Smith, Christopher v Strathayr Pty Ltd
[2009] VCC 823
•10 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-07-04567
| CHRISTOPHER SMITH | Plaintiff |
| v | |
| STRATHAYR PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 and 10 June 2009 |
| DATE OF JUDGMENT: | 10 July 2009 |
| CASE MAY BE CITED AS: | Smith, Christopher v Strathayr Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0823 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the neck – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC and | Aitken Partners |
| Mr B Hutchinson | ||
| For the Defendant | Mr J Batten | Thomson Playford Cutlers |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant from January 2000 until 4 May 2004 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” 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, counsel for the plaintiff having conceded that the plaintiff’s shoulder problem was pain referred from his cervical spine.
Outline of s.134AB
(i) 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;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, s-s.(19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By s-s.(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity 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 more than “significant” or “marked” and “at least very considerable”;
(v) 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;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires that questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Pty Ltd (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross examined.
6 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
7 The plaintiff is presently aged fifty nine, having been born on 23 August 1949. The plaintiff had a very sad and traumatic upbringing, spending his childhood in orphanages and boys’ homes.
8 The plaintiff was educated to about Year 7, and upon leaving school at the age of fourteen he worked as a roof repairer for eight years and then as a vineyard labourer for three years. He later did bridge work for a local council for about two years.
9 In cross examination, the plaintiff agreed he had suffered from migraine type headaches since he was a teenager. He had seen his doctor for treatment in the late 1970s and early 1980s. He was prescribed Sandomigran. He could not recall being referred to a specialist, Mr Gilligan, for his headaches in 1977 but he could remember having to go to hospital and have injections for his headaches before that time.
10 The plaintiff admitted he was involved in a head-on motor vehicle collision in 1972 but he denied he suffered a whiplash injury in that accident.
11 The plaintiff commenced work with the defendant as a mower and harvester in about 1980. For the first seven years he drove a tractor and mowed the grass. The plaintiff then went on to harvesting work in about 1987. That work involved the plaintiff standing on the back of a harvester, taking rolls of turf from a conveyor, and stacking them on a pallet on a platform on the harvester (“the work”).
12 The plaintiff deposed that the work, particularly after January 2000, was heavy and repetitive.
13 In 1984, the plaintiff left employment with the defendant for about four years to work in bridge building, and later he later did a six month stint as a roof tiler.
14 In cross examination, the plaintiff said that he had not worked as a roof tiler since 1996. When asked whether he was doing three jobs and working eighty hours in December 2003, as noted by his general practitioner, he denied working such hours but he said he was doing “a bit of roof tiling” and his “plants”, in addition to his work with the defendant. He occasionally did roof tiling on weekends.
15 The plaintiff has a significant history of depression. In 1996, he attempted suicide and was admitted to the Royal Melbourne Hospital where he spent thirteen days in intensive care. He was off work for ten months thereafter.
16 Since his discharge from hospital, the plaintiff has continued to take anti- depressant medication, including Prozac and Lithium, which are prescribed by his general practitioner.
17 In cross examination, the plaintiff said that since 1996 he “has gotten better in himself with his self esteem”. He feels good mentally and hopes one day to get off Prozac and Lithium.
18 The plaintiff had three minor injuries at work unrelated to his neck and right shoulder between 2000 and 2003, in relation to which his claims for compensation were accepted. Otherwise, up until the 4 May 2004 (“the said date”), the plaintiff had been pretty fit and well and there had been no restriction on his work duties save for these incidents.
19 Up until August 1999, when the plaintiff turned fifty, he performed his work without difficulty, never having any trouble with his neck. During 2000, the work he was doing became increasingly demanding, with the defendant having secured many large contracts.
20 The work during 2001 seemed to be harder, and day in day out the plaintiff was standing on the back of the harvester stacking rolls of turf that weighed between twenty and forty kilograms which were heavier when wet. Also, the surface upon which he worked was slippery. He had to stand on the tray to collect the rolls of turf by leaning down to the right with his legs spread. He then had to reach out at waist level, picking the rolls up at arm’s length and throw them from the harvester.
21 There were many times between 2001 and 2004 that the plaintiff would have to handle three to four thousand rolls of turf in one day whilst it rained continually.
22 In his early fifties the plaintiff was required to work harder and longer hours than before, working six days a week. During 2001, he was starting to “feel his age,” and in the early months of that year he had some neck pain.
23 The plaintiff deposed he told several doctors that he did not have problems with his neck prior to the said date, but that was not strictly correct. He had neck pain from 2000 which gradually became worse, and he did not see a doctor about it. He was not the sort of person who went to the doctor. He thought it was just part of simply growing old, even though the pain and headaches were getting to the point where they interfered with his sleep.
24 The plaintiff was determined to keep his job, and consequently never complained to the defendant, whom the plaintiff thought was not very tolerant or understanding about work related injuries.
25 During 2002, the plaintiff found the work increasingly difficult, and he began to have pain in his neck every week or so, and the occasional headache. Those symptoms gradually increased to the extent that after work at home in Seymour the plaintiff would have to rest in his recliner chair for an hour or so before going to bed. This was not the case in the 1990s.
26 In cross examination, the plaintiff responded to a number of matters raised in his former wife, Christine’s, affidavit. He agreed in the years after 2001 he complained to her of neck pain from time to time. He disagreed he had neck pain for a long time. He never told her he was suffering back and neck pain as a result of his work as a tiler.
27 In cross examination, the plaintiff could not recall having an x - ray of his neck in July 2001. He agreed that he had complained to doctors at the Seymour Family Clinic (“the Clinic”) in December 2003 of hurting his arm stacking rolls at work. He also complained of long term chronic lower back pain and he agreed that he complained of social isolation at that time.
28 It was not until the said date that the plaintiff suffered enormous neck pain when he tilted his head back to drink a can of Coke (“the incident”). The incident occurred after he had left a farm at Seymour and had stopped to have lunch on his way to a further work job in Avenel. The plaintiff could not really recall what type of work he had been doing that morning.
29 The plaintiff was cross examined about the Claim for Compensation he had completed on 11 May 2004. He noted the date of injury as 4 May 2004. He answered “yes” to the question: “Did the injury or condition arise gradually over a period of time?” When asked exactly how the injury occurred, he answered: “suddenly”. He answered “no” to the question whether he had any previous pain or disability in the area of the present injury. The plaintiff agreed there was no reference to the incident in the claim form.
30 The plaintiff explained that the neck pain he experienced in 2000 was on the left side of his neck. He has had worsening right sided pain since the incident. The pain became worse on the right but did not move from the left side.
