Simons v Spice Imports and Exports Pty Ltd
[2015] VCC 1733
•3 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04282
| FRANK SIMONS | Plaintiff |
| v | |
| SPICE IMPORTS & EXPORTS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 November 2015 | |
DATE OF JUDGMENT: | 3 December 2015 | |
CASE MAY BE CITED AS: | Simons v Spice Imports & Exports Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1733 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to cervical spine –– pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Baranadurage v Waverley Forklifts Pty Ltd [2013] VSCA 307
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Ryan | Slater & Gordon |
| For the Defendant | Mr B R McKenzie | IDP Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function;
4 The body function relied upon in this case is the cervical spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged sixty-nine, having been born in April 1946. He is right-hand dominant.
14 Having completed Year 12, the plaintiff worked in a range of jobs. Between 1975 and 1986, he worked as a store manager for Clark Rubber. From March 1986 to January 1988, he worked in a similar role as a store manager for Beacon Lighting.
15 In February 1988, the plaintiff commenced work as a sales representative for the defendant, which traded as Hoyts Foods. The defendant supplied spices and pickles to various grocery stores.
16 The plaintiff attended those stores and organised sales. He was required to replenish shelves, a task which involved a lot of reaching up to obtain boxes.
17 Whilst performing that work, the plaintiff occasionally had aches and pains. Particularly from 2006, he started to get back pain with left sided sciatica. He also occasionally had some left arm and elbow pain.
18 On 8 September 2009 (“the said date”), the plaintiff felt significant pain on the left side of his neck which extended into his left arm whilst at home getting dressed.
19 The plaintiff attended his general practitioner, Dr Dickman, at the Tower Hill Medical Centre in Frankston (“the Medical Centre”). After this attendance, a CT scan, x-ray and MRI scan were organised.
20 The plaintiff was referred to Mr Wallace, neurosurgeon, who, on 5 November 2009, carried out decompression of the left ulnar nerve on his left elbow (“the surgery”).
21 Following the surgery, the plaintiff had physiotherapy at Lang Warren Sports Clinic and also hand therapy with Ms Aarons. The physiotherapy included treatment on his neck.
22 The plaintiff deposed he also had some osteopathic treatment with Mr Olsen in Frankston but later confirmed this treatment was in relation to his back, not any incident-related injury. [3]
[3]Transcript “T” 36
23 The plaintiff returned to work after the surgery on 18 January 2010 on modified duties, packing orders in the warehouse. Whilst Mr Wallace certified him fit for normal duties from that date, the plaintiff thought he certified he was not to do overhead lifting but he really did not know what the situation was.[4]
[4]T18
24 The plaintiff was dismissed after four days back at work after a dispute relating to the terms of his redeployment.
25 The plaintiff confirmed that he felt capable of returning to sales work and wanted to do so. He was not advised why he was allocated warehouse work. He was disappointed he could not do the sales job because in that role, he got a car and was paid commission. He was unhappy with his dismissal and sought reinstatement.[5]
[5]T20
26 The plaintiff agreed that he had Reactive Depression in January 2010 after being dismissed.[6]
[6]T23
27 The plaintiff last obtained a medical certificate on 3 February 2010 when he was thinking about doing part-time taxi driving but he did not go ahead with this plan.
