Sleddon v Sleddon (t/as Roalan Enterprises)
[2018] VCC 1151
•1 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05195
| CHRISTOPHER JOHN SLEDDON | Plaintiff |
| v | |
| ALLAN SLEDDON (trading as ROALAN ENTERPRISES (ABN 27 769 912 593)) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2018 | |
DATE OF JUDGMENT: | 1 August 2018 | |
CASE MAY BE CITED AS: | Sleddon v Sleddon (t/as Roalan Enterprises) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1151 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to neck over the course of employment – nature and extent of plaintiff’s retained earning capacity – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment:Leave granted in respect to pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders | Maurice Blackburn |
| For the Defendant/s | Mr J L Batten | Russell Kennedy |
HIS HONOUR:
Preliminary
1 In about 2007, the plaintiff, Mr Christopher Sleddon, commenced work with his father’s landscape gardening business. The work was relatively heavy, and involved a range of manual tasks, use of machinery, bending and lifting and the like. In about the middle of 2010, he started to feel pain in his neck. In August 2010, he went to see his long-term general practitioner, Dr Weiss. It was initially considered that he had a shoulder injury, but subsequent investigation revealed a significant problem in his neck at the C4-5, C5-6 and C6-7 levels.
2 Mr Sleddon was referred, eventually, to a spinal surgeon, Mr Chan, who, on 28 November 2013, carried out a cervical discectomy and fusion at the C4-5, C5‑6 and C6-7 levels. He had remained working full time up until June 2013.
3 Although the surgery was technically successful, and largely relieved referred pain down into his hands, and reduced his neck pain, he has been left with ongoing neck pain which at times is severe. He takes a range of pain-relieving medication. He has not worked since 2013, and says he has little if any work capacity at the present time. He says a range of domestic and recreational consequences have followed as a result of the neck injury.
4 This is a serious injury application. Leave is sought for both pain and suffering and loss of earning capacity. The body function said to be lost or impaired is the cervical spine.
5 Mr Batten, for the defendant, identified the following issues in relation to the application:
· Whilst not making a formal admission, he said there was evidence, both lay and medical, that the plaintiff had suffered pain and suffering consequences which met the “serious injury” threshold the legislation required.
· There was no clear incident which was said to have caused or contributed to the neck injury and did not concede that the plaintiff’s employment was a significant contributing factor. However, he did not press the issue in final submissions and I am satisfied, in particular from the medical evidence, that his neck condition indeed was contributed to by his employment in his father’s business. There is no medical practitioner suggesting otherwise.
· The real issue is whether or not Mr Sleddon has a retained work capacity, and whether his pre-injury capacity has been reduced by 40 per cent.
6 At the conclusion of the evidence and submissions, on 30 July 2018, I informed the parties I was satisfied that the plaintiff’s application was successful and proposed to grant leave for him to issue proceedings at common law. These are the reasons for that decision.
Loss of earning capacity
7 Mr Sleddon completed Year 11 at school. He then took up a motor mechanic’s apprenticeship but did not complete it. He worked as a courier for five years and then as a laboratory technician for a company, Dairy Technical Services. That work was largely sedentary, although he was required to unpack eskies weighing between 10 and 20 kilograms, containing samples which he fed into a machine. There was computer work involved. He worked in that job for five years.
8 Mr Sleddon started a concrete business and worked in it for about ten years.
9 In 2007, he started working in his father’s landscape gardening business. His father fell ill with heart difficulties, and he stepped in to help in its operation. He said the work was heavy and involved some concreting, lifting of machinery, using jackhammers, pushing wheelbarrows containing mulch, as well as standard gardening duties. He supervised the business generally, and several employees who worked in it, until his father came back to work. His father has remained working in the business through to the present time. He is about seventy-five years of age.
10 His neck pain came on in mid to late 2010. As stated, eventually, he underwent major cervical surgery involving a three-level fusion. Prior to that, he developed pins and needles, in particular in his left hand.
11 Mr Sleddon was cross-examined extensively about the work that he undertook in the family business and it was suggested that he would now be able to work in that business, avoiding the heavier duties, but effectively as a supervisor. He denied there was any prospect that he could work in the business at all.
12 Mr Sleddon continued to work in the landscape business until June 2013, when he stopped work because of his worsening neck condition. By that time, he had been advised by Mr Chan as to the need for cervical surgery. That took place in November 2013. Mr Sleddon admitted that the surgery was effective, in particular in reducing the radicular symptoms into his left wrist and hand and, to some extent, ameliorated his neck pain. However, he says he was left with significant ongoing neck pain which made a return to any pre-injury duties impossible.
13 Subsequent to the surgery, Mr Chan referred Mr Sleddon to Dr Vallipuram, a pain management specialist. He complained to that practitioner of ongoing pain in the neck, in particular on the left side, and some referred symptoms to the left hand. The pain was said to be continuous and aggravated by normal activities. Driving caused difficulties. Dr Vallipuram arranged a nerve block to the cervical level which reduced the pain, but only for about three weeks. Dr Vallipuram prescribed medication, including Pregabalin and Panadeine Forte.
