Tartaglia v Qantas Airways Limited
[2010] VCC 1497
•24 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-03747
| Frank Tartaglia | Plaintiff |
| v | |
| Qantas Airways Limited | Defendant |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 & 29 October 2010 |
| DATE OF JUDGMENT: | 24 November 2010 |
| CASE MAY BE CITED AS: | Tartaglia v Qantas Airways Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1497 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – permanent serious impairment or loss of a body function – injury to the cervical spine – aggravation of age-related pre-existing degenerative changes – loss of earning capacity – pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. McGarvie SC | Nowicki Carbone |
| With Mr A. Ingram | ||
| For the Defendant | Mr N. Rattray | Sparke Helmore |
| HER HONOUR: |
1 Mr Tartaglia seeks leave under s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of a permanent impairment of the cervical spine suffered during the course of his employment with the defendant and in particular on 30 June 2002. The injury relied on is the aggravation of age-related pre-existing degenerative changes in the cervical spine, particularly at the C5/6 level. On 30 June 2002, while working as a baggage handler and team leader he was struck on the head and his head, neck and shoulder were crushed against the inside of an aircraft while loading containers onto an aircraft (“the incident”). He suffered a further exacerbation in late 2003, and had regular physiotherapy for his neck and shoulder pain until 2008.
2 The plaintiff, who is currently 45 years of age, says that a material cause of his cervical spine injury and subsequent impairment is the heavy work he had to do as a baggage handler from 1988. He says that even though he was promoted to a team leader and had a more supervisory role after 1996, there were cutbacks in 2001 which meant that there were fewer people to perform the same work. After his injury in June 2002 he had about three months off work and then returned to work on light duties in a graduated fashion. He resumed his pre-injury duties about seven months later. He managed his work because it was primarily supervisory. From 2005, however, organisational changes resulted in him having a much greater hands-on role in baggage handling. From then on, he had constant pain and other neck symptoms. He also became depressed. Due to his neck injury and his depression he resigned from his employment in late April 2008. In around October 2008, he tried to do some labouring for a friend, but suffered an increase in his symptoms after an hour. Since mid 2009, he has been working for another friend at Cagney’s Pizza, topping pizzas for around 15 hours per week. He says that he cannot work more hours.
The issues
3 There was no dispute between the parties as to what occurred on 30 June 2002. The parties agreed that none of the injuries to other parts of the body sustained by the plaintiff before and after the incident are relevant.
4 The defendant says that the plaintiff recovered from the effects of the incident in which he suffered soft tissue injuries and a temporary aggravation of cervical spine degeneration. It says that any ongoing condition is explicable in terms of his underlying age related degeneration. It relies on the plaintiff’s concession that if he did not mention his neck pain to his treating practitioner, Dr Knowles, on most of the many occasions when he saw him between 2004 and 2008, he probably was not experiencing any great difficulty with neck symptoms. The defendant also relies on the plaintiff’s return to work to pre- injury duties after the incident, and on the fact that he continued to work full- time in those duties until 2008. The defendant says that the plaintiff has a retained capacity for work and could work in a variety of jobs identified by Ms Schneider, but that he has not actively sought employment. The defendant concedes that if it is found that he does not have the capacity to work more than 22 hours per week he will succeed in establishing the requisite loss of earning capacity.
The hearing
5 The plaintiff gave evidence and was cross-examined. No other witnesses were called. The plaintiff relied on his affidavits and those of his wife,[1] his former de-facto partner,[2] and his current employer.[3]
[1] Concetta Tartaglia.
[2] Tajana Ribic.
[3] Phil Bolonis.
6 The plaintiff also relied on radiological reports concerning the cervical spine (which are summarised below), and on the reports from various treaters including Mr Steve Gioskos, physiotherapist; Mr Peter Petty, neurosurgeon; Dr K John Knowles and Dr Amir Hanna, general practitioners; Dr John Leach, neurosurgical registrar.
7 Finally the plaintiff relied on the medico-legal reports of: Dr M J Nathar, psychiatrist; Mr Peter Kudelka and Mr Chris Haw, orthopaedic surgeons; Mr Peter Dohrmann and Associate Professor Warrant Boling, neurosurgeons; Dr Leonard Rose, consultant in legal medicine; and Dr Clayton Thomas, rehabilitation physician. Finally, the plaintiff relied on a vocational assessment report of Katrine Green dated 26 March 2009 and on a Job Capacity Assessment Report by radiologist Dr Andrew Dobrotwir dated 8 September 2009.