28 The plaintiff agreed with Dr Thompson’s examination findings on that date that cervical rotation was normal and that his upper limbs were normal. That was the situation then. Now, his neck is not normal. He has more rotation through to the right than the left.[7] His spine is not right and neither is his left arm.[8]
[7]T22
[8]T24
29 The certificate of 3 February 2010 was the last certificate issued to the plaintiff by his general practitioner. After that date, he has never asked his doctor about work. He has mainly gone to see him for blood pressure medication. The plaintiff disputed his doctor thought there was no restriction necessary on his work.[9]
[9]T23
30 The plaintiff maintained, whilst working at Hoyts, he was intending to work until his wife retired. This was not mentioned in his affidavit, as the plaintiff did not think it was relevant.[10]
[10]T26
31 The plaintiff then worked for Exclusive Foods as a sales representative for about a month. This was a similar job to that with the defendant but it did not involve shelf stocking or long driving. The plaintiff stopped working there because the work environment was unsatisfactory, not because of any problems with his arm.[11]
[11]T25
32 The plaintiff agreed that after leaving Exclusive, he was looking for mainly a sales or management job but it was his age that stopped him from getting those jobs. He was quite capable and willing to do full time sales representative work.[12]
[12]T30
33 After about a year, the plaintiff obtained a Responsible Serving of Alcohol Licence and a Gaming Licence and began working two nights a week at the Karingal Bowling Club. In early 2104, he cut back to one night a week, as he was fed up with working Saturday nights.[13]
[13]T31
34 The plaintiff’s current work is very light.[14] He is able to cope with this job, as it is not very physical and he is not required to lift heavy weights or use his left arm repetitively. He works a six-and-three-quarter-hour shift. He occasionally works more hours if someone is unavailable. He agreed this situation was consistent with being retired.[15]
[14]T29
[15]T32
35 In his April 2014 affidavit, the plaintiff described constant neck pain in the left side of his neck, going into his left shoulder. His neck became more painful if he looked up too much. His range of neck movement had decreased.
36 The plaintiff had an ache in his left arm. In the fourth and fifth fingers in his left hand, he had numbness and tingling. He had less grip strength in his left hand so he lifting capacity was restricted. There was wasting in his upper left forearm and arm. He often woke with a dead-like feeling in his left arm.
37 The plaintiff sometimes had sciatica and occasionally, backache. He attended Dr Thompson and took Movalis for a combination of neck and sciatic pain. He also took Panadol and Mobic when his neck was worse. He was on Atacand for high blood pressure. The plaintiff was reluctant to take too much medication if he could avoid it.
38 The plaintiff lived with his wife. Their two adult children lived independently. The plaintiff was limited in what he could do around the house because of his neck and left arm injury and whilst he still did some gardening, he could not do the heavier digging-type work.[16]
[16]T48
39 As the plaintiff could not do as much work in the garden as he would like, his wife tends to do it. He mowed the lawn but struggled with his left arm. He tended to push the mower using his body and not the left arm.
40 In evidence-in-chief, the plaintiff described how he cannot help his children with their home renovations. All he could do was clean a few bricks.[17]
[17]T15
41 The plaintiff agreed with the history recorded by Mr Khan in March 2012 that he could do things with his right hand. He helped with vacuuming, cleaning, washing and hanging clothes. He shared the shopping with his wife. He could do things with his right hand.[18]
[18]T47
42 Prior to his injury, the plaintiff enjoyed fishing and probably went three or four times a year.[19] He has not been since, because of his injury. He is concerned his left arm would be restricted in casting and carrying gear. He thought surf fishing would be too heavy.[20]
[19]T49
[20]T66
43 Prior to his injury, the plaintiff sometimes enjoyed bicycling. However, in his efforts to cycle since, he had experienced aching and pain in his left arm and it was more difficult to operate the brake with his left hand. Looking up ahead while cycling aggravated his neck pain. He also had difficulty holding the handlebars and leaning forward, as that increased his left arm pain.
44 The plaintiff’s back pain does not restrict his ability to ride a bike.[21]
[21]T66
45 The plaintiff started cycling on a health kick in about 2008. He probably went cycling once a week.[22] Prior to his injury, he rode from Frankston to Hastings, about 40 kilometres, once a week.[23]
[22]T48
[23]T66
46 The plaintiff and his wife showed Cavalier dogs. He deposed he would like to be more involved in their care, including cleaning and walking the dogs, but his pain limited his involvement. Holding the leads with his left hand could aggravate his neck and left arm pain.
47 In his second affidavit, the plaintiff explained that, in reality, it is more his wife who shows the five Cavalier dogs and he goes along to keep her company. He sometimes walks the dogs. Because of his neck and left arm pain, he tends to, but not always, hold the leads in his right hand.
48 The plaintiff agreed he had a part pension and superannuation, and he was in a comfortable financial position. His wife had a dog business, “Salon de Pooch”, which operated from the garage.
