Sims v Victorian WorkCover Authority
[2015] VCC 1080
•17 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01519
| PATRICK MARK SIMS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 August 2015 | |
DATE OF JUDGMENT: | 17 August 2015 | |
CASE MAY BE CITED AS: | Sims v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1080 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine – causative relationship between injury and workplace incident – whether workplace incident occurred – pre-existing lower back pain – whether incident represented an aggravation – disentanglement of physical from psychological symptoms – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Hounslow Lawyers |
| For the Defendant | Mr J Batten | IDP Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Sims, says that on 7 July 2006, in the course of his employment with Shepparton Fibreglass, a business owned and operated by Mr Arthur Tyack, he suffered an injury to his lower spine in the course of lifting heavy fibreglass moulds. He alleges he told Mr Tyack of the incident at the time and recorded it in an injury register. He remained at work until March of 2007, when he was dismissed.
2 After leaving Mr Tyack’s employment, Mr Sims had periods of time off work, and resumed employment with a number of other employers doing lighter work.
3 Mr Sims maintains he has suffered low back pain from that time to the present, although he accepts he had some low back pain before the incident. He says the low back pain has required considerable treatment, including strong painkilling medication, regular attendances at his general practitioner, facet joint interventions, and treatment at a pain rehabilitation program. He says his condition is getting worse and he now cannot work. He claims a range of recreational, domestic and social activities are restricted or lost.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act (“the Act”) for injury suffered in the course of his employment duties on 7 July 2006. The body function said to be lost or impaired is the lower spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act. Leave is sought in respect of pain and suffering only.
5 Mr Sims and Mr Tyack were the only witnesses to be called to give evidence and be cross-examined. In addition, various affidavits, medical and radiological reports, and clinical notes were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known and it is unnecessary for me to revisit the various relevant sections and those authorities.
6 At the outset, Mr Batten, for the defendant, responded that the principal areas of contention were as follows:
·There was a causative issue as to whether the incident occurred in the manner described and whether any injury was suffered.
·Mr Sims had a significant history of low back pain and at best, the incident represented a relatively minor aggravation of an underlying condition.
·He remained at work until March of 2007 and left for reasons unrelated to his low back. There was only intermittent treatment over the years after the incident, and a Claim Form was not lodged until August 2011.
·Mr Sims was a witness about whom I should have significant reservations as to his credibility, and his account of events should not be accepted.
·There was a disentangling issue in that Mr Sims had various psychological and substance abuse related conditions.
·Even accepting Mr Sims suffered injury, the consequences do not meet the “very considerable” level the legislation requires.
Relevant background
7 Mr Sims is fifty years of age. He is married, although separated. He completed Year 10 at school and then an apprenticeship as a mining fitter and welder. Over the years before the incident, he worked mostly in the construction and mining industries in Queensland, where he was born.
8 In the financial year 2004, he earned about $25,000 from various employers, although in the next year, earned only $1,146. In the financial year 2006, he worked for various employers in Queensland, earning about $20,000 up until May 2006.[1]
[1]Plaintiff’s Court Book (“PCB”) 138
9 In the mid-1990s, he married his wife, Debbie, although they separated in 2004. They remain friends and, in 2006, Mr Sims decided to return to Victoria, to follow Debbie. Employment was arranged with Mr Tyack, who was (and remains) Debbie’s mother’s partner. Mr Tyack ran a farm and a fibreglass business at Marungi, near Shepparton.
10 Mr Sims was diagnosed with Bipolar Affective Disorder in 2000. This has involved considerable treatment over the years and periods in psychiatric hospitals from time to time. He takes medication for the disorder and in evidence, said it was now largely stable. He also has a past history of alcohol abuse and admitted to being an alcoholic, although he said his alcohol consumption was now much reduced. He has also taken illicit drugs, in particular marijuana and occasionally “Ice”. He is clearly a man who has had, in the course of his life, significant psychological issues.
