Stokes v VWA
[2014] VCC 1392
•1 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-01330
| SHANE STOKES | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August and 22 August 2014 | |
DATE OF JUDGMENT: | 1 September 2014 | |
CASE MAY BE CITED AS: | Stokes v VWA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1392 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Application seeking leave under s134AB(16)(b) of the Accident Compensation Act 1985 to commence common law proceedings – serious injury under s134AB(37)
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:
Judgment: Leave granted to Plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Arnold Thomas & Becker |
| For the Defendant | Mr C E Hangay | Minter Ellison |
HER HONOUR:
1 Shane Stokes commenced employment as a panel beater with the Defendant Vermont Motors Pty Ltd (“Vermont Motors”) on 7 October 1996.
2 The work he performed was very heavy and required him to work in awkward positions, performing overhead work that placed strain on his neck and low back. The majority of his work was done using a Car-O-Liner straightening the chassis of heavy vehicles[1].
[1]Plaintiff’s affidavit, Plaintiff’s Court Book (“PCB”) 15
3 Whilst working at Vermont Motors he was well regarded.[2] After one year he was made foreman, and later in 2005 he was made a leading hand in a managerial role. He did not cope with the added responsibilities of that role as they were beyond his capabilities, and he went back to his former role. He preferred working with tools.
[2]Transcript (“T”) 33, L16
4 Overtime, Mr Stokes suffered a series of back and neck strains associated with his work. He also began to experience symptoms of bilateral carpel tunnel syndrome.
5 The injury to his back, neck and arms arose throughout the course of employment. In 2001 he noted low back pain whilst lifting a steel ramp. With chiropractic treatment the pain eased off. He noticed back pain three or four months following the lifting incident and had more chiropractic treatment. A year later he had back pain lifting a steel ramp, for which he received treatment. The low back pain settled and then became worse, as he undertook car alignment work from 2004 onwards. His neck pain also coincided with the car alignment work as did the symptoms of carpel tunnel syndrome.[3]
[3]PCB 16-17
6 A bilateral carpel tunnel release was performed on 7 February 2008. Following that procedure the Plaintiff returned to work on modified duties for two weeks only. Thereafter he ceased work to undergo a C5-6 cervical discectomy and fusion. He has not resumed employment since April 2008.[4]
[4]T35, L1-3
7 He makes application under section 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (‘the Act’) for leave to issue a proceeding for the recovery of damages in respect of injury to his cervical spine, lumbar spine and bilateral carpel tunnel that occurred throughout the course of his employment with Vermont Motors.
8 The application relates to both pain and suffering and loss of earnings consequences.
9 It was not in contention that after 20 October 1999 the Plaintiff suffered compensable injury to his low back, neck and bilateral carpal tunnel syndrome.
10 Mr Hangay, in his final submissions, confirmed that that issue had been determined by a Medical Panel determination.[5]
[5]Medical Panel Report 4 December 2009
11 Mr Ingram, on behalf of the Plaintiff, submitted that the Court could be satisfied that the consequences of the impairment following compensable injury satisfies the test for serious injury as stated in sub-paragraph (a) of the definition of serious injury set out in section 134AB(37), namely “permanent serious impairment or loss of body function” namely, the spine.
12 He relied on the decision of Transport Accident Commission v Zepic.[6] There, the Court of Appeal confirmed that it was appropriate to regard the cervical, thoracic and lumbar spine as a single body function.
[6][2012] VCC 305
13 He referred to a series of cases that had been decided under both the Accident Compensation Act 1985 (Vic) and the Transport Accident Act 1986 (Vic).
14 Mr Ingram submitted that the Plaintiff relied on a single cause of action. The Plaintiff’s claim is that he suffered injury to the cervical and lumbar spine and carpel tunnel as a consequence of the stresses and strains throughout his employment with Vermont Motors.
15 Mr Hangay agreed in the event that the Court was satisfied that the cervical and lumbar spine was injured as a consequence of a cause of action, and that the Court ought to accept the law is as stated by Transport Accident Commission v Zepic.
16 It is now settled law that the spine is a single body function and therefore the Plaintiff’s impairment of the cervical spine and the lumbar spine can be aggregated for the purposes of paragraph (a) of the definition of “serious injury”.
17 Having regard to the totality of the evidence I am satisfied that Mr Stokes’ injury to his cervical and lumbar spine and carpel tunnel syndrome does arise out of his employment rather than being caused by discrete incidents. I do not consider that the injuries sustained should be categorised as separate injuries resulting in impairments of different and separate body functions.
18 I shall therefore proceed to deal with this application by considering the consequences of the compensable injury to the cervical spine, lumbar spine and carpel tunnel and their effect on the function of the Plaintiff’s spine as a single body function.
19 I have taken into account when considering the Plaintiff’s application based upon physical consequences, that the Court is required to disregard any psychological or psychiatric consequences of the Plaintiff’s alleged physical injury.[7]
[7]Accident Compensation Act 1985 (Vic), s134AB(38)(h)
20 Mr Hangay submitted that Mr Stokes had not discharged the necessary onus having regard to the tests set out in the Act and various authorities in relation to both pain and suffering consequences and loss of earning capacity consequences.