49 The plaintiff has very little involvement in the business which, on average, has two jobs per week.[24] He did not mention this in his affidavit because he does not do much in the business. It is really his wife’s business. He drives her to dog shows.[25]
[24]T27
[25]T28
50 It is not a vigorous activity cleaning dogs or walking them.[26] The plaintiff can exercise the dogs and walk them but he does not like showing them. It can be difficult walking the dogs, depending on how they behave. He usually has four leads in the right and one in the left hand. He naturally is right handed, so he has more in the right.[27]
[26]T32
[27]T52
51 In mid-2013, the plaintiff joined the Frankston RSL, where he played competition lawn bowls once a week. Whilst bowling, he experienced neck stiffness. He would like to have the opportunity to play more bowls in his retirement but felt his neck and left arm injuries would prevent this.
52 The plaintiff continues to bowl once a week a Frankston. He does not think the injuries have restricted him much in this activity. However, he gets soreness in his neck when he looks down the rink too often. That might prevent him from playing bowls more frequently.
53 The plaintiff agreed he enjoyed lawn bowls and plays when there is a competition on.[28] Towards the end of the three-and-a-half-hour game, his arm starts to ache.[29]
[28]T51
[29]T64
54 The plaintiff was shown playing lawn bowls in July 2015. He was not shown in any discomfort. At one stage, he was shown barracking for his team mate.
55 On 13 and 16 May 2015, the plaintiff was shown walking five small dogs for 16 minutes and 5 seconds.
56 The plaintiff denied having five dogs in his left hand.[30] He used his left hand to drag back only two dogs that ran in front of him.[31]
[30]T63
[31]Exhibit 2 at 9.43 and 17 seconds
57 Having been shown surveillance film of him bowling and also walking the dogs, the plaintiff agreed that someone looking at him doing those activities would not think that he was experiencing any pain. It would not be obvious to them he was experiencing any pain. It was possible. Maybe there was nothing to see but it did not mean there was nothing wrong. When shown barracking for his team at bowls, the plaintiff agreed that behaviour was consistent with him enjoying the activity and inconsistent with him being in pain.[32]
[32]T62
58 The plaintiff agreed the video showed him doing various activities normally but if they observed him all day they would see he had problems.[33]
[33]T65
59 In his recent affidavit sworn 28 October 2015, the plaintiff confirmed he continues to suffer from neck and left arm pain. He feels a constant pressure just above his left shoulder. The pain on the left side of his neck goes into his left shoulder. He feels as though he has a decreased range of neck movement.
60 The plaintiff gets pain going down his left arm from the left side of his neck to the elbow. He gets a lot of elbow pain. The tingling and numbness in his fingers continues. His grip on the left is still weaker and he cannot lift as heavy weights with it. He still often wakes with a dead or numbness feeling in his left arm.
61 Down his left arm and elbow, the plaintiff has chronic pain. Now, the main problem is weakness, and he cannot lift anything heavy. With his neck pain, most of time it is just like pressure. He has adapted to it but if he does any heavy work, he gets pain that lasts from a couple of hours to a couple of days. He can probably lift four or five kilograms comfortably and after that it becomes a bit difficult.[34]
[34]T67
62 The plaintiff disagreed his elbow had been cured. He still has pain, which he can distinguish from his neck pain, which radiates down his left arm.[35]
[35]T33
63 Elbow pain is there all the time, even if the plaintiff does not have pain from his neck down to his hand. He guesses the elbow pain is worse because it is chronic and the neck pain kicks in from time to time, probably about once a month.[36]
[36]T34 – T35
64 The plaintiff deposed he continues to attend the Medical Centre where he normally sees Dr Thompson. However, he confirmed Dr Thompson has never treated him for his incident condition.[37]
[37]T17
65 The plaintiff agreed he had attended the Medical Centre for a number of other conditions over the years and had not mentioned his neck. He agreed he is not “doctor shy” but there is nothing a doctor could do about his condition, so why should he talk about it? He totally disagreed he did not mention his neck because it was not that bad.[38]
[38]T45
66 The plaintiff disagreed he did not require medication.[39] He does not take it because he does not like taking it. He takes Panadol if the pain gets really bad.[40] He no longer tales Movalis and he still takes blood pressure medication.
[39]T38
[40]T39
67 The plaintiff agreed in cross-examination the last time medication was prescribed for his incident injuries was in November 2009 when Oxycodone was prescribed.[41] He was prescribed Mobic in 2012 for his back condition.
