Shah v Victorian WorkCover Authority

[2021] VCC 973

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-19-00798

MUHAMMAD IQBAL SHAH	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 June 2021
DATE OF JUDGMENT:	22 July 2021
CASE MAY BE CITED AS:	Shah v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 973

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – pain and suffering and loss of earning capacity consequences – compensable injury to the lower back – non-compensable injury to the neck – plaintiff alleged that the injury to the neck was compensable – both injuries occurring on different days and in different circumstances – plaintiff alleged that they occurred in the course of his employment and not on specific days – conclusion that the injuries occurred on different days and in different circumstances – conclusion that the neck injury is not compensable – impermissible aggregation by the plaintiff of both injuries     

Legislation Cited:      Accident Compensation Act 1985 (as amended), s134AB

Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Woolworths Ltd v Warfe [2013] VSCA 22; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Philippiadis v Transport Accident Commission [2016] VSCA 1

Judgment:                 The plaintiff’s originating motion is dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person	-
For the Defendant	Mr L Howe	Wisewould Mahoney

HIS HONOUR:

Introduction

1The plaintiff was employed by Tasty Trucks Pty Ltd  between 13 October 2010 and December 2012.  He was employed as a van loader on a casual basis.  He worked between 25 and 30 hours per week on average.

2The plaintiff’s application for serious injury is very complex, both in terms of the facts upon which it is based, and the legal principles which apply to the issues raised in the application.  I will need to set this out in some detail.

3The plaintiff appeared in person.  Mr L Howe of counsel appeared for the defendant.

The issues

4The plaintiff swore his first affidavit on 30 August 2018[1] in which he described the work which resulted in injury as follows:

·        23 September 2011 – a slip and fall, resulting in an injury to his neck.

·        14 December 2011 – lifting a heavy milk crate, resulting in an injury to his lower back.

[1]        Plaintiff’s Court Book (“PCB”) 8-16 (“the first affidavit”)

5The plaintiff also swore in earlier paragraphs of his first affidavit that the work he performed was very heavy and repetitive, but nowhere did he say that the nature of the work resulted in any injury, and certainly no injury to his neck or lower back; however, during his opening address, throughout the proceeding, and during his final address and written submissions, he maintained that the injuries to his neck and lower back resulted from the nature of his work.

6The first issue, then, became to determine whether the plaintiff suffered a spinal injury comprising injuries to his neck and lower back by reason of the nature of his work or whether he suffered an injury to his neck and lower back in discrete incidents as deposed to by him in his first affidavit.  For reasons that will follow, I have determined that there were two discrete injuries to the neck and lower back as opposed to a single injury to the spine.

7The next issue is whether the plaintiff actually suffered an injury to his neck at all. In short, the defendant submitted that the plaintiff did not complain of suffering a neck injury until October 2013, which is just over two years after the incident of 23 September 2011.

8The next issue is the identification of pain and suffering and the loss of earning capacity consequences flowing from the impairment of function of the neck and then of the lower back.  In short, the defendant submitted that if I concluded that the plaintiff suffered injuries to his neck and lower back in discrete incidents, then the plaintiff had aggregated both and identified both as resulting in pain and suffering and loss of earning capacity consequences.

9The last issue is whether the plaintiff has a residual capacity which he can exercise in suitable employment referred to by Dr Philip Mutton, consultant occupational physician, in a report dated 21 June 2021.[2]

[2]        Defendant’s Court Book (“DCB”) 64-67

10I will now turn to the issues which I have identified and deal with them in the order in which I have set them out above.

Executive summary

11After considering all of the evidence and the oral and written submissions made by the plaintiff and the defendant, I have concluded that the plaintiff’s Originating Motion must be dismissed.

Discrete injuries or nature of employment?

12I do not accept the plaintiff’s submission that he suffered a spinal injury due to the nature of his work.  It is abundantly clear from his first affidavit that he gave a precise description of dates and events which, as I will observe, leave no room for doubt.

13The position occupied by the plaintiff is a very curious one relevant to whether he suffered the injuries to his neck and lower back in discrete incidents, or whether they occurred due to the nature of his employment.  The plaintiff deposed to the causes of the injuries to his neck and lower back in his first affidavit.

14The plaintiff referred to, and identified, the tasks he was required to perform as very heavy and repetitive.  Nowhere does he say that engaging in those tasks caused a neck injury or lower back injury.  In contrast, he then referred to two specific incidents which he says caused him specific and identifiable injuries to his neck and lower back.