8 The defendant relied on the plaintiff’s letter of resignation dated 7 April 2008; on the medico-legal reports of surgeons Mr Ian Jones and Mr Edward Schutz, and neurosurgeon Mr Geoffrey Klug. The defendant also relied on the vocational assessment report of Ms Leonie Schneider dated 12 October 2009.
Plaintiff’s evidence
9 No issue was taken in cross-examination with most of the matters canvassed in the plaintiff’s affidavits, and I accept his evidence as to his symptoms and restrictions following the incident in June 2002. He currently takes pain relieving medication two to three times per week.
10 I found the plaintiff to be a very straightforward, clear and understated witness. I consider that he has been stoic in managing his neck and right arm symptoms. He conceded that on some days he is pain free, but said that after a shift at the pizza shop he gets a gnawing pain in his right shoulder which lasts two to three days. He said that he does not plan to have any surgery on his neck because the experts have warned that it may not help all his symptoms and may interfere with his relatively good range of neck movement.
11 I accept his evidence that between 2005 and 2008 he used up a year’s worth of sick leave because every time he did something strenuous he would have severe pain in the side of the head, neck and shoulders. For some time he thought maybe the pain was due to his depression. He would require painkillers and need time off work. He was taking a lot of Panadeine Forte to maintain his ability to work, but it was causing him side effects. He started not coping with the heavy physical work and that was why he resigned.
12 I accept his evidence that he believed he told Centrelink, which referred him to the Commonwealth Rehabilitation Service (“CRS”) as well as all the treating and examining doctors seen recently that he has been working as a pizza topper. He agreed that he had discussed the job of road traffic controller with Katrine Green but had subsequently been told by CRS that this was not a suitable occupation for him as it involved too much heavy work. He said he would be prepared to try a job as a school crossing supervisor. He said he had no computer skills apart from knowing how to weigh baggage on the Qantas computer. He said that he did not want to drive all the time because it involved too much neck movement. He said he was prepared to try any job that did not involve heavy physical demands. He said he could not do cherry picking or forklift driving because of the repetitive neck movement required. He felt he could do clerical work, but said he had never done that work before. He said that since October 2008 he had been mostly at home, looking at jobs in the paper, and working in the pizza shop. He had tried doing some concreting work for a friend but only lasted an hour due to the aggravation of his neck symptoms. He said that CRS had never suggested any positions for him. He said that he could only do light lifting from bench to chest height for three hours or so at a time. He said he could not work as a pizza filler full-time because looking down in the same position for a long time causes him neck pain. He says that his employer allows him to take breaks when he needs them.
Lay evidence
13 The plaintiff’s wife said in her affidavit that the plaintiff’s sleep is disturbed by pain, that he cannot do household tasks which involve repetitive bending or lifting, and is restricted in his ability to play with their 4 year-old son. He suffers increased neck and right shoulder pain when driving. He sometimes declines extra hours at the pizza shop because of his neck and shoulder pain from the previous shift.
14 The plaintiff’s former de facto partner at the time of the incident in July 2002 deposed to the fact that after the incident he complained a lot about neck pain, and that he avoided cleaning the pool, lifting heavy items at home or doing home maintenance or gardening. He told her that cleaning the pool hurt his neck.
15 The plaintiff’s current employer deposed to the fact that the plaintiff was unable to continue working as a pizza topper because of the bending and tilting of the head that was needed. He stated that the plaintiff sometimes leaves his shift early because of neck pain, and on his days off will only take extra work three or four hours at a time. He pays the plaintiff $15.95 per hour. He could earn $22.95 per hour as a pizza chef.
Medical evidence
Radiology
16 CT scan of the cervical spine on 1 July 2002 was reported as normal.
17 MRI scan of the cervical spine on 9 July 2002 was reported, relevantly, as follows:
No evidence of trauma was detected. The C5/6 and C6/7 intervertebral discs bulge minimally to just indent the anterior aspect of the subarachnoid space, well clear of the cord. No foraminal abnormality detected.
Conclusion: Within normal limits for age.