[41]T42
68 Last year, the plaintiff and his wife went on a three-week holiday to Africa. His neck became sore turning whilst on the bus turning to look at things. Because of decreased left arm strength, he was restricted in how freely he could handle and manoeuvre the luggage. However, he did not have problems with his luggage on this trip as he took a wheelie bag.[42]
[42]T49
The Plaintiff’s medical evidence
Treaters
69 Jane Aarons from Peninsula Hand Therapy wrote to Mr Wallace in December 2009 advising she had been treating the plaintiff for the previous two weeks after the surgery. She noted he had no pain, numbness or pins and needles. Other than the reduction in grip strength, the plaintiff was very satisfied with the outcome of surgery.
70 Dr Dickman at the Medical Centre reported in August 2011. He noted when the plaintiff attended on 8 September 2009, he complained of severe pain in the left shoulder, near the shoulder blade, radiating down the left arm. Medication was prescribed and investigations ordered, and a referral made to Mr Wallace.
71 Following surgery, Dr Dickman noted the plaintiff made a good recovery and he had not seen him since as he returned to Dr Thompson’s care.
72 Dr Dickman thought the ulnar nerve lesion was likely due to lifting and stacking at work. He considered the cervical spine degeneration was likely to be a significant aggravating factor.
73 Dr Dickman thought the prognosis for the ulnar lesion was good and the plaintiff was likely to recover fully. He thought the neck degeneration was likely to be associated with further bouts of pain.
74 In a letter to Dr Dickman in October 2009, Mr Wallace noted the plaintiff stated that since the early 1980s, he had had recurrent attacks of pain in the left rhomboid region. The plaintiff advised of suffering injury on the said date.
75 Mr Wallace noted the x-rays of the cervical spine showed marked narrowing with anterior and posterior osteophytes at C5-6 and C6-7 and bilateral foraminal encroachment at both levels.
76 Mr Wallace thought this was the probable source of the plaintiff’s rhomboid pain as that was a frequent site of pain from nerve root compression in the neck. He thought, however, the plaintiff, in addition, had an ulnar nerve lesion, probably at the elbow, or possibly in the brachial plexus. M r Wallace had arranged an MRI scan of the neck and brachial plexus, and a nerve conduction study to further evaluate the situation.
77 On 6 November 2009, Mr Wallace carried out a left ulnar nerve neurolysis and decompression of the elbow (“the surgery”).
78 On 5 December 2009, Mr Wallace noted the tingling had ceased and the plaintiff’s hand felt stronger and his sensory disturbance had improved. His scar was well healed.
79 On the last review on 4 January 2010, Mr Wallace noted the plaintiff’s numbness had almost resolved. All of his interosseous muscles were stronger. There was still some persisting slight wasting of the first dorsal muscle and still some slight weakness of the long flexor tendon to the fifth finger. Mr Wallace authorised the plaintiff to return to work in a fortnight.
80 Mr Wallace concluded the plaintiff had suffered an acute injury of his ulnar nerve on the said date and thereafter, his condition was aggravated by the repetitive use of his arm at work. In his July 2010 report, Mr Wallace noted the plaintiff had now returned to work and he believed he was doing his former duties.
81 Dr Thompson at the Medical Centre reported in October 2015. He noted the plaintiff was seen by Dr Dickman on 8 September 2009 and was subsequently referred to a neurosurgeon.
82 Dr Thompson advised, as he had not treated the plaintiff for this condition, he recommended the plaintiff’s solicitors contact the plaintiff’s neurosurgeon for his assessment.
Medico-legal examiners
83 Mr Khan, orthopaedic surgeon, examined the plaintiff on 8 September 2009.
84 The plaintiff then complained of a pressure-like feeling in the left shoulder blade. It was a constant ache and he had frequent cramps in his left hand. The left elbow ached when the plaintiff pushed it with his left arm. It was also sensitive to touch and was tender.
85 On examination of the cervical spine, there was no spasm. There was tenderness and restricted movement. There was an aching-type pain in the left shoulder blade. The left upper arm circumference was 1.5 centimetres less than the right and the forearm was 2 centimetres less than the right. Grip strength was reduced.