11 Most of his working life has involved heavy work. He accepted he had occasional intermittent back problems. In 1996, an x‑ray was taken of his lower spine which appeared normal.[2] To Mr Aaron Plant, physiotherapist, who Mr Sim saw after the work incident on 11 July 2006, he reported:
“… a three month history of low back pain that had improved then was aggravated doing heavy lifting at work. He reported a past history of intermittent low back pain.”[3]
[2]PCB 26
[3]PCB 52
12 To the same practitioner in August 2008, he reported:
“… intermittent back pain for years and that he had aggravated his back 2 years ago lifting. … .”[4]
[4]PCB 52
13 I conclude from these entries, and Mr Sims’ evidence, that he had intermittent low back problems from time to time over the years before the workplace incident, although those problems did not require any significant medical treatment and did not represent any major interference with his work capacity, or enjoyment of a range of recreational and social pursuits.
14 After returning to Victoria in 2006, he went to live on a property at Murray Road, Nathalia. In fact, until recently, he lived on a bus on the property. His wife lived in the main house. He suffered a bout of asthma and presently lives in the main house, cared for by his wife.
15 In terms of recreational activities, he says he used to enjoy fishing, both from the bank and from a boat, on the Murray River. He rode a motorbike and a horse from time to time. He said he enjoyed car repairs, gardening and camping.[5] He enjoyed road trips.
[5]PCB 18
The workplace incident and its consequences
16 He had only been working for Mr Tyack for a month or two. The work was carried out at a shed on Mr Tyack’s property and in July 2006, he was the only employee. The work involved manoeuvring steel moulds covered by fibreglass. I am satisfied from the evidence these weighed something between 20 and 25 kilograms. Mr Sims said the lifts were difficult and awkward and he did them by hand. On 7 July 2006, he says that when completing this task, he felt a “ripping” pain in his back. .
17 He says he told Mr Tyack what had occurred, although the latter appeared distracted because he was using a mobile telephone. Mr Sims was told to make an entry in the injury book which in fact was an exercise book hung from a nail in the shed.
18 In the course of his evidence, Mr Tyack said that he was unable to say whether any entry had been made in the injury book. He said he had no recollection of being told of the incident. He said there were no complaints by Mr Sims of any back problems afterwards.
19 Mr Sims kept working, apparently without any immediate time off. On 11 July 2006, he went to see a physiotherapist, Aaron Plant.[6] His report says:
“I conducted an assessment of Mr Patrick Sims on 11/7/2006. He reported right sided lumbar spine pain. Aggravating factors included twist, bend and lifting. He reported that lying seemed to ease his pain. He reported a three month history of low back pain that had improved then was aggravated doing heavy lifting at work. He reported a past history of intermittent low back pain.”
[6]PCB 52
20 Mr Plant noted a restriction in spinal movement and provided ultrasound therapy and exercises and advised him to avoid sitting, bending and lifting.
21 Mr Sims says that on about 14 July 2006, Mr Tyack told him that due to the weather conditions, no work was available. He went to Queensland for two or three weeks to visit his father.
22 According to the clinical notes of the Nathalia Medical Centre,[7] he saw Dr Kaur on 28 July 2006. The notes record he complained of a tender lower back and, amongst other medications, Panadeine Forte was prescribed. He attended the same clinic on 8 September 2006 and saw Dr John Drenen, although the attendance appears to be related to alcohol withdrawal and there is no mention of low back pain.
[7]Exhibit B
23 In October 2006, Mr Sims says Mr Tyack had to go to Tasmania, and he was off work for about three weeks and again went to Queensland, to rest. According to Mr Tyack’s wage records,[8] Mr Sims was not paid over several months in October and November 2006. Mr Sims says that over this period, he took Panadeine Forte and struggled with the heavier aspects of his work.