31 The plaintiff attended Dr Islam on 6 May 2004, who referred him for x-rays and confined him to light duties. The plaintiff cannot remember what he told Dr Islam on this visit but he was sure he would have told him about the incident. He could not recall telling him of experiencing one month of neck and right shoulder pain lifting heavy weights at work but it was possible he did.
32 The plaintiff attempted a return to work following the incident, but he could not handle it. He deposed that the defendant was neither helpful nor encouraging in relation to his return to work. When the plaintiff tried to return to work he was subjected to ridicule and snide remarks from his supervisor and other employees, and learnt very quickly that the workplace was not particularly sympathetic to those who had been injured.
33 On his return to work six weeks after the incident, the plaintiff was requested to operate a forklift, but the repeated bouncing aggravated his neck. He was also unable to operate a mower, as that work required repetitive head rotation from one side to the other. As he could not cope with his duties he again ceased work.
34 When the plaintiff returned to work on 25 July 2004 he was required to do mowing using a power assisted tractor. However, his neck pain gradually built up, and a month later he was again put off work, and has not returned to work since.
35 In cross examination, the plaintiff agreed he felt the defendant had not treated him well but he denied that he was angry with the defendant. Having worked for the defendant for twenty years, the plaintiff explained that he expected more understanding after he was injured. He also expected that the defendant would have offered him light moderate work following the incident.
36 When cross examined about an entry in the Clinic notes dated 13 May 2005 that his depression was in some way related to work, the plaintiff denied this was the case. Further, he said he did not harbour any thoughts against the defendant.
37 When the plaintiff ceased work with the defendant he was earning $625 net per week. The plaintiff was in receipt of weekly payments until January 2006 when his payments were terminated. The plaintiff could not recall doing anything when he received the termination notice. Since that time he has been in receipt of a disability pension.
38 The plaintiff’s gross earnings from the defendant from 1999 were as follows:
Financial Year Ending Earnings 1999 $27,709
2000 $28,880
2001 $29,481
2002 $33,922
2003 $36,095
2004 $35,502
2005 $31,037
39 In the first month after the said date the plaintiff did not have any specific treatment. He had an MRI scan of his neck and shoulder at St Vincent’s Hospital on 8 September 2004.
40 The plaintiff was subsequently referred by Dr Islam to an orthopaedic surgeon, Mr Khan. Mr Khan in turn referred the plaintiff to Dr Clayton Thomas, pain management specialist, whom he saw on 5 January 2005. Dr Thomas told the plaintiff there was nothing that could be done for his neck, and he prescribed Endep and Epilim. He organised for the plaintiff to be assessed for the Dorset Rehabilitation Centre Pain Management Program (“the program”).
41 On 9 February 2005, the plaintiff was assessed by a physiotherapist, occupational therapists and a psychologist, and he was admitted to the program. The plaintiff did not commence the program “because there was no follow up”. He explained that he telephoned a few times. “They were going to get back to me and they never did.”
42 In about April 2008, the plaintiff had a shocking pain in his right arm lasting for about three weeks, after which Dr Dwyer referred him to St Vincent’s Hospital for nerve conduction studies. The plaintiff was told by the specialist at the hospital that pins and needles in his right arm were not related to carpal tunnel but probably were related to his neck injury.
43 The plaintiff has neck pain all the time. He has right sided headaches and neck stiffness every day which is intense at the end of the day. In cross examination, the plaintiff agreed that he had a full range of movement of his right shoulder. However, he gets pain in his shoulder which he believes is coming from his neck. When his neck is sore, his shoulder hurts at the same time. His pain starts in the middle of his back; it goes into his neck and into the right side of his face down his chest into his jaw and into his right shoulder.
44 The plaintiff has difficulty sleeping due to pain. He usually gets up at about 5.00 or 6.00 am when the pain is too bad to stay in bed any longer. After he gets himself mobile and does some watering, he goes for a walk, or does some housework, and generally potters around the house.
45 The plaintiff moved to Geelong from Nagambie in February 2009 to be with his partner. He had lived in Nagambie for a short time, having lived in Seymour since 1979.
46 Since the said date the plaintiff’s social life has changed dramatically. He used to play indoor cricket until 2001. He no longer has any involvement in the game or with his cricket friends. If it were not for his neck pain he would be playing some sort of sport today.
47 The plaintiff used to enjoy his job, having worked with the defendant for more than twenty years. He now lives a very solitary life, and misses work very much, particularly the drinks after work with his workmates. He now does not go out very much, and he feels hopeless. Sometimes a friend comes to see him, but the plaintiff does not really socialise very much.
48 The plaintiff has trouble driving, because it causes a considerable strain to turn his head and he has difficulty holding his arms on the steering wheel. He has neck pain driving from Seymour to Geelong. Simple household chores are difficult. The plaintiff has put on weight as a result of his inability to be as active as he was.
49 The plaintiff developed a hobby at home whilst living in Seymour during the 1990s growing small plants from seedlings. He used to take the plants to markets on the weekends, but he found it too strenuous and then sold plants from home. He also sold plants from home whilst living in Nagambie. At any one time the plaintiff would have had a hundred plants at home.
50 The plaintiff used a trolley to shift the plants around, but the plants were usually small enough to pick up, as they were only six inch pots. Sometimes he was able to potter around and work on this activity for a little while, and at other times was not able “to get going”.
51 In cross examination, the plaintiff denied he was running a plant business at any time. He has continued with his hobby since moving to Geelong. He denied his gardening involved heavy manual and physical work. He agreed he could lift bags of potting mix and use secateurs and that he had recently done so whilst helping his “Aunty Betty” with her pruning. He made thirty five dollars on one of his two trips to the market at Geelong this year to sell plants.
52 In cross examination, the plaintiff agreed he had ridden his motor bike to Perth in 2003 to see his ex wife when she was sick. He sold his bike in 2008.
53 The plaintiff deposed he would be happy to consider any sort of light work employment, but would find it difficult. He has a very limited education, and he does not have very good reading or writing skills. The job with the defendant was about the only job he had ever known, apart from roof tiling or bridge work, which were now out of the question. He would be glad to get and keep light to moderate physical work. The vocational guidance people had recommended a number of jobs, all of which required a range of movement that he was simply not capable of performing. He has tried to cooperate in all rehabilitation programs.
54 The plaintiff has only ever worked as a manual labourer, and was a poor student. He would find retraining or working in a sedentary job very difficult. He also thought there would be problems with his reliability, turning up for work on a regular basis four or five days a week.
55 The plaintiff could not recall discussing with Dr Chakrabarti in 2005 that he attend Work Trainers. The plaintiff did not think that he had taken any return to work proposal to the Clinic or to his solicitors. He had not discussed jobs with doctors at the Clinic.
