Tomisich v Parade College Bundoora
[2013] VCC 68
•25 June 2013
| 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-12-02058
| CLAUDE TOMISICH | Plaintiff |
| v | |
| PARADE COLLEGE BUNDOORA | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 February 2013 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Tomisich v Parade College Bundoora | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 68 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to cervical spine – pain and suffering only – aggravation – causation
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181.
Judgment: Application granted for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms N Wolski | Slater & Gordon Ltd |
| For the Defendants | Ms A Ryan | Minter Ellison |
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 25 July 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(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 application is the cervical spine.
5 The plaintiff relied upon one affidavit and gave viva voce evidence. He was cross-examined. I have not summarised the plaintiff’s affidavits or his evidence. However, I will refer to the plaintiff’s relevant evidence in my reasoning. Dr Makohon, general practitioner, attended for cross-examination. In addition, both parties relied upon medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
6 Counsel for the defendants submitted:
(a) That this is as range case and the plaintiff does not satisfy the requisite test for “serious injury”;
(b) Other events post date the 25 July 2007 injury, which have contributed to his neck and left arm injury which have not been provided to medico-legal and treating specialists;
(c) The plaintiff complained of neck and right arm problems within the month preceding the July 2007 injury, which needs to be taken into account.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the first defendant;[2]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the cervical spine in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked, and as being at least very considerable”;[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
11 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[5]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[6]
[5]s134AB(38)(j) of the Act
[6] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
12 Subsection (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[7] and in Grech v Orica Australia Pty Ltd.[8]
[7]supra
[8](2006) 14 VR 602
Background
14 The plaintiff was born on 1 March 1957. He is now fifty-five years of age.
15 After finishing school, the plaintiff attended university for a number of years, and eventually graduated with a Diploma of Education. He commenced teaching in 1984 and has taught as a secondary teacher ever since.
16 The plaintiff commenced employment with the first defendant in 2001. The plaintiff was employed as a maths/science teacher on a full-time basis.
17 On or about 25 July 2007, the plaintiff slipped in the staff toilets at the first defendant’s premises, fell against the wall, and twisted his neck and back. Following the incident, he suffered back pain with symptoms into his right arm and hand, and neck pain (“the July 2007 work injury”).
Earlier Injuries
18 Prior to becoming a teacher in the 1980s, the plaintiff sustained a fracture of his C7 whilst weight-lifting. He recovered from that injury and had no ongoing problems. He obtained chiropractic treatment for adjustments from time to time.
19 In June 1998, whilst at work, he broke up a fight between some students and sustained an injury to his lumbar spine at L4‑5. He suffered back pain and some leg pain. He suffered flare-ups of pain from time to time, and attended his general practitioner and sought chiropractic treatment.
The Plaintiff’s Medical Evidence
20 The day following the work injury incident, the plaintiff sought medical treatment from his general practitioner. Initially, Dr Makohon diagnosed a cervical disc injury with nerve radiation down the right arm or a strain of his right brachial plexus with radiation of nerve pain down the right arm and hand. He treated the plaintiff with total rest, Voltaren and analgesia. By 2010, the plaintiff’s symptoms were less frequent, approximately once per month.
21 In May 2010, the plaintiff suffered a whiplash injury to his neck when his car was hit from behind. This aggravated his neck for a few weeks but settled (“the transport accident”). On 26 November 2010, he had another work incident when he was called from behind, turned his neck suddenly to the left and noticed pain on the left side. This caused a flare-up of neck pain which radiated to the base of his neck and down his left arm. A course of Prednisolone was prescribed (“the November incident”).
22 In January 2013, Dr Makohon reported that, as a result of the 25 July 2007 work injury, the plaintiff suffered neck pain which radiated to both arms. In the past it was nearly exclusively on the right side. Since the November incident the plaintiff suffered knife like pain with radiation of pain down the left arm. The right sided neck and arm pain was less severe. Dr Makohon said the plaintiff strained his brachial plexus in the right arm and aggravated his previous cervical spondylosis with a disc injury to both sides of his cervical spine, giving him severe neck pain with neuralgic pains and sensory disturbances in both arms. It was his prognosis that the plaintiff will continue to get neuralgic pains in the base of the neck, with radiation down his arms. If the pain worsens, he would be assisted by cortisone injection under CT-guidance and there is a remote possibility that he may need cervical spine surgery.