[8]Defendants’ Court Book (“DCB”) 91
24 He again saw Dr Drenen on 19 January 2007, complaining of a knuckle injury, and also back pain. The notes recorded:
“… Says happened from working at ground level at work in Marungi. 2-3/12 ago 1st hurt back & went to ‘physio’ in Shepp & told problem T1-2. Worked light at work for 1/52, but not under WC.”
25 Amongst other medications, Codalgin Forte tablets were prescribed. Throughout 2007, he continued to see Dr Drenen, complaining of back pain, and was prescribed Panadeine Forte.[9]
[9]This is clear from regular references in the clinical notes – exhibit B
26 On 26 March 2007, Mr Sims’ employment was terminated. There is a conflict upon the evidence as to what occurred. According to Mr Tyack, Mr Sims said he wanted to be paid more money, or would “go and work in the cannery”. This meant the SPC cannery in Shepparton. According to Mr Sims, he was dismissed because there was no further work. Whatever occurred, he did not leave for reasons related to his low back. Nothing turns upon this dispute as to the evidence.
27 In 2008, Mr Sims continued his treatment with Dr Drenen. He undertook some retraining, and obtained his “electrical spotters ticket” which enabled him to work on sites where it was necessary to have a “spotter” to ensure crane drivers did not come into contact with surrounding hazards. He also worked from time to time at the SPC-Ardmona cannery, for Integra Personnel and with Game Traffic Contracting. He says these jobs were relatively light. Finally, in November 2011, he says he stopped work because of low back pain, and has not been working at all since. At the present time, he says he is completely unable to work because of his low back problem.
28 In 2009, Mr Sims underwent a pain management program under the supervision of Dr Brett Todhunter, specialist in anaesthesia and pain management, of Albury. This apparently provided some short-term relief.
29 In early 2010, Mr Sims also sought treatment from the Numurkah Medical Centre, in particular from Dr Jason Spencer. According to the clinical notes,[10] in February 2010, he was prescribed Endone for back pain. He has remained on Endone at various levels since. According to the report of Dr Spencer,[11] he gave a history in 2010 of low back pain after lifting heavy steel moulds at work around August 2008 (this would appear a typographical error and the year ought to have been 2006). Dr Spencer reviewed an x‑ray taken in August 2007,[12] which showed:
“… minor lumbar spondylitic change at L3/4 and L4/5. … .”
[10]Exhibit B
[11]PCB 39 – 40
[12]PCB 27
30 The appearance was otherwise normal.
31 A CT scan of the lumbar spine taken in October 2010 concluded:
“Mild facet joint arthropathy at L3-4 and L4-5.”[13]
[13]PCB 28
32 Subsequent radiology recorded similar results. A modest disc protrusion was recorded at L4-5.[14] There was no significant disc tear, canal stenosis, neural impingement, nor significant disc damage indicated on any of the radiology.
[14]PCB 31
33 In 2011, Dr Spencer again referred Mr Sims to Dr Todhunter, who carried out a number of facet joint injections. In 2012, an L3-S1 facet joint denervation was undertaken. These procedures did not provide any significant relief. By 2012, Mr Sims was taking 150 milligrams of Oxycodone per day, together with Endone. Gabapentin was also tried.[15] In 2014, Dr Todhunter arranged a Ketamine infusion, which again did not provide very much relief. Norspan patches were used, and he was placed on Lyrica for pain control.
[15]PCB 48
34 In November 2012, Dr Spencer referred Mr Sims to Mr Paul Smith, neurosurgeon, who obtained a history of the lifting incident of 2006. He found Mr Sims’ pattern of pain difficult to discern and noted he was on very large quantities of opioid medication. There were no clear-cut neurological deficits, nor any lesion which could be treated neuro-surgically.
