Short v Victorian WorkCover Authority
[2024] VCC 44
•9 February 2024
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-00227
| IAN SHORT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Sale | |
DATE OF HEARING: | 22 and 23 January 2024 | |
DATE OF JUDGMENT: | 9 February 2024 | |
CASE MAY BE CITED AS: | Short v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 44 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to thoracic spine – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Leave granted to the plaintiff to commence common law proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr B Johnson | LHD Lawyers |
| For the Defendant | Mr A J Saunders with Ms C A Kusiak | Minter Ellison |
HER HONOUR:
Introduction
1Mr Ian Short, the plaintiff, is a fifty-nine-year-old former trade teacher. He seeks leave to issue proceedings claiming pain and suffering damages for an injury to his thoracic spine pursuant to paragraph (a) of the definition of “serious injury” in the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2The plaintiff initially sought leave to claim economic loss damages as well, but that claim was abandoned at the commencement of the hearing.
3On 9 September 2020, during his employment with TAFE Gippsland (“the employer”), the plaintiff was moving a trailer, when he experienced pain in his thoracic spine (“the incident”).
4There was no issue that the plaintiff suffered a compensable aggravation injury to his thoracic spine in the course of his employment.
5The defendant contested the matter on the issue of “range”.
6The legal principles are well known and were not in issue.
7The plaintiff was the only witness to give viva voce evidence.
8For the reasons that follow, I have determined that the plaintiff has satisfied his onus of establishing that the permanent impairment consequences of his thoracic spine injury can be fairly described as more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.
Background
9The following matters of background are not, I believe, controversial. As far as any part is contested, these represent my findings save where indicated.
10The plaintiff is a married man with adult children.
11He lives on an acre of land in Marlo, Victoria.
12The plaintiff left school during Year 11 and completed a carpentry apprenticeship. Thereafter, he worked as a carpenter, primarily on a self-employed basis.
13In around 2006, the plaintiff qualified as a TAFE teacher and began working as a trade teacher, initially on a casual basis.
14In 2015, the plaintiff commenced work with the employer.
15From 2016, he worked for the employer on a full-time basis as a trade teacher teaching VCAL to Year 10, 11 and 12 students. Subsequently, the plaintiff taught short courses in building and construction in an elective teaching role.
16Prior to the incident, the plaintiff had several health difficulties. He had a left hip replacement in his late thirties. He experienced intermittent low back pain. He underwent surgery to his foot in about 2012. Following that surgery, the plaintiff’s low back pain increased.
17In July 2014, the plaintiff was referred to Mr Paul D’Urso, orthopaedic surgeon. The plaintiff presented with longstanding low back pain. He rated his back pain at six out of ten, and he said he was also experiencing leg pain. The plaintiff was unable to perform his usual work duties as a carpenter because of his back pain. He was taking Panadol Osteo and Tramadol.
18Mr D’Urso noted that imaging of the plaintiff’s spine revealed degenerative change. He advised the plaintiff to avoid the heavier aspects of carpentry work.
19At the time of the incident in September 2020, the plaintiff was not taking any analgesia for his low back pain and was not undergoing any treatment. He was working full time in unrestricted duties as a trade teacher.
20In the incident, the plaintiff experienced pain in his thoracic spine when he had to manually manoeuvre a trailer which had been positioned next to another trailer, such that he was unable to reverse his vehicle up to hitch it.
21Following the incident, the plaintiff drove, with the trailer, from Bairnsdale to Yarram. The journey time was about two hours, and the plaintiff’s thoracic pain increased. The plaintiff took Panadol.
22Over the following week, the plaintiff’s thoracic pain increased.
23The plaintiff consulted his general practitioner (“GP”).
24The plaintiff was certified unfit for work. Imaging was undertaken of his spine which revealed degenerative change in his thoracic spine.
25In December 2020, the plaintiff was referred to Mr D’Urso again. He recommended conservative treatment.
26The plaintiff was unable to work for several months.
27In about April 2021, the plaintiff returned to work with the employer performing modified duties on reduced hours. By June 2021, he had progressed to full-time hours performing modified duties.
28In early 2022, the employer advised the plaintiff that his pre-injury role was no longer required, and the role was to be made redundant.[1] The employer commenced a consultation process with the plaintiff.
