Scicluna v Johnson Matthey (Aust) Ltd
[2009] VCC 102
•19 February 2009
`
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-06-01210
| DONALD SCICLUNA | Plaintiff |
| v | |
| JOHNSON MATTHEY (AUST) LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9, 10 and 12 February 2009 |
| DATE OF JUDGMENT: | 19 February 2009 |
| CASE MAY BE CITED AS: | Scicluna v Johnson Matthey (Aust) Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0102 |
| First Revision 23 February 2009 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – application for serious injury pursuant to section 135A(4)(b) – whether injury suffered by the plaintiff before 12 November 1997 amounted to a serious long-term impairment or loss of a body function – whether injury allegedly suffered after 12 November 1997 was a further injury or a progression of the earlier injury – Altona Bus Lines v Lococo [2002] VSCA 159; Grech v Orica Australia Pty Ltd (2006) 14 VR 602: section 135A(4)(a)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Philbrick SC and | Maurice Blackburn |
| Mr G Chancellor | ||
| For the Defendants | Mr R Smith SC and | Minter Ellison |
| Ms S Manova | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 6 April 2006 by which the plaintiff applies for leave, pursuant to section 135A(4)(b) and 135AC of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of his employment with the first defendant before 12 November 1997.
2 Mr J Philbrick SC appeared with Mr G Chancellor of Counsel for the plaintiff, and Mr Smith SC appeared with Ms S Manova of Counsel for the defendants.
3 The body function which the plaintiff says has been lost or impaired is the cervical spine.
4 The following evidence was adduced during the hearing:
• the plaintiff gave evidence and was cross-examined. • Dr Choon, general practitioner, gave evidence and was cross-examined. • Mr Brazenor, neurosurgeon, gave evidence and was cross-examined. • Mr Bittar, neurosurgeon, gave evidence and was cross-examined. •
The plaintiff tendered his Court Book ("PCB") pages 17-178, and from the defendants Court Book (“DCB") page 114.
•
The defendants tendered from their Court Book pages 1-76; 133 and 136- 146.
The Statutory Scheme
5 The plaintiff commenced employment with the first defendant on 2 January 1990, performing work which he says led to him suffering an injury to his cervical spine on 13 August 1992.
6 The plaintiff relied upon the period of his employment from 2 January 1990 to 12 November 1997 as the period implicated in the causation of the injury to his cervical spine.[1]
[1] On 12 November 1997, s.135A was repealed, leaving an hiatus until common law was re-instated from 20 October 1999
7 In short, he continued working with intermittent pain in his cervical spine until 8 November 2002, when he suffered more severe symptoms of pain in his neck, and not long afterwards he went off work. He submitted that he was not aware that he had suffered serious injury consequences of the injury to his neck until some time after November 2002.
8 The proceeding before me was brought pursuant to section 135A of the Accident Compensation Act 1985 ("the Act").
9 The application made by the plaintiff to the second defendant pursuant to section 135A (2BA) was made on 18 November 2005.
10 An application where part of the injury was contributed to by employment prior to 1 December 1992 must satisfy subsection (2)(a) and (b), and where part of the injury was contributed to by employment on and after 1 December 1992 it must satisfy s.135AC(b).
11 S.135AC(b) requires the plaintiff to prove that his incapacity arising from the injury was not known until after 12 November 1997 unless an application for determination pursuant to s.135A(2B) had been made to the defendants before the expiration of three years after the date the incapacity became known.
12 Mr Smith conceded that working back three years from the date when the application was made on 18 November 2005 would take the plaintiff back to November 2002, and therefore, no defence to the plaintiff's application based upon a failure to meet the requirements of s.135AC was made.
The 1992 Injury
13 In his first affidavit sworn 18 November 2005, the plaintiff described undertaking the following work which he says he was doing at the time when he was injured:
"My work involved me in pointing tubes. This involved narrowing the end of the tube into a point shape so that it would fit into a die. Where the point shape was less than 9 mm it had to be done manually. If it was a larger size the point could be done by press machine. However, even when done on the press machine I still had to manually hammer the die off. When doing manual pointing I used a block of wood which came up to about waist height. I held the tube in my right hand and the die in my left hand. I manually fitted the die within the tube by banging it against the top of the block. This was to force the tube into the correct shape to fit into the die. Once banged into shape I would hold the die with the tube attached in my left hand, take a mallet in my right hand and strike the die with the mallet in order to drop it off. I had to hold the tube attached to the die with a very firm grip and hit hard with the mallet. I had to perform the pointing work on a daily basis."[2]
[2] PCB 18-19
14 The plaintiff said that he would strike the die two, three or four times and would work on fifty to sixty dies per day, but estimated probably an average of thirty dies per day.[3]
[3] Transcript 16-17
15 While using a mallet on 13 August 1992, the plaintiff felt sharp pain in the left side of his neck which went into the back of his left shoulder.[4]
[4] PCB 19
The Plaintiff's Medical Treatment
16 The plaintiff saw Dr Choon on 13 August 1992. Dr Choon obtained a history from the plaintiff that he was doing hammering using his right hand, with his left hand being used to control the object which is being hammered. He recorded that the plaintiff was suffering pain in the area of his left trapezius.