21 The Defendant’s position is that the Plaintiff does have a post-injury capacity for employment.
22 Mr Hangay did query the relationship between the Plaintiff’s current bilateral carpal syndrome symptoms and the compensable injury.
23 The Plaintiff has experienced ongoing symptoms in his hands over many years following the carpel tunnel release.
24 Mr Schofield concludes that the present symptoms may be related to a recurrent nerve compression or due to referred pain from the cervical discs.[8]
[8]PCB 102k
25 On balance, I accept that his bilateral arm problems relate in part to the cervical disc injury and in part to a recurrence of his carpel tunnel syndrome. I have included those consequences when assessing the impairment to the spine.
26 Mr Hangay submitted in respect to the cervical spine that both Dr Blue and Dr Morris who examined the Plaintiff at the Defendant’s request found normal neck function. He submitted that there was a significant degree of inconsistency between the Plaintiff’s presentation and examination findings. The Plaintiff has not presented a lot by way of objective evidence in respect to the lumbar spine. There has been minimal treatment of the lumbar spine.
27 He referred to the report from Dr Aung, General Practitioner, who has been the Plaintiff’s treating doctor since 6 December 2013. Dr Aung lists a number of medical conditions depression, dizziness and benign prostactic hypertrophy but makes no reference to the Plaintiff’s cervical or lumbar problems.
28 Having regard to the progress of Mr Stokes’ cervical and lumbar condition documented in the various reports from treating physiotherapists, doctors and specialists, I consider that there is ample evidence to demonstrate that he has ongoing consequences flowing from the compensable injury to the cervical and lumbar spine and carpel tunnel.
29 I accept that those consequences continue. On his own admission the low back is a lot better but the neck is worse.[9] Nevertheless, the low back is still a feature of his presentation and I have taken that into consideration when determining the effect of injury to the Plaintiff’s spine taken as a whole.
[9]T110, L20-21
30 Mr Hangay relied on video surveillance material that was taken on 28 January 2009 and 21 and 31 May 2009. He submitted that the relevance of the material is that it is inconsistent with the findings of Dr Tony Blue, who examined the Plaintiff at the request of the Defendant on 21 May 2009, at a time contemporaneous with the film.
31 Only one other medico-legal examiner has been requested to comment on the film, that being Mr Geoffrey Klug, Neurosurgeon. Mr Klug examined the Plaintiff on 18 May 2010. He viewed the film taken on 21 and 31 May 2009. He considered his findings were not consistent with the film. He postulated that this could indicate there had been a worsening of his condition.[10]
[10]PCB 96
32 Mr Hangay submitted that the Court ought to be careful regarding the expressed opinions of both Mr Schofield and Mr Middleton, whose reports are relied upon by the Plaintiff, because they have not had the opportunity of reviewing the surveillance video and the reliability of their opinions has therefore been diluted.
33 I am not persuaded that the video surveillance material diminishes the weight that can be placed on both Mr Schofield and Mr Middleton’s more contemporary reports.
34 The Plaintiff viewed the film during the hearing and was extensively cross-examined about what it showed. He made appropriate concessions about what the film demonstrated.
35 The video surveillance is somewhat dated. A very short excerpt from the 28 January 2009 was shown. Mr Stokes readily admitted that it showed him on his property with his son-in-law. He explained that he had paid his son-in-law to build a fence at his property. He agreed in cross-examination that he is shown at times bending over without obvious restriction and picking up and carrying a treated pine log. He was seen walking up his gently sloping backyard. He confirmed that depicted a good day.[11] In re-examination he said that it was “ a one off event”.[12]
[11]T88,L17-18
[12]T106, L1
36 The next excerpt that was shown was taken on 21 May 2009. My observation was that the film showed the Plaintiff holding himself stiffly as he was walking into Dr Blue’s consulting rooms. He was very awkward in the manner in which he placed the radiology into his 4 wheel drive vehicle after the consultation. He then entered the vehicle holding himself stiffly.
37 That contrasts with how he presented in the balance of the material taken on 31 May 2009. He is shown at Bunning’s Caboolture with his daughter, Cathy. They are seen walking about the store collecting various bits and pieces that were later used to replace a sliding door at her place.
38 The video shows him collecting and handling a hollow core door and later packing some timber and various items into the rear of his vehicle at the loading bay. He is next seen at his daughter’s place assisting her to take the various items into the house including some power tools. In that portion of the film the Plaintiff is not holding himself stiffly and he is moving about freely.
39 Mr Stokes agreed his son-in-law was fitting the new door with his assistance. He agreed he was seen handling some power tools and sawing some timber. He said that he was careful how he did those things and squatted to avoid straining his back.
40 Mr Schofield examined the Plaintiff on 18 May 2010, 31 May 2013 and 18 July 2014. He clinically examined the Plaintiff on each occasion. His clinical findings were consistent. Further, Mr Schofield has the advantage of having arranged and received the results of multi-positional MRI scans of both the cervical and lumbar spine taken on 24 July 2013 and nerve conduction studies performed on 30 July 2013.