[1]Defendant’s Amended Court Book (“DCB”) 122
29The plaintiff was offered redeployment in Yallourn, but he did not want to move from his home in Marlo and the proffered role was too far for a daily commute.
30On 28 June 2022, the redundancy took effect.
31In the meantime, the plaintiff sought and obtained other employment.
32He began working on a casual basis as a disability support worker attending to a client with an intellectual disability.
33There was some controversy as to the actual duration of that employment.
34The plaintiff’s evidence on the issue was vague, and the documents tendered were incomplete. Doing the best I can, it appears that the plaintiff undertook this employment for about six months in the latter part of 2022. He worked up to full-time hours on varying shifts, including sleepover shifts.[2]
[2]Plaintiff’s Amended Court Book (“PCB”) 55-65, Transcript (“T”) 10-12, 44
35In late 2022, the plaintiff ceased performing the disability support work as the relevant NDIS contract was not renewed in 2023.
36After ceasing that role, the plaintiff performed work on a self-employed basis as a handyman/carpenter. This is work that he had undertaken prior to the incident on an ad hoc basis.[3]
[3]T13-14
37The plaintiff undertook both domestic and commercial handyman/carpentry work, but the volume of available work was limited. The plaintiff performed some of the work himself, and engaged others to assist where more significant lifting, moving, and bending was required.
38Since the incident, the plaintiff has had two unrelated health issues.
39In about 2021, he had a right hip replacement.[4]
[4]PCB 33
40On 9 May 2023, the plaintiff underwent a right total knee replacement. Although he made a good recovery from that surgery, he had not resumed any work as at the date of hearing.
The Plaintiff as a witness
41Mr Saunders, who appeared with Ms Kusiak for the defendant, submitted that the plaintiff’s evidence was not wholly satisfactory, and he was “coy” as to the extent of work he performed as a handyman after the incident.[5]
[5]T44-45
42The plaintiff produced a bundle of ten invoices for handyman work that he had performed in the period October 2021 to early 2023.[6] There were gaps in the invoice numbers – for instance between invoices numbered 129 and 134.
[6]DCB 245-254
43The plaintiff’s explanation was that he used the same numbers for quoting and invoicing, and/or that he may have inadvertently skipped some numbers.[7]
[7]T15
44I find that the plaintiff used the same run of numbers for purposes other than invoicing. I do so because the tendered documents demonstrate that he used a consecutive invoice number (135) for a payment advice to a contractor who had assisted him on a job.[8]
[8]DCB 252
45My impression of the plaintiff was that he is a skilled and resourceful man. He has been willing to try and get on with life despite his health issues. He has invested the time and effort to maximise his recovery from his various difficulties and recovered well from surgeries to his hips and knee.
46The plaintiff was willing to try his hand at alternative work and has explored business opportunities since the incident.[9] Ultimately, the business opportunities, namely an equipment hire business and gym business, came to nothing, but the plaintiff demonstrated his adaptability and desire to earn a living within his capabilities.
[9]DCB 217
47Mr O’Dwyer SC, who appeared with Mr Johnson for the plaintiff, described the plaintiff as a stoic man. I accept that submission.
48I found the plaintiff to be straightforward while giving his evidence. He was willing to make concessions. I am satisfied that the plaintiff adequately disclosed the extent of his engagement in handyman/carpentry activities since the incident.
49Overall, I am persuaded that I can generally rely upon the plaintiff’s evidence.
The medical evidence
50The defendant did not tender any medical reports.
Treaters
Dr Jamie Croft, general practitioner
51The plaintiff tendered a report from Dr Croft dated 16 May 2022.[10]
[10]PCB 25
52Dr Croft first consulted the plaintiff in July 2021, approximately ten months after the incident.
53Dr Croft noted that the plaintiff complained of ongoing back pain, made worse by lifting and sitting, particularly when driving. He opined that the plaintiff was permanently unfit for the heavier aspect of his trade teaching role by reason of his injury. He had a capacity to work, provided such work did not involve repetitive activities, lifting greater than ten kilograms, or pushing and pulling.
Mr Paul D’Urso, neurosurgeon
54The plaintiff tendered two reports from Mr D’Urso dated 6 April 2022 and 7 June 2023.[11]
[11]PCB 27 and PCB 22
55In his first report, Mr D’Urso outlined the nature of his consultations with the plaintiff in relation to his lower back pain in July 2014, and thoracolumbar pain in December 2020, and March 2021.
