1991) 66 A.L.J.R. 211; Ninkovic v Pajvancek [1991] 2 V.R. 427; Petkovski v Galletti [1994] 1 V.R. 436; Grech v Orica Australia Pty. Ltd. and Anor [2006] VSCA 172
92 There is effectively unanimous medical opinion that the Plaintiff suffers from a diffuse idiopathic skeletal hyperostosis known as DISH, a congenital developmental condition which has involved natural fusing both in his lumbar and cervical spines.
93 In this case the Plaintiff sustained a discrete traumatic injury in the workplace and there is no evidence of prior or subsequent injury, either traumatic or progressive, in the workplace or elsewhere. Accordingly, it is critical for the Plaintiff…
… to identify for the purposes of sub-s.(1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the Plaintiff fails to establish how far and to what extent s.134AB applies and in particular to what specific injury the section applies (including the leave provision in subs.(16)(b)), which means in turn that the Plaintiff fails to establish just what was the injury that has to satisfy the description ‘serious injury’ if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s.134AB addresses – first in prohibiting a common law proceeding for damages in respect of it ‘otherwise than as permitted by and in accordance with this section’ and, secondly, in authorizing such a proceeding, but only on the strict conditions laid down by the section …”[17]
[17] Barwon Spinners at [13] per Phillips AJ.
94 I agree with Defendant’s Counsel that this case is not analogous to or assisted by the analysis undertaken in Grech’s case.[18] In Grech’s case Ashley JA after referring to the above passage in Barwon Spinners, further commented:[19]
It is for a Plaintiff to establish that he or she suffered compensable injury on or after 20 October 1999, and to sufficiently establish what that injury was. Only then will it be possible for a Plaintiff to establish that such injury was, in its consequences, serious injury as defined. It is not enough that a Plaintiff establish that he or she developed, on or after 20 October 1999, serious injury consequences of compensable injury sustained before that date.
[18] Grech v Orica Australia Pty. Ltd. and Anor [2006] VSCA 172
[19] @ para 45
95 The Plaintiff must first establish and identify such an injury, and then establish that its consequences meet the statutory definition of serious injury.[20] These propositions merely reinforce that there are two distinct steps to the process. An injury which occurs in compensable circumstances may nevertheless not give rise to any consequences or consequences sufficient to satisfy the definition of serious injury. Furthermore, the consequences must be referable to the compensable injury and not some other injury or degenerative process. While a relevant consequence may have a multiplicity of causes, in the context of this case, employment must have been a significant contributing factor to the compensable injury and such injury must have materially contributed to the consequences of which the Plaintiff now complains.
Plaintiff’s Presentation
[20] Grech @ para 54
96 Counsel for the Plaintiff described him as a stoic dignified man who has battled some demons but is otherwise extremely hard-working. I acknowledge that this is a fairly apt description. The Plaintiff presented in Court as a softly spoken, unsophisticated but humble man who appeared to be trying to do his best in the witness box. He made appropriate corrections to the contents of his affidavits but was thereafter somewhat reluctant to elaborate upon the nature of his work history since the workplace incident. He appeared to be physically quite uncomfortable, maintaining his head and neck in a rigid position throughout.
97 However, in reviewing the factual circumstances of the workplace incident, the Plaintiff’s work history before and after and the treatment and advice of his treating general practitioner and specialists, I have concluded that the Plaintiff’s current symptoms affecting his cervical spine most likely have no correlation with the workplace incident.
What was the injury which occurred to the Plaintiff on 16 December
1999?98 Taking the Plaintiff’s evidence at its highest, it is impossible to identify precisely what injury[21] was sustained by the Plaintiff as a result of the workplace incident, more than a blow to the head, the consequences of which were relatively short term. In reaching this conclusion, I take account of the following:
[21] With particular regard to paragraph (c) of the definition of injury
a) While wearing a hard helmet the Plaintiff was struck on the head with a falling branch. He thought he lost consciousness for a few minutes. Ian Askin, who was a Director of the Defendant at the time, was present and witnessed the workplace incident. In his affidavit Mr Askin states that while the Plaintiff was assessing a tree, a branch from another tree fell. This branch was approximately 3 feet long and 2-3 inches in diameter. Mr Askin further states: I recall seeing the branch strike the worker on his hard hat and he fell to the ground on one knee. He remained conscious but received a fright. I insisted that the Plaintiff walk out of the forest with me to have a rest. I recall he took a seated position and had a cup of tea and sat quietly for a while…A decision was made to take him to Mount Gambier Hospital for observation.[22]
[22] DCB 16
b)
The Plaintiff presented at the Hospital complaining of neck pain and dull headache. He had minor grazes to the nose and redness across his forehead. The Plaintiff was alert and oriented and objectively displayed minimal superficial injuries. The Plaintiff stated that his right fingers had been numb for years;
c)
X-rays taken at the time of the workplace incident revealed significant pre- existing degenerative changes, described as DISH. Although the X-ray report refers to possible fractures at certain levels in the cervical spine, these were not confirmed by any treating orthopaedic surgeon and expressly discounted by Mr Cain;
d)
Mr Forbes prescribed a neck collar, which the Plaintiff found too uncomfortable to wear. The Plaintiff states that he continued to suffer neck pain and restricted movement. Nevertheless, Mr Forbes certified him fit for normal duties and he recommenced employment on 17 January or just one month after the work place incident;
e)
Mr Askin states to the effect that upon his return to work the Plaintiff continued to perform his normal duties without complaint; and
f) a WorkCover Claim was not filed until 16 August 2001. 99 To this point there is no objective evidence to support the Plaintiff’s account of continuing neck pain and restriction of movement upon his return to work.