41 Mr Middleton has examined the Plaintiff on 24 June 2013 and 24 May 2014. He too had the opportunity to review the most recent radiology and nerve conduction studies.
42 Overall, given the antiquity of the surveillance material and the fact that there is other evidence that supports the Plaintiff’s claim that he has ongoing symptoms of pain in the cervical and lumbar region and carpel tunnel related to his compensable injury, I reject the submission that the surveillance film casts doubts on the reliability of the expressed opinions of both Mr Schofield and Mr Middleton.
43 Having considered the totality of the evidence I formed the view that the Plaintiff was a credible and reliable witness. I accept the Plaintiff's evidence on the nature and extent of the compensable injury and its effects upon him.
Background and treatment
44 Mr Stokes is a panel beater by trade and is largely self-taught. He left school aged 15 at the end of year 10.[13] He worked as a panel beater and boiler maker. He holds no formal qualifications. He has built up his expertise throughout the course of his working life.
[13]PCB 28
45 Following the complaints of low back and neck pain the Plaintiff underwent radiological investigations. A cervical x-ray performed on 5 August 2004 disclosed significant disc degeneration at C5/6 and, to a lesser extent, at C6/7. Lumbar x-ray showed that the lumbar spine had prominent osteophytes at L1/2 and L2/3, but very little disc degeneration.[14]
[14]PCB 34c
46 He was seen by Dr Gazdik, General Practitioner, on 5 September 2006 and referred to a neurologist, Professor Peppard, to investigate his complaints of pins and needles in his hands.
47 When he presented on 24 May 2007 Dr Freemantle, General Practitioner, noted the history of ongoing lower back pain associated with work, pins and needles and numbness in the arms, and difficulty working with his hands above his head.[15] He referred the Plaintiff for a spinal x-ray and for physiotherapy treatment.
[15]PCB 35 &36
48 On 30 August 2007 Dr Freemantle noted low back pain that was worsening. He also noted numbness in the right hand, particularly the middle and ring fingers, and whole arm numbness at night.
49 On a follow-up visit on 3 October 2007, Dr Freemantle referred the Plaintiff for an MRI scan of the thoracic lumbar spine because of the complaint of lower back pain. That was performed on 11 October 2007. The MRI showed widespread degenerative changes of his lumbar spine.[16]
[16]PCB 37
50 Mr Paul D’Urso, Neurosurgeon, examined the Plaintiff at the request of Dr Freemantle on 20 December 2007 and concluded that he had symptoms of cervical and lumbar spondylosis, with suspected right carpal tunnel syndrome.
51 EMG studies performed 10 December 2007 confirmed evidence of bilateral median neuropathy at the wrists.
52 Following those results, Mr D’Urso recommended bilateral carpal tunnel release and that surgery was performed on 7 February 2008.
53 The Plaintiff had improvement in respect to his symptoms following surgery.
54 On 21 February 2008, in a letter to Allianz Australia, Mr D’Urso recommended a return to part-time light work. Mr D’Urso did note however that the Plaintiff had significant cervical spondylosis and lumbar spondylosis with disc degeneration. He thought that would limit his ability to perform unrestricted manual labour in the future.[17]
[17]PCB 47
55 Mr Stokes resumed work with an associated business in a modified capacity. He only worked about two weeks and has not worked since then.[18]
[18]T35, L1-3
56 He ceased work on 22 April 2008 because of problems with his hands and he was awaiting cervical spine surgery.
57 On 29 April 2008, when reviewed by Mr D’Urso, the Plaintiff complained of persisting neck pain and right arm pain with paraesthesia, as well as low back pain and sciatica. He recommended a C5/6 cervical discectomy and fusion.
58 An MRI scan performed on 23 May 2008 disclosed disc space narrowing, most prominent at C5/6 level with osteophytic lipping and a small posterior disc bulge mildly indented, the thecal sac without cord compression – bilateral foraminal narrowing, slightly worse on the right with possible right C6 nerve root compression – mild disc space narrowing and bony narrowing of C3/4, neural foramina bilaterally without convincing evidence of focal nerve root compression.
59 The MRI scan of the lumbar spine disclosed small posterior disc bulges at all levels from T11 to S1 without significant indentation of the thecal sac or a central canal stenosis – no evidence of acute focal disc prolapse – evidence of mid foraminal narrowing at multiple levels without convincing evidence of nerve root compression.[19]
[19]PCB 124
60 On 15 July 2008, Mr D’Urso performed a C5/6 anterior cervical discectomy infusion. Following surgery, the paraesthesia in the right hand resolved. An x‑ray of the cervical spine taken on 13 August 2008 confirmed the discectomy infusion at C5/6 with satisfactory post-operative alignment during flexion and extension. Mild degenerative disc space changes were present at C4/6 and C6/7.[20]
[20]PCB 131
61 On 19 August 2008 he was reviewed by Mr D’Urso following surgery, and was complaining of widespread pain affecting both his neck, back, arms and right leg, for which he was taking Nurofen and Panadeine Forte.