15In relation to the injury to his neck, he said the following:

“On 23 September 2011 I was at work as normal.  I had just been working in the freezer area.  I had to put some cardboard boxes into the bin.  The lip of the bin was high up.  When I was almost at the bin, I felt my legs slip under me and then I fell, and my head hit the concrete.  I felt some pain in my neck area … .”

16In relation to the injury to his lower back, he said the following:

“On 14 December 2011, I was at work.  I had to lift a heavy milk crate.  As I was doing this, I felt sharp back pain.”

17What the plaintiff deposed to is a precise description of a date and events which leave no room for doubt.  The plaintiff submitted, however, that he made reference to suffering injuries to his spine due to the nature of his work in his third affidavit,  sworn on 17 June 2020.[3]  The plaintiff appears to have sworn the third affidavit for the specific purpose of responding to the content of documents produced by the defendant.  Nowhere did he say that his description in his first affidavit of how he came to be injured was wrong, nor does he make any express statement that he suffered a spinal injury due to the nature of his work.

[3]        PCB 315-322 (“the third affidavit”)       

18I am fortified in reaching that conclusion, because the plaintiff lodged a Worker’s Injury Claim Form dated 23 January 2012 in relation to his lower back injury in which he described the occurrence of the lower back injury in the following way:

“I lifted a milk crate and putted (sic) on the floor by bending over.”[4]

[4]        PCB 151-152

19There was a significant delay in the plaintiff lodging a Worker’s Injury Claim Form relevant to his neck injury.  The form is dated 13 December 2013.  He described the occurrence of the neck injury in the following way:

“Slipped and fell on my head on concrete.”[5]

[5]        PCB 151-152

20I sent an email to the parties in an effort to assist the plaintiff to define the issues on which he needed to address me.  Additionally, I sent him a copy of Lu.[6]  I was concerned to have the plaintiff understand that just because he suffered injury to two different parts of his spine on different occasions, with the same employer, that the injuries could not be aggregated.  In Lu, Chernov JA made that very clear when he observed:

“26.No relevant difficulty arises where leave is sought in respect of one workplace injury which is said to have arisen out of one incident, causing impairment to the one body function.  In those circumstances, the applicant must demonstrate that that injury is a ‘serious’ one.  But where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a ‘serious injury’ or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition will depend on whether they all affect the one body function and on whether they arise out of the same relevant incident.

27.Mr. Bingeman accepted, correctly I think, in view of what was said by the majority in Humphries v. Poljak on this issue, that it is not permissible in a multi-injury case to look at a number of impairments resulting from the injuries, not any one of which is a serious and long term impairment, and see if, together, they constitute an impairment which is serious and long term.  Thus, if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated.  But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long term.  Stone v. Jarvis, one of the applications considered by way of appeal in Humphries v.  Poljak, is an example where injuries were relevantly aggregated.  But no such aggregation is permissible if the non ‘serious injuries’ which impair the one body function have been caused by separate and unrelated incidents.  In those circumstances, each such injury, and the impairment to, or loss of, the body function (if any) it causes, must be considered separately.  This follows from the principle stated by Southwell and Teague, JJ.  In Petkovski, to which I have referred and from the operations of the provisions of the Act to which I have also referred.”[7]

[6]Supra

[7]        Lu (ibid) at 520, paragraphs [26]-[27] (footnotes omitted)

The neck injury – causation

Consultations with General Practitioners

21The plaintiff said that he saw Dr Hamid Assaf, general practitioner, later in the day after he slipped and fell.  He said that he then saw Dr Assaf on one further occasion on 27 September 2011, and attended the same medical centre again on 4 October 2011 complaining of neck pain.[8]

[8]        PCB 10

22The clinical notes of the Centreway Medical Centre were tendered by the defendant.  Dr Assaf is one of the general practitioners working from that Medical Centre.  His clinical note for 23 September 2011 reads as follows:

“[T]his morning he slipped and he fell on his back of his head on concrete ,,, no cs loss,,,,,… [orientation],,,ok,, some pain on back of his head ,,, no othe r neurological [symptoms],,,eye ok ,,, some head[a]ches …

[P]anadol,,, if not well hospitalcussion about symptoms to be concerned.”[9]

(sic)

[9]        DCB 281

23Dr Assaf’s clinical note for 27 September 2011 reads as follows:

“Diagnostic Imaging requested: CT - Brain

still has headaches in occipital ,,,,area ,,,no other neurological symptoms ,,,,Discussi[o]n about side effects of ct scan … .”[10]

(sic)

[10]        DCB 281

24The plaintiff next consulted Dr Robert Lee, general practitioner, who was also one of the doctors working from the Centreway Medical Centre.  The plaintiff saw him on 4 October 2011.  His clinical note for that date reads:

“[F]eel (sic) on floor and fell backwards and hit head on concrete and saw Dr. Assaf. and has pain in back of head and neck.”[11]

[11]        DCB 280

25Dr Lee examined the plaintiff’s neck and found tenderness in the back of his upper neck and occipital area, and otherwise a full range of neck movement.

26The defendant submitted that after Dr Lee saw the plaintiff on 4 October 2011, that there is an absence of any complaint of a neck injury for a significant period of time.  I have read through the clinical notes.  The next occasion that the plaintiff complained of a neck injury was on 4 October 2013.  The plaintiff saw Dr Lee, who noted:

“[N]eck pain left side for on[e] year,, father had stroke. ? stressed.”[12]

(sic)

[12]        PCB 269-270

27Dr Lee examined the plaintiff and found that he was tender at the base of the left side of his neck, had pain on rotation of his neck to the right side, but had no numbness in his left hand.  He also recorded that there was “no history of fall”.  The note is cryptic, and I say that, because the reference to there being no history of a fall is not explained unless the plaintiff referred to a fall.  I think that note is explained by the clinical note of 25 November 2013 which I will refer to next.

28The more important clinical note was made by Dr Lee when he saw the plaintiff on 25 November 2013.  He referred to a C5-6 disc protrusion contacting the anterior aspect of the spinal cord.  I assume he was referring to appearances on radiology.  Importantly, he then referred to the occasion when the plaintiff saw Dr Assaf on 23 September 2011, quoting that clinical note in full.  It is not clear whether the connection between the date when the plaintiff saw Dr Assaf was made by Dr Lee or it was brought to his attention by the plaintiff who was wanting to make that connection.

29The elapse of time between the plaintiff seeing Dr Lee on 4 October 2011 and the clinical note of 4 October 2013 is two years.  The defendant submitted that the plaintiff saw doctors at the Centreway Medical Centre during that period mostly for his lower back injury, and for other unrelated medical conditions.  On my reading of the clinical notes, that appears to be correct.

Consultations with medical specialists

30The defendant also pointed to the fact that the plaintiff was referred to other medical practitioners during that period for treatment and for medico-legal assessments.  The defendant submitted that the plaintiff did not complain of suffering a neck injury on the occasions that he was examined.

31Dr Lee referred the plaintiff to Dr Alex Stockman, rheumatologist.  The plaintiff first saw him in March 2012.  Dr Stockman wrote to Dr Lee on three occasions – 15 March 2012,[13] 5 April 2012[14] and 21 July 2012.[15]  Dr Stockman recorded a history of the plaintiff suffering a lower back injury.  He made no reference to a neck injury. 

[13]        PCB 54

[14]        PCB 55

[15]        PCB 56

32The insurance agent referred the plaintiff to Dr David Barton, consultant occupational physician.  The plaintiff saw him on 5 July 2012.[16]  He provided a report dated 16 July 2012.[17]  Dr Barton recorded a history of the plaintiff suffering a lower back injury.  He made no reference to a neck injury.

[16]        Dr Barton referred to the date of consultation as 5 July 2011 which must be a     typographical error

[17]        DCB 8-13

33There is no conventional medical report from Dr Lee drawing together his treatment of the plaintiff and his opinion, among other things, on causation of the neck injury.  What there is demonstrates that he took steps to have the plaintiff’s complaints of neck problems investigated and treated from about early 2015.  Up until that point in time, he concentrated on the treatment of the plaintiff’s lower back. 

34Dr Lee had already referred the plaintiff to Professor Tissa Wijeratne, neurologist, in about November 2012 for treatment for his lower back injury.  He referred the plaintiff back to him for treatment of his neck injury as well by a letter of referral dated 13 March 2015.[18]

[18]        PCB 67-68

35Professor Wijeratne first saw the plaintiff in November 2012.  It would appear that the plaintiff complained to him of symptoms of a neck injury when he reviewed him on 12 October 2013.  He provided a report to the plaintiff’s former solicitors dated 23 February 2015.[19]  On the occasion that he reviewed him, he was complaining of severe pain in his neck with radiation of pain into his left arm.  Interestingly, he recorded that he told him that he had experienced those symptoms “since September 2013”, which he related to a fall that he had at work.  He considered that the plaintiff’s presentation was consistent with cervical radiculopathy “most likely to be secondary to the fall that he had at work in mid-September”.