35 Mr Sims has remained under the care of Dr Spencer through to the present time. As Dr Spencer did not see Mr Sims until 2010, he has been unable to give an opinion as to the causal relationship between the work incident and the ongoing low back pain. Dr Spencer described Mr Sims as suffering chronic low back pain through the time he has consulted him, requiring the prescription of opioid medication. He has also referred Mr Sims for psychotherapy sessions with a psychologist. At the present time, Dr Spencer describes Mr Sims as
“… still struggling with chronic disability back pain. This is complicated by his history of bipolar affective disorder … There is no surgically correctable spinal problem and his response to denervation treatments and various medications has been poor although initially he did gain some benefit from denervation treatment by Dr Todhunter … .
His diagnosis is chronic mechanical back pain of uncertain etiology – possibly related to lumbar facet joint arthropathy and disc degeneration although this is far from clear.”[16]
[16]PCB 42
36 He said Mr Sims was significantly restricted in his domestic, recreational and social activities and that his prognosis was poor. He said there was little prospect of returning to full-time work but he might be able to do some light manual work.
37 Mr Sims claims the following consequences as a result of the workplace injury:
·He says he has constant pain in his lower back, fluctuating in severity depending upon the activities in which he is involved. He says the pain travels down his legs and he has pins and needles in his foot.
·He says his back is stiff and he has difficulty with activities including bending, twisting and lifting.
·He can no longer enjoy fishing, involvement with cars or motorcycles. He is restricted in his gardening and can no longer go camping as before. His wife bought him a boat some years ago and he has only taken it out twice.
·His sitting and standing tolerances are limited and he can only do either for about 30 minutes. He can only walk short distances.
·His sleep was affected and he wakes several times each night due to pain. He is tired the next day as a result.
·He is no longer able to work in manual farm or mining work.
·The pain requires significant doses of powerful opioid medication, including OxyContin, 20 milligrams twice a day; Lyrica, 150 milligrams in the morning and 300 milligrams at night; and Endone, 5 milligrams four times per day.
·He requires regular treatment and prescriptions from his general practitioner, and there is the prospect of being referred back to Mr Smith, neurosurgeon in the near future.
Consultant medical opinions
38 Mr Sims was examined by Mr John Roth, surgeon, in December 2011. I did not find Mr Roth’s report of particular assistance. He diagnosed Mr Sims as suffering a back injury on 7 July 2006.
39 Mr Sims was examined by Mr John Henderson, general surgeon, in 2013 and again in 2015. Although the reports are extensive, I did not find either of much assistance. He concluded Mr Sims was suffering a chronic low back strain injury/condition with evidence of some intervertebral disc degeneration at L3-4 and L4-5 and mild facet joint arthropathy at the same levels. He suspected Mr Sims may have developed a Chronic Regional Pain Syndrome.
40 Mr Gerald Moran, orthopaedic surgeon, examined Mr Sims on behalf of the insurer in July 2013. Mr Sims denied any history of low back pain before 2006. He considered Mr Sims had aggravated L3-4 and L4-5 facet joint arthropathy which he had established after viewing the CT scan of October 2010.