62 The Plaintiff underwent a 12 week rehabilitation program at Epworth Rehabilitation.
63 On review on 19 December 2008, Mr D’Urso noted he was undergoing rehabilitation and there was substantial improvement. The Plaintiff was taking Panadeine Forte and Endep at night.[21] Mr D’Urso has not seen the Plaintiff since this time.
[21]PCB 53b
64 In January 2009, the Plaintiff moved to Queensland.
65 Dr Moray Field, General Practitioner, took over his management. He saw the Plaintiff on 7 July 2009. At that time, the complaint was of worsening right arm numbness and pins and needles. Panadeine Forte was prescribed.[22]
[22]PCB 61
66 In July 2009, the Plaintiff commenced seeing another general practitioner, Dr De Vries. On 31 August 2012, he was referred to Mr Dupré, Orthopaedic Surgeon, who commenced a series of injections of local anaesthetic into the lumbar and cervical spines. Mr Dupré also noted complaints of occasional tingling in the right ring and little fingers.[23]
[23]PCB 89
67 In a report dated 10 December 2012, Dr De Vries noted persisting lumbar spine and cervical symptoms with development of symptoms of depression and stress being controlled adequately with monthly counselling.[24] She referred the Plaintiff back for rehabilitation.
[24]PCB 69–70
68 On 21 January 2013, the Plaintiff had a CT guided nerve root injection to the right C5 nerve root at the request of Dr Dupré. The clinical history noted was of pain down the right side of the neck.[25]
[25]PCB 90
69 On 8 June 2013, a cervical spine x-ray disclosed an anterior spinal fusion at C5/6 which was consolidated and stable, marginal osteophytes from C3 to C7 with C6/7 disc narrowing. A lumbar spine x-ray showed lumbar scoliosis, convex to the left with marginal osteophytes present at most levels.[26]
[26]PCB 124m
70 The Plaintiff is no longer having any active specialist management. He sees his general practitioner Dr Aung and takes up to three Mersyndol Forte a day to manage his pain.
71 On the basis of the medical material relied upon by the Plaintiff I am satisfied that it confirms a history of significant cervical spondylosis and lumbar spondylosis with disc degeneration and bilateral carpel tunnel syndrome related to employment, the consequences of which are ongoing.
72 Mr Stokes has sworn three affidavits dated 12 April 2011, 26 July 2013 and 30 June 2014, where he sets out the consequences of the compensable injuries.
73 I accept that the Plaintiff suffers ongoing pain, discomfort and disability as set out in his affidavit material.
74 Following the carpal tunnel release performed by Mr D’Urso on 7 February 2008, he had some relief from the wrist symptoms.
75 I accept that following the surgery on the cervical spine performed on 15 July 2008, the Plaintiff had some relief from his symptoms, inasmuch as it significantly improved his headaches and neck pain, but that only lasted for about 12 months. Since that time, the neck pain has been getting worse.[27]
[27]PCB 19
76 I accept the Plaintiff’s ongoing complaints of pain, particularly neck pain, that is present all the time. He has a stiff neck and is restricted in his ability to move his neck from side-to-side.[28]
[28]PCB 20
77 Throughout the duration of the hearing I had the opportunity to observe the Plaintiff’s neck movements. It was apparent that he is restricted in his ability to move his neck from side-to-side, even when distracted.
78 I accept that he still experiences numbness in some of the fingers of the right hand and some of the fingers of the left hand. He has constant low back pain with pain in the buttocks and, at times, referred down his legs.[29]
[29]PCB 20
79 Mr Stokes’ sleep is disrupted because of the pain in the neck and low back.[30] He is in constant pain and that affects his concentration and memory and ability to think.[31]
[30]PCB 20
[31]PCB 22
80 He must be careful when moving his neck, shoulders and arms, in order to avoid severe neck pain. He is very careful whenever performing household tasks or driving.
81 Previously, he was an extremely talented handyman but he is now greatly restricted in what he can do around the home. He finds this frustrating.[32] He enjoyed working on cars but cannot do that now.[33] He did enjoy playing golf on a fairly regular basis but he can longer play golf because of his neck and low back injury. He cannot play with his children, such as kicking the football or pushbike riding.[34]
[32]PCB 23
[33]PCB 23
[34]PCB 23
82 His injury to his neck and back has had a marked adverse effect on his sexual relationship with his wife. Sexual intercourse is now painful and he has to be extremely careful, and he has noted a marked reduction in his sex drive.[35]
[35]PCB 23
83 His injuries to the spine have had a great effect on his capacity to work. It is accepted that he is not capable of pre-injury duties as a panel beater.
84 Dr Blue is the only medical examiner who considers that he would be fit for pre-injury duties without restriction. Given that he is alone in this expressed opinion, I do not consider that his opinion is a realistic assessment of the Plaintiff’s current capacity for work.
85 I accept that Mr Stokes cannot work as a panel beater by reason of his injuries. This has had a particularly big impact on his enjoyment of life, as he is largely a self-taught panel beater who loved his job and was passionate about it. Not being able to work in this area has caused him a great loss.