56Mr D’Urso noted that a CT scan of the plaintiff’s spine dated 19 October 2020, and an MRI scan of the plaintiff’s spine dated 24 November 2020, were reported to reveal degenerative disc disease at all levels, as well as a disc prolapse at T9-10 and some foraminal stenosis which impinged on the exiting T10 nerve root, more so on the right than the left.
57Mr D’Urso opined that a technetium bone scan and co-registered CT scan performed on 22 February 2021 were reported to reveal severe degenerative disc disease in the plaintiff’s thoracic spine from T5 to T8, and to a lesser degree in T9 to T10. An MRI scan of the plaintiff’s thoracic spine on 13 May 2021 was reported to reveal moderate thoracic spondylosis.
58Mr D’Urso opined that the plaintiff aggravated underlying degenerative spondylosis in his thoracic spine in the incident, rendering a previously asymptomatic condition symptomatic.
59Mr D’Urso advised the plaintiff to take Meloxicam daily, and Panadol Osteo as required. He told the plaintiff to avoid physical activities that could aggravate his condition. He expressed optimism that the plaintiff’s symptoms would settle in time but recommended permanent restrictions on his work capacity.
60Prior to writing his second report, Mr D’Urso ordered an MRI scan of the plaintiff’s thoracolumbar spine on 30 March 2023, and subsequently consulted the plaintiff by telephone on 18 May 2023. He did not re-examine the plaintiff for the purpose of providing his second report dated 7 June 2021.
61Mr D’Urso opined that the MRI scan revealed:[12]
“… widespread degenerative change throughout the thoracolumbar spine consistent with Scheuermann’s disease. It appeared that at least three discs in the thoracic spine had autofused. There was evidence of disc prolapse at T11-12 and at L5-S1 there was evidence of lytic spondylolisthesis with bilateral L5 foraminal nerve root compression. … .”
[12]PCB 22
62The plaintiff told Mr D’Urso that he experienced severe thoracic pain affecting his day-to-day physical capacity. His thoracic pain limited his sitting and walking tolerance to 30 minutes, and his sleep was disturbed.
63Mr D’Urso once again recommended conservative management, including daily Meloxicam, Panadol Osteo as needed, gentle physical therapy and self-managed core strength exercises. Mr D’Urso indicated that if the plaintiff developed neurological symptoms, surgical fusion would be an option.
64Mr D’Urso opined that the plaintiff was permanently unfit to undertake his pre-injury employment as a trade teacher. He was permanently restricted with regard to repetitive bending, twisting, or lifting, and should not lift from below the knee or above shoulder height. He should not work at height or work in confined spaces. His lifting limit was ten kilograms.
Medico-legal
Mr Raf Asaid, orthopaedic surgeon
65The plaintiff tendered two reports from Mr Asaid, dated 4 October 2022 and 18 July 2023.[13]
[13]PCB 43 and PCB 37
66Mr Asaid first consulted the plaintiff via videolink on 4 October 2022. As such, a physical examination could not be performed.
67The plaintiff described constant but variable thoracic pain. The pain varied from a dull ache to sharp pain. Activities involving repetitive bending or lifting aggravated his pain and he reported being unable to sit or stand for long periods. He described wearing a back support to drive and having to stop after 45 minutes to walk around.
68Mr Asaid opined that the plaintiff was likely to continue to experience some degree of pain and restriction in his activities for the foreseeable future. He said that the plaintiff was unfit to perform his unrestricted pre-injury duties in a full-time capacity. Mr Asaid opined that the plaintiff should avoid any activities involving repetitive bending, twisting, lifting, pushing or pulling, as well as sitting or standing for long periods.
69Mr Asaid subsequently examined the plaintiff in person on 18 July 2023 for the purpose of providing his second report. The plaintiff reported that his condition was largely unchanged.
70On examination, Mr Asaid found as follows:[14]
“He was tender to palpation over the midline of the thoracic spine. Thoracic spine range of motion was reduced, particularly with rotation and lateral flexion to the right side.
Upper limb and lower limb neurological examinations were unremarkable and there was no evidence of any focal neurological deficits.”