17 Following that first consultation with Dr Choon, the plaintiff was referred to Mr Kwok, physiotherapist, who wrote to Dr Choon by letter dated 30 September 1992 in which he described the results of his examination of the plaintiff:
"On examination I find that Mr D Scicluna has stiffness in the cervical spine at C567 levels especially on Lt side, and muscle tenderness at trapezius & rhomboid muscle[s]." [5]
[5] PCB 85a
18 The plaintiff continued seeing Dr Choon for treatment, and indeed, Dr Choon remains the plaintiff's treating general practitioner.
19 One of the issues raised by Mr Smith was the paucity of medical treatment obtained by the plaintiff over the years until the plaintiff commenced working with Onesteel in March 2002, which he submitted demonstrated that whatever injury the plaintiff suffered in August 1992, it was modest and was overtaken by the injury he suffered with Onesteel in about November 2002.
20 Therefore, it is necessary to set out the occasions when the plaintiff saw Dr Choon, and also, because in the evidence of Mr Brazenor and Mr Bittar, both were asked to comment on the attendances recorded in Dr Choon's clinical notes.
21 Dr Choon's clinical notes reveal that the plaintiff saw him for treatment on 26 October 1992; 16 November 1992; 6 February 1993; 27 February 1993; 27 April 1993; 7 May 1993 and 23 May 1993.[6]
[6] PCB 61-62
22 On 7 May 1993, Dr Choon wrote a letter for the benefit of the plaintiff to the first defendant as follows:
"Mr Scicluna suffers from a painful left shoulder which is caused by the nature of his work. I have recommended that he does not do any pointing."[7]
[7] PCB 52
23 The plaintiff's duties were altered as described by the plaintiff in his first affidavit.[8] In about 1994, a new machine was purchased, which took over the pointing process, however, the plaintiff then worked at a drawing bench machine which required him to have his neck flexed forward and in an awkward position while operating the machine which the plaintiff said aggravated his neck injury significantly.[9]
[8] PCB 20
[9] PCB 20
24 Between 23 May 1993 and 7 May 1997, the plaintiff saw Dr Choon for treatment for unrelated medical conditions. There is no reference to any complaint made by the plaintiff consistent with those complaints he made between 26 October 1992 and 23 May 1993 of any left shoulder or neck problem.
25 The plaintiff saw Dr Choon on 3 July 1997 complaining of pain in his left shoulder and neck.[10]
[10] PCB 67
26 Between 11 August 1997 and 10 December 1998, the plaintiff saw Dr Choon for unrelated medical conditions, and again, there is no reference to any complaint made by the plaintiff consistent with the complaints he made on 3 July 1997 or between 26 October 1992 and 23 May 1993 of any left shoulder or neck problem.
27 On 11 January 1999, the plaintiff saw Dr Choon, complaining of pins and needles in his left arm for a period of two weeks.[11]
[11] PCB 69
28 Between 10 March 1999 and 18 June 2002, the plaintiff saw Dr Choon for unrelated medical conditions, and again, there is no reference to any complaint made by the plaintiff consistent with the complaints he made on 11 January 1999, 3 July 1997 or between 26 October 1992 and 23 May 1993 of any left shoulder or neck problem.
29 On the 18 November 2002, the plaintiff saw Dr Choon, giving a history that ten days beforehand he woke up with pain in his neck, and five days later with pain in his left shoulder.[12] Dr Choon recorded that the plaintiff had seen another general practitioner. The plaintiff saw Dr Pham, general practitioner, on 16 November 2002 because Dr Choon's clinic was not open.[13] He was prescribed Vioxx and Tramal by Dr Pham.
[12] PCB 72
[13] PCB 22
30 On the occasions when the plaintiff saw Dr Choon on 26 October 1992 and 18 November 2002, he drew a diagram intended to demonstrate where the plaintiff was complaining of pain. The first diagram shows hatching to the right of the left shoulder blade adjacent to the midline of the spine and the second diagram shows hatching above the left shoulder blade from the right side of the neck down the left shoulder.[14]
[14] PCB 61 and 72. The diagrams figured prominently in Mr Smith's cross examination of Mr Brazenor and Mr Bittar, as did a third diagram in the clinical notes of the Northern Hospital - DCB 72
31 Dr Choon prescribed the plaintiff painkilling medication on a number of occasions when he him in 1992 and 1993; on 3 July 1997 and from 18 November 2002.
The 2002 Injury
32 In his first affidavit, the plaintiff described the work he performed with Onesteel as follows:
"Most of my work with Onesteel was on the drawing bench no. 4 machine. Heavy steel bars were lowered onto the table of the drawing bench machine by an overhead crane. Often some of the bars were tangled and bent within the load. I had to lift one end of the bar to move it in order to disentangle the bars. This would place strain on my neck and shoulders. I would also have to lift dies onto the machine using either my left or right arm alone because it was too awkward to use both arms. That put strain on my shoulders and neck. I also had to bend in order to feed through and connect a hook and chains around the bundles. That also put stress on my neck and shoulders."