86 The plaintiff also had a mild ache off and on in the lower back, with a history of left sciatica.
87 Taking into account the investigations, history and clinical examinations, Mr Khan thought the plaintiff had mildly flared-up pre-existing cervical spondylosis due to his repetitive strenuous work over a period of time. He had, however, persevered to carry on with his work, as he liked his job and was able to cope with his duties. However, due to the repetitive nature of work, requiring repetitive elevation of his arms, lifting boxes which weighed a bit, the plaintiff had sustained repetitive strains to his neck during the course of his work and stretched his arm.
88 Mr Khan thought there was no shoulder injury.
89 Mr Khan noted the surgery to the ulnar nerve had locally taken any pressure off the nerve, resulting in some freedom from pain.
90 Mr Khan then noted that the plaintiff had managed to find suitable alternative duties and had been working evening shifts as a gaming attendant, which he was able to do. Fortunately, the plaintiff was a right-handed man and his injury had not affected his activities of daily living and work activities a great deal.
91 Mr Khan thought the plaintiff should avoid any work requiring excessive bending, twisting and turning of his neck, lifting heavy weights with his left hand and pushing and pulling with his left arm.
92 Mr Khan thought the plaintiff’s employment had played a significant contributing role to the development of his cervical condition and also neuralgic pain in relation to the ulnar nerve distribution in his left upper limb, particularly along the C8 nerve root.
93 Mr Khan considered the plaintiff was fit for restricted work with limitations on bending, lifting, twisting, pushing and pulling, and this was likely to be permanent or last for the foreseeable future.
94 Mr Khan thought the long-term prognosis was guarded. He did not consider there was any indication for further surgery or medical treatment but if there were flare-ups, the plaintiff should see his general practitioner and perhaps have further referral.
95 Mr Kossmann, orthopaedic surgeon, examined the plaintiff in October 2015.
96 The plaintiff then complained of ongoing left neck pain, associated pain and paresthesia radiating down the left arm to the left ring and middle finger and little finger. The pain fluctuated in intensity and was directly proportionate to the level of physical activity. There were problems carrying a heavy load in the left hand and there was diminished grip strength.
97 Mr Kossmann noted the plaintiff was independent with his personal activities of daily living, including washing and dressing. His wife attended to cooking and cleaning, as was the case pre-injury. Recreationally, on account of his injury, he told Mr Kossmann he had been unable to engage in his hobbies of horse riding and bike riding.
98 Mr Kossmann diagnosed left ulnar nerve entrapment, managed surgically with neurolysis and decompression, ongoing left cervical neck pain and left C8 radiculopathy, secondary to cervical spine degenerative disc disease and degenerative facet joint disease complicated by left C8 nerve root impingement.
99 Mr Kossmann thought the prognosis was poor regarding cervical spine spondylosis and may improve with a multidisciplinary pain management program or injections. If the plaintiff’s cervical spine condition continued to deteriorate, Mr Kossmann thought he may be a candidate for consideration of surgery.
100 As a consequence of his cervical injury, Mr Kossmann thought the plaintiff should refrain from repetitive bending, lifting heavy loads, pushing, pulling, repetitive and/or prolonged use of his cervical spine and overhead activities. He considered the plaintiff was incapacitated from returning to his pre-injury employment on account of the neck injury, as repetitive stacking of shelves or handling heavy loads was contraindicated.
101 Mr Kossmann considered the plaintiff had a capacity to perform suitable employment, noting he was currently working as a barman one day a week, managing the demands of that job well. He thought the plaintiff would be in a position now to gradually increase his working hours as tolerated.
102 On 30 September 2013, the Medical Panel assessed the plaintiff had a 15 per cent whole person impairment resulting from the accepted neck and left arm injury.
Investigations
103 Dr Dickman organised an x-ray of the plaintiff’s cervical and thoracic spine in September 2009. It was reported disc height reduction and osteophyte formation was present at C5-6 and C6-7 disc spaces. There was some degenerative narrowing at nerve root canals laterally at those levels, with resultant degenerative change. Degenerative change was shown at the mid cervical facet joint.
104 Dr Dickman organised a CT scan of the plaintiff’s cervical spine in September 2009.
105 It was reported, there was multilevel disc and facet joint degenerative disease, most marked at C5-6 and C6-7, with corresponding left-sided intervertebral foraminal narrowing at those levels, potentially affecting the left C6 and C7 nerve roots.