[19]        PCB 91-93

36The complaint made by the plaintiff to Professor Wijeratne led him to refer the plaintiff to have an MRI scan of his brain and cervical spine, which was performed on 29 October 2013.  The radiologist noted that the reason for the scan was a “Fall at work …”.  The radiologist reported that the plaintiff had evidence of multi-central canal stenosis which was severe at C6-7, moderate at C5-6 and mild at C4-5, and was predominantly due to large broad-based disc bulges at those levels.[20]

[20]        PCB 27-28

37During the plaintiff’s opening address and during his evidence-in-chief and cross-examination, he made a number of references to his lower back injury being accepted as a compensable injury, and his neck injury being denied.  He did so for the purpose of explaining why the earlier medical evidence does not contain any reference to his neck injury because he was referred for either treatment or assessment for his only accepted injury, that being his lower back injury.

Consultations with medico-legal professionals

38The defendant undertook a survey of the reports of a number of medical practitioners who examined the plaintiff on a medico-legal basis to demonstrate that in retrospect, there is doubt about whether the plaintiff’s neck injury was caused by the slip and fall:

·        Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 5 June 2019.  He provided a report bearing the same date.[21]  In short, he noted that although the plaintiff complained of immediate neck pain following the slip and fall, he had no treatment.  He then noted that the plaintiff’s neck injury did not become an issue for him until late 2013.  He then said that –

[21]        PCB 144-149

“… I could not positively confirm that the current clinical condition directly relates to the reported September 2011 fall.”[22]

[22]PCB 148

·        Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff on 13 March 2015.  He provided a report bearing the same date.[23]  He considered that there was no direct temporal and causal relationship between the slip and fall and the onset of his neck symptoms in October 2013.  Specifically, Mr Kossmann states that –

“… there is … no clear relationship between the incident in which he hit his head at work [on] 23 September 2011 and the onset of his cervical spine symptoms in October 2013.”[24]

·        Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on 16 April 2015.  He provided a report dated 20 April 2015.[25]  It would appear that Mr Jones at first understood that the plaintiff suffered the onset of spontaneous neck pain in September or October 2013.  The plaintiff then told him that he suffered a neck injury on 23 September 2011.  Mr Jones appears to have been provided with sufficient clinical notes and reports to understand that the plaintiff had no treatment between 23 September 2011 and September or October 2013.  That led him to conclude that the plaintiff’s neck problems were unrelated to his work.  Mr Jones concluded the –

“… neck condition to be unrelated to his employment.”[26]

[23]        PCB 231-236

[24]PCB 234

[25]        DCB 31-43

[26]          DCB 41

39There are opinions to the contrary on the question of causation:

·        Associate Professor Anthony Buzzard, general surgeon, examined the plaintiff on 28 January 2014.  He provided a report bearing the same date.  He considered that the plaintiff suffered an aggravation of pre-existing degenerative disease in his neck and lower back; however, he was not asked about, nor did he direct his mind to, the question of causation as did Mr O’Brien, Mr Kossmann and Mr Jones.

·        Dr Mutton was specifically asked to consider the question of causation.  It would appear that he was provided with sufficient evidence to understand the basis for the question asked of him about causation of the neck injury.  He expressed an opinion relevant to causation in a rather curious way, saying “There was opportunity for aggravation, acceleration or deterioration of that pre-existing condition of the cervical spine”.  It is a rather equivocal opinion on causation, but I am prepared to accept that it is a favourable opinion to the plaintiff.