Attendance upon doctors following the workplace incident
100 There is a paucity of evidence from any treating doctor in the tendered medical reports following the Plaintiff ceasing work for the Defendant. In particular, I note the following:
a)
A tendered report from the Hawkins Medical Clinic dated 19 July 2000[23] relates to a recurrent ear problem. There is no mention of the neck or neck pains or restricted movement. There is a reference to the Plaintiff suffering hypertension… otherwise he is generally well although he seems down on
[23] DCB 18-19
his luck with employment.
b)
The next tendered medical record disclosing an attendance by the Plaintiff upon a treating doctor is in June 2004 when Dr Kavanagh records a history of long-standing neck trouble since the workplace incident. There is no other information provided in this report. Dr Kavanagh provides no treatment and subsequently sees the Plaintiff for unrelated matters.
c)
The Plaintiff appears not to have seen Mr Forbes between January 2000 and August 2004. The only report provided by Mr Forbes, being his letter of referral to Professor McNeil dated 8 October 2004, significantly makes no mention of the 1999 workplace incident and does not attribute his condition to anything else but a diagnosis of DISH.
Work history before and following the workplace incident.
101 The evidence of the work history of the Plaintiff for the two financial years prior to the workplace incident confirms no income derived from tree felling and quite small amounts derived otherwise. The Plaintiff also stated that he worked periodically between 1990 and 1999[24] without any further details. Subsequent to the workplace incident the Plaintiff has engaged in employment at least as remunerative as his pre-injury employment. Significantly, in the last financial year he has worked for at least nine months of the year deriving income from five separate sources including his private hay carting business. All of his employment involves manual labour to some extent. The hay carting, even on the Plaintiff’s account and allowing for his less arduous role of principal driver, is very heavy work.
[24] Transcript 14
102 I note the observations made by Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd[25] as follows:
If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable…
[25] Sumbul v. Melbourne All Tyre Wreckers Pty Ltd, 2006 VSCA 292 @ para 24
103 In this case, on any objective view, the Plaintiff’s current condition has not restricted his capacity for gainful employment although he might be restricted in his choice of employment, and has not led to any reduction in earning capacity.
104 Furthermore, as eventually conceded by the Plaintiff under cross examination, his social and recreational activities have been minimally affected.
Assessment of Treating Specialists
105 Recognising that these applications are not a trial by doctors generally or specialists in particular, this case raises an issue of causation which uniquely falls within the medical domain. Accordingly, in my view there are two circumstances which constitute very powerful evidence that any effect from the workplace incident has resolved and the current impairment of the cervical spine and indeed extending into the lumbar spine and sacrum, are attributable entirely to the progression of his pre-existing degenerative disease, namely:
a)
The absence of any opinion from a general practitioner from the time of the workplace incident until over 4½ years later; and
b)
The opinions of treating specialists which effectively preclude any contribution from the workplace incident to the Plaintiff’s current condition.
106 In reaching this conclusion I take note of the following specialist opinions:
107 Mr Forbes provided a diagnosis of… severe progressive syndesmophytosis
and ankylosis of the entire spine consistent with DISH (diffuse idiopathic
skeletal hyperostosis). It is significant that Mr Forbes, who observed the Plaintiff immediately after his workplace incident and subsequently, was not called upon to provide an updated opinion.