18 X-ray of the cervical spine on 22 July 2002 was reported as showing no fractures, instability or prevertebral soft tissue swelling.
19 X-ray of the cervical spine on 29 December 2003 was reported as showing “minor anterior spondylosis at C5-6 and a tiny separated osteophyte is present over the amero-inferior aspect of C5”.
20 X-ray of the right acromioclavicular joint on 31 December 2003 was reported as follows:
There is no fracture detected. The acromioclavicular margins are mildly separated, suggesting the presence of an effusion, but they are well aligned and there is no subluxation in the weight bearing views.
Mild degenerative cystic changes seen in the clavicular margin.
21 MRI of the cervical spine on 8 September 2009 was reported with the following conclusions:
Conclusion:
1. Mild C5/6 cervical canal stenosis secondary to a focal right C5/6 disc prolapse with subtle impingement of the right side of the cervical cord at this level and mild right C5/6 foraminal stenosis with subtle impingement of the existing right C6 nerve root.
2. Review by a Neurosurgeon or Orthopaedic neck surgeon may be helpful.
Medical reports
22 Mr Petty reviewed the plaintiff on 22 July 2002 and found no abnormalities in the radiological films he examined.
23 Dr Knowles reported on 4 August 2002 that he saw the plaintiff the day after the incident complaining of ear and neck pain. Dr Knowles noted that the plaintiff was wearing a cervical collar given to him at the hospital. He found “significant bruising of and behind both ears with lacerations behind the right ear”,[4] as well as bruising around the jaw. He saw him again on 12 July 2002 and noted a complaint that his neck had became more painful since the last consultation and that he had developed paraesthesia in his right arm, right leg and right side of his scalp. These symptoms had resolved after adjustment of the cervical brace. He continued to have pain in the shoulders.
[4] Plaintiff’s Court Book (PCB) 60.
24 On 16 December 2003, Dr Knowles referred the plaintiff to Mr Ivan Gutierrez, physiotherapist, for opinion and management. The referral letter noted, relevantly:
…Frank has been suffering from recurrent cervical spine pain since a work related accident that occurred mid last year when he had his head jammed between an aircraft cargo container and the cargo hold door. His neck was twisted at that time. He was seen at Royal Melbourne Hospital where the possibility of a cervical fracture was considered but never definitely proved. He was treated with a Philadelphia collar for three weeks. Recently he has suffered a couple of episodes of cervical spine pain similar to wry neck and today has presented with some neuralgia-form right sided cervical spine pain. I am arranging some further cervical spine films. I would like to refer him for NON MANIPULATIVE physiotherapy to the neck. He should not have any manipulations in view of his past cervical injury and he has also been diagnosed with osteopenia.
25 In his report dated 10 March 2010 Dr Knowles reviewed his treatment of the plaintiff up to 14 October 2008. He noted that when he saw the plaintiff on 13 August 2002, he did not document any neck problems. He saw the plaintiff on four occasions in 2003 for unrelated matters. On 24 November 2003 the plaintiff complained of spontaneous onset of neck pain a few days earlier. The pain radiated from his neck into his right shoulder. On 16 December 2003 he complained of right sided headache and a sharp pain radiating from the area behind the right ear into the right shoulder. Dr Knowles found that cervical spine movements were severely restricted. He referred the plaintiff for plain cervical spine x-rays which showed some degenerative changes at C5 and C6. Dr Knowles felt this was “an aggravation of pain relating to his cervical spine injury of July 2002”.[5] He referred the plaintiff for physiotherapy.
[5] PCB 69.
26 There were numerous consultations in early 2004 relating to unrelated problems. On 20 August 2004, the plaintiff complained of gradual onset of right sided neck pain radiating into the right shoulder. Dr Knowles diagnosed a “minor right cervical spine strain that was possibly due to an exacerbation of his pre-existing cervical spine injury from 2002”.[6] He recommended a short course of anti-inflammatories. He saw the plaintiff in November 2004, and in February, October and November 2005 for unrelated matters. He saw the plaintiff in April, October and November 2007 in relation to depressive symptoms, for which he was prescribed anti-depressants. He was reviewed in relation to these symptoms throughout early 2008.
[6] PCB 70.