41 The consultant medical report which I found of most assistance is that of Mr Rodney Simm, orthopaedic surgeon, of 24 June 2015.[17] He received a comprehensive list of medical and radiological reports and clinical notes. In particular, he noted the report of Mr Plant, physiotherapist, of the history of prior low back pain. He appears to be the only practitioner who has received a full and comprehensive history. He noted the history of treatment and was told by Mr Sims of constant low back pain of between 2 out of 10 and 8 out of 10 on the pain scale. He made a physical examination and viewed all radiological reports. He concluded the following:
“The diagnosis is chronic mechanical non-specific lumbar back pain with the clinical features of a chronic spinal pain syndrome. I was not able to establish a precise diagnosis to explain his history of relapsing and increasingly severe lumbar back pain. The lumbar back pain has occurred against the background of a longstanding bi-polar disorder and a history of excessive intake of alcohol and recreational drug use. He now resides in a bus at the rear of a small rural property, where his ex-partner also lives. There seem to be a number of factors contributing to this man’s transition to the Disability Support Pension some years ago. It is difficult to determine the contribution to his current condition from the lifting incident at work on 7 July 2006. There is contemporaneous documentation that this incident was associated with increased back pain. This was in the context of somebody who gave a history of several months of back pain before that incident when reporting to his physiotherapist. There was also a history of relapsing back pain extending over many years, with the first x‑ray report in the file material dated 1996. Following the episode of back pain on 7 July 2006 there was an incident report but no subsequent WorkCover claim, and although there is some evidence in the file material of him returning for medical and physiotherapy consultations because of relapsing and at times severe back pain, there was also evidence that after the initial injury he was able to go back to work and he remained in the workforce, albeit intermittently, for a further period of about five years, at which point in time he ceased work and submitted a WorkCover claim. In the absence of a pathological diagnosis, I not able to give you a definite opinion regarding the role of the claimed work injury. It seems that this injury did trigger a change in the pattern of his pain, which worsened after the injury, and although there are a number of other factors contributing, this injury does seem to be one of the factors which have led to the chronic spinal pain syndrome.”[18]
[17]PCB 90
[18]PCB 96
42 Mr Simm thought the prognosis was poor and that he would suffer chronic and disabling spinal pain indefinitely. He thought treatment would prove ineffective, including a further pain management program. He thought Mr Sims had an opioid dependency. He commented that the pathology showed no more than what would be expected in half the population of his age and, of itself, did not support evidence of a significant lifting strain.
43 Mr Simm continued:
“Assessment of his work capacity is based largely on subjective factors. The clinical signs presented included the Waddell’s signs and other non-organic features. However one cannot ignore this man’s complaints of back pain with physical activity. He did present as a genuine person.”[19]
[19]PCB 97
44 He thought Mr Sims could not undertake work of a manual nature. Although he found evidence of functional overlay, he thought the clinical presentation was genuine. He concluded that he would have to accept on probability that the back injury did contribute to his incapacity for employment.
Credibility of the Plaintiff
45 I found Mr Sims a reasonably impressive witness, despite a long history of psychological troubles and alcohol and recreational drug abuse. Of most significance is that he made frank admissions about his psychological past and about other matters, as I would expect of an honest witness. His answers to questions in cross-examination were generally moderate and responsive. I agree with the orthopaedic surgeon, Mr Simm, that he presented as quite genuine.
46 There are a number of areas of conflict on the evidence as between Mr Sims and Mr Tyack. I should also say, I also found Mr Tyack a reasonably impressive witness. Of most significance is the evidence as to what occurred on 7 July 2006. Mr Sims said he raised his injury with Mr Tyack and was told to make an entry in the injury register, which he did. Mr Tyack says he has no recollection of such an incident and was not told of any complaints of pain or problems, nor observed Mr Sims taking any medication, after the incident.
47 It is clear there was some friction in the relationship between the two, at least by March 2007. Mr Tyack clearly has suspicion about Mr Sims’ claimed injury, in particular because a Claim Form was not lodged until August 2011. He considered the Claim Form contained false information. In his statement, he said: “I think that he would do anything to get something for nothing.”[20] He thought Mr Sims was “double dipping”, in that he collected social security as a single person despite being married and living with Debbie.[21]
[20]DCB 6
[21]DCB 6
48 I accept Mr Sims’ explanation that he has, until most recently, been living a lonely and isolated existence on a bus at his wife’s property and that he is single, in that he has, until just recently, been living separately from his wife, albeit on the same property. Mr Tyack records that Mr Sims did some further work, including fencing, for a Mr Rodney Ormond, and for various other employers.
49 In addition, Mr Tyack’s partner, Ms Ormond (the mother of Mr Sims’ wife) also provided a statement. In that statement, she records Mr Sims’ association with alcohol and drugs. I gained the clear impression that she did not approve of him nor his conduct. She mentioned an extensive criminal record. According to a diary that she kept, she recorded his trips to Queensland in 2007, and a range of activities in which he was involved in 2007 and 2008, which she says are inconsistent with someone with a bad back. However, I accept the explanation by Mr Sims that his involvement in these tasks was relatively minor, and indeed, they were not strenuous activities and relatively dispersed.