33 On 8 November 2002, the plaintiff woke with a stiff neck. He continued working. On 15 November 2002, he was pulling chains which resulted in an increase in the pain to the left side of his neck and the back of his left shoulder. He described the pain as being in the same area as it had been in 1992.[15]
[15] PCB 22
The Plaintiff’s Subsequent Medical Treatment
34 The plaintiff consulted Dr Pham on 16 November 2002 because Dr Choon's clinic was not open. He was prescribed medication.
35 The plaintiff subsequently experienced pain spreading into the region of his left elbow and forearm. An x-ray taken on 21 November 2002 and an ultrasound failed to reveal any abnormality in the plaintiff’s left shoulder or elbow.[16]
[16] PCB 23, 99 and 100
36 On 26 November 2002, the plaintiff attended the Northern Hospital because of the pain he was experiencing was so severe.[17] He subsequently saw Dr Choon, who prescribed him painkilling medication and referred him to have an ultrasound of his left shoulder which revealed no abnormality.[18]
[17] PCB 89
[18] PCB 23 and 101
37 The plaintiff saw Dr Sleigh, physician, on 4 December 2002 at the direction of Onesteel. Dr Sleigh examined the plaintiff, concluding that he was suffering from a herniated cervical intervertebral disc with referred pain into the left arm. Furthermore, he was of the opinion that it was not related to his work with Onesteel, but was due to natural degenerative disease and the plaintiff's age.[19]
[19] DCB 144-145
38 The plaintiff continued receiving treatment at the Northern Hospital. He underwent an MRI scan on 10 January 2003. The radiologist reported as follows:
"Multilevel degenerative disc changes most marked at the C6-7 level where moderate reduction in disc space height is noted associated with mild generalised disc bulging. Superimposed bilateral disc protrusions involve the posterolateral margins of the disc contributing to moderate bilateral foraminal narrowing with effacement of the perineural fat and probable impingement upon the exiting C7 nerve roots bilaterally."[20]
[20] PCB 102-103
39 The plaintiff continued with treatment at the Northern Hospital where he received physiotherapy treatment until February 2004. He also continued to see Dr Choon, who at that stage was treating the plaintiff for a depressive state which the plaintiff said occurred as a consequence of what he was told the MRI scan revealed.
40 The plaintiff was unable to work following the severe episode of pain in November 2002. He made an attempt to return to light duties in August 2003. He stopped working altogether in April 2004 when he was sent home by Onesteel because there were no light duties available.
41 In the meantime the plaintiff was referred to Mr Kavar, neurosurgeon, who he saw on one occasion on 17 November 2003,[21] and then to Mr Jensen, neurosurgeon, who he saw on 19 December 2003 and 12 January 2004.
[21] The plaintiff did not produce a report of Mr Kavar nor give a description of the treatment which Mr Kavar provided him.
42 Mr Jensen had available for his inspection some plain x-rays of the plaintiff's cervical spine and the first MRI scan. He diagnosed that the plaintiff was suffering from brachial neuralgia. The question whether the plaintiff required surgery was left up in the air.[22] In a letter directed to Centrelink dated 19 November 2004, Mr Jensen described the plaintiff's injury as a cervical intervertebral disc problem causing left brachial neuralgia. He was of the opinion that the plaintiff was unfit to undertake his usual work and that there were no other suitable occupations for him given his age, qualifications and the restrictions placed upon him by his injury.[23]
[22] PCB 91-92
[23] PCB 93
43 The plaintiff was then referred to Mr Brazenor, who saw him on 9 February 2005, 25 February 2005 and 22 June 2005. I will review the evidence of Mr Brazenor in some detail below.
44 The plaintiff was prescribed medication by Dr Choon in 1992 and through 1993. He then used Panamax, which he purchased over the counter, and he used heat packs until the more serious onset of neck pain in 2002. At present he still uses Panamax and Actin, which is an anti-inflammatory medication, and Aropax, which is an anti-depressant.[24]
[24] PCB 40
Causation
45 Mr Smith submitted that whatever injury the plaintiff suffered in 1992 it was modest and was an injury from which he recovered, demonstrated by the fact that he worked for the first defendant and then with Onesteel in moderate manual work requiring little or no medical treatment.
46 Furthermore, Mr Smith submitted that the accounts given by the plaintiff in his first affidavit, which I have referred to in paragraphs 32 and 33 above, and to a number of examining medical practitioners, demonstrate that the real injuries suffered by the plaintiff occurred in the course of his employment with Onesteel.
47 Mr Smith submitted that if I were satisfied that the plaintiff suffered an injury in 1992 and that it was the same injury implicated in what occurred when he was working with Onesteel in 2002, the approach I should take should be consistent with what was said by Buchanan JA in Altona Bus Lines v Lococo:[25]
[25] [2002] VSCA 159
“The question to which his Honour then turned was whether the respondent had established on the balance of probabilities that there was a causal connection between the 1995 incident and the respondent's current level of impairment. He said:
‘I am satisfied that it is more probable than not that the 1995 incident has made a contribution to the plaintiff's level of impairment. Put another way, I think it improbable that an incident which made his previously asymptomatic degenerative condition symptomatic and which, in his own words, left him with back pain and referred pain to his legs ever since is unconnected to his present complaints of back and leg pain. In other words, I am satisfied that the 1995 accident and the 1998 accident are links in the chain which has led to his present level of impairment.’