27 He last saw the plaintiff on 14 October 2008 and noted his complaint of cervical spine pain radiating into both shoulders. Examination revealed a full range of movement of the cervical spine with pain reported on rotation to the right. Dr Knowles advised him to return to physiotherapy if the pain did not improve. He also advised him “that he should continue to look for employment”.[7]
[7] PCB 72.
28 Dr Knowles concluded, relevantly:
Mt Tartaglia’s recurrent cervical spine pain is due to repeated aggravations of a degenerative, prolapsing intervertebral disc between fifth the sixth cervical vertebrae. Cervical spine X rays taken on 29 December 2003 and the MRI scan taken 8th September 2009 are reported as showing degenerative changes of the C5-6 intervertebral disc. While some patients may have these radiological changes and to not suffer any symptoms, many other patients will experience pain in association with these radiological changes. Therefore it is my opinion that the radiological reports support an organic basis for Mr Tartaglia’s recurrent cervical spine pain. Mr Tartaglia only suffered with recurrent cervical pain from the time of his work related accident of 30 June 2002, therefore it is my opinion that his recurrent cervical spine pain is work related and that the client’s employment was a significant contributing factor. This condition is a permanent injury that is likely to last into the foreseeable future.[8]
[8] PCB 73.
29 Dr Knowles felt that when he last saw the plaintiff in October 2008 he was fit to undertake normal employment without any restrictions. He did not feel that the condition of his cervical spine would interfere with his usual activities but that he could not lift heavy weights or race cars or bikes or go on theme park rides. He felt that the plaintiff’s condition was stable “as there had not been any significant escalation in his recurrent intermittent cervical spine since 2002 when he initially injured his cervical spine”.[9] However, he noted that further degeneration was possible, and that there could be resulting interference with his usual activities. In more extreme cases, he noted, where there was neurological compression and deficits, neurosurgery may need to be considered.
[9] PCB 74.
30 Dr Hanna, the plaintiff’s current treating general practitioner since early 2009, reported on 22 April 2010 that the plaintiff had been suffering from the physical and mental aspect of his cervical spine injury. He concluded that the plaintiff sustained a work injury in 2002 and had later suffered two further exacerbations of that injury. He noted that “because of his inability to physically manage any manual labour he resigned his position”.[10] He noted that the plaintiff had tried other employment, and was working in a pizza store placing toppings on pizza. He concluded that the plaintiff was unable to return to pre-injury duties and that his cervical spine “disability could be permanent with fluctuations”.[11]
Medico-legal reports and vocational assessments
[10] PCB 79.
[11] Ibid.
31 Mr Ian Jones assessed the plaintiff in August 2002 and January 2004. In his first report he indicated that the plaintiff suffered a “crushing injury of his head on 30.6.02”[12] consisting of a soft tissue injury to the scalp. He reported that after wearing a cervical brace for eight weeks he was fit to return to work as of 5 August 2002. In January 2004 he noted that the plaintiff had experienced neck pain and headaches at work in November 2003, which had been investigated by Dr Knowles, and that he was continuing to attend physiotherapy weekly but was not taking any medication. Mr Jones concluded that he had recovered from the effects of the incident of June 2002.
[12] Defendant’s Court Book (DCB) 11.
32 Mr Schutz provided three reports.[13] In his first report he noted a history of resignation from work in April 2008 due to the repetitive work taking its toll on him and bothering his right shoulder. He took a report of right shoulder girdle symptoms. He did not see the cervical spine radiology in 2003. He found no specific pathology in the neck or right shoulder. He felt that it was unlikely that his current symptoms relate to the incident in July 2002, which caused a soft tissue strain to the neck and right shoulder. He felt the plaintiff was fit to work full-time in alternative duties provided he did not lift more than 20 kilograms repetitively. He recommended an appropriate exercise programme.
[13] These were dated 30 June 2009, 1 March and 14 October 2010.
33 In his second report Mr Schutz noted a history of neck stiffness in the morning, with right shoulder and arm symptoms depending on his right arm activities. He noted that the plaintiff was working 10 hours per week as a pizza filler. In the light of the plaintiff’s return to work and the absence of “residual symptoms for a considerable period of time”[14] prior to the later exacerbations in the right shoulder and neck region, Mr Schutz felt that his currently reported symptoms and restrictions were “due to degenerative causes and current activities and are highly unlikely to relate to the 2002 accident”.[15] He felt that the plaintiff could work full-time with no lifting more than 15 kilograms with the right arm. In his final report he reached the same conclusions.