23 Dr Makohon told the Court that prior to July 2007 he treated the plaintiff for lower back pain which, on occasions, required him to take time off work. As a weight lifter the plaintiff might have told him about a sore spot, but he did not recall the plaintiff suffering significant neck pain. Since July 2007, Dr Makohon said the plaintiff’s main problem was his neck. Dr Makohon’s evidence was that the transport accident was a temporary aggravation to the neck which settled within a few weeks. He said at the time of the November 2010 incident the plaintiff’s neck was improving. He agreed that the July 2007 incident rendered the plaintiff vulnerable to the type of situation he found himself in, in November 2010, when he turned his neck suddenly. It was Dr Makohon’s view that had the July 2007 work injury not occurred, he did not think the plaintiff would have been vulnerable in November 2010. He said the plaintiff’s left arm symptoms were related to the July 2007 work injury. He said the November 2010 incident was related to the July 2007 incident because the plaintiff already had a disc prolapse which was pressing on a nerve. The turning of the plaintiff’s head was an aggravating event which made the injury worse. He described the plaintiff as stoical. He said the plaintiff complained of inability to sleep and being woken with neck pain.
24 In September 2007, the plaintiff was referred by his general practitioner to Dr E B Tomlinson, neurologist. Dr Tomlinson was unable to say the cause of the plaintiff’s present symptoms but thought it possible he may have a stretch in the brachial plexus, although he said there was no clear evidence of this. He suggested that as there were changes in the cervical discs on CT scan, the plaintiff should be reviewed by a neurosurgeon.
25 In February 2008, the plaintiff was referred by his general practitioner to Dr Steven Jensen, musculoskeletal pain specialist. Dr Jensen treated the plaintiff periodically from February 2008 until October 2010. Dr Jensen thought the plaintiff was suffering a “significant” disc prolapse at C6-7 or C7‑T1 to explain the shooting pain and numbness that he suffered. When initially assessed, the plaintiff complained about the residual weakness through his right upper limb which resulted in difficulty with actions requiring extension of his elbow, and also with forceful tasks, and in particular, he was unable to do any triceps weight work; the plaintiff was responsible for coaching weightlifting at school.
26 In October 2010, Dr Jensen said the plaintiff complained of episodes of right neck and scapular pain which had become more intense and required medication such as Panadeine Forte, Lyrica and, occasionally, Endone and Tramadol for the pain. Dr Jensen said the plaintiff suffered a right C7 radiculopathy as a result of the July 2007 work injury. He had been left with residual radiculopathy signs of triceps and finger extension weakness and he believed he had displayed a diminished right triceps reflex that would be consistent with a radiculopathy involving the C7 nerve root. He thought it was highly likely that the plaintiff would continue to have persistent weakness through his triceps and fingers consistent with his residual right C7 radiculopathy and that he would have recurrent episodes of neck pain with referred pain down his right arm. He accepted the plaintiff’s cervical spine problem was a direct result of the July 2007 work incident and that work had been a significant contributing factor. He said it was possible, but not probable, that his condition pertaining to his cervical spine will deteriorate.
27 In September 2010, Dr Rick Ames, chiropractor, reported that he had treated the plaintiff since July 1999 for low back pain.
28 On 14 July 2007, the plaintiff sought treatment for “a new neck and shoulder girdle problem”, complaining of pinching type pain along his scapular into his neck and down the posterior aspect of his right brachium and into his fourth and fifth fingers. An x-ray of the cervical spine performed on 24 July 2007, the day before the work injury, showed multi-level spondylosis with a marked increase of neuro-foraminal narrowing in the C5-6 region.
29 On 28 July 2007, the plaintiff reported an injury at work on 25 July 2007. He reported increased pain in the neck with constant pain in the course of the ulnar nerve on the right arm, forearm and hand, and significant pain into the biceps muscle. Dr Ames arranged a CT scan, which showed “significant central canal and lateral canal stenosis of both right and left sides at different levels due to degeneration and disc lesions”. Dr Ames diagnosed acute traumatic traction neuropathy of the right C7 nerve root associated with an exacerbation of a cervical central and lateral canal stenosis syndrome.
30 Dr Ames confirmed he treated the plaintiff, providing palliative care approximately once per month.
31 In June 2010, the plaintiff reported being involved in a transport accident when hit from behind, which set off his neck pain. Examination showed no neurological studies.