86 The Plaintiff has been unable to get back to boating to the extent that he enjoyed prior to injury.[36] He frequently experiences flare-ups and exacerbation of his pain that can be unpredictable, and that has an impact on what he can and cannot do and it restricts him socially.[37]
[36]PCB 30
[37]PCB 31 & 32
87 The Plaintiff finds that if he walks for an extended period of time, he suffers increased spinal pain.[38]
[38]PCB 33c
88 The Plaintiff used to enjoy tinkering with old cars but is no longer able to participate in that activity because of his physical limitations.[39]
[39]PCB 33c
89 His wife, Joanne Stokes, swore an affidavit on 30 June 2014, where she confirmed the restrictions to which her husband is subjected following injury. That evidence was not contested.
90 Mrs Stokes confirmed that he takes Mersyndol Forte for partial pain relief. He remains considerably disabled by reason of the severity of his symptoms of pain and is limited in his ability to participate in acts around the house.[40]
[40]PCB 33f
91 She confirmed that he had stopped many of his social and recreational activities such as golf and boating.
92 She also confirmed the difficulties her husband experiences in terms of loss of libido and the adverse impact of the physical injury upon their sexual relationship.[41]
[41]PCB 33f
93 She confirmed he has difficulty walking distances. He is fairly limited in undertaking renovation tasks, something which he previously enjoyed.
94 She described an occasion recently where he agreed to help his son erect a fence but by the time he got home he was in great pain.
95 She confirmed that he is unable to perform a wide range of maintenance activities around the home and if indeed he does perform such activities, he pays for it later in terms of increased pain. He also enjoyed renovating old cars but is no longer able to do that activity.[42]
[42]PCB 33g
Conclusions
96 I am satisfied that the Plaintiff suffered injury to his cervical spine and lumbar spine and bilateral carpal tunnel syndrome during the course of his employment with Vermont Motors between October 1999 and 24 April 2008.
97 In particular, I am satisfied that he suffered an aggravation of cervical disc degeneration requiring anterior spinal fusion at C5/6 and aggravation of degenerative changes at C6/7. He suffered aggravation of L2/3 and L3/4 degenerative change causing instability and has also sustained bilateral carpal tunnel syndrome.
98 I am satisfied as a consequence of the compensable injury to his cervical and lumbar spine that the Plaintiff suffers loss of spinal function that is permanent, that is, likely to persist in the foreseeable future.
99 I am satisfied on balance of probabilities that he has suffered a serious injury, as defined in section 134AB(37) of the Act, insofar as it relates to a permanent serious impairment or loss of body function of the spine.
100 Overall, I accept that the consequences of Mr Stokes’ injury impact upon him greatly and diminish his enjoyment of life. I am satisfied that the impairment or loss of bodily function has resulted in pain and suffering which, when judged by comparison with other cases in the range of possible impairment or loss of bodily function, can fairly be described as being more than significant or marked and as being at least very considerable.[43]
[43]Accident Compensation Act 1985 (Vic), s134AB(38)(c)
101 Therefore Mr Stokes has discharged the relevant burden of proof in terms of pain and suffering consequences, and leave will be granted accordingly.
Loss of earning capacity
102 The Plaintiff relied on material provided from his various treating doctors and medico legal specialists to submit that he has no current work capacity.
103 I accept that the Plaintiff experiences genuine disability related to the heavy physical labour he performed as a panel beater.
104 Whilst Mr D’Urso confirmed the cervical surgery appeared to be technically successful and that he had made a satisfactory recovery from surgery, the Plaintiff has nonetheless continued to experience cervical pain that is well documented.
105 Once the Plaintiff relocated to Queensland in 2009 he came under the care of various general practitioners. They document his ongoing complaints relating to the cervical and lumbar spine and bilateral carpal tunnel syndrome.
106 Dr Michael Brommitt, General Practitioner, in a letter dated 10 September 2009, confirmed the history of bilateral carpal tunnel syndrome, cervical spondylosis C4-6 to C6-7 with right C6 nerve root compression treated by C5-6 anterior cervical discectomy infusion and multi-level spondylitic degenerative changes of the lumbar and lower thoracic spine that he relates to the Plaintiff’s employment.