The trial judge thought that it was mere speculation whether the respondent would have suffered injury in 1998 if he had not injured his back in 1995, but was prepared to conclude that the results of the 1998 accident were substantially more severe because the respondent's back had been reduced to a weakened state by the 1995 accident. Accordingly he was ‘satisfied on the balance of probabilities that the 1995 injury has made a significant contribution so as to enable that contribution to be regarded as 'serious' in the relevant sense.’
Whether an injury is ‘serious’ depends upon the extent of the impairment or loss of a body function resulting from the injury. Where separate injuries resulting from separate incidents impair one body function it is not permissible to aggregate the effects of the injuries to determine whether the impairment amounts to a serious injury. Each injury and the impairment of a body function resulting from it must be considered separately. See Lu v Mediterranean Shoes Pty Ltd. The respondent can only recover damages in respect of the injury that was caused by the 1995 incident. Accordingly, it is the impairment to the function of the spine caused by the injury the respondent suffered in that incident which must answer the description of a serious injury.
The thrust of the appellant's case is that the trial judge failed to separately assess the effects of the injuries. His Honour spoke of the 1995 incident making ‘a contribution to the plaintiff's level of impairment’ and both incidents being ‘links in a chain which led to his present level of impairment’. The trial judge's ultimate finding was that the 1995 incident had made a ‘significant contribution’ to the impairment suffered by the respondent.
The trial judge did not state the degree of impairment which the respondent had sustained before the 1998 injury and was likely to have sustained even if the 1998 injury had not occurred. He did not expressly evaluate the significance of the contribution to the ultimate impairment suffered by the respondent by separately assessing the impairment that resulted from each incident. In my view it is a pity that his Honour did not in terms make such an assessment.
Nonetheless, when the reasons are read as a whole it does appear in my view that the trial judge concluded that the effect of the 1995 injury considered alone was to produce a serious long-term impairment of a body function, albeit he expressed that conclusion in a somewhat elliptical manner.
His Honour referred to Lu v Mediterranean Shoes Pty Ltd as standing for the proposition that injuries cannot be combined. He next said:
‘But if it can be demonstrated that a subsequent injury would not have occurred but for an earlier injury, or that the effects of the subsequent injury were more severe because of the earlier injury, then the subsequent injury, or the additional effects thereof (as the case may be) are consequences of the original injury and may be taken into account in considering whether the original injury produced a severe long-term impairment of the body function.’
His Honour then referred to the evidence of medical specialists who all said that in 1995 the respondent sustained an injury with immediate ongoing effects, and that injury played a part in the incapacity that occurred after the 1998 incident.
At the conclusion of his reasons the trial judge said that the first of the two ways of demonstrating serious injury which he had earlier referred to, namely, that the subsequent injury would not have occurred but for the first injury, was speculative in this case. When he then went on to say that the 1995 injury made a ‘sufficient contribution’ to enable that contribution to be regarded as serious, I consider that his Honour was stating that the second way of showing the first injury was serious which he had identified earlier in his reasons had in fact been established. In other words, ‘the additional effects [those which became manifest in 1998] are consequences of the original injury’ and were taken into account by him in isolation from the 1998 injury to determine that the 1995 injury produced a ‘severe long-term impairment of a body function’. It was not contended that the evidence was incapable of leading to that result. The question in this appeal was whether the trial judge separately considered the effects of each of the injuries to reach it. In the end I have concluded that he did."[26]
[26] paragraph 6-12
48 Mr Philbrick submitted that the test of causation which applies is consistent with the test enunciated by Ashley JA in Grech v Orica Australia Pty Ltd:[27]
“The second of those propositions turns on the words of the Act. Most often, a consequence is compensable if it ‘results from or is materially contributed to by’ an injury. The concept of ‘material contribution’ was a later addition to workers compensation legislation. But even before that addition, the causal connection required by the words “results from” had been construed to require much less than that injury be the sole cause of a consequence. It is argued by Hill & Bingeman that, given such a history of construction, the causal requirement imported by ‘material contribution’ should be taken to be a lesser requirement still than that encompassed by decisions construing the words ‘results from’. It is unnecessary to say whether that proposition should be accepted. It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.” [28]
[27] (2006) 14 VR 602
[28] paragraph 58
49 He also referred me to the following passage:
“Factual variants, I think, further illustrate the matter now under discussion. Suppose, for instance, that the plaintiff had been employed by employer A in the period up to and including 20 October 1999, and by employer B thereafter, but that the facts were otherwise as in this case. The enquiry would still be, at the outset, whether the plaintiff sustained compensable injury in each of the two periods. It is, however, easier to understand why that could be so when different employments are introduced into the factual matrix. But, in principle, the question to be resolved — was compensable injury sustained before, and on or after, 20 October 1999, and did any such injury result in or materially contribute to the incapacitating consequences — would be no different."[29]
[29] paragraph 65
50 The observations of Buchanan JA and Ashley JA are reconcilable. Essentially, a question that each dealt with was one of contribution to the consequences of an impairment of body function. Buchanan JA observed that the trial judge should have separately assessed the impairment arising from both incidents, however, he concluded that because the trial judge found the additional effects of the 1998 injury were consequences of the original injury and were taken into account by the trial judge in isolation from the effects of each injury to determine that the 1995 injury produced a severe long-term impairment of a body function and that the trial judge had indeed considered the effects of the injury separately.