106 Mr Wallace organised an MRI scan of the cervical spine on 6 October 2009.
107 It was reported there was multilevel disc degeneration with minor bony foraminal stenosis on the right at C3-4, bilaterally at C4-5, moderate bony foraminal stenosis on the left at C5-6 and C6-7, with mild central canal stenosis at those levels. There was a left foraminal disc protrusion at C7-T1 compromising the exiting left C8 nerve, without cord compression or rotation.
108 Mr Wallace organised a left brachial plexus MRI scan in October 2009 where no abnormality was demonstrated. There was a similar finding on nerve conduction studies that day.
The Defendant’s medical evidence
109 As of July 2010, having last seen the plaintiff in January that year, Mr Wallace noted he had had a very clear-cut ulnar nerve lesion which had been cured very rapidly by surgery. He certified the plaintiff fit for normal duties in January 2010.
110 The Medical Centre notes indicated from early 2010, there were many attendances for no injury related issues. There was no mention of any left arm or neck complaints.
Medico-legal examiners
111 Mr Dunin, orthopaedic surgeon, examined the plaintiff in April 2010.
112 On examination, the plaintiff had a very good range of cervical movement which was pain free. There was no muscle wasting or weakness in the upper limbs but reflexes were difficult to elicit.
113 Mr Dunin thought the plaintiff developed brachalgia involving the left upper limb most likely due to a cervical disc prolapse. The area of referred pain was consistent with compressions of the left C8 nerve root. A diagnosis of ulnar nerve compression was also made. He thought the vast majority of the plaintiff’s symptoms were related to the cervical disc prolapse and that these symptoms had largely resolved spontaneously. Although the plaintiff did repetitive heavy lifting in the past, Mr Dunin did not consider his condition was work related.
114 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in June 2013 for the purposes of an AMA assessment.
115 Mr O’Brien then thought the plaintiff demonstrated chronic non-specific cervical pain, most likely related to symptomatic cervical spondylosis. He did not think there was any specific nerve root compromise.
116 Mr O’Brien thought the plaintiff had residual symptoms of left ulnar nerve dysfunction in the left elbow, with varying signs, depending on the level of flexion of the elbow, suggesting neuritis.
117 Mr O’Brien noted the plaintiff continued to describe mild ongoing disability. He thought that would preclude any form of manual work but noted the employment had been terminated and the plaintiff was not able to work full time.
118 In his view, the plaintiff now did what could be regarded as suitable employment part time. Mr O’Brien thought he was mildly restricted in general, social, domestic and recreational activities and that was likely to be permanent.
119 Mr Klug, neurosurgeon, examined the plaintiff in October 2015.
120 On examination, there was some restriction of cervical spine movement. There was no significant tenderness. It was difficult to definite whether there was any definite weakness in the left upper limb. There was no definite wasting.
121 Mr Klug thought the plaintiff was suffering from symptomatic cervical spondylosis which was probably responsible for his complaint of neck pain, some restriction of movement and for some upper limb symptoms including some paraesthesia involving the fourth and fifth fingers. He did not believe there was any strong evidence to suggest the plaintiff was suffering from an ulnar nerve lesion.
122 Mr Klug felt it likely the plaintiff’s employment contributed his situation, which was complicated by the acute deterioration. He thought at present, the plaintiff appeared to have some minimal impairment related to his neck, in relation to which work continued to play some role.
123 It appeared that despite various forms of treatment, the plaintiff’s symptoms had never resolved, and Mr Klug thought it more probable than not that they would continue into the foreseeable future.
124 Mr Klug thought the plaintiff appeared to be only mildly disabled and did not believe that he probably would have returned to his previous occupation if that had been made available to him. He could not see any indication for any specific treatment.
125 In terms of history, Mr Klug noted the plaintiff was disappointed he did not continue his previous type of occupation as a sales representative. He was asked to work in the warehouse and was uncertain why that request was made. He told Mr Klug there was an altercation and some two weeks after recommencing employment, he was dismissed.
126 In the new job, the plaintiff was not required to drive long distances. He only worked there for four weeks, leaving because it was an unsatisfactory workplace and not actually as a consequence of his ongoing physical disorder.
127 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in October 2005.