107 He was unable to comment on his present capacity for employment but was guarded about his future prospects.[44]
[44]PCB 65
108 Dr Brommitt considered the subject of “suitable employment” as premature and recommended that the plaintiff be reviewed and managed by a specialist rehabilitation unit.[45]
[45]PCB 66
109 Dr De Vries, General Practitioner, in her report dated 1 November 2011, confirmed that she had treated the Plaintiff since July 2009 with respect to his various injuries to his neck and back related to his work. She did not consider him fit to undertake his pre-injury duties as a panel beater and recommended he be assessed by an occupational therapist in terms of his current capacity for work and suitable duties.[46]
[46]PCB 69
110 In her letter dated 12 February 2012, Dr De Vries confirmed that the Plaintiff continued to suffer pain in the neck and lower back as a result of bulging discs from his spine and pain in the wrists as a result of carpal tunnel syndrome. The pain results in more stiffness of his muscles and joints. The symptoms interfere with sitting, lying down, lifting things, and tasks like hanging up washing, mowing lawns and carrying groceries.[47]
[47]PCB 72f
111 Mr Michael Bryant, Surgeon, in a letter dated 13 March 2013, confirmed the Plaintiff’s injury to the cervical and lumbar spine related to employment. He confirmed the Plaintiff suffers neck pain and stiffness, as well as cervicogenic headaches. He has subjective weakness in his arms without there being any obvious neurological cause, and is not fit to return to any sort of physical or heavy employment.[48]
[48]PCB 87
112 He considered that the Plaintiff has restricted ability to sit, stand, drive or stoop and they should be limited to not more than 30 minutes at a time. He should avoid bending and twisting, and lifting should be limited to 10 kilograms. He did not believe that the Plaintiff is suitable to return to pre-injury employment and he recommended retraining. He recommended sedentary employment. Based on his current level of experience and training he considered that it is unlikely he will ever return to work.[49]
[49]PCB 86
113 He considered that at best the Plaintiff was suitable for part-time employment and that his current level of capacity will continue indefinitely.
114 Dr Philip Dupré, Orthopaedic Surgeon, has treated the Plaintiff since 31 August 2012. He confirms injecting the Plaintiff’s low back and neck. He recommended that the Plaintiff could be employed in suitable employment; namely, a sedentary job, such as selling cars, which he said the Plaintiff indicated he would consider.[50]
[50]PCB 90b
115 The Plaintiff confirmed in evidence that he may have suggested this option. Given my findings I consider that was an unrealistic expectation on his part and is not “suitable” employment.
The Plaintiff’s medico legal assessments
116 Mr Geoffrey Klug, Neurosurgeon, examined the Plaintiff on 18 May 2010 and 28 May 2013 for medico-legal purposes. Over that period very little changed in his condition.
117 He confirmed that the Plaintiff suffered symptoms related to cervical and lumbar spondylosis. He did not consider that he would be able to resume his pre-employment duties as a panel beater but considered that he could undertake some type of employment in a part-time manner.[51]
[51]PCB 97d
118 He considered the Plaintiff’s condition was essentially stable and that it is unlikely that there will be any substantial improvement in his condition and restrictions regarding employment will persist indefinitely.[52]
[52]PCB 97e
119 Mr S F Schofield, Orthopaedic Surgeon, reviewed the Plaintiff on 18 May 2010, 31 May 2013 and 18 July 2014 for medico-legal purposes. He organised up to date upright MRI scans of the cervical spine and lumbar spine.
120 At the time of his first examination on 18 May 2010, he noted that despite having undergone cervical spine surgery, the Plaintiff was continuing to complain of neck pain and stiffness aggravated by driving and sleeping. He continued to experience back pain and bilateral leg pains with aggravation with any physical stresses on the spine, which also affected his neck.
121 At the initial examination, Mr Schofield confirmed chronic neck stiffness but with normal neurology in the upper limbs. The lumbar spine lacked the full range of movement. There was restricted straight leg raising to 70 degrees bilaterally but normal neurology in the lower limbs.
122 Radiological investigations confirmed cervical spine fusion at C5-6 and multi-level degenerative change in the lumbar spine which was maximal at L2-3. The C6-7 disc space had become further aggravated following the fusion at C5-6.[53]
[53]PCB 102aa
123 When examined on 31 May 2013, Mr Schofield noted continuing complaints of neck pain, despite fusion, as well as symptoms referred into his hands, especially the ulnar aspect of both hands. The low back pain was less severe, whereas the neck pain was slowly increasing.[54] This is consistent with what the Plaintiff stated was his present condition when giving evidence at the hearing.
[54]PCB 102bb
124 Mr Schofield found that there was a good range of movement in the neck and normal neurology in the upper limbs. Testing in respect of both hands suggested ongoing carpal tunnel problems. There was mild restriction of the lumbar movements with minor loss of straight leg raising but normal neurology in the lower limbs.
125 When examined on 18 July 2014, Mr Schofield confirmed on going complaints of pain and that the Plaintiff was taking Panadeine Forte, Mersyndol Forte and sleeping tablets. He was undertaking a home-based exercise program advised by the physiotherapist.
126 He confirmed that the neck pain was present all the time and aggravated by any activities and relieved by rest, and that the neck pain was slowly worsening.
127 He continued to experience symptoms consistent with carpal tunnel syndrome and the nerve conduction tests performed on 30 July 2013 confirmed bilateral carpal tunnel syndrome.
128 He has low back pain, limiting activities at home, especially any lifting, bending, gardening or lawn mowing.[55] There were also complaints of referred sciatic pain affecting the left leg and radiating to the sole of the left foot. This is consistent with S1 referral arising from the lumbosacral disc.[56]
[55]PCB 102bb
[56]PCB 102cc
129 Mr Schofield confirmed the upright MRI scan of the cervical spine showed degenerative changes from C3 to C7 and moderate foraminal stenosis on the right at C5/6, despite adequate fusion at C5/6. He opined that this was more likely to place stress on C6/7.