[14] DCB 36.
[15] DCB 37.
34 Dr Nathar provided a report dated 22 July 2009 to the plaintiff’s solicitors in which he received a history from the plaintiff that after September 11 2001 there were staff cutbacks and he had to do much more physical handling. He noted:
His work simply became heavier and heavier due to the staff shortage until he had to make a decision as to whether he could keep going or not, considering that his neck pain in particular was getting worse. Eventually, in April 2008, he had to stop work. There was too much pain in the neck and shoulder. He was also getting depressed and anxious as to the safety aspects of his job because he was having difficulty doing the supervisory role whilst still having to do the additional physical work.
35 He noted that there was some improvement in the plaintiff’s symptoms after he stopped work in April 2008 in that “the background pain is not that bad”. However, he would wake with a lot of soreness if he had slept on the right side; and if he overuses his right arm he gets a shooting pain radiating from behind the right ear to the top of the shoulder. The plaintiff told him he took Panamax when he was in real pain and Panadeine Forte for any extreme pain. He noted that the plaintiff was working 16 hours per week making pizzas.
36 Mr Kudelka reported in August 2009 a history from the plaintiff of neck and right shoulder pain for which he was treated with tablets and physiotherapy. There was a change in duties in 2005 after which the plaintiff had to do more heavy lifting, which “aggravated his ongoing neck and right shoulder symptoms and he became depressed at not being able to carry out his pre- injury activities at the normal level, and retired in April 2008”.[16] He noted the plaintiff was taking Panadeine Forte and working 10 hours per week in a pizza shop.
[16] PCB 89.
37 Mr Kudelka concluded:
I believe the incident in June 2002 aggravated age-related degenerative changes in the cervical spine, particularly at the C5/6 level. There is no evidence of any fracture to the cervical spine but a significant soft tissue aggravation would be consistent with the recorded treatment of two months in a cervical collar and four months off work while the patient had physiotherapy and analgesics.[17]
[17] PCB 90.
38 Mr Kudelka felt that the plaintiff’s neck condition would permanently prevent him from returning to full-time unrestricted manual work, and that future employment would have to be in an area where strains to the neck and shoulder muscles can be minimised. He also felt there would be permanent restriction of social, domestic and recreational activities from the neck pain and restriction of movement.
39 On 7 October 2009, Mr Dohrmann took a history of a worsening of neck and right arm pain in late 2003, “which had been reasonably comfortable prior to the increase in work duties”,[18] and of weekly physiotherapy treatment to manage his symptoms. The plaintiff told him that for the next five years he continued to experience neck and right arm pain, and that “he eventually resigned because he ‘fell in to depression’ with ongoing pain and increasing requirements for pain medication”.[19] He noted that without repetitive arm activity, his pain diminishes but does not disappear; it “becomes a low-grade ache which is manageable”.[20] Mr Dohrmann concluded that the plaintiff was suffering from “symptomatic cervical disc disease with neck and right arm pain due to C6 nerve root irritation and/or compression due to a chronic right C5-6 disc protrusion without definite evidence of radiculopathy”.[21] He felt that the plaintiff’s neck condition was a result of a work injury in June 2002. He found no non-organic overlay. He felt there was a basis for considering surgery, but noted that even with surgery he was likely to permanently have some symptoms and physical restrictions. He felt that the plaintiff had a partial capacity for employment and felt that he could probably manage more than 12 hours per week making up pizzas.
[18] PCB 94.
[19] Ibid.
[20] PCB 95.
[21] PCB 97.
40 Dr Rose reported on 17 March 2010 that the plaintiff complained of pain averaging about 5/10 and gave a history of continuous and worsening pain between 2006 and 2008 which led to his resignation from work. The plaintiff told him the pain had become too strong and his stomach could not tolerate the 4 to 5 Panadeine Forte tablets per day he was taking while he was working. The plaintiff told him that anti-inflammatories made him vomit and Panadeine Forte caused him constipation. Dr Rose concluded that the plaintiff’s injuries consist of “multilevel disc prolapse and possible neural compromise including spinal stenosis as a direct consequence of the injury which he received whilst working for Qantas in June 2002”[22] and a further exacerbation in 2007. He felt it was likely that surgery would be required in future.