56 The plaintiff looked for work when he was living at Seymour. He had registered with Workways, a labour hire firm, and kept a lookout for suitable jobs but there was nothing around. He kept a lookout in the local papers and on local noticeboards for some sort of casual work which he might be able to do. He discussed his situation with his friends, and asked them to look out for a job that he might be suited to.
57 The plaintiff agreed that in February 2006 he probably told KTM-SDA that he did not believe he had a work capacity and that he was not willing to participate in job search assistance.
58 In cross examination, the plaintiff agreed he had made no attempt to get work since moving to Geelong. He had not gone to Centrelink to register as being available to work. He had not looked for jobs in the paper.
59 The plaintiff denied that he was not looking for work until his case was over. He denied that he had retired. He would have a go at light work if it was offered to him. He explained that the reason he was not looking for work was that he had an injury. He did not know what he could do “with his neck the way it is”.
60 Although the plaintiff has moved to Geelong, he continues to see Dr Dwyer at the Clinic once a month for certificates and prescriptions. The plaintiff presently takes Mobic, Panadeine Forte, two or three times a week together with Prozac and Lithium.
The Plaintiff’s Medical Evidence
61 Whilst the notes of the Clinic were tendered by the defendant, there is little in the way of reports from doctors at the Clinic.
62 Dr Islam provided one report in July 2004. He noted the plaintiff suffered from chronic neck and shoulder pain which increased in intensity and severity during his employment, which involved lifting of weights and driving heavy machinery.
63 Dr Islam diagnosed facet joint dysfunction and sprain of cervical vertebrae, mainly C5, C6 and C7, and also cervical spondylosis. He noted the right acromioclavicular joint of the right shoulder was under degenerative process, and showed signs of moderate osteoarthritic changes. At that stage the plaintiff was on modified duties at pain free ranges, and had yet to be assessed for the return to work plan.
64 Dr Bryce at the Clinic, reported on a number of occasions between July 2005 and June 2006.
65 In his view the plaintiff had developed severe and chronic neck pain which the plaintiff associated with years of heavy lifting at work. Dr Bryce noted in July 2005 the plaintiff suffered from constant pain, and movements of his spine were very restricted. The plaintiff also complained of problems with his lumbar spine which he attributed to work. At that stage Dr Bryce thought the plaintiff was totally unfit for any manual labour.
66 The plaintiff was referred by Dr Islam to Mr Khan, orthopaedic surgeon, on 22 November 2004.
67 The plaintiff told Mr Khan that during his work he had developed pain in the right side of the neck, top of the right shoulder blade, radiating to the back of the scalp, with associated headaches. The plaintiff also told him of his long history of depression.
68 On examination, Mr Khan noted the plaintiff did not have pain in his shoulders and he could move them well. There was no sign of impingement. He noted the plaintiff got mild low back pain on and off. Movements of the cervical spine were reasonably good, with complaints of pain on extension and rotation and flexion. There was no evidence of any neurological deficit in the plaintiff’s upper limbs.
69 Mr Khan thought the plaintiff was not a candidate for surgery, and suggested he see Dr Clayton Thomas for a multidisciplinary pain program.
70 Mr Khan re-examined the plaintiff on 25 February 2005. At that time the plaintiff’s neck still ached and he got headaches. He could move his neck reasonably well.
71 Mr Khan considered the plaintiff had flared up pre existing disc degenerative change and disease in his cervical spine, and there was a mild disc bulge in the lower part of the neck, without any referred pain to his arms. He thought the plaintiff’s restricted elbow movement was probably due to degenerative changes as well as labouring work. At that stage Mr Khan did not have any plans for orthopaedic interference.
72 Dr Thomas saw the plaintiff on 5 January 2005. The plaintiff gave him a history of heavy lifting and told him about the incident.
73 The plaintiff complained of pain in the back of his neck, and occasional pain in the right upper limb. His primary problem was in his neck and shoulder girdle. He complained of frequent headaches in the back of his head and over the top, and occasionally involving his face. He said he had had no back pain for a couple of years.
74 On examination, Dr Thomas noted the plaintiff had minimal tenderness to his cervical spine, and range of movement was reasonably well preserved, with more pain in extension than flexion. Neurologically the plaintiff’s upper limbs were normal, and he had a full range of shoulder movement.
75 Dr Thomas reported that the MRI scan of the plaintiff’s cervical spine showed some minor degenerative changes only, and no evidence of any neurological compromise.
76 Dr Thomas thought the plaintiff seemed to be suffering from symptomatic spondylosis of his cervical spine, and it seemed like a mechanical neck pain problem. The plaintiff had cervicogenic headaches, and Dr Thomas recommended he take Endep and Epilim. He noted the plaintiff seemed receptive to attending the program.
77 Dr Thomas noted the plaintiff received what he described as a significant amount of harassment from the defendant, which Dr Thomas thought was a poor prognostic sign with respect to returning to work.
78 Dr Thomas noted the plaintiff attended the Dorset Centre for an assessment on 8 February 2005, and had not attended the program since. It was Dr Thomas’ understanding that funding for the program was requested from QBE Workers Compensation Insurance but never approved.
79 The plaintiff saw a psychiatrist, Dr Indranil Chakrabarti, in Shepparton on 26 January 2005 on referral from Dr Islam. He noted the plaintiff seemed to be undergoing a slight dip in his mood since his recent separation, until which his moods were reasonably stable. Before then the plaintiff had enjoyed his relationship with his partner, his sexual functioning was excellent and they engaged in bike riding and socialising together.
80 Dr Chakrabarti did not agree, with this level of activity, that the plaintiff was permanently incapacitated, and noted he had discussed with him the need to engage with CRS Work Trainers to start looking for work. At that stage Dr Chakrabarti thought it useful to increase the plaintiff’s sodium valproate medication and then look at reducing and stopping the lithium.
81 Ms Judith McKenzie, orthopaedic surgeon, examined the plaintiff on 11 February 2005. The plaintiff told her about the heavy nature of his work and also about the incident.
82 On examination, the plaintiff complained to Ms McKenzie of right sided occipital cervical headache which occurred almost daily, hypersensitivity affecting the crown of his head, pain across the neck at C6-7 and also along the right side of the neck from the occiput to the junction of the neck and shoulder. He also complained of neck stiffness by the end of the day, and disturbed sleep because of neck pain.
83 On examination, Ms McKenzie noted there was no obvious wasting of the right shoulder girdle. Neck movement was restricted and carried out a little stiffly, with right rotation in particular being said to cause neck pain. There were no sensory features. Shoulder movement was full and free, and resisted shoulder movements were strong and pain free.