128 On examination, there was moderate restriction of cervical movement. There was no wasting. Left grip strength was reduced and there was no specific weakness in the wrist. Elbow movements were essentially normal.
129 Mr Simm was not able to establish a precise diagnosis and thought there were probably two co existing conditions.
130 Mr Simm thought the initial symptoms were consistent with an exacerbation of symptoms from advanced degenerative cervical pathology but he was not able to confirm the Medical Panel findings of convincing evidence of C8 nerve root involvement. He thought the neurological signs and symptoms may be due to both C8 nerve root involvement and ulnar neuritis.
131 Mr Simm considered the physical nature of the plaintiff’s work had the potential to exacerbate symptoms. He concluded the underlying pathology in the neck and left shoulder was constitutional but there may be some relationship to employment as the result of symptomatic exacerbation.
Surveillance
132 Exhibit 1 was surveillance footage of 13 minutes and 13 seconds taken in July 2015 of the plaintiff playing lawn bowls.
133 Exhibit 2 was surveillance footage of 16 minutes and 5 seconds taken on 13 and 16 May 2015 of the plaintiff walking his dogs.
134 Having seen further film that was not shown to the Court, counsel for the plaintiff agreed that there were no restrictions shown on film.[43]
[43]T69
Overview
135 The plaintiff’s application relates to a cervical spine injury with referred pain down the left arm. There was no separate application in relation to the left elbow.[44]
[44]T2
136 Whilst there is some debate between medical practitioners as to causation and also whether work plays an ongoing part in the plaintiff’s cervical spine condition, these issues were not pursued by the defendant at hearing. The issue is only one of range.
137 The plaintiff suffered an injury to his cervical spine during the course of his employment which manifested itself on the said date. Prior thereto, he had been employed as a salesman for a number of years with the defendant and his job involved overhead stacking of shelves which it is accepted is a cause of his cervical injury.
138 The plaintiff’s impairment application pursuant to s98C for neck injury and referred pain to the left arm was accepted. Although his claim for weekly payments was initially denied, he received a settlement in relation thereto following Magistrates’ Court proceedings.
139 There is no suggestion of any pre-existing neck or referred arm pain prior to the said date.
140 The consensus of medical opinion is that the plaintiff has suffered an aggravation of cervical degenerative disc disease with some medical practitioners of the view there is a C8 radiculopathy.
Credit
141 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[45]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[45](2010) 31 VR 1 at paragraph [12]
142 As I indicated during the hearing, in my view, the plaintiff was a very truthful witness.[46] There was no exaggeration by the plaintiff as to his symptoms and restrictions. Further, no doctor considered there was any exaggeration or embellishment on the plaintiff’s part.
[46]T76
143 Whilst there was film of the plaintiff playing lawn bowls and walking his dog, showing he was able to move his neck and left arm normally, this picture was not really at odds with his viva voce evidence.[47]
[47]T87
Pain
144 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[48]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment) … .”
[48](supra) at paragraph [11]
145 The plaintiff presently experiences a constant pressure in his left shoulder and, about once a month, he has pain radiating from his neck into his hands. His left elbow pain is constant and more severe than his neck condition.
146 The plaintiff’s evidence in this regard raises the issue considered by the Court of Appeal in Peak Engineering & Anor v McKenzie,[49] as even on the plaintiff’s own description, his main pain is in his elbow,[50] which is not included in this application.
[49][2014] VSCA 67
[50]T82
147 In Peak Engineering,[51] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[51]Supra
148 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[52]
[52]At paragraph [1]
Treatment
149 The plaintiff has undergone limited treatment in relation to his neck, seeing his general practitioner initially and only having limited physiotherapy thereafter. Prior to the incident, he had some osteopathic treatment to his back but has not had any in relation to his neck since.
150 Whilst attending his general practitioner on numerous occasions for other conditions, the plaintiff made no complaint of any problems with his neck or left arm after early 2010. He has not been treated by his current general practitioner, Dr Thompson for any work related injuries.[53]
[53]T90
151 The plaintiff explained this situation on the basis that he was told nothing further could be done for his condition. He had been told he had to live with it. Counsel for the plaintiff submitted this situation will not prevent a worker from establishing serious injury as the Court of Appeal stated in Dwyer v Calco Timbers Pty Ltd (No 2).[54]
[54]T90; [2008] VSCA 260 at paragraphs [11] and [24] per Ashley JA
152 The plaintiff does not like taking medication and occasionally takes Panadeine Forte when his neck pain is very bad. He was last prescribed medication for his neck when given Oxycodone in 2009. The most recent prescription of other painkilling medication was Mobic in 2012, which was for his lower back, as he freely acknowledged.