[22] PCB 105.
41 Dr Rose concluded that the plaintiff was permanently incapacitated for his pre- injury employment but “may have a capacity to be retrained in suitable or alternative employment”[23] if his pain could be controlled and possibly after surgery. He disagreed with Ms Schneider’s conclusions and noted that none of the positions she recommended as suitable employment options would be suited to a person with neurological symptoms “including chronic severe pain and upper limb weakness and difficulty in grip strength”.[24] He felt that the plaintiff was not fit to work as a forklift driver or cherry picker and could not work full-time in any job without significant pain management and rehabilitation training. He felt that the plaintiff would have difficulty working full- time as a chauffeur or hire car driver. He noted that the plaintiff’s current part- time position was with a friend and allowed him flexibility which might not be available in the market.
[23] PCB 108.
[24] PCB 109.
42 Mr Haw reported on 19 March 2010 receiving a history from the plaintiff of severe recurrence of pain after a return to more physical work in 2005, but an inability to cope with the work. Mr Haw noted that the plaintiff was working filling pizzas 10 hours per week. On examination he noted a full range of neck movements but some pain on extension to the right, with pain and paresthesia with traction on the plexus. He felt that in spite of any pre-existing degeneration in the cervical spine, the incident in June 2002 was likely to have caused damage to the uncinated and facet joint on the right side and may have resulted in an acute disc prolapse. He noted that the radiological films demonstrated an organic basis for the plaintiff’s complaints and corresponds largely to the distribution dermatome of his dyaesthesiae. He felt that the plaintiff was permanently incapable of returning to his pre-injury duties.
43 Mr Haw felt that surgery might be inappropriate given that the plaintiff is capable of light work. He agreed that the plaintiff was capable of working in a pizza shop and that he could work full-time as a chauffeur or transport clerk, but otherwise disagreed with the report of Ms Schneider.
44 Mr Klug reported on 26 April 2010 that he largely agreed with the radiological findings of the radiologists. He noted a history of constant neck and shoulder pain which worsened some time before April 2008 due to his work becoming more physical. He noted that the plaintiff would occasionally take pain relieving medication if the symptoms were more severe. He felt that the plaintiff was currently suffering from symptomatic cervical spondylosis with some neck and referred pain into the right arm. He did not feel there was a radiculopathy. He felt that in the light of his full recovery after 2002 the symptoms related to a progressive degenerative disorder and not to the incident of June 2002.
45 Dr Thomas reported on 18 August 2010 taking a history from the plaintiff that his symptoms never resolved after the incident of June 2002 and worsened when his duties became more physical. Dr Thomas felt that the pathology was significant and his cervical spine problems were organic, and originated in 2002. He felt that the plaintiff was permanently incapacitated for his pre-injury employment and noted that “any use of the outstretched arms would aggravate the neck pain symptoms”.[25] Within physical work, Dr Thomas felt he could do process work if he lifted no more than 1 kilogram frequently from bench height to chest height, up to 30 hours per week. Any increase in physical demands would require a smaller number of hours at work. He felt the plaintiff could perform non-physical work but noted that he had no experience or skills for sedentary work. He felt that with his cervical spine injury he would not be attractive to a prospective employer.
[25] PCB 116.
46 Associate Professor Boling reported on 3 September 2010 that the MRI of September 2009 showed a C5-6 right sided disc prolapse that was causing nerve root compression. He took a history of an injury in June 2002, a return to work with increasingly heavy duties, and treatment with physiotherapy and massage. Ultimately, the plaintiff told him his neck, right shoulder and right arm pain was too significant and he was forced to stop working. Professor Boling diagnosed discogenic neck pain with a radiculopathy due to nerve root compression resulting from the incident. He recommended consideration of treatment options including injection therapies or surgery.
47 Dr Dobrotwil provided a Job Capacity Assessment Report based on an assessment of the plaintiff in July 2010. He recommended a baseline work capacity of 15 to 22 hours per week due to the plaintiff’s “difficulties with episodic pain which affects his right shoulder and reduced neck movements”.[26] He noted that the symptoms worsen with cold weather and with keeping the head in one position for any length of time. He gave as examples of suitable work the positions of pizza maker, delivery driver or supervisor. He noted that without surgery to his neck to improve his symptoms, he would be permanently limited to these working hours. With surgery and improvement to his symptoms, he would be able to work 23 to 29 hours per week in similar positions.