84 Ms McKenzie reported that the plaintiff had developed neck pain since the incident, with headache and neck stiffness and sleep disturbance. Clinically cervical flexion and right rotation were a little restricted in range, and other neck movements and all shoulder movements were full, and there was no objective evidence of a neurological deficit.
85 Ms McKenzie noted plain x-rays and an MRI scan showing degenerative changes and multi-level disc desiccation. She thought there was also evidence of an annular tear and degenerative change affecting the left C3-4 and the C4-5 apophyseal joints.
86 In Ms McKenzie’s view the plaintiff suffered C6-7 intervertebral disc damage in the incident which was responsible for his pain. In addition, there was radiological evidence of multi-level cervical disc desiccation with some degenerative change, and there was radiological evidence of osteoarthritis affecting the right acromioclavicular joint.
87 In her opinion the incident was a significant contributing factor to the occurrence of the cervical injury. She thought the plaintiff did not have a capacity to undertake his pre injury employment. In her view the plaintiff was physically capable of carrying out work for four hours a day not requiring him to repeatedly lift or carry weights in excess of about five kilograms, to repeatedly push or pull under pressure, to use vibratory or percussive equipment, to carry out sustained overhead work, or to work with a fixed posture of the head for more than fifteen to twenty minutes at a stretch.
88 Ms McKenzie thought the return to work duties suggested in a job offer, save for forklift driving, were within the plaintiff’s physical capacity. She thought the plaintiff was suitable for the Dorset Program. She considered there would be a small level of permanent impairment because of the plaintiff’s neck condition.
89 The plaintiff was examined by Mr Gerald Moran, orthopaedic surgeon, on 11 November 2005.
90 The plaintiff told Mr Moran about the incident. The plaintiff complained of constant neck pain and headache and restriction of neck movement. On examination, there was restriction of cervical movement. Upper limb reflexes were normal.
91 In Mr Moran’s view the plaintiff aggravated degenerative disease of his cervical spine. He considered employment with the defendant was a significant contributing factor to the plaintiff’s current condition. The condition did not incapacitate the plaintiff for suitable employment, and in Mr Moran’s view the plaintiff was fit for light duties not involving repetitive flexion or repetitive rotation of his neck, and he also should not drive machinery. He considered the plaintiff had a capacity to participate in rehabilitation, such as undertaking a computer course, and from an orthopaedic point of view he had a capacity to study either short term or long term, and he had a capacity to undertake light duties in a nursery.
92 Having seen Mr Shannon’s report, he disagreed with his view that the aggravation of degenerative disease of the plaintiff’s cervical spine in May 2004 was temporary. He noted the plaintiff was complaining of constant neck pain and headaches, and both he and Mr Shannon had found the plaintiff had a restricted range of movement. He noted he and Mr Shannon were in agreement that the plaintiff was fit for suitable employment.
93 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff in October 2006. The plaintiff gave him a history of heavy work and also the incident. Mr Brearley noted that prior to the incident, the plaintiff never had any neck pain and since then it had been ongoing. Mr Brearley considered the heavy nature of the plaintiff’s work was relevant to his condition.
94 On examination, the plaintiff complained of constant discomfort or aching pain in the neck, and to a lesser extent the right shoulder. There was slight tenderness over the left side of the neck, particularly near the occiput. There was no deformity, and there was slight restriction of movement in all directions by pain. There was no deformity or wasting of the right shoulder, and movements were full in all directions. The plaintiff complained of discomfort at extremes.
95 In Mr Brearley’s view the plaintiff was not fit for his pre injury duties or any manual work, but he was fit for some light work. However, Mr Brearley noted the plaintiff had no work capacity, in that he was unable to do any work to which he was accustomed, and there was no possibility any employer would take him on for lighter work.
96 Mr Brearley noted the plaintiff was aged fifty seven with extremely limited education, and his work had been entirely as a labourer. He had no administrative skills and no rehabilitative training. Accordingly, he was quite unemployable in the current labour market, a condition which would continue indefinitely.
97 If he found work, Mr Brearley considered there would need to be a five kilogram and repetitive lifting restriction, rest breaks every ten minutes, and the plaintiff would have to be able to sit and stand as he wished.
98 In Mr Brearley’s opinion the plaintiff was suffering aggravation of spondylosis throughout the cervical spine resulting in chronic neck pain and pain referred to the shoulder. Mr Brearley did not consider there was any evidence of prior injury to the right shoulder. He thought the plaintiff was also suffering from many years of chronic anxiety and depression.
99 Mr Brearley noted that prior to the incident the plaintiff never had any neck pain, and since that time it had been ongoing. He noted the heavy work with the defendant would place a great strain on the plaintiff’s neck, and in particular on the soft tissues of his cervical spine, the discs and intervertebral ligaments. He thought that that, over a course of many years, would lead to earlier deterioration than otherwise in the condition of the plaintiff’s discs and other spinal structures. In his view, the incident was the final trauma sufficient to produce sudden neck and right shoulder pain. At the time of the incident, the plaintiff suffered further injury to the disc, whereby increasing pressure on the adjacent nerves caused his pain, which had been ongoing since then.
100 In Mr Brearley’s view the plaintiff’s present condition was directly related to the work and the incident. The plaintiff also suffered from degenerative arthritic change in the acromioclavicular joint which had been aggravated by his employment. Mr Brearley considered the plaintiff’s condition had stabilised.
101 Dr Castle, occupational physician, examined the plaintiff on 2 October 2008.
102 The plaintiff told Dr Castle of the heavy nature of his work and also about the incident. He told him he developed neck pain early in 2001 with no obvious precipitating factors. He said he would come home from work in 2002 and go to sleep in a chair. His neck pain got steadily worse, and he put it down to age. The plaintiff told Dr Castle that he had had no past neck problems prior to 2001, nor had he had a major motor vehicle accident.
103 The plaintiff told Dr Castle that his chest hurt, that turning his neck and moving it up and down hurt, and that he had flare ups of his neck when his neck was so bad he could not sit down. He had problems with sleep disturbance and he had difficulty walking.
104 On examination, Dr Castle found there was tenderness at C5-6 and restriction of cervical movement. Muscle tone and power were normal in the upper limbs. There was tenderness over the right acromioclavicular joint, and there was a full range of right shoulder movements.
105 In summary, Dr Castle concluded the plaintiff was doing heavy labouring work with the defendant and started to develop neck pain in early 2001 with no obvious precipitating factor. The incident then occurred.
106 In Dr Castle’s opinion the plaintiff was unfit for any work for which he may be reasonably suited, and his employment was a significant contributing factor to the development of his current problems.
107 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 21 October 2008. The plaintiff told him of very heavy physical work with the defendant, and also about the incident.
108 On examination, the plaintiff described a constant right sided neck pain radiating to the upper thoracic region. He described the severity of this as eight out ten, and aggravated by excessive activity, coughing and sneezing.