40Under cross-examination, the plaintiff said that he was referred to Mr Brian Zakhem, interventional cardiologist, who told him that the pain he was experiencing in his left arm and chest were related to his neck injury.  He said that he understood that what were considered to be coronary symptoms were, in effect, symptoms of the neck injury.[27]

[27]        Transcript 30-31

41The plaintiff’s evidence in this regard is borne out in the evidence of Dr Zakhem.  Dr Lee referred the plaintiff to Dr Zakhem.  Dr Lee’s letter of referral is dated 27 June 2013, in which he refers to the plaintiff having some vague atypical chest pain.  Dr Zakhem saw the plaintiff in July 2013.  There is no reference in Dr Zakhem’s letter to Dr Lee dated 17 July 2013 to the plaintiff’s neck.[28]  The symptoms recorded by Dr Zakhem are a chronic history of left-sided shoulder and arm pain associated with numbness when the plaintiff was stressed, but with no associated shortness of breath, palpitations or dizziness.  Dr Zakhem appears to have referred the plaintiff for other investigations.  It would appear that after those investigations were conducted in May 2014, that Dr Zakhem considered that the plaintiff’s complaints of chest pain, shoulder pain and arm pain were most likely related to his neck.[29]

[28]        PCB 208

[29]        PCB 223

42The evidence I have reviewed thus far very clearly exposes the issue raised by the defendant that the plaintiff did not suffer a neck injury caused by the slip and fall.

43I am not satisfied that the plaintiff has discharged the burden borne by him to prove that the neck injury was caused by the slip and fall.  I will now set out my pathway of reasoning in reaching that conclusion.

44Firstly, I prefer the plaintiff’s affidavit evidence that the slip and fall did occur, and that he saw Dr Assaf and Dr Lee on 23 and 27 September 2011, and then on 4 October 2011.

45Secondly, it is then very clear that there is no record of the plaintiff seeking any medical treatment for the neck injury until 4 October 2013.  I do not accept the plaintiff’s evidence that he made complaints of neck pain to Dr Assaf or Dr Lee prior to 4 October 2013, except for the earlier complaints referred to above.

46Thirdly, it is not clear whether the plaintiff was really complaining about a head injury when he first saw Dr Assaf and Dr Lee in 2011, and whether the reference by Dr Lee to pain in the plaintiff’s neck is a reference to a symptom of a head injury or a symptom of an actual neck injury.

47Fourthly, the clinical note of 4 October 2013 refers to the plaintiff having left-sided neck pain for “on[e] year”.  One year prior to that date would take it back to October 2012, which temporally has no connection with the slip and fall of 23 September 2011.

48Fifthly, when the plaintiff saw Dr Lee on 25 November 2013, it appears to me that the plaintiff was asking Dr Lee to make a causal connection between the more recent onset of neck pain with the slip and fall.  Unfortunately, that is the only conclusion I can reach in making any sense of that cryptic entry, and, more unfortunately, Dr Lee made no note of whether he accepted the causal connection or not.

49Sixthly, the plaintiff sought to explain that the coronary symptoms recorded by Dr Lee and Dr Zakhem were related to his neck.  He maintained that he had those symptoms since the slip and fall, however, none of that is borne out by the clinical notes.  The first reference to any contrary symptoms, perhaps mimicking neck symptoms, is around the time when Dr Lee wrote the letter of referral.

50Seventhly, the issue of causation was specifically addressed by Mr O’Brien, Mr Kossmann and Mr Jones, who appear to me to be unconvinced of the connection, and also Dr Mutton, who provided an equivocal opinion to the contrary.  There are, as I have noted above, other medical opinions making the connection, but I do not think on as extensive a body of evidence as was provided to Mr O’Brien, Mr Kossmann, Mr Jones and Dr Mutton.

51It is perhaps convenient at this point to say something about the parties’ reliance on the clinical notes.  I am acutely aware of the observations made in a number of decisions of the Court of Appeal regarding the utility of clinical notes.[30] The difficulty in interpreting the clinical notes could have been obviated if the plaintiff had obtained a conventional medical report from Doctor Lee asking him to answer specific questions directed to causation. The plaintiff, and also the defendant, placed me in the unenviable position where they both submitted that the best evidence on which they both relied, in relation to their competing submissions, were the clinical notes.

[30]Woolworths Ltd v Warfe [2013] VSCA 22; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278 and Philippiadis v Transport Accident Commission [2016] VSCA 1

The medical picture

52I should next return to the medical evidence.  The plaintiff’s principal treating medical practitioner like Professor Wijeratne.  His letters of referral to other medical practitioners, and two medical reports, are reproduced in the plaintiff’s Court Book.  They span the period from November 2012 to May 2019.[31] Professor Wijeratne referred the plaintiff to have nine MRI scans of his neck, lower back and brain.[32] He referred the plaintiff to Mr Rondhir Jithoo, neurosurgeon,[33] to Dr Sujith Ayyappan, neurologist, for nerve conduction studies,[34] to the Royal Melbourne Rehabilitation Centre,[35] and to Professor Stephen O’Leary, ear, nose and throat specialist.[36] The balance of the letters were courtesy letters written to Dr Lee informing him of the treatment which Professor Wijeratne provided the plaintiff.