[14]PCB 40
71Mr Asaid diagnosed the plaintiff’s injury as an aggravation of thoracic spondylosis. His prognosis was unchanged from his earlier report.
Dr Philip Sheard, orthopaedic surgeon
72The plaintiff tendered a report from Dr Sheard dated 17 October 2023.[15]
[15]PCB 32
73Dr Sheard examined the plaintiff on 17 October 2023. The plaintiff reported experiencing constant thoracolumbar pain, knife-like in nature, worse with sitting and standing and particularly bending forward. His sleep was disturbed by pain.
74Dr Sheard found the following on examination:[16]
“… He has a normal thoracic kyphosis, tenderness over the T10 region. No increase in pain on AP and lateral compression. He has a normal lumbar lordosis, full flexion, extension, lateral rotation. He has mildly reduced lateral rotation, which is symmetrical … Examination of his peripheral neurology was completely unremarkable.”
[16]PCB 34
75Dr Sheard described the plaintiff’s injury as an exacerbation/aggravation of thoracic spondylosis with nerve root compression. He opined that the plaintiff’s symptoms could be considered stable.
76Dr Sheard opined that the plaintiff was unfit for his pre-injury duties and was restricted in terms of lifting, bending, squatting, twisting, sitting, and standing for long periods.
Conclusions on the medical evidence
77The medical evidence presented by plaintiff was all to similar effect. That is, that the plaintiff suffered an aggravation injury to his thoracic spine in the incident which rendered previously asymptomatic degenerative change symptomatic.
78The defendant submitted that each of the examining doctors found “very little” on examination. I accept that submission as far as it goes, but I must also consider the evidence regarding the impairment consequences of the plaintiff’s compensable injury.
79Dr Croft, Mr D’Urso, Mr Asaid and Dr Sheard all agreed that the plaintiff is permanently unfit for his pre-injury duties and that he has a range of restrictions in relation to repetitive or strenuous manual activities, sitting and standing.
80The medical evidence supports the view that continued conservative treatment is appropriate, with regular analgesia and anti-inflammatory medication.
81I am satisfied, based on the medical and other evidence, that the impairment consequences which the plaintiff currently experiences by reason of his compensable injury are permanent in the requisite sense.
82I will now consider the issues for determination.
Impairment consequences
Pain
83I find that the plaintiff experiences constant but variable thoracic spine pain. The plaintiff described the pain as being “like a knife sticking into me”.[17] I accept that description.
[17]PCB 13
84I find that the plaintiff’s pain worsens with repetitive bending, leaning, twisting, pulling and pushing movements. It is also aggravated by sitting for prolonged periods.
85The plaintiff has had conservative treatment for his thoracic spine injury.
86He attends an osteopath every three weeks. The treatment is self-funded, and I accept that the plaintiff does not receive it more frequently due to cost.
87The plaintiff also undertakes a home exercise program daily as directed by his osteopath.
88The defendant submitted that the plaintiff has required a limited amount of medication to treat his pain. It was submitted that the limited medication reflected pain at the lower end of the scale.[18]
[18] T49
89I accept that the plaintiff prefers not to take medication. He takes between two and six Panadol Osteo tablets a day for his thoracic spine pain, and Tramadol and Meloxicam occasionally. The pain is generally at a level where over-the-counter painkillers are sufficient but stronger prescription medication is required occasionally. Such medication requirement is at the lower end.
Loss of career
90I find that the plaintiff is permanently unfit for his pre-injury duties as a trade teacher.
91Although I find that the end of his employment with the employer occurred due to a genuine redundancy, the plaintiff was not able to resume his full pre-injury duties after the incident due to his thoracic spine injury and is permanently incapacitated in that regard.
92The inability to engage in employment of a particular kind which a worker enjoyed may properly be considered in assessing pain and suffering and loss of enjoyment of life.[19]
[19]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326, paragraph [35]
93I find that the plaintiff very much enjoyed his teaching role. The permanent loss of ability to perform the unrestricted role of a trade teacher is a pain and suffering consequence which is of some significance to him.
Activities of daily living
94The plaintiff can perform his own self-care, but I find he has some difficulty putting on shoes and socks.
95The plaintiff did not mention in his affidavits any difficulties in his relationship with his wife or socialising.