109 The plaintiff told Mr O’Brien that prior to the incident he had been aware of niggles in his neck for a year or so, which he put down to the heavy nature of his work. He described the problem as not severe, and he had not undergone any treatment nor had any time off work because of neck pain.
110 On examination of the cervical spine, there was restriction of movement and specific tenderness at the base of the cervical spine extending along the line of the trapezius just above the spine of the right scapula. There was a full range of movement in both shoulders. Reflexes, power and sensation were normal.
111 Mr O’Brien noted the plaintiff described a specific incident and reported no symptomatic improvement thereafter, describing constant pain. He noted physical signs now are only subjective, and confined to some restriction of cervical movement. In his view there was certainly no evidence of any nerve root irritation or compression, and that was certainly confirmed by investigation. However, the MRI scan demonstrated degenerative change.
112 Mr O’Brien thought the findings certainly suggested the plaintiff had aggravated pre existing cervical spondylitis, with some symptoms in fact suggesting an element of mild disc disruption.
113 In his view the history would indicate the plaintiff’s employment was a significant contributing factor. Mr O’Brien considered the clinical condition stable, and there was no indication for surgical intervention.
114 Mr O’Brien thought the prognosis was poor, and that the plaintiff had chronic cervical pain which was likely to persist. That presented him with a moderate disability, and he was certainly incapable of returning to his old job or any other manual employment or any gainful employment. He believed it reasonable to regard the plaintiff as totally and permanently incapacitated. In Mr O’Brien’s view, as a result of his work related injury, the plaintiff now had a permanent impairment of the function of the cervical spine which resulted in significant restriction of his general, domestic, social and recreational activity.
Investigations
115 An x-ray of the cervical spine taken on 6 May 2004 showed minor lower cervical spondylosis. It was noted generally that the cervical spine was very well preserved for a patient of his age. There was no foraminal narrowing, and there were possible fibrous type cervical rib elements.
116 A right shoulder x-ray of that date showed minor early osteoarthritis affecting the acromioclavicular joint. The shoulder joint proper appeared normal, and there was no soft tissue calcification. There were normal findings on a right shoulder ultrasound, with a good range of movement and no impingement. There was no evidence of any tear or calcification.
117 An MRI scan of the cervical spine taken on 18 September 2004 showed a minor posterocentral disc bulge at C6-7. At C3-4 and C4-5 there was degeneration affecting the left facet, associated with minor stenosis. There were degenerative changes affecting discs, characterised by desiccation, but their heights were preserved. There was facet degeneration, particularly on the right at C2-3. There was mild narrowing of the right foramen due to the degenerate facet.
118 An MRI scan of the right shoulder of that date showed acromioclavicular osteoarthritis and mild sub-deltoid bursitis.
119 An MRI scan of the cervical spine carried out on 15 February 2005 showed multi-level disc desiccation, disc bulging at C6-7, and a suggestion of annular tear and degenerative change affecting the left C3-4 and C4-5 apophyseal joints.
120 An ultrasound of the right shoulder of that date was stated to show no abnormality apart from degenerative change at the acromioclavicular joint. An MRI scan of the right shoulder confirmed the degenerative change at the acromioclavicular joint, and also indicated mild sub deltoid bursitis.
121 Further investigations of the cervical spine were carried out on 27 June 2006. The cervical spine x-rays showed facet joint arthropathy with associated narrowing of the left C4 neural exit foramina. A CT scan of the cervical spine showed facet joint arthropathy at C2-3 on the right, with associated foraminal stenosis of the right C3 neural exit foramen.
Vocational Evidence
122 Ms Judith Long, occupational therapist from Evidex, carried out a vocational assessment of the plaintiff on 20 October 2006.
123 Ms Long noted that the plaintiff had no useful vocational qualifications or computer skills and had only worked in physically demanding unskilled jobs.
124 In her view, the plaintiff’s medical restrictions and functional limitations indicated that he could not undertake work requiring moderate or heavy manual handling, forceful or repetitive pushing or pulling, using vibratory equipment or some tools, sustained reaching or looking upwards or sustained downward gaze.
125 Ms Long considered the jobs suggested by KTM-SDA as unsuitable for the plaintiff.
126 Ms Long concluded that there was no occupation for which the plaintiff was likely to qualify which met the definition of “suitable employment”. Further, she considered the plaintiff would not benefit significantly from further occupational rehabilitation or retraining.
The Defendant’s Medical Evidence
127 The plaintiff was examined on two occasions by Mr Michael Shannon, orthopaedic surgeon: firstly on 24 October 2005, and again on 5 May 2006.
128 The plaintiff initially complained of injuries to his neck, right shoulder and low back due to wear and tear over the years. He told Mr Shannon his work involved lifting, twisting and stacking rolls of turf weighing between twenty and forty kilograms.
129 The plaintiff told Mr Shannon that he stopped at a café to buy some lunch, bought himself a can of Coke, and, while tilting his head back to drink it, he developed severe pain in the right side of his neck.
130 The plaintiff told Mr Shannon that prior to the said date he had occasional soreness in his neck, back and right shoulder, but that was never a significant problem until the incident.
131 On initial examination, cervical movements were limited by about a quarter, and there was no neurological abnormality in the upper limbs. There was a normal range of right shoulder movement without evidence of impingement.
132 On re examination in May 2006, there was limitation of cervical movement, particularly extension, and the plaintiff had a full range of shoulder movement producing right trapezius pain.
133 Mr Shannon noted there had been little change in the plaintiff’s condition since the earlier examination. The plaintiff had ongoing discomfort and stiffness in his neck associated with cervical disc degeneration. He did not have any evidence of radiculopathy, although he had some referred symptoms to the right trapezius muscle.
134 In Mr Shannon’s view the plaintiff had a limited capacity for work, and he noted the plaintiff had multiple other orthopaedic problems, including his low back and knees. At the time of that examination, Mr Shannon noted that the plaintiff was aged fifty six and had lost his job, and he had few alternate qualifications. In Mr Shannon’s view the chances of the plaintiff seeking or obtaining employment in the future were poor, particularly in view of his psychological problems.
135 Mr Shannon considered the plaintiff could not do his pre injury job with an alternate employer but he was fit for suitable employment. In his view, the possible employment options suggested, including nurseryman, pest and weed controller, bylaws officer, security guard gatehouse and meter reader would all be within the plaintiff’s physical capacity.
136 Mr Shannon noted the plaintiff needed to have restrictions on heavy lifting, and particularly overhead lifting, and that he was capable of graduating to full time work.
137 In Mr Shannon’s view the significant contributing factor to the worker’s condition was pre existing cervical disc degeneration, a condition that had not resolved.