51 I do not see that Ashley JA was saying anything different. He in fact concluded that the test to be applied is whether the first injury suffered by this plaintiff materially contributed to the incapacitating consequences, and inherent in applying that test is a necessity to consider the effects of the incapacitating consequences of both injuries.
52 Dr Choon provided nine medical reports dated 30 April 1993; 7 May 1993; 5 November 2003; 5 July 2004; 26 October 2004; 24 November 2005 and 2 May 2008.[30]
[30] PCB 51-60
53 Dr Choon also provided the plaintiff with medical certificates.[31] Those provided between 13 August 1992 and 16 November 1992 refer to the plaintiff suffering from a strain of the left side of his neck and back.
[31] PCB 45-50a
54 Of the two medical certificates provided by Dr Choon dated 21 January 2003,[32] the second of those certificates has the following written on it:
"Past history of neck injury with L sided pain. It is likely that this is a
progression of past injury."[32] There are two certificates bearing that date at PCB 50 and 50a
55 During cross-examination, Dr Choon said that he was unable to say whether the disc prolapse suffered by the plaintiff occurred in 1992 or 2002.[33] During re-examination, he said that the event which occurred in November 2002 aggravated the pre-existing disc injury that if the plaintiff had not suffered the injury in 1992 he could still have suffered a disc injury as a result of the event which occurred in November 2002.[34]
[33] Transcript 91-92
[34] Transcript 94
56 However, during re-examination, he said that the injury which occurred as a result of the event in November 2002 was a progression of the injury which occurred in 1992.[35]
[35] Transcript 98
57 Dr Rabinov, surgeon, examined the plaintiff on a medico-legal basis on 3 February 1993 and 22 January 1996. He provided two medical reports dated 4 February 1993 and 25 January 1996.[36]
[36] DCB 1-9
58 Dr Rabinov took a history from the plaintiff on the first occasion he examined him, that he was suffering left-sided neck and shoulder pain on 13 August 1992. He was of the opinion that the plaintiff could have strained the paracervical muscles and ligaments on the left side of his neck and the trapezius muscle in the back of his left shoulder. He was of the opinion that the plaintiff had recovered from such strains.[37]
[37] DCB 4
59 On the second occasion he examined the plaintiff he took a history from the plaintiff that he was suffering from intermittent discomfort in the back of his left shoulder and the left side of his neck.[38] The purpose of the second examination was with respect to a crushing injury to the plaintiff’s left little finger which occurred on 17 July 1995.
[38] DCB 6
60 Mr Brazenor provided a medical report dated 31 August 2005.[39] He was of the opinion that the plaintiff's work in 1992 was responsible for him suffering injury to the disc at C6-7.
[39] PCB 95-97
61 Mr Philbrick described the work which the plaintiff was performing in 1992; the occasions he saw Dr Choon in 1992 and 1993 and then in 1997; the occasion when the plaintiff woke up on 8 November 2002 with a stiff neck and some days later he was pulling on chains and straightening steel while working with Onesteel when he felt sudden pain in his neck, left shoulder and left forearm, going as far as his wrist, to Mr Brazenor, and Mr Philbrick asked Mr Brazenor whether any of those matters would cause him to change his opinion regarding causation, to which Mr Brazenor replied that none would cause him to do so.[40]
[40] Transcript 108-109
62 Mr Brazenor was also asked for an explanation for the manifestation of pain in the plaintiff’s left shoulder and trapezius area. He said that the history to which he was exposed by Mr Philbrick confirmed that the pain experienced by the plaintiff was coming from his neck, comprising pressure on a nerve resulting from a quite clear left-sided lateral recess prolapse of the C6-7 disc which was demonstrated on the MRI scan taken on 10 January 2003.[41]
[41] Transcript 109
63 Mr Brazenor described that damage to the disc of the kind suffered by the plaintiff would shrink and heal by fibrosis, that is, a fine skin of fibrous tissue woven around the torn capsule of the disc.[42]
[42] Transcript 112
64 He was asked a very long, well-structured question by Mr Smith, encompassing the occurrence of the injury in 1992; the occasions he saw Dr Choon in 1992-1993 and 1997; the radiology undertaken on the plaintiff; the diagrams on which there was hatching showing where the plaintiff was complaining of pain when he saw Dr Choon and also at the Northern Hospital; the occurrence of stiffness in his neck on 8 November 2002; the work he was performing at Onesteel when he suffered more significant pain in his cervical spine, and the fact that the plaintiff was able to continue working from 1992 and was able to engage in a variety of domestic, social and recreational activities, and armed with all of that information, he was asked what he made of all of that in the context of causation. He said:
"I think he had a disc injury in 1992 and I think the clinical notes are actually quite eloquent about that. The high interscapular pain and the cross atsterior [sic][43] that's classical of an injury to the annulus, the coat of the C7,C6-7 disc and he had trouble for nine months or rather he attended his doctor regularly for nine months complaining of left neck, trapezius and shoulder pain. You can't get away from the fact that that is classical for a left sided disc protrusion of some degree and I - that's a laydown mazair, in my view, in medical terms."[44]