Domestic activities
96The plaintiff is restricted in his ability to perform household chores because of the pain and restriction in his thoracic spine. He continues to perform them but to a lesser extent, and he needs to pace himself.
97The plaintiff continues to mow his lawn using a ride-on mower but needs to break the task up.
98Thus, the plaintiff retains the capacity to perform household chores and gardening tasks albeit not to the same extent as before the incident.
99The plaintiff was previously active regarding home maintenance. I find that because of his compensable injury he is restricted in terms of the maintenance tasks he can perform. He is unable to perform tasks involving heavy lifting or repetitive manual activities. Given his skills and experience, his limitation and frustration in that regard is a significant consequence to him.
Recreational activities
Cycling
100The plaintiff was a keen cyclist prior to the incident. He rode “up to” 200 kilometres a week.[20]
[20]PCB 20
101Since the incident, the plaintiff has found that longer rides cause an increase in his thoracic spine pain, and he is restricted to riding 5 kilometres or so at a time.
102The defendant submitted that the evidence as to the frequency and duration that the plaintiff cycled pre-injury was unclear. Cycling “up to” 200 kilometres a week simply stated a maximum capacity. I accept that submission.
103I accept the plaintiff’s evidence regarding cycling. I find that the plaintiff was a regular cyclist prior to the incident. He was capable of riding for relatively long distances. Whilst the activity of cycling is not lost to him, I find that the plaintiff’s capacity to pursue that activity and his enjoyment of it is diminished.
Gym
104The plaintiff was a keen gym user prior to the incident. He had a set-up in his shed at home which included various machines and equipment.
105The plaintiff continues to use the gym but his capacity to do so is reduced. The evidence was sparse on this issue. I accept the defendant’s submission that the extent to which the plaintiff’s ability to enjoy gym activities has been diminished is not clear on the evidence.
Sleep
106The defendant submitted, in reliance upon entries in the clinical records,[21] that the plaintiff’s sleep was disturbed by stress rather than thoracic spine pain.
[21]DCB 50, DCB 53 and DCB 60
107I find that there were occasions when stress affected the plaintiff’s sleep; however, I accept the plaintiff’s evidence that his sleep difficulties, which occur almost every night, are due to thoracic spine pain.
Driving
108The defendant submitted that the plaintiff deposed to remaining capable of driving in his affidavit sworn on 8 September 2022.[22] It was further submitted that I ought not to accept the plaintiff’s evidence in re-examination about his need to stop driving after 45 minutes or so to stretch.[23]
[22]PCB 20, paragraph [24]
[23]T45-46
109I note that the plaintiff told Mr Asaid of his difficulty driving for prolonged periods.[24]
[24]PCB 47
110Mr D’Urso also noted that the plaintiff presented with complaints of pain when he drove for prolonged periods.[25]
[25] PCB 28
111Not only did the plaintiff describe restrictions in his ability to drive for prolonged periods to Mr Asaid and Mr D’Urso, but his limited capacity to do so is in keeping with the restrictions which each of the doctors imposed in respect of the plaintiff’s compensable condition.
112I find that the plaintiff has difficulty driving for prolonged periods. He needs to stop, rest, and stretch after 45 minutes or so. This difficulty is significant for the plaintiff given his rural location.
Conclusion
113The defendant submitted that when due consideration was given to what the plaintiff had retained, the impairment consequences of his aggravation injury to his thoracic spine did not meet the statutory threshold.
114It was submitted that the plaintiff retained the ability to work full time with restrictions as a disability support worker; his pain and restrictions were on the lower end of the scale, as evidenced by his limited medication use and treatment; and he retained the ability to perform most activities albeit with modifications.
115I am mindful that I am required to consider the range of impairments and impairment consequences and not just those that come before the courts.[26] What has been lost must be considered in the context of what is retained.
[26]TTB SMS Pty Ltd v Reading [2020] VSCA 203
116In the exercise of the value judgment required of me, I find that the plaintiff has satisfied his onus of establishing that the impairment consequences of his thoracic spine injury, taken together, are appropriately described as more than “significant”, or “marked” and “at least very considerable” to him when considering the range of possible impairments.
117In my view, the combination of the plaintiff’s level of pain, his ongoing restrictions, and the loss of his career as a trade teacher are “very considerable” to him.
118Leave is granted to the plaintiff.
119I will hear the parties on the issue of costs.
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