138 Mr Shannon believed that the effects of aggravation from work had substantially ceased, and that the ongoing problem related to the underlying degenerative change. In his view, other factors affecting the plaintiff’s claim were problems with his back, knees, and also psychiatric problems.
139 Mr Robert Carey, orthopaedic surgeon, examined the plaintiff on 18 September 2007.
140 The plaintiff told him of working with the defendant from 1990. The work intensity had progressively increased, and he found it more tiring as he became older. The plaintiff did not indicate any specific pain or injury until the said date.
141 On examination, the plaintiff continued to be troubled with pain at the back of his neck, and he had also developed pain in the right suprascapular region at the top of the shoulder shortly after the onset of his symptoms.
142 Neck movements were limited and restricted with posterior neck pain. Right shoulder movements were of full range, but caused some suprascapular soreness towards the base of the neck.
143 In Mr Carey’s view, the plaintiff had neck pain which was reasonably attributable to his having suffered aggravation of cervical disc degeneration, and the onset was associated with injury to the C6-7 intervertebral disc. He noted there was no associated neurological complication. In his view, suprascapular symptoms were most likely of a referred nature from the neck, and there was no feature of specific right shoulder joint injury.
144 Mr Carey considered it probable that the plaintiff would continue to have symptoms indefinitely. He noted that the effects of the aggravation had continued.
145 Mr Carey did not believe that the plaintiff had a capacity for pre injury employment as a result of his neck injury, and that it was probable he would have a capacity for suitable employment where he would not be required to do heavy lifting or which would require excessive neck movement. However, taking into account the plaintiff’s age, educational background, past history of manual work, together with the required restrictions, there would be little prospect of employability, and for practical purposes the plaintiff did not have a work capacity.
146 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on two occasions: initially on 11 October 2007, and more recently on 21 October 2008.
147 The plaintiff told Mr Dooley that from 2000 onwards his work became physically more difficult, and that he would often have to stack rolls of turf weighing in the order of thirty to forty kilograms. He told Mr Dooley that he noted intermittent neck pain and headache and that he continued his normal duties, but at times he had difficulty. The plaintiff also told him of the incident.
148 On examination, Mr Dooley found tenderness along the dorsum of the cervical spine. There was limitation of cervical movement. There was tenderness of both shoulder girdles, and there was limitation of movement on abduction and forward flexion of both shoulders by pain felt in the cervical spine region. The upper limbs were intact neurologically.
149 On re-examination, there were similar findings in relation to the cervical spine, but Mr Dooley noted a full range of motion of shoulders, and power, tone, reflexes and sensation were intact in the upper limbs.
150 In Mr Dooley’s view the plaintiff suffered from degenerative disc disease of the cervical spine. He believed during the course of the plaintiff’s work between 2000 and 2004, and also in the specific incident on the said date, the plaintiff had aggravated his underlying degenerative condition.
151 Mr Dooley noted clinically there was moderate restriction of cervical spine movement, and no evidence of objective neurological deficit affecting the upper limbs. He noted previous radiology had confirmed degenerative disc disease, with no evidence of major disc prolapse or of a nerve root entrapment.
152 In Mr Dooley’s view the plaintiff was unfit to perform regular heavy physical work. He considered the plaintiff’s lack of secondary education would probably make it difficult for him to be employed in a normal clerical position, and he thought that voluntary work at the local hospital et cetera would allow the plaintiff more day to day contact with people, and might help him gain skills to allow him to be employed part time.
153 From an orthopaedic view, based on the neck injury alone, Mr Dooley thought the plaintiff would be able to carry out light physical work and clerical work, but avoiding heavy lifting or a lot of activity at or above shoulder level. As he had not worked for some years, if the plaintiff was to resume either light physical work or clerical type work, in Mr Dooley’s view, then most likely this would need to occur on a graduated basis before full time work could be considered.
154 Notes from the Clinic were tendered. The plaintiff’s file included an x-ray of the cervical spine carried out on 26 July 2001 which showed minor loss in height of the C5 vertebral body which was noted may relate to previous trauma.
155 An x-ray of both elbows, both wrists, both knees and the lumbar spine was carried out on 29 January 2002. In relation to changes shown on both elbows and both wrists, it was concluded they might be due to gout. It was concluded there was mild degenerative change in the lumbosacral spine.
156 Computerised notes of the Clinic from 21 February 2003 until 7 December 2007 were tendered.
157 On 20 March 2003, Dr Lukic noted:
“Stacking 30 kilogram turf rolls. Pain over right ext policis longest. Voltaren. WorkCover certificate. Long term chronic backache – OA and spondylolisthesis. Analgesia. Exercises. Stretching.”
158 On 15 August 2003, Dr Ng noted:
“Struggling, still working but finding hard. Energy level OPK. Sleep 4 to
5 hours broken. Appetite low; lost interest; mood low.”
159 On 30 December 2003, Dr Koh noted that the plaintiff:
“Cut himself off from friends in last year – social isolation. Wife moved back in house. Was living alone for last few years. Works three jobs – 80 hours per week. No insomnia. Tired constantly. LOA. Says lost weight – lack of motivation. Keeps up with gardening and plants. Seeing psychologist.”
160 On 5 May 2004, Dr Islam noted:
“Came with history of painful shoulder and neck – right shoulder – one month. Says lift heavy weights at work and hurts each time. Painful ROM right shoulder. Also painful cervical spine – possible rotator cuff syndrome – x-ray cervical spine and ultrasound shoulder.”
161 On 10 May 2004, Dr Islam noted:
“Came for review. Both x-rays and ultrasound showed osteoarthritis.
Prescription of Mobic.”
162 On 1 June 2004, Dr Islam noted:
“Came with painful shoulder, right side still going on, and complained of
clicking of the neck quite painful.”
163 On 11 June 2004, Dr Hussein noted:
“Was on WorkCover 10 days. Says shoulder no better, wear and tear at
work.”
164 On 3 December 2004, Dr Tang noted:
“Still has headache – has a rehabilitation plan, failed to go back to work.
‘How can I work if I still rely on Panadeine Forte’.”
165 On 11 March 2005, Dr Islam noted:
“Also rehab/unfit to return to pre-injury job/need to find suitable
work/Work Trainers’ plan/reassure.”
166 On 8 April 2005, Dr Islam noted:
“Had a chat about Dr McKenzie’s report. Plaintiff was quite happy to go
back to work 4 hours a day.”
167 On 19 April 2005, Dr Bryce noted:
“Awaiting WorkCover forms for program.”