14 Mr Sleddon saw Mr Chan a number of times after surgery, the last in May 2015. In a report of March 2014, Mr Chan said Mr Sleddon had no capacity for his pre-injury duties. He thought he could be retrained into modified duties providing he avoided heavy lifting, excessive or sudden rotation or flexion or extension of his neck, and avoid activities with his hands outstretched and his neck at the extremes of range of motion. He thought the overall prognosis was good. There was about a 10 per cent chance of deterioration with symptoms to adjacent cervical discs.
15 Mr Sleddon has remained under the care of his long-term general practitioner, Dr Weiss. In his report of 1 March 2018, Dr Weiss said Mr Sleddon was unfit for any pre-injury work duties because of the risk that even a minor injury might cause spinal cord or nerve root injury. He said he was fit for very light manual, sedentary duties involving neck restrictions. He said the prognosis was guarded given the substantial disc destruction and nerve root entrapment and the precarious nature of the surgery performed. In an earlier report of March 2014, Dr Weiss said that Mr Sleddon was fit for training in a “neck friendly” environment within certain restrictions. He provided a certificate of work capacity to that effect.
16 According to his affidavits, Mr Sleddon says that he has constant chronic neck pain and stiffness. From time to time he gets left arm pain. This causes disruption to his sleep. He finds sitting for long periods, twisting his neck or holding it in a fixed position difficult. He cannot run, and even walking is a problem. A range of heavier domestic duties are difficult. He sees his general practitioner once a month or so. He takes Panadeine Forte regularly, most days, and Lyrica, twice a day.
17 In evidence, Mr Sleddon said that in particular, it is difficult for him to nod his head downwards, bringing his chin towards his chest.
18 About two times or so per week he gets flare ups of his neck pain. He has to lie down for half-an-hour or more. He says lying down is the only thing which seems to alleviate the pain and take pressure off the neck.
19 He says, in terms of work capacity, that he has no training nor experience in administrative or sedentary work. He cannot sit for long periods and cannot hold his neck in a fixed position, such as when reading or using a computer. His computer skills are basic. He has never worked in sales positions.
20 Mr Sleddon was cross-examined as to a range of job options suggested by the vocational assessor, Recovre, including:
· cashier in a large retail outlet
· quality inspector/price integrity officer
· rental/customer service officer; and
· machine picker/packer.
21 Mr Sleddon said that he had never worked as a cashier nor in sales. He said it would be difficult to look down to a cash register. It would be hard to move his head from left to right. As to a price integrity officer, he said that involved walking around scanning shelves, looking up and down. He could not bend in the manner depicted in the photographs.[1] He said it hurt his neck if he bent at the waist. He said he could not work as a machine picker or packer as he could not do the bending or lifting. He said he had been advised not to lift more than 5 kilograms and if he did, he got severe neck pain. Working as a rental/customer service officer would be difficult as it would involve computer work and driving. He could use a computer for five or ten minutes but no more. Driving distances hurt his neck, in particular in peak-hour traffic. He was happy to drive for fifteen to twenty minutes but anything longer was difficult.
[1]Defendant’s Court Book (“DCB”) 18
22 Mr Sleddon currently is in receipt of a Centrelink Newstart allowance. It was a requirement that he “looks for” three jobs per week. He has dropped his CV off at a number of factories in the Frankston area, seeking work as a landscape gardener. He would be prepared to trial the work but had received no response. He is not currently registered with any employment agency nor labour-hire company.
23 In addition to the treating practitioners to whose opinions I have referred, Mr Sleddon was examined by a number of consultant practitioners who have provided opinions as to his work capacity.
24 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, in his report of 14 February 2018, said that having a three-level cervical fusion placed stress upon the disc levels above and below and he was likely to develop premature degenerative changes at those levels. He noted Mr Sleddon had always undertaken physical work and had no capacity to perform that work. He noted permanent nerve damage to the left arm. He said any lifting under load would promote degeneration to the already damages discs. He said:
“By way of his past education, history of work and current situation, he does not have work capacity and this is indefinite.
He does not have any realistic capacity for work. He does not have the capacity for suitable employment.
The prognosis here is poor.
… .”[2]
[2]Plaintiff’s Court Book (“PCB”) 58
25 Dr Joseph Slesenger, occupational physician, in his report of 28 May 2018, received a history of ongoing moderate to severe pain in Mr Sleddon’s neck which was variable, aggravated by cold weather and activity, particularly forward reaching and maintaining his neck in a fixed position, and with extremes of neck movement. Dr Slesenger said Mr Sleddon was not fit for unrestricted work duties. He could not return to his pre-injury duties. He said:
“… Taking into consideration his age (48), his residential location (Frankston), his current symptoms and functional limitations, his medication side effects, the variable and unpredictable nature of his symptoms, his past occupational experience, his computer skills and his lack of qualifications, I am of the opinion that he is unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.