50 I conclude that the incident of 7 July 2006 indeed occurred, as Mr Sims has described. I accept he did report it to Mr Tyack, although the nature of the report was probably somewhat casual and Mr Tyack simply does not remember it. I accept Mr Sims recorded it in the injury book which can now not be located.
51 Mr Sims’ version of events is supported by the history provided to the physiotherapist, Mr Plant, and Dr Kaur, relatively close to the time the incident occurred. I further accept that he has been on significant pain-relieving medication from 2007 and into 2008 and complained throughout that year of low back pain to his doctors.
Conclusions
52 As Mr Batten submitted, the first matter is to identify the injury Mr Sims complains he has suffered. That is not a straightforward task in this case. The radiology, while showing some facet joint arthropathy at L3-4 and L4-5, is relatively normal. I accept Mr Simm’s diagnosis that Mr Sims has mechanical, non-specific lumbar back pain which has generally been resistant to a range of interventions, including a rehabilitation program, spinal injections, denervation treatment and significant quantities of opioid medication. The authorities do not require a specific site of injury to be identified. I accept the injury as a soft tissue injury to the lower spine in the L3-4 to L4-5 region, probably to the facet joints at those levels.
53 Mr Batten further submitted that Mr Simm’s reference to “chronic spinal pain syndrome” was a reference to a psychological condition. This was supported by Mr Simm’s findings with non-anatomical features on examination. It is not particularly clear from Mr Simm’s report whether such a syndrome was physical or psychological, but even accepting it was psychological, I am satisfied from the report, and the report of general practitioner, Dr Spencer, that the pain and disability in the lower spine is substantially related to a physical injury or, a mechanical injury.[22] To the extent that there is a psychological aspect to Mr Sims’ pain and restriction, either because of a psychological pain syndrome, or his other various psychological problems, in my view, it is relatively minor.
[22]See Meadows v Lichmore [2013] VSCA 2001 at paragraphs [21] – [23].
54 As stated, I accept Mr Sims’ version of what occurred on 7 July 2006. I accept he had lower back pain from time to time over the years going back as far as 1996, but it did not require any significant treatment and did not interfere with his various activities to any great extent. In particular, he appears to have had pain over a three-month period before the incident, but the incident represented a significant aggravation which has been the precipitating factor for extensive medication and treatment over the years since.
55 True it is, as Mr Batten submits, that Mr Sims kept working and did not leave employment for reasons related to his back in March 2007. Further, he did not submit a WorkCover Claim Form for some years. However, it is clear that he reported the incident to his physiotherapist and general practitioner within a relatively short time and from late 2007 and into 2008, was ingesting significant quantities of pain-relieving medication, and reporting low back pain to his general practitioner regularly. I accept his explanation that he thought initially the injury would repair and he would be able to return to full activities. I further accept his evidence that in his employment with Mr Tyack after the incident, he was careful with his back and further, that his employment with other employers in subsequent years was of a much lighter nature.
56 I accept that he suffers the consequences which he claims as a result of the injury. In particular, he suffers constant pain, with some referred pain into his legs which restricts him in a range of ways. On any view, he has had significant treatment over the years and been prescribed a lot of powerful pain-relieving medication. There may be, as Mr Batten suggests, an element of addiction to this medication but I accept Mr Sims’ evidence that he has been simply following the direction of his doctors and he is now trying to reduce that intake.
57 I further accept that his recreational, domestic and working activities are restricted in the manner he describes and that given, in particular, his history of physical employment, any employment in that area would be very difficult for him.
58 Taking into account the consequences of the injury, I am satisfied they achieve the “very substantial” level the legislation requires. The plaintiff’s application thus succeeds.
59 I will make orders granting leave to commence proceedings, together with orders as to costs.
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