168 13 May 2005, Dr Islam noted:
“Nothing happened so far. Had spoken to case manager for KTMC Consultancy – said had a chat with insurance, waiting for approval to see if Work Trainers for suitable employment as previous employers unable to offer him any job which fits his physique at this post-injury stage – also Chris had events which led him to depression from previous work.”
169 On 2 February 2006, Dr Bryce noted that the patient was unable to do the light duties recommended.
170 The Clinic’s notes included correspondence from Dr Richards to Dr Gilligan of 25 October 1976 where he referred to a previous serious road accident the plaintiff was involved in, as a result of which the plaintiff had suffered a whiplash injury and now complained of recurrent severe headaches.
171 There are also handwritten notes dating back to 29 October 1977 which are very difficult to read and were not referred to by counsel for the defendant. Mention was made of a motorcar accident on 21 June 1978 and also problems the plaintiff experienced with depression. Handwritten notes continued until 2003.
Vocational Evidence
172 The defendant provided an offer of suitable employment on 14 June 2004. The suggested job was mower and maintenance, where the plaintiff would be required to undertake mowing duties with a small and large mower, forklift driving, repair of sprinklers, tractor driver for harvesting, and repair of pipes.
173 KTM-SDA Group carried out a job seeker report on 15 June 2006, identifying the jobs of nursery hand, pest and weed controller, bylaws officer and meter reader as appropriate for the plaintiff.
174 It was noted that the plaintiff had been networking and canvassing work in and around Seymour without success. The plaintiff also stated that he had attended the local Job Network provider three times in the previous week.
The Defendant’s Lay Evidence
175 Ms Christine Smith swore an affidavit on 29 October 2008 exhibiting a statement made by her on 27 September 2005. Ms Smith married the plaintiff in February 2001, and they separated in May 2001.
176 Whilst this affidavit is in evidence, I give it limited weight, as it includes matters of opinion, hearsay, and also is coloured by comments such as she and the plaintiff were unable to get along due to “his deceit and continual lies” and that the “plaintiff was defrauding the systems and Authority and was earning more money that he is not declaring”.
177 Ms Smith deposed that the plaintiff told her he suffered low back pain and neck pain as a result of his tiling business, and that he continually complained of back and neck pain and discomfort. When they split up in February 2004, the plaintiff was continuing with his nursery business, and often lifting and carrying heavy objects and moving large trailers. He often mentioned his back was a problem. However, the plaintiff did not complain whilst he was performing these tasks.
178 Ms Smith deposed that the plaintiff continued to run the nursery business. He carried out his manual/physical duties at the rear of the property, where his activities were secluded from view. He continued to attend farmers’ markets in various districts, selling homemade baskets of plants.
Compensation Documents
179 The plaintiff’s Claim for Compensation signed by him on 11 May 2004 was tendered. He set out he injured his shoulder and neck on 4 May 2004 working on a harvester at Avenel Turf Farm. He explained he experienced “sudden pain”. What caused or contributed to his injury was “handling rolls of turf”. He denied having any previous pain or disability in the area of his present condition. He noted that just before the injury occurred he was “staking turf”.
180 The claim form set out the plaintiff was working forty hours a week with gross earnings of $624.50 with no regular overtime or shift work.
181 The defendant tendered a letter from QBE Workers Compensation Insurance to the plaintiff dated 10 May 2006. In that correspondence the plaintiff was advised that, pursuant to s.114 of the Act, his entitlement to weekly payments of compensation would be terminated effective 24 June 2006. The plaintiff was advised that he was no longer entitled to weekly payments, as weekly payments had been paid or were payable to him for an aggregate of 104 weeks, he had a current work capacity, and if there was no current work capacity, QBE was not satisfied that this was likely to continue indefinitely.
Findings
182 Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.
183 Thus, it is incumbent on the plaintiff to establish by probative evidence and with some specificity:
(a) what injury is relied upon; (b)
further, that that injury is referable to employment on or after 20 October 1999.
184 In this case, as counsel for the defendant conceded, there is a compensable injury, being an aggravation of cervical spondylosis as a result of heavy work during the period of employment.
185 Whilst there was a subsequent insignificant event, namely the incident that precipitated the plaintiff’s symptoms, I find there was sufficient in the workplace to have been a significant cause of those factors which precipitated and progressed the plaintiff’s underlying degenerative cervical condition to a point where he was capable of having the onset of symptoms.
186 As was conceded by counsel for the defendant, it would be difficult not to find there was a compensable injury where there was a “course of employment” argument in circumstances where the work was heavy and there was an aggravation of the degenerative condition because of work that became incapacitating because of a trivial incident.
187 The plaintiff’s evidence is that there was an onset of neck problems suffered as a result of his heavy work from 2000, and more particularly from 2001. He reported this onset of symptoms due to his work on his initial visit to Dr Islam on 5 May 2004. Further, he answered “yes” in his Claim Form dated 11 May 2004 to the question whether his injury/condition arose gradually over a period of time.
188 Whilst I accept that the incident itself cannot be taken into account. Pursuant to Section 82(2C)(c) of the Act, I am entitled to take into account the work the plaintiff was performing during the period of employment including work on the said date.
189 Section 134AB(37) defines “serious injury” as a “permanent serious impairment or loss of body function”.
190 To satisfy the test under the Act the impairment, in relation to each of pain and suffering and loss of earning capacity, must have consequences that 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 more than “significant” or “marked” and “at least very considerable”.
191 The impairment must be permanent, in that it is likely to last into the foreseeable future.
192 The statutory test requires a judgment based on an evaluation of all the evidence.
193 The term “serious” requires the impairment and its consequences to this particular plaintiff to be reviewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA at para 29.
194 Considering, first, the plaintiff’s evidence in relation to his present impairment, I accept that he was a candid and honest witness who gave evidence freely and frankly. I accept that the plaintiff has been a hardworking man since leaving school at the age of fourteen and that he was dedicated to his job with the defendant, having worked with it for twenty two years before suffering injury, despite suffering from significant depression, particularly during 1996.
195 There was no major challenge to the plaintiff’s evidence as to his present level of pain and disability resulting from his neck condition, save for his former wife’s affidavit, to which I attach very little weight.
196 Clearly, as indicated by the cross examination of the plaintiff, there was surveillance film that was not shown which did not reveal the plaintiff doing more than the rather innocuous activity of pruning “Aunt Betty’s” roses.
197 Further, there was no evidence that gardening is little more than a hobby nor that the plaintiff engaged in heavy manual work in relation thereto. The plaintiff has only been to the market twice to sell plants since moving to Geelong earlier in the year, earning no more that a token amount of thirty five dollars.
198 In terms of pain and suffering consequences, I accept that the plaintiff has had constant neck and right shoulder pain and stiffness in his neck since the said date. The right sided headaches he has suffered since ceasing work are more persistent than those he suffered before the incident. Further, the plaintiff continues to have significant sleeping difficulties due to his neck pain.