I have considered his capacity to return to work as a lab technician (perhaps in the food industry) and I am of the opinion that he could not return to work in this role as he is likely to have difficulty with the repetitive nature of the manual tasks. He is also likely to have difficulty performing the associated computer tasks. Furthermore, I am of the opinion that he is unlikely to attend work on a consistent and reliable basis.”[3]
[3]PCB 131
26 Mr Sleddon was examined by Dr David Barton, occupational physician, in September 2017. He said there were no features to suggest exaggeration of problems, although noted his palms appeared to be “inconsistent with the level of activity he says he undertook”. He said:
“In isolation it would appear that the worker would not be considered to have a capacity for suitable employment. He reported symptoms that were deemed to require significant surgery. Often the surgeon to undertake these procedures usually recommends that their patients need to be careful afterwards and therefore avoid any significant physical activity. The worker during the consultation suggests that as a result of the operation he was not allowed to turn his head too much in any direction. On the other side of the coin the worker's hands would suggest that he is actually quite physically active. The state of his palms was inconsistent with doing a few simple chores at home, inside the house, which is all he said he really did.
…
Based on his skill set it is likely that the vocational assessment will suggest that he has a capacity for some lighter tasks. Based on the state of his palms I would accept that he would appear to have a far greater capacity than he is appearing to acknowledge. Accordingly I would see no particular physical reason why he could not undertake a variety of lighter physical work where he avoids any heavy lifting, adopting awkward or constrained postures for prolonged periods, and where there were some variation in duties.”[4]
[4]DCB 4
27 In a further report of 16 November 2017, having been provided with surveillance footage (which was not shown to the Court), Dr Barton said he observed Mr Sleddon being able to move his neck in a fairly free and easy manner. Accordingly, he said he thought Mr Sleddon had the capacity to perform the various jobs suggested in the Recovre report on a full-time basis.
28 I do not accept the opinion of Dr Barton. It is difficult to understand how a practitioner can assess work capacity by reference, on one occasion, to scuffed or dirty hands.
29 In a report of 24 April 2018, Dr Graeme Brazenor, neurosurgeon, noted that Mr Sleddon’s neck pain had been considerably improved by Mr Chan’s fusion operation of November 2013. He said Mr Sleddon must perpetually avoid the “chin drop” position or twisting his neck, such as in the inspection of confined spaces or looking under machinery.
30 Of the jobs suggested by Recovre, Dr Brazenor said work as a packer would be unsuitable. He thought Mr Sleddon would have the capacity to work as a cashier, price integrity officer and customer service officer on a full-time basis providing he avoided the extremes of neck movement and the “chin drop” position.
Analysis
31 I found Mr Sleddon a straightforward witness giving a fair account of the significant injury to his neck and the consequences which flowed. I did not detect any exaggeration nor affectation. He answered questions in cross-examination in a forthright manner. There were no major credit issues put to him, and with the exception of Dr Barton, the various medical practitioners found him as giving a straightforward account of his difficulties.
32 On any view, a triple level fusion operation to the cervical spine represents major surgery. There is the risk of degeneration at the surrounding discs. It is clear Mr Sleddon must be careful in the way that he manoeuvres, extends and turns his neck.
33 His education is modest. His work experience is only in manual jobs of one sort or another, some lighter, some heavier. There is no issue that he cannot return to his pre-injury work. The real issue is whether he has the capacity to work in the areas of employment suggested by Recovre, or possibly as a supervisor in some gardening business.
34 I accept Mr Sleddon’s complaints of ongoing pain in the neck and occasional pain to the left arm. I accept in particular he has difficulty turning his neck from side to side and into the “chin drop” position. I accept that this makes work on a computer, or a cash register, difficult, even if he had the skills to carry out those tasks, which I doubt.
35 I accept his explanation as to the difficulties he would face in the areas of employment set out in the Recovre report. Looking up and down on shelves, turning from side to side, driving any distance and work on a computer I assess as creating significant difficulties for him, including pain and restriction.
36 To this should be added his age, the nature of his injury and symptoms, and his work experience. He has never worked in a sales job, or in administration. It is possible he might undertake work as a supervisor in a landscape gardening or like business but I am satisfied that he would have the capacity only for very lighter duties, and not on a consistent and reliable basis.
37 I prefer the opinions of Dr Clayton Thomas and Dr Slesenger that he has no realistic work capacity. Even those practitioners who say he does have a work capacity impose very significant restrictions on what he can do, and the way in which he can hold his neck. While Dr Weiss said he had some work capacity, it is clear from his report there would be significant restrictions imposed.
38 Realistically, I am of the view he has very little if any work capacity. Certainly, the reduction in his work capacity as a result of his neck injury is greater than 40 per cent.
39 I shall grant leave for the issue of proceedings both for pain and suffering and economic loss.
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