[26] PCB 116(k).
48 Leonie Schneider provided a vocational assessment report dated 12 October 2009. She noted that he had good literacy skills, basic computer competencies, various driver’s licences, good communication skills and knowledge of air services support work. The only surgical opinion referred to was that of Mr Schutz. The only physical restriction she identified was the “use of common sense”[27] when lifting loads greater than 20 kilograms. She identified a large number of potentially suitable occupations for the plaintiff. Those which the parties agreed would, if the plaintiff worked full-time, result in the plaintiff achieving the requisite threshold for loss of earning capacity included: forklift driver, cherry picker, chauffeur, driver, small products courier, supervisor, purchasing officer, general clerk, order clerk, stock clerk, despatch and receiving clerk, sales clerk and debt collector. Her analysis noted that less than 10% of the people working as cherry pickers/crane operators, supervisors and purchasing officers were working part-time.
[27]49 Katrine Green provided a vocational assessment report dated 26 March 2010. She identified a number of suitable employment options: road maintenance traffic controller (part-time); school crossing supervisor (30 hours per week, split shifts); limousine driver (full-time, provided each trip did not exceed his driving tolerances of one and a half hours); and transport and despatch clerk (full-time, provided he undertook a computer course). She felt he was a suitable candidate for retraining. She concluded that due to his physical restrictions or absence of relevant transferable skills a number of positions proposed by Ms Schneider were not suitable employment options for the plaintiff. These included the positions of delivery driver, courier driver, pizza chef, commercial cleaner, aircraft cleaner, storeperson, retails sales assistant and debt collector.
Legal Principles
50 In order to make out a “serious injury” within paragraph (a) of the definition in section 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function whose consequences to him in terms of loss of earning capacity and pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function,[28] fairly described as being more than significant or marked, and as being at least very considerable.[29]
[28]
[29] See section 134AB(38)(c) of the Act.
51 Decisions as to whether an injury is serious involve elements of fact, degree and value judgement.[30] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[31] On the authorities,[32] the proper analysis involves: establishing that the plaintiff suffered a compensable injury after 20 October 1999; establishing what that injury was; determining the consequences which the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and determining whether those consequences meet the “very considerable level” in terms of pain and suffering and/or loss of earning capacity.
[30] Fleming v Hutchinson (1991) 66 ALJR 211.
[31] See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].
[32] Ibid [80].
52 The whole of the evidence before the court should be considered, not just the medical evidence.[33]
[33] Ibid [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at [170].
53 Where the plaintiff relies on impairment comprising the aggravation of a pre- existing condition, the plaintiff must establish that the impairment constituted by the aggravation amounts to a “serious injury”.[34]
[34] Barwon Spinners Pty Ltd & Ors v Podolak [2002] VSCA 33; Petkovski v Galletti (1994) 1 VR 436.
54 Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, as a result of the injury he has suffered a permanent loss of earning capacity of 40% or more.
55 Section 134AB(38)(g) of the Act requires the plaintiff to establish that he would not, given his capacity for suitable employment[35] after the injury and, where applicable, the reasonableness of his attempts to participate in rehabilitation or retraining, have the capacity for any employment which, if exercised, would result in his earning more than 60% of his earnings, “as determined in accordance with paragraph (f) had the injury not occurred”.
[35] The definition of “suitable employment” was amended by s.74(3) of the Accident Compensation Amendment Act 2010. The Second Reading Speech says at p.4625: “The references to ‘suitable’ employment’ throughout the Act were always intended to capture a wide range of employment, vocational training and education arrangements through which workers may be returned to gainful employment. This concept has been obscured through restrictive interpretation by the courts of what suitable employment entails, most recently in the case of Smorgon Steel Tube Pty Ltd v Majkic. This undermines fundamental controls in the scheme as well as the core objectives of the Act, including the common-law economic loss gateway and return- to- work obligations”.
56 The definition of suitable employment is set out in section 5(1) of the Act, which provides:
“suitable employment, in relation to a worker, means employment in work for
which the worker is currently suited –
(a) having regard to –(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided for the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and
(ii) the work or the employment is of a type or nature that is generally available in the employment market.”