130 The MRI scan of the lumbar spine had confirmed instability in the middle lumbar disc levels, which was worse in extension and improved with flexion.[57]
[57]PCB 102cc
131 Mr Schofield confirmed that the Plaintiff’s condition had stabilised and that he continued to have symptoms affecting the neck, lumbar spine and both arms and hands. Despite the successful fusion of decompression at C5/6, he continued to have pathology at C3/4 with instability and aggravation of degenerative change at C6/7. He postulated that the Plaintiff may require further surgery which would need pre-operative assessment with MRI scans.[58]
[58]PCB 102ff
132 The lumbar spine continued to cause problems and although there were no neurological deficits, there was likely aggravation of degenerative change affecting the lower lumbar spine. There is evidence of instability of both L2/3 and L3/4 in extension.
133 The chronic symptoms would preclude him from any occupation that includes lifting, bending or standing for prolonged periods.[59]
[59]PCB 102qq
134 He confirmed despite previous carpel tunnel decompression the Plaintiff has a recurrence of carpal tunnel syndrome. Previous successful fusion at C5/6 has reduced the bilateral arm pains but a greater degree of stress has been placed on the adjacent discs causing further aggravation and bulging. He states it is therefore likely that the recurrent symptoms in the arms are not only due to recurrent carpel tunnel syndrome, but may also be due to some referred pain from the cervical discs.
135 Further decompression to both hands may relieve the symptoms of tingling and numbness in the fingers on the radial side but will not affect the complaints in the little fingers which are likely to arise from his neck.[60]
[60]PCB 102k
136 He considered, as a consequence of the diagnosed physical injuries suffered by the Plaintiff to his cervical and lumbar spine and bilateral carpal tunnel syndrome, that he is likely to be restricted in relation to employment or activities involving:
(i) prolonged sitting, standing, walking, driving and/or stooping;
(ii) repetitive bending and/or twisting; and
(iii) lifting.
All those activities would be restricted in the long-term.
137 He considered the Plaintiff incapacitated for his pre-injury employment by reason of his cervical spine condition and lower back condition, each looked at independently. He also considered that the Plaintiff was not fit for suitable employment.[61]
[61]PCB 102hh
138 Dr David Middleton, Occupational Health and Rehabilitation Consultant, reviewed the Plaintiff on 24 June 2013 and 24 May 2014. His findings on clinical examination were consistent with those of Mr Schofield.
139 He confirmed, by reason of the nature of the duties performed by the Plaintiff in his employment with the Defendant, that he suffered aggravation of his pre-existing cervical and lumbar degenerative disease and, as a consequence of his employment, he developed bilateral carpal tunnel syndrome.
140 He considered that the Plaintiff was incapacitated for all employment having regard to the definition of “suitable employment” under section 5 of the Act and that that level of incapacity was likely to persist for the foreseeable future.
141 He considered the cervical spine injury separate from the lumbar spine injury and made the same conclusion with respect to the lumbar spine.[62] He considered that the Plaintiff’s level of incapacity was likely to persist for the foreseeable future.
[62]PCB 123w, 123x
142 Dr Grant Ramage, Consultant Occupational Physician, assessed the Plaintiff on 19 February 2014. Having examined the Plaintiff and reviewed the radiological material, including the MRI scan of the cervical, thoracic and lumbar spine performed on 24 July 2013, he related his lumbar spine pain to the work he performed with Vermont Motors between October 1999 and April 2008. He could not relate cervical and wrist/hand symptomatology to employment.
143 Given there is no dispute on causation in respect to the cervical spine and bilateral carpel tunnel syndrome, I have ignored this aspect of his opinion.
144 Dr Ramage considered that the injury to the cervical spine would completely incapacitate him from pre-injury employment but if regard is had to the lumbar spine injury alone, he would have a partial incapacity for work as a panel beater.
145 He considered the Plaintiff might be able to work with restrictions of no heavy lifting of more than 10 to 15 kilograms from below knee height, no repetitive forward bending from the waist. He confirmed those restrictions would continue indefinitely. He considered such incapacity as likely to persist for the foreseeable future.[63]
[63]PCB 124n
Defendant’s medico legal assessments
146 The Defendant relied upon reports obtained from Dr Tony Blue, Orthopaedic Surgeon, who examined the Plaintiff on 21 May 2009 and also Dr John J Morris, Orthopaedic Surgeon, who examined him on 11 April 2012.
147 The reports of both doctors are of limited utility insofar as they have seen the Plaintiff on the one occasion only and they are dated. Further, those specialists have not had had the opportunity of reviewing the results of the multi-position MRI scan of the cervical and lumbar spine taken on 24 July 2013 and the results from the EEG study performed on 30 July 2013.
148 Mr Hangay did not rely upon Dr Blue’s expressed opinion concerning causation. Rather he relied on his clinical findings only so that a proper assessment could be made of the surveillance film material.