[31]        PCB 78-107.  Professor Wijeratne was the author of 26 such documents

[32]Of the twelve MRI scans tendered by the plaintiff, the nine MRI scans attributed to referral by Professor Wijeratne are at PCB 22-44

[33]        Letter of referral dated 9 November 2013 at PCB 84

[34]        Letter of referral dated 25 June 2015

[35]        Letter of referral dated 17 December 2016 at PCB 97

[36]        No letter of referral

53Professor Wijeratne appears to have reached the conclusion that the plaintiff was suffering from both cervical and lumbar radiculopathy, which I understand was based upon his view that the MRI scans and his clinical examinations pointed to discal abnormalities in both the plaintiff’s neck and lower back.  However, his conclusions do not appear to be borne out by the opinions of all of the other medical practitioners who treated the plaintiff or examined him on a medico-legal basis.

54Professor Wijeratne ceased treating the plaintiff in May 2019.  He did so because he decided to no longer treat patients who were in the WorkCover system.  He referred the plaintiff to a colleague, Dr Simon Sung, neurologist. 

55Mr Jithoo wrote to Professor Wijeratne on 29 January 2014 principally dealing with the plaintiff’s neck injury.  He considered that the plaintiff’s MRI scan demonstrated disc disease affecting C5-6 and C6-7 with a broadbased disc bulge causing bilateral foraminal stenosis at C6-7 and worse on the left at C5-6.  He concluded that the plaintiff was suffering cervical spondylosis “exacerbated by a previous fall”.  He made no reference to radiculopathy.  He did not examine the plaintiff’s lower back.

56Dr Ayyappan performed nerve conduction studies on 29 October 2015.  He found some median neuropathy in the left wrist consistent with left carpal tunnel syndrome, and some denervation in the left C7 innovated muscles consistent with mild left C7 chronic radiculopathy.[37]  The lower limb nerve conduction studies were within normal limits.[38]

[37]        PCB 48-49

[38]        PCB 50-51

57Professor O’Leary performed audiological and vestibular investigations.  He considered that the plaintiff’s complaints of balance difficulties which began in 2013 “after sustaining a head injury” were likely to be consistent with cervicogenic dizziness.[39]

[39]        PCB 141-142

58The most recent medico-legal assessment is that of Mr O’Brien.  His opinion was prefaced by referring to the plaintiff’s presentation as being “with subjective signs” both with respect to his neck and his lower back.  It would appear that he accepted what the plaintiff told him, and the way he presented in concluding that the plaintiff was suffering from chronic low back pain which he considered had totally incapacitated him for work.  He then added, that if the neck injury was accepted as causally connected to the slip and fall, then that would add to the plaintiff’s overall incapacity.

59I will now attempt to draw the many threads of the medical evidence together.  My overall impression is that the plaintiff has the appearances of degenerative changes in his neck and lower back, but the medical assessments do not point to there being any material structural or neurological abnormality.  It would appear that the plaintiff has suffered injury on top of those degenerative changes.  I must say that the presentation of the medical evidence is very unsatisfactory.  It has placed me in the unenviable position of trying to gain an impression from medical evidence where there are medical practitioners from whom medical reports should have been obtained who could have thrown light on what is needed in a case like this – a clear opinion on causation, treatment history, a diagnosis and a prognosis.

Consequences

60The defendant submitted that even if the plaintiff were able to demonstrate that the neck injury is causally linked to the slip and fall, he cannot succeed in proving that the consequences of the impairment of the function of his neck and the consequences of the impairment of the function of his lower back are serious because he has impermissibly aggregated the two impairments.

61The only basis upon which aggregation can be permitted in these circumstances is if the plaintiff were able to demonstrate that he suffered the injuries to his neck and lower back in the same incident, and that the neck and the lower back impair the same body function, that is, the spine.  For reasons which I do not need to repeat, I have concluded that the plaintiff cannot conduct his application in that way.

62In the plaintiff’s affidavits he described the individual consequences of the neck injury and the lower back injury to a point, but then other consequences which he attributed to both without making any attempt to disaggregate those consequences.[40]

[40]        PCB 14-15, 18-20 and 399-400

The neck

·        A consistent aching pain that is sometimes sharp with most of the pain on the left side of the neck radiating down into his left arm.