199 The plaintiff has problems with prolonged driving or sitting in the one position with his head bent forward. He has difficulty performing simple chores around the house.
200 The plaintiff has taken medication since the said date and he presently takes Mobic and Panadeine Forte. The plaintiff was not considered a candidate for surgery by his treating orthopaedic surgeon, Mr Khan. Both Mr Khan and Dr Thomas, who saw the plaintiff in 2005, considered he would benefit from participation in a pain management program. Unfortunately, the plaintiff has not had the benefit of this treatment as funding was not approved.
201 The plaintiff has not failed to undergo any treatment that has been suggested to him.
202 In terms of sporting activities, the plaintiff can no longer play indoor cricket. If not for his neck injury, the plaintiff would be playing some sort of sport today. He misses the social life associated with the game and he also misses the companionship of his workmates at work and socially.
203 Significantly, the plaintiff, an uneducated man with a lifetime of heavy work, has lost the ability to engage in his pre injury employment or any heavy manual work without restriction – a view shared by all medical practitioners who have expressed an opinion in this case.
204 Taking into account all of the evidence, and accepting that the plaintiff has suffered neck pain for over five years with no symptomatic improvement, I am satisfied that the impairment to the plaintiff’s cervical spine is serious and permanent.
205 I accept the preponderance of medical evidence that the plaintiff’s heavy work during the period of employment continues to be a significant contributing factor to his condition. I do not accept the view held by Mr Shannon alone, that any ongoing problems are related to the plaintiff’s underlying degenerative condition.
206 I find that the plaintiff suffered a serious injury to his cervical spine during the period of employment. When judged by comparison with other cases in the range of possible impairments, the impairment to his cervical spine may be fairly described as more than “significant” or “marked” and as being “at least very considerable”.
207 Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
Loss of Earning Capacity
208 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing he has a loss of earning capacity of forty per cent or more – S.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 209 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 210 The former must be calculated by reference to the six year period specified in s 134AB(38)(f).
211 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
212 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
213 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
214 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
215 There was not much difference in the figures suggested by counsel. Counsel for the plaintiff submitted the plaintiff’s “without injury” earnings should be $624, being the base amount of his earnings excluding overtime compared to the defendant’s figure of $683 which included overtime. Sixty per cent of these figures is in the range of $374 to $409.
216 At the time of this hearing the plaintiff’s gross earnings from personal exertion are nil.
217 Having accepted that the plaintiff has no capacity for his pre injury employment, the next enquiry is what the plaintiff is capable of earning in suitable employment as defined in s.5 of the Act.
218 It was submitted by counsel for the plaintiff that there was a very strong body of medical opinion that the most the plaintiff can do is possibly an hour of light work, if he could find it here and there.
219 No opinion was expressed by treating doctors, Dr Islam or Dr Bryce, as to the plaintiff’s capacity for employment. Similarly, specialist treaters, Mr Khan and Dr Clayton Thomas, in 2005, did not really deal with the question of the plaintiff’s capacity and, in any event, their examinations are now somewhat outdated.
220 Mr Brearley, in October 2006, thought the plaintiff was unfit for manual work and not fit for suitable employment. Any work the plaintiff may find would, in Mr Brearley’s view, have to operate within clear restrictions including no lifting beyond five kilograms, rest breaks of ten minutes every hour and the ability to sit and stand as long as he wished – a job I do not accept is generally available in the employment market.
221 Mr O’Brien, in November 2008, regarded the plaintiff as totally and permanently incapacitated. He considered the plaintiff incapable of any form of manual employment and he thought the plaintiff’s current history suggested he would not return to any form of gainful employment – a view shared by Dr Castle in October 2008, having taken into account the relevant factors under Section 5.
222 Mr Carey expressed a similar view in this regard, albeit going further, commenting that for practical purposes the plaintiff did not have a work capacity.
223 After his last examination in October 2008, whilst not of the view that the plaintiff had no capacity for suitable employment, Mr Dooley thought the plaintiff was unfit to perform regular, heavy physical work and that the plaintiff’s lack of secondary education probably made it difficult to be employed in a normal clerical position.
224 I accept the recent views of Dr Castle, Mr O’Brien and Mr Carey that the plaintiff has no capacity to earn income from personal exertion in suitable employment and that this situation is permanent.
225 I do not accept the now outdated opinions of Mr Moran and Mr Shannon that the plaintiff has a capacity to work in the positions previously suggested by KTM-SDA which were seen by Ms Long at Evidex as unsuitable for him.
226 Taking into account the plaintiff’s history of full time heavy work and my findings as to his credit generally, I accept his comments that his neck injury “won’t let him get back to work”.
227 The plaintiff attempted to return to work with the defendant on two occasions and was not able to cope with the lighter mowing and tractor duties required of him because of his neck pain.
228 Whilst I accept that the plaintiff, after years of service, was disappointed with the defendant’s response to his injury and his inability to perform his pre injury duties, I do not accept that the plaintiff ceased work because of some antagonism/dispute with the defendant.
229 I do not accept that the plaintiff’s limited gardening activities show ability for him to engage in work of this nature. There was no evidence whatsoever of the plaintiff running a gardening business at any time since ceasing work with the defendant.
230 I do not accept the submission by counsel for the defendant that there is a “reverse” Ansett Australia Ltd v Taylor (2006) VSCA 171 scenario in this case on the basis that the plaintiff took no steps upon receipt of the notice of termination of his weekly payments in January 2006. I do not accept that the plaintiff’s lack of activity in this regard infers an acceptance by him that he has a current work capacity.
231 Taking into account all these matters, I do not accept that the plaintiff has a capacity for suitable employment.
232 Therefore, I find that the plaintiff has a loss of earning capacity of forty per cent or more which I accept is likely to continue into the foreseeable future.
233 I am also required to consider issues of retraining and rehabilitation pursuant to subsection 134 AB (38)(g) of the Act.
234 Following assessment by Dr Thomas, the plaintiff was to undergo the Dorset Rehabilitation Program. However, despite the plaintiff agreeing to participate in this program and making attempts to commence it, the plaintiff has not undertaken the program because QBE Workers Compensation Insurance failed to provide the necessary funding – a situation confirmed by correspondence from Dr Thomas to QBE dated 21 October 2005.
235 Further, whilst living in Seymour, the plaintiff registered with a labour hire firm, Workways. He was prepared to do light casual work for an hour or two if it was offered. He kept an eye on advertisements in the local newspaper and discussed with his mates potential work, but nothing came of it.
236 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
237 Accordingly, I grant the plaintiff leave to bring proceedings for damages for loss of earning capacity and pain and suffering.
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