149 Dr Blue’s opinion dated 26 May 2009 confirms that the Plaintiff complained of chronic low back pain and neck pain radiating from his shoulders and he also demonstrated bilateral wrist problems.
150 He considered the Plaintiff had obtained excellent results from his bilateral carpal tunnel surgery and anterior cervical fusion at C5-6 level and was fully fit to return to previous work as a panel beater without restriction. He attributed the low back problems to work but did not consider that it caused any significant impairment based on his clinical assessment. He did not consider that there were any restrictions on his employment capacity and his prognosis was good.
151 Dr John Morris’ examination of 11 April 2012 confirmed injury involving the lumbar spine, cervical spine and carpal tunnel.
152 Dr Morris considered the Plaintiff had an aggravation of degenerative changes in the cervical spine and lumbar spine from his employment and that those aggravations had ceased, and that the Plaintiff was now left with symptoms from the underlying degenerative changes in the region. He considered both carpal tunnels have been released successfully and that he had symptoms from osteoarthritis in his hands, which were not work-related.
153 Overall in making the assessment of the Plaintiff’s current work capacity I prefer and accept the expressed opinions of Mr Schofield and Dr Middleton who have had the advantage of having reviewed the Plaintiff on more than one occasion as well as having the opportunity of reviewing the latest MRI studies and the multi-positional MRI studies.
Conclusions
154 By virtue of the definition of ‘suitable employment’ found in section 5(1) of the Act, regard is required to be had to ‘the nature of the worker’s pre-injury employment’ and ‘the worker’s age, education, skills and work experience.’
155 As at the date of trial, Mr Stokes was 55 years of age. He worked as a skilled self-taught panel beater for more than 30 years.
156 It is not in dispute between the parties that the Plaintiff cannot return to his pre-injury employment as a panel beater as a consequence of the injury to his cervical and lumbar spine and bilateral carpel tunnel syndrome.
157 It was agreed between the parties that his pre-injury without injury earnings was $51,127 gross per annum, 60 per cent of which is $590 per week.
158 Following Vocational Assessment on 10 November 2008, it has been suggested that the following positions have been identified as suitable employment options: security guard (scanning and CCTV monitoring), store person, product quality controller, information officer, service assistant. An additional position of truck driver was added following a review on 18 March 2009. Finally, following further assessment on 7 February 2013, other employment options identified as being suitable were retail sales assistant, call centre operator and console operator.
159 I do not consider any of the identified employment options are suitable. The Plaintiff’s education is limited. His reading ability is poor and he is only an average writer at best. His communication skills are not great. Throughout his work history he has obtained skills through on the job training. He has no formal qualifications.[64]
[64]PCB 28
160 During his evidence the Plaintiff confirmed that he had very limited experience in handling administrative tasks and in the past, when employed by Vermont Motors, he rarely filled out paperwork. [65]
[65]T35, L27-31
161 He gave the clear impression he was best using his hands and when there was any paperwork he would defer to those in the office. He relied on the admin support staff.[66]
[66]T36, L17-18
162 He said he attempted to do quotes for repairs but was never really good at it and found it stressful. His boss or the boss’s son would always come in and redo his quotes.[67]
[67]T49, L5-12
163 In the NES Vocational Assessment Report dated 19 February 2013, the Plaintiff sets out that he has poor reading skills, average writing skills, maths skills, poor communication skills and poor computer skills.
164 His evidence at trial was that the lower back is a lot better now but the neck is worse. He stated and I accept that he would have a lot of difficulty coping with the various occupations suggested in the Vocational Reports as his neck pain would disturb his concentration and he requires painkillers for his pain and that makes things worse again.[68] He has been told that there is no treatment to ameliorate his pain just laying down.[69]
[68]T110, L22-30
[69]T111, L 1-3
165 He rests up to four hours per day instead of taking more tablets and does exercises to ease the pain. If he stays up all day and walks around he finds the pain gets worse and he ends up with migraine like headaches from the neck, lower back and sciatica down both the legs instead of one leg.[70]
[70]T42, L4-14
166 I accept that having regard to the Plaintiff’s pre-injury employment, his age, education, skills and work experience, that Mr Stokes has no practical capacity for suitable employment. His neck and low back pain and bilateral arm pain effectively precludes successful retraining.
167 It follows that Mr Stokes has suffered at least a very considerable loss of earning capacity as a result of his injuries when judged by comparison with other cases in the range of possible cases. Such loss of earning capacity exceeds 40% or more measured in accordance in with section 134AB(38).
168 I am further satisfied, pursuant to sub-section (38)(b) and (c) of the Act, that the impairment or loss of body function is serious, having regard to the pain and suffering and loss of earning capacity consequences when judged by comparison with other cases in the range of possible impairments or losses. That they can fairly be described as being more than significant or marked and as being at least very considerable.
169 Accordingly, there will be leave pursuant to section 134AB(16)(b) of the Act for him to commence proceedings to recover pain and suffering damages and loss of earning damages in respect of the injury to the spine suffered by him in the course of his employment with Vermont Motors Pty Ltd.
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