·        Performing a lot of neck movements makes the pain worse, as does moving his neck suddenly or having it fixed in one position for a long period of time.

·        Neck soreness often wakes him at night, but not as often as the lower back pain.

·        He suffers very bad headaches which appear to start in his neck and then go over the whole of his head.

The lower back

·        A consistent aching pain that is sometimes sharp at times, with pain radiating into the left leg accompanied by numbness.  The leg symptoms feel like a vibration and there is accompanying tingling.

·        He suffers significant flareups which can come on if he does too much.  He then needs to take medication and lie down.

·        Movements like bending, lifting or long periods of standing and sitting will aggravate his lower back pain.

·        Walking on uneven surfaces aggravates the pain.

·        Climbing stairs causes pain.

·        Driving or sitting in a passenger seat makes the pain worse and causes a stabbing pain into his right foot with an accompanying burning sensation at the back of his left foot and heel.

·        Driving is limited to driving locally and not every day.

·        His lower back pain causes him to wake up many times at night.  In the mornings he does not feel rested and can be tired, sore and drowsy.

Common consequences

·        Interference with sleep.

·        Interference with being able to attend cricket matches.

·        Interference with going to the movies.

·        Interference with driving.

·        An inability to work.

·        An inability to retrain himself, for example by undertaking a law degree.

·        An inability to study because sitting is made impossible due to back pain which also interferes with concentration, and craning over books produces neck pain and headaches.[41]

·        Use of Lyrica, Panadol Osteo and Nurofen for pain relief.

[41]        PCB 14-15

63Under cross-examination, the plaintiff confirmed that there were a number of consequences attributed to the aggregate effect of his neck injury and lower back injury:[42]

·        He uses Lyrica and Nurofen for pain relief.

·        Interference with sleep, although the lower back injury interferes more than the neck injury.

·        He will often have to lie down because of the pain in his neck, and also needs to rest and apply heat packs because of pain in his lower back.

·        Interference with driving.

·        It is both his neck and his lower back which prevent him from working in his pre-injury employment and in alternative employment.

·        Studying law was made difficult because of the pain in both his neck and his lower back.

·        Walking causes him pain in his back and also in his neck after some time.

[42]        Transcript 46-51

64Dr Mutton examined the plaintiff on 9 January 2019. He provided a report bearing the same date,[43] and a supplementary report dated 27 March 2019.[44] He re-examined the plaintiff on 3 July 2019. He provided a report bearing the same date,[45] and a supplementary report dated 2 June 2020.[46]  He re-examined the plaintiff on 11 December 2020.  He provided a report bearing the same date.[47]  On the occasions when Dr Mutton examined the plaintiff, he had available a significant body of radiology and medical reports.  He obtained a history from the plaintiff consistent with the position urged upon me by the defendant that the plaintiff has significant transferable skills.  He speaks English well.  He completed high school in Pakistan and subsequently obtained a Master’s degree in computer science in 2002.  He then worked in his family’s IT business from 2008 to 2010.  He considered that the plaintiff was suited to administrative type work, and he suggested that he update his IT qualifications and work in that field of activity.

[43]        DCB 44-50

[44]        DCB 51-53

[45]        DCB 54-57

[46]        DCB 58-59

[47]        DCB 60-63

65When Dr Mutton first re-examined the plaintiff, he was asked to consider whether the plaintiff could work as a warehouse transport clerk or as a despatch clerk.  The jobs were identified in a report of Recovre dated 15 April 2019.[48]  I have read the job descriptions and Dr Mutton’s summary of them in his report dated 3 July 2019.  He identified the warehouse transport clerk as being purely administrative, one of the two despatch clerk jobs as being largely administrative, and the other as being similarly administrative with some modest physical requirements relevant to climbing short flights of stairs and some standing and walking.  He considered that the plaintiff had a retained capacity for light to moderate work in computing, administration and in IT roles.  He considered that he was fit to work as a warehouse transport clerk and in one of the despatch clerk jobs, but was cautious about the second despatch clerk job because it involved stairs and walking and standing.