Consequences
153 It was conceded there were consequences for the plaintiff that may be marked or significant but they did not rise to the level of at least very considerable when considering them in the range of possible impairments in cases of this kind.[55]
[55]T76; Baranadurage v Waverley Forklifts Pty Ltd [2013] VSCA 307 at paragraph [23] per Beach JA
Work
154 The plaintiff was capable of returning to work as a sales representative some weeks after the surgery but was transferred to the warehouse. His requests to return to his old job were unheeded and his employment was eventually terminated. Further, he sought reinstatement to that job, bringing unfair dismissal proceedings.
155 The plaintiff then sought similar sales representative employment with Exclusive, which he carried out for a month, although it did not involve stacking and had less driving. However, he ceased work because of an unsatisfactory work situation, not because of his work injury.
156 The plaintiff agreed he told medical examiners that he was seeking full-time sales representative work for a number of years after the incident and felt he was capable of doing it. His attempts to find work in this field were unsuccessful because of his age.
157 The plaintiff effectively chose to retire at the age of sixty-five and now works one night a week as a barman at the Karingal Club. He initially worked two nights a week but reduced his hours because it did not suit him to work Saturday nights. He occasionally does extra shifts when required. He has no problems performing his duties, which are light.
158 Whilst the consensus of medical opinion is the plaintiff no longer has a capacity for unrestricted physical work, his age subsequently stopped him obtaining further employment, as he conceded. This is not a case about a loss of prospective career or frustration on the plaintiff’s part at not being able to work in his chosen field.[56]
[56]T78
159 In any event, the last WorkCover Certificate of January 2010 provided the plaintiff was fit for normal duties and did not specify any restrictions on the duties that he could undertake.[57]
[57]T78
160 I accept that any difficulties with work are in the form of a mild disablement, perhaps in keeping with the plaintiff’s age as much as anything else.[58]
[58]T79
Other activities
161 Whilst some of the plaintiff’s retirement activities are restricted by his neck injury, the plaintiff continues to enjoy a relatively active life.
162 The plaintiff has a limited problem. His sleep is not disturbed by pain. He often wakes with a feeling of numbness in his arm but, as he told Mr O’Brien, that resolved quickly when he moved his arm.
163 The plaintiff is right handed and as such, can still perform a range of activities with his dominant hand.
164 The plaintiff is able to cope with housework not involving heavy lifting with his left hand. He is able to undertake light gardening but is restricted in his ability to undertake tasks such as heavy digging.
165 Whilst in examination-in-chief the plaintiff mentioned his difficulties helping his children with their home renovations, he did not claim to be any sort of handyman before his injury. He made no mention of this issue in his affidavits or any history to doctors.
166 The plaintiff has taken up lawn bowls since his injury and continues to play in the weekly competition at Frankston. On his own admission, his neck injury does not restrict him much but he does get soreness after a game. He continues to enjoy this activity.
167 Whilst the plaintiff has had difficulty cycling since his injury, this was an activity he had only recently taken up in 2008 for fitness. He only went fishing three or four times a year before injury and has not attempted fishing since.
168 The plaintiff is able to travel overseas, having recently travelled to Africa with his wife.
169 The plaintiff is still able to walk the dogs his wife shows. He is not particularly interested in showing the dogs but is happy to drive his wife to shows and keep her company. He does not do much in the business but is able is able to help out washing the dogs and walking their own dogs.
170 Whilst the plaintiff complains his left elbow, which is not part of this application, is his main problem, I am not satisfied the consequences of plaintiff’s neck injury and left arm as a whole are “serious”. Therefore, it is not necessary to undertake the “disentangling” exercise required by the Court in PeakEngineering.[59]
[59]Supra
171 Taking into account all of the evidence, I am not satisfied that the consequences to the plaintiff of his neck injury and radiating arm pain in the left arm are “serious”.
172 Accordingly, the plaintiff’s application is dismissed.
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