32 In March 2010, the plaintiff was referred to Mr Paul S D’Urso, neurosurgeon. Mr D’Urso said the plaintiff presented with a history of chronic neck, right arm, lower back and right leg pain, which the plaintiff related to an injury he sustained in the workplace. Mr D’Urso said there was evidence of cervical and lumbar spondylosis with a degree of nerve-root compression, particularly in the cervical spine. He said the July 2007 work injury may have aggravated or contributed to the development of the cervical spine condition. He thought the plaintiff’s condition had stabilised and suspected there would be partial disability of a permanent nature.
33 In 2012, after reviewing the pathology of October 2011 and May 2012 Mr D’Urso said the plaintiff had symptoms from three-level disc degeneration and prolapse in the cervical spine, causing right C5, left C6, bilateral C7 nerve-root and mild cord compression. He said the plaintiff remained symptomatic for both cervical and lumbar degenerative disc disease. In the cervical spine there was significant disc prolapses causing both nerve root and cord compression. He said there was progression of the cervical condition, surgical intervention could be required and that the plaintiff had a permanent incapacity of a partial nature.
34 In December 2011, Mr Tiew Han, neurosurgeon, examined the plaintiff at the request of his general practitioner. At that time, the plaintiff complained of neck pain, worse on the right than the left, right shoulder pain and pain which radiated down the outer aspect of his right upper arm. He reported the July 2007 work injury and the November 2010 incident and described some intermittent left arm symptoms. Mr Han said the disc prolapses were responsible for his pain at C4-5 on the right side with compression onto the C5 nerve root. In addition, he had a prolapsed disc at C5-6 on the left side with compression onto the left C6 nerve root. Mr Han said the plaintiff managed his pain.
35 In May 2012, Mr Han reviewed the plaintiff, who complained of pain on a daily basis in his neck with radiation down the left arm. He complained of a tingling sensation in his left hand and reported requiring a few days off work. It was Mr Han’s view that the plaintiff had an exacerbation of pain in the neck with radiation down the left arm. By June 2012 the plaintiff was reporting taking more time off work due to the exacerbation of pain down the left arm. Mr Han organised a CT-guided injection on the left side at C5-6 which he hoped would alleviate most of his pain. He said if the pain remained severe, the plaintiff may be a candidate for anterior cervical discectomy and fusion.
36 In October 2012, when reviewed by Mr Han, the plaintiff reported significant relief of pain after a transforaminal injection at C5-6. The plaintiff was taking Endone and Panadeine Forte when necessary. Mr Han said surgical intervention was not necessary and if the pain recurs he should have a further transforaminal injection. Surgery should be considered as a last resort.
37 In November 2012, the plaintiff was medically examined by Professor Peter Teddy, neurosurgeon, at the request of the plaintiff’s solicitors.
38 Professor Teddy said that, based on the serial imaging between 2007 and 2012, the plaintiff had longstanding radiological evidence of cervical spondylosis at multiple levels which had previously been asymptomatic and was rendered symptomatic by the July 2007 work injury. Professor Teddy said the plaintiff suffered an exacerbation of his pre-existing condition.
39 Professor Teddy said the plaintiff had a degenerative change of a moderately severe nature at multiple levels of his cervical spine and he may well be prone to further episodes of neck/arm pain/dysaesthesia in future times. He said any surgical treatment would be dictated by failed medical treatment and the worsening of his symptoms.
Medical reports of the Defendants
40 In December 2007, the plaintiff was medially examined by Mr Gary Grossbard, orthopaedic surgeon. Mr Grossbard thought the plaintiff’s injuries related to the July 2007 incident at work and that he had aggravated a pre-existing lumbar spine injury which was largely recovered but continues to have neurological signs and symptoms in relation to his right arm. He said the neck condition had not resolved, although it had changed in nature, moving from numbness and paresthesia to pain. He was unsure whether the injury to the right arm was arising from the plaintiff’s cervical spine or as a result of brachial plexus injury. He said the mechanism of injury suggested a lower brachial plexus injury, whereas the symptoms and signs relate to the C6 level.
41 In May 2010, the plaintiff was examined by Dr Michael L Moussalli, chiropractor, at the request of the defendants’ insurer. He thought the main problem was that the plaintiff was suffering from neurological arm symptoms which were either an aggravated pre-existing disc lesion or he damaged his brachial plexus. He recommended the plaintiff be examined by a spinal orthopaedic/neurosurgeon to obtain a definitive diagnosis.