[43] The words "cross atsterior" is a transcription error. I have been unable to determine their meaning
[44] Transcript 121
65 Mr Brazenor accepted that the plaintiff probably re-injured the C6-7 as a result of his work with Onesteel. He said that had he seen the plaintiff in 1993 and been told by the plaintiff that he was pain-free, he would have advised him that there were tasks in employment that he would not be able to do, for example, with his head dropped, working bending over a low table or heavy bending and lifting similar to the work he was doing with Onesteel.[45]
[45] Transcript 124
66 In re-examination, Mr Philbrick asked Mr Brazenor for a description of the organic process which produced vulnerability in the plaintiff to further injury to the disc if he did any heavy lifting, and he said:
"The poor quality of the repair of the coat of the disc called the annulus – The coat of the disc is a multi layered extremely complex fibrous capsule. It has multi layers, the collagen bundles are going in various directions, we're not sure who designed it but it's very complex. And if you injure it, it never gets backs to its original tensile strength and you - your body maybe capable of gradually shrink wrapping it with fibrous tissue. I have a couple of discs in me that have enjoyed that process but you always live with a liability that if you applied the strains that ruptured that disc in the first place you must re-rupture it because it's not as strong as the original annulus that God made."[46]
[46] Transcript 126-127
67 Mr Bittar provided three medical reports dated 26 June 2006, 12 December 2007 and 30 January 2009.[47] He was of the opinion that the plaintiff's work in 1992 was responsible him suffering injury to the disc at C6-7.
[47] PCB 129-136e
68 Mr Bittar's evidence was similar to the evidence of Mr Brazenor. In a like way, Mr Smith put to Mr Bittar a reasonably long, well-structured question encompassing much of the same factual material put to Mr Brazenor. It seemed to me that the following answer summarised the opinion of Mr Bittar:
"The question of what actually – what was the actual event that brought on his pain – I formed the distinctive impression talking to him that it was that episode in August 1992 where something actually happened and he has either prolapsed a disc or aggravated the nerve root and that set up that original episode of pain in the left shoulder, left retroscapular region, left trapezius, and those symptoms to a degree persisted, albeit in a fairly low grade fashion over the next decade."[48]
[48] Transcript 145
69 His evidence differed from that of Mr Brazenor in two significant respects: Firstly, when he was asked to comment on whether he considered what happened to the plaintiff on November 2002 was a significant incident, and by that, I took Mr Smith to mean not only the nature of the work but the occurrence of a significant injury, Mr Bittar said:
"I think it paints a picture of very significant pain in November 2002,
yes."[49][49] Transcript 146
70 The reference to pain as opposed to further injury is in contrast to the opinion of Mr Brazenor.
71 Secondly, he disagreed with Mr Brazenor that there was healing of the C6-7 disc. It was his opinion that the second MRI scan taken on 15 June 2005 clearly demonstrated a persistent disc prolapse with nerve root compression.[50]
[50] Transcript 158
72 The opinions of Dr Choon, Mr Brazenor and Mr Bittar concerning causation were shared by a number of other examining medical practitioners.
73 Mr Strangward, general surgeon, examined the plaintiff on a medico-legal basis on 12 August 2004 and 11 November 2005 and provided four medical reports dated 16 August 2004, 22 March 2005 and 11 November 2005.[51] He was of the opinion that the plaintiff had suffered a cervical disc prolapse and that was aggravated by the nature of his work in 1992 and then with Onesteel.[52]
[51] PCB 106-128
[52] PCB 106-112, 121 and 127-128
74 Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 3 September 2007 and on 2 February 2009 on a medico-legal basis and provided three medical reports dated 12 September 2007, 6 May 2008 and 2 February 2009.[53] He was of the opinion that the plaintiff suffered from a C6-7 disc lesion which stemmed from the work the plaintiff performed in 1992.[54]
[53] PCB 137-143ac
[54] PCB 140 and 143ac
75 Dr Thomas was of the opinion that liability for the production of the disc injury should be apportioned equally between the first defendant and Onesteel.[55]
[55] PCB 141
76 Mr Nye, neurosurgeon, examined the plaintiff on 9 July 2008 on a medico- legal basis for the defendants. He provided a medical report dated 9 July 2008.[56] He was of the opinion that the plaintiff was suffering from cervical spondylosis with identified significant pathology at C6-7 with foraminal stenosis and subsequent changes at C4-5 with a central disc protrusion.
[56] PCB 169-174
77 Mr Nye was of the opinion that liability for the production of the disc injury should be apportioned equally between the first defendant and Onesteel.[57]
[57] PCB 173
78 Mr Marshall, general surgeon, examined the plaintiff on a medico-legal basis on 24 April 2008. He provided a medical report dated 24 April 2008.[58] He was of the opinion that the plaintiff had not suffered any specific work injury and that he was suffering from degenerative changes in his cervical spine with an enormous degree of psychological enhancement of his pain.[59]
[58] PCB 36-38
[59] DCB 37-38
Serious Injury or Not
79 I find that the plaintiff did suffer an injury to his neck on 13 August 1992 while performing the work summarised in paragraphs 13-15 above.