108 Dr McNeil confirmed the diagnosis of DISH. He discounted the appearance of a fracture in the first X Ray [at C4-5 level] and noted the profuse osteophyte formation extending up to about the C3 level which in the subsequent X Ray in 2004 had further progressed with fusion at multiple levels and degenerative changes now apparent in the sacro iliac joints. Dr McNeil further notes that…
the accident clearly removed any residual neck mobility upon which he
depended. However, it is unclear to me precisely what this means in terms of any ongoing process or current contribution to the Plaintiff’s cervical impairment.
109 In March 2005 Mr Cain noted that neurological assessment had been undertaken without evidence of local neural compression. Mr Cain’s review of the 2004 X Rays revealed complete fusion extending from C4 distally with
near if not fusion of C3/4. This leaves only the upper cervical motion
segments for any movement, which is consistent with his clinical features. In the lumbar spine there appears to be solid fusion down to L3 and features of
gradual progression of similar process more distally.
110 Although Mr Cain acknowledged that the workplace incident led to the initiation of symptoms and ongoing limitations…his assessment clearly precludes any continuing contribution from such source… I believe his
ongoing complaints is that of a genetic predisposition to this process of skeletal hyperostosos and it is in fact this condition which is now causing his ongoing symptoms and limitations…
Medico Legal Opinions
111 The earliest and clearest assessment performed by a medico legal examiner is that provided by Mr Kierce who saw the Plaintiff in October 2001. He did not attribute any contribution to the Plaintiff’s significant degenerative change in the cervical spine to his workplace incident. He also noted at that time that the Plaintiff was managing in his current employment as a labourer and was not receiving any medical treatment.
112 Mr Huffam is the only examining specialist to note quite marked paresthesia and hyperesthesia of the right index finger, thumb and thenar region which was not detected by Mr Cain's subsequent examination and is not a current complaint of the Plaintiff. Mr Huffam also noted from the December 1999 X Ray appearance, quite marked spondylitic bridging in the bodies of the 3rd 4th 5th and 6th cervical vertebra.
113 I have also set out above the principle findings and conclusions of Mr O’Brien and Mr Schofield who each examined the Plaintiff in May and June 2008 respectively. Their assessments were performed 8½ years after the workplace incident and in my view neither place undue emphasis upon the severity of the workplace incident, in light of other objective evidence outlined above.
114 In my view Petovski’s case is not relevant to the circumstances of this case. I accept that both the behaviour of the Plaintiff post workplace incident and the preponderance of medical opinion precludes any realistic contribution from the workplace incident to his current condition. Mr Forbes does not mention the workplace incident at all. In my view Mr. Cain is unambiguous in his opinion which precludes the application of any residual contribution from the workplace incident and attributes his current condition wholly to the progression of his DISH.
Summary
115 While I accept that the Plaintiff sustained an injury in compensable circumstances, I am satisfied upon the preponderance of evidence that such injury has resolved and that the Plaintiff’s current impairment to his cervical spine is entirely attributable to the natural progression of his underlying pre- existing degenerative disease.
116 However, if the Plaintiff currently suffers a compensable injury as a consequence of the workplace incident, I am not persuaded that the Plaintiff has proven an impairment and consequences which satisfies the requisite test of serious injury. In reaching this conclusion I have had particular regard to the following:
a)
I am satisfied that the Plaintiff does have a proven and significant capacity for work;
b)
His demonstrated capacity for employment, directly bears upon whether his pain and suffering consequences have otherwise reached the requisite standard;
c)
While I accept that the Plaintiff’s social, recreational and domestic activities have been affected to a moderate degree, I am not satisfied that such consequences are significant or marked by comparison to the range of consequences for comparable impairments and having regard to the age of the Plaintiff, the extent to which he engages in employment involving manual labour and to his changed family circumstances;
d)
The Plaintiff takes no medication and requires no other physical therapies, except occasional massage; and
e)
The covert video surveillance portrays the Plaintiff walking, driving and performing vehicle maintenance while exhibiting a free and easy mobility without any apparent discomfort.
Conclusion
117 I am not satisfied on the balance of probabilities that the current impairment to the Plaintiff’s cervical spine is referable to any injury sustained in the workplace incident.
Orders
118 The Plaintiff’s application for leave pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985, to commence proceedings for the recovery of damages for pain and suffering in respect of a workplace incident on 16 December 1999, relying upon paragraph (a) of the definition of serious injury, is refused.
119 The proceeding be dismissed.
120 The following cost orders were made after hearing the parties:
1. The Plaintiff pay the Defendant’s costs, including Reserve costs, on County Court Scale D to be taxed in default of agreement;
2. Certify for:
a) one refresher; circuit fee at scale and one circuit refresher; and
b) the reasonable costs of the preparation, filing and service of court books, the first copy at scale and each subsequent necessary copy at the commercial rate to be fixed by the taxing registrar.
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