[48]        DCB 118-135

66Dr Mutton considered that there were some impediments to the plaintiff being able to work full time.  He referred to the plaintiff needing flexibility, difficulties relating to prolonged sitting, difficulties relating to driving distances of 17-20 kilometres to get to and from work, and his lack of work hardening, all of which led him to consider that in all probability the plaintiff could probably work two to three days per week, around three to four hours per shift.

67After re-examining the plaintiff on 11 December 2020, Dr Mutton altered his opinion to the extent that, based upon the plaintiff’s presentation on that occasion and notwithstanding the plaintiff’s complaints of chronic pain, he concluded that the plaintiff has a capacity to undertake work within the restrictions he would impose on him.  He was asked to limit his opinion to the plaintiff’s lower back injury and to disregard the neck injury.

68The defendant submitted that the plaintiff is faced with the same aggregation issue which I have referred to earlier in these reasons. 

69Under cross-examination, the plaintiff conceded that he has the ability through training and experience to undertake tasks consistent with his vocational training, but not the physical capacity because of the pain he experiences in his neck and his lower back.[49]

[49]        Transcript 68-73

70The plaintiff submitted that I should prefer the opinion of Dr Joseph Slesenger, specialist occupational physician, who examined him on 17 June 2019.  He provided a report dated 15 July 2019.[50]  Dr Slesenger appears to have been provided with a similar body of radiology and medical reports when compared to what Dr Mutton was provided with.  He was also asked to consider the same jobs as did Dr Mutton.  He considered that the plaintiff could meet the manual handling and postural demands associated with the warehouse transport clerk job; however, he did not consider that he would be able to perform those duties on a consistent and reliable basis.  He considered that the plaintiff could not perform one of the despatch clerk jobs and would have difficulty performing the other despatch clerk job.  One of the reasons he advanced for expressing the latter opinion was the long sitting requirement; however, he considered that if he was provided with a sit-stand desk, then he could meet the physical demands of those jobs, although, he again stated that the plaintiff would have difficulty attending work on a consistent and reliable basis.

[50]        PCB 247-258

71I prefer Dr Mutton’s opinion in preference to that of Dr Slesenger’s.  My impression is that there is not a significant difference between their opinions regarding the plaintiff’s capacity to work, but rather a difference in emphasis relevant to the physical environment in which the plaintiff would be called upon to work in, and whether he is capable of working full time.  The factors that have swayed me in favour of preferring Dr Mutton are that his opinion is a recent opinion, and is an opinion based upon a full understanding of the plaintiff’s injuries, vocational history and an analysis of the forms of employment he was asked to consider as being suitable.

Conclusions

72Although, I am not satisfied that the neck injury was caused by the slip and fall, I will nonetheless now assess whether the pain and suffering consequences of the neck injury can meet the statutory test of seriousness.  I have endeavoured to separate those pain and suffering consequences from the pain and suffering consequences of the lower back injury, and where both the neck injury and the back injury contributed to pain and suffering consequences.  I think that when those impairment consequences are judged in comparison with other cases in the range of possible impairments or losses of a body function, as the case may be, they cannot fairly be described as being “more than significant or marked”, and as being “at least very considerable”.

73I have taken the same approach with respect to the plaintiff’s lower back injury in assessing whether the pain and suffering consequences can meet the statutory test of seriousness.  I have reached the same conclusion as I did with the pain and suffering consequences of the neck injury and by the same reasoning.

74I have taken the same approach with respect to the plaintiff’s submission that he is effectively totally incapacitated for work.  I prefer the evidence of Dr Mutton that if the neck injury is excluded, as Dr Mutton was asked to do, then his revised opinion is that the plaintiff has both the ability and the capacity to return to work based upon the impairment of the function of his lower back.  There is, then, no persuasive evidence which I am prepared to accept that if the neck is included as being caused by the slip and fall, that it will interfere with the plaintiff’s ability and capacity to return to work in the forms of employment referred to by Dr Mutton.  I think that when those impairment consequences are judged individually and in comparison with other cases in the range of possible impairments or losses of a body function, as the case may be, they cannot fairly be described as being “more than significant or marked”, and as being “at least very considerable”.

75I should add that I have not considered the submission made by the defendant that there is a degree of unravelling to be undertaken because of references by a number of medical practitioners to psychological/psychiatric consequences which contribute to the consequences relied upon by the plaintiff.  I do not think there is much in those submissions, and so I do not propose to expend the effort in tracing through that evidence given the conclusions I have reached thus far.

76Therefore, I order that the plaintiff’s Originating Motion be dismissed with costs.

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