80 I accept the plaintiff’s evidence, that once he suffered the injury to his cervical spine on 13 August 1992, he required treatment from Dr Choon over 1992 and 1993 and again in 1997, and that he continued to suffer intermittent pain requiring the use of some medication. This is confirmed by the history taken by Mr Rabinov on the second occasion he examined the plaintiff that, although he considered that the plaintiff had recovered from the injury to his cervical spine when he first examined him, he nonetheless recorded on the second occasion that the plaintiff was suffering from intermittent discomfort in the back of his left shoulder and the left side of his neck. This is entirely consistent with the plaintiff’s evidence.
81 I accept the evidence of Dr Choon that during that period he treated the plaintiff in 1992-1993 and in 1997, that the plaintiff suffered a disc injury at C6- 7 and that the events which occurred in November 2002 were a progression of the earlier injury.
82 I also accept the evidence of Mr Brazenor and Mr Bittar that the clinical notes of Dr Choon, together with all the other relevant events of which they were informed by Mr Philbrick and Mr Smith, point to the plaintiff having suffered a disc prolapse in his neck at C6-7 which resulted in significant damage to the disc rendering it vulnerable to further injury.
83 I am fortified in accepting the evidence of Mr Brazenor and Mr Bittar on that matter because of the supportive opinions to that conclusion of Mr Strangward, Dr Thomas and Mr Nye.
84 Despite the submission made by Mr Smith that the fact that the plaintiff was able to continue working in manual work, after suffering the injury on 13 August 1992, with the first defendant and then with Onesteel, and that he was otherwise able to engage in a variety of domestic, social and recreational activities including, going shooting, I accept that the plaintiff was suffering from very real consequences of the disc prolapse to his neck.
85 I am fortified in accepting that evidence because none of the medical practitioners who have examined the plaintiff whose evidence I have reviewed, save for Mr Rabinov and Mr Marshall, have said otherwise. Indeed, Dr Choon, Mr Brazenor, Mr Bittar, Mr Strangward, Dr Thomas and Mr Nye all obtained a sufficient history of what occurred in 1992 and then 2002, and the plaintiff's working history. If any of them had considered that the plaintiff's capacity to continue working between 1992 and 2002 and his ability to engage in domestic, social and recreational activities was inconsistent with suffering a disc prolapse to his neck in 1992, then I would have expected they would have said so loudly and clearly.
86 I reject the opinion of Mr Marshall. It is seriously at odds with the other medical practitioners whose evidence I prefer. Strangely, Mr Marshall did not observe the disc prolapse on the MRI scans which was so evident to Mr Brazenor and Mr Bittar, and he consigned all of the plaintiff's complaints of physical pain to an enormous degree of psychological enhancement of his pain.
87 The plaintiff has suffered depression and is presently taking Aropax to control that condition, however, if there was psychological enhancement of such enormity I would have expected the other medical practitioners, whose evidence I prefer, to have said so. I find that the depressive state of the plaintiff is secondary to the injury to his cervical spine and has not resulted in any exaggeration or magnification of his physical pain and the consequences of that injury.
88 I refer back to my analysis of Altona Bus Lines (supra) and Grech (supra). The question which I now ask is whether the ultimate consequences suffered by the plaintiff have been materially contributed to by the incident which occurred on 13 August 1992, and in that regard it is necessary, I think, to look at what both incidents caused the plaintiff in terms of pathological change in his cervical spine.
89 What is very clear from my analysis of the evidence of the medical practitioners whose evidence I prefer is that the plaintiff suffered a disc injury to his neck at the C6-7 level. I accept the evidence of Mr Brazenor and Mr Bittar that the degree of injury amounted to a prolapse, and I prefer the evidence of Mr Bittar that the second MRI scan still demonstrates a significant prolapse at that level.
90 I accept the evidence of Mr Brazenor and Mr Bittar that the injury was affected adversely by what occurred in November 2002 when the plaintiff was working with Onesteel, but I do not accept that the plaintiff suffered a second injury, but rather I find that the 1992 injury progressed as a consequence of what occurred in November 1992, and in that regard I prefer the evidence of Mr Bittar who described what occurred in November 1992 as causing the plaintiff more pain. He rejected the suggestion made by Mr Smith that the plaintiff had suffered further injury.
91 Whilst I was impressed by the evidence of Mr Brazenor, I was rather more impressed by the evidence of Mr Bittar because he seemed to be over all of the material relevant to the question of causation and the analysis of the injury the plaintiff suffered in 1992 and what occurred in November 2002. Furthermore, his analysis was superior to that of any of the other medical practitioners because he had been exposed to all of that material recently and was in a position to give an opinion with the benefit of making an analysis of all of the relevant events which have unfolded since 1992. I think that puts him in a far better position than any of the other medical practitioners to give a sound, well-grounded opinion on causation.