57 Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning capacity requirements of s.134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the Court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of his application.[36]
Findings and reasons
[36] See Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority [2009] VSCA 170 per Redlich JA and Beach AJA at [63].
58 There was general agreement in the medical reports that the plaintiff suffered an aggravation of his asymptomatic cervical spondylosis in the incident of June 2002. Mr Jones last saw the plaintiff in 2004 and his report is therefore of limited assistance. Only Mr Schutz and Mr Klug felt that any aggravation was temporary and that the symptoms after the incident relate either to subsequent events or to the natural progression of his degenerative disease. I note that Mr Schutz appeared to have a limited history of the plaintiff’s pain, treatment and physiotherapy from 2002 to 2008. I prefer the specialist expertise of the neurosurgeons in relation to the diagnosis of his cervical spine condition.
59 Otherwise, the weight of the expert evidence from treating doctors and from assessing specialists, which I accept, is to the effect that his ongoing cervical spine symptomatology is causally related to the incident in June 2002. It is clear from the plaintiff’s evidence and from the histories given to most experts that he had ongoing symptoms in the neck and right arm from 2002, that he took medication for these symptoms in the form of Panadeine Forte, and that he had weekly physiotherapy from at least late 2003 onwards. His visits to Dr Knowles from 2003 to 2008 were not that numerous and were mainly unrelated to his neck condition. Dr Knowles felt that his neck symptoms in late 2003 were causally related to the incident of June 2002.
60 In any event, I note that the plaintiff’s case is put in terms of cervical spine injury occurring during the course of employment from 1999 onwards and in particular on or about 2002. It is clear from the plaintiff’s evidence (and that of his former de-facto partner) that prior to 2002 the plaintiff did not suffer cervical spine symptoms. It is clear from his evidence and that of his treating doctors that he was having consistent physiotherapy and taking Panadeine Forte as well as taking time off work after 2002, particularly after an exacerbation in late 2003 and after 2005 when his work duties became more physical.
61 For these reasons, I consider that the plaintiff’s employment after late 1999, particularly the incident of 30 June 2002, materially contributed to the aggravation of pre-existing but asymptomatic cervical spine spondylosis.
62 The plaintiff’s earnings as at 30 June 2002 were $66,092 gross, and I consider that this is the appropriate figure for pre-injury earnings. It equates to $1271 per week. 60% of this figure is $762.60.
63 The parties agree that not one of the positions (assuming a 38.5 hour full-time working week) returns an income greater than $762.60 even in the event that the plaintiff is able to work 22 hours per week.
64 I consider that the plaintiff has made reasonable attempts to find alternative work. He has cooperated with CRS but they have not found him any suitable employment. His evidence at the hearing as to his lack of experience in computers, clerical or sales work, as well as his physical limitations, was compelling. In particular, he said that he could not cope with more than 15 hours per week topping pizzas.
65 I prefer the recent report of Dr Dubrotwil and that of Dr Thomas to any of the assessments which conclude that the plaintiff can work full-time. The plaintiff said that he does not intend to have surgery. On this basis, he is in my opinion permanently capable of working only 15 to 22 hours per week as noted by Dr Dubrotwil.
66 I reject many of the job options suggested by Leonie Schneider in the light of the plaintiff’s evidence and the conclusions of Dr Rose and Mr Haw. I note in any event that the plaintiff does not have the necessary qualifications or experience to work as a supervisor or a purchasing officer. I also exclude the supervisory position because the job description acknowledges that the supervisor may have to perform the tasks of a store person (such as stacking shelves), and the plaintiff’s physical restrictions preclude him from doing such tasks. I consider that the position of cherry picker operator is unsuitable given his neck condition.
67 I am therefore satisfied that the loss of earning capacity consequences of the impairment of function of the cervical spine are at least very considerable when compared with other cases in the range of possible impairments of the cervical spine. I am also satisfied that the plaintiff has established a loss of earning capacity of 40 per cent or more. It follows that the plaintiff has made out the statutory requirements in relation to the loss of earning capacity consequences of his injury.
Conclusion
68 Leave is granted to the plaintiff to bring proceedings for the recovery of damages in respect of the injury to the cervical spine sustained during the course of his employment with the defendant after 20 October 1999 and in particular on 30 June 2002. I reserve the question of costs.
| DCB 77. See section 134AB(38)(b) of the Act. |
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