92 I need not go any further than the analysis I have made, but should it be thought that I have not dealt with the submission made by Mr Smith adequately, I find that the 1992 injury progressed as a result of what occurred in November 2002, and that the plaintiff did not suffer further injury, but rather more pain. It is what occurred in 1992 which is materially responsible in terms of contribution to the position in which the plaintiff finds himself now.
93 The plaintiff has sworn three affidavits, one of which I have referred to at some length. He swore a second affidavit addressing an application against Onesteel sworn 9 October 2006[60] which is in much the same terms as his first affidavit, and he swore a further affidavit on 7 May 2008.[61]
[60] PCB 28-38
[61] PCB 39-40
94 In his first affidavit, the plaintiff described suffering constant pain in his neck which varied in severity, with regular pain going into the back of his left shoulder and pins and needles in the fingers of his left hand, and in particular, into his third and fourth fingers. He also has pain from time to time in his left arm below his elbow.
95 The plaintiff described suffering sleep disturbance and the need to take anti- inflammatory medication prescribed by Dr Choon and also Aropax to treat depression.
96 The plaintiff described the effects upon his life. He described having lost his employment, with his future looking bleak in that regard. He described having difficulty caring for and interacting with his youngest daughter who is disabled. His capacity to engage in gardening, playing social games of soccer, going hunting with his brothers, his son and his nephews as essentially lost to him.[62]
[62] PCB 26-27 and Transcript 52-56
97 In his last affidavit, the plaintiff described the pain in his neck and in the back of his left shoulder as remaining much the same as he described earlier, and that the pins and needles in the ring and little fingers of his left hand are less frequent. He also described the need to continue seeing Dr Choon and to use medication to treat pain and depression.[63]
[63] PCB 39-40
98 I accept his evidence contained in his affidavits and confirmed in his oral evidence.
99 It is for the plaintiff to satisfy me that he has suffered a serious long-term impairment or loss of a body function, that is, that the injury to his neck has resulted in an impairment of the function of his neck, left shoulder and arm; that the impairment is long term, and that the consequences to him in terms of pain and suffering, loss of enjoyment of life and pecuniary disadvantage are “serious”.
100 Firstly, and for reasons which I have referred to above, I find that the plaintiff suffered an injury to his neck which has impaired the function of his neck, left shoulder and arm. I find that the impairment of the function of the plaintiff's neck is long term. The evidence on that score is overwhelming.[64]
[64] Mr Brazenor at PCB 97; Mr Strangward at PCB 112; Mr Bittar at PCB 136e; Dr Thomas at PCB 140 and 143ac and Mr Nye at PCB 174
101 What is then left for me to determine is whether the consequences of the impairment of the function of the plaintiff's cervical spine are “serious”.
102 The plaintiff was born on 8 June 1964. He is a relatively young man of forty- four years of age. He now suffers from persisting pain in his neck, left shoulder and arm resulting from the disc prolapse at C6-7 which have interfered with his capacity to engage in domestic activities in his home; interacting with his disabled daughter; pursuing his love of hunting, which was something he did with his brothers, son and nephew, and otherwise being able to occupy his position as the breadwinner for his family.
103 The medical evidence overall paints a very gloomy picture for the plaintiff. Mr Bittar, whose evidence I found very impressive, described the plaintiff’s prognosis as being poor, with it been unlikely that he will experience any significant improvement into the foreseeable future. He was of the opinion that the plaintiff's capacity for work was zero and that he was totally incapacitated for work.[65]
[65] PCB 136e
104 Whilst Mr Bittar put the plaintiff's pecuniary disadvantage at its highest, the other medical practitioners whose evidence I prefer were also of the opinion that the plaintiff's capacity to work had been significantly impaired.[66]
[66] Mr Brazenor at PCB 97; Mr Strangward at PCB 128; Dr Thomas at PCB140, PCB143ac and PCB 174
105 Furthermore, the plaintiff has suffered a secondary depressive reaction which he says came on when the news was broken to him of the results of the first MRI scan.[67] Whilst it is not permissible to aggregate the physical consequences of a physical injury with the psychological or psychiatric consequences, it is permissible to treat the secondary depressive reaction as one of the consequences of the physical injury.[68]
[67] PCB 34
[68] Richards v Wylie [2000] VSCA 50, at paragraph 18
106 The conclusion I have reached is that the consequences to the plaintiff of the impairment of function of his neck has impacted dramatically upon his ability to undertake social, domestic and recreational pursuits which were the very fabric of his non-working life. He may have some capacity for employment, but I find that it is dramatically reduced. He endures the added consequence of suffering a secondary depressive reaction necessitating the use of medication.
107 All of these consequences occurred to a man who is relatively young and who had a potentially fruitful life ahead of him which has now been reduced to a fraction of the life which he had and which he expected to have. Therefore, I have little difficulty in reaching the conclusion that the consequences to the plaintiff deserve the description of being “serious” based upon the guidance given in Humphries v Poljak,[69] that is, when judged by comparison with other cases in the range of possible impairments or losses.
[69] [1992] 2 VR 129, at 140
Conclusion
108 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 135A (4)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries arising out of his employment with the first defendant between 2 January 1990 and 12 November 1997.
109 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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