42 In April 2011, the plaintiff was medically examined by Mr Robin Williams, orthopaedic surgeon, at the request of the defendants’ insurer. Mr Williams thought the plaintiff had sustained a musculoligamentous strain in the region of his cervical spine, right shoulder and lumbar spine. He thought his condition was stable.
Credit
43 The plaintiff answered all questions in a clear and forthright manner. In answering questions, he made concessions; for example, the injury at work on 26 November 2010 was a separate incident. Further, that prior to 26 November 2010, the pain in his neck and right arm was improving. The plaintiff was consistent in reporting, to all the doctors whom he saw, the level of pain and the medication he was taking. Overall, I formed the impression the plaintiff was an honest witness.
Analysis of the evidence
44 It was not in dispute that the plaintiff had previously experienced back pain in the late 1990s whilst breaking up a fight between students at school. He also suffered from an injury to his neck in the 1980s whilst weightlifting, and fractured part of his C7.
45 At the time of the work injury, the plaintiff was receiving chiropractic treatment for his back pain, he was taking anti-inflammatory medication for back pain and he had excused himself from certain work activities as a school teacher because of his back pain. Otherwise, he was leading an active life. Other than Mr Han, all doctors were provided with this information.
The pre 25 July 2007 chiropractic treatment
46 A couple of weeks prior to the work injury, the plaintiff complained to his treating chiropractor that he was suffering from a pinching pain which was causing discomfort in his neck and he had pain in his right arm. Low-force chiropractic treatment was applied. An x‑ray was performed on 24 July 2007.
47 Only Dr Makohon and Dr Ames were aware of the plaintiff’s complaint of neck pain immediately before the work injury. The plaintiff’s evidence was that it was different to the pain he suffered following the work incident. The July 2007 incident resulted in completely new symptoms, much worse and manifesting in different areas.
48 Counsel for the defendants submitted that the plaintiff’s complaint of neck and right arm pain immediately preceding the 2007 work injury, needed to be taken into account. I accept that submission. However, the weight I give to that evidence will be very limited in view of the plaintiff’s evidence, that the pain he suffered after 25 July 2007 was totally different to the symptoms he had immediately prior to the work incident, and the limited chiropractic treatment provided
The 25 July 2007 work incident
49 The majority of medical witnesses accepted that the neck and right arm injury were work related.
50 The majority of doctors accepted that the plaintiff had longstanding radiological evidence of cervical spondylosis at multiple levels which had previously been relatively asymptomatic but was rendered symptomatic by the work injury of 25 July 2007. Accordingly, I accept that the work injury of July 2007 exacerbated his pre-existing condition.
51 Mr Han, neurosurgeon, did not express a view on the causal connection to the 2007 work incident, nor was it apparent that he was provided with the plaintiff’s previous injuries. I accept that this may be due to the fact that Mr Han’s reports were addressed to the general practitioner to outline the plaintiff’s current condition and his treatment.
The events which post dated 25 July 2007 incident
52 Counsel for the defendants submitted that there were events in May and November 2010 which have contributed to the plaintiff’s neck and upper limb injury, which have not been disclosed to the medico-legal and treating doctors. A number of the doctors were unaware of these events as their reports pre-dated 2010.
(a) The Transport Accident
53 The first event was a transport accident when the plaintiff suffered a whiplash injury to his neck. The evidence of the plaintiff and Dr Makohon was that the neck was aggravated for a few weeks, but settled. Dr Ames said that an examination showed no exacerbation of the plaintiff’s neurological status. There was no evidence, medical or otherwise, to the contrary.
54 In relation to the transport accident of May 2010, I accept the evidence of the plaintiff, Dr Makohon and Dr Ames that it was a temporary aggravation.
(b) The November 2010 incident
55 The second event was in November 2010. While at work, the plaintiff was spoken to from behind, turned his neck suddenly to the left and suffered a flare-up of pain. Counsel for the defendants submitted that the November 2010 incident was a separate injury and unrelated to the July 2007 injury. There was no medical or radiology evidence to support the defendants’ submission.
56 The plaintiff reported the November 2010 flare-up at work to his general practitioner and Mr Han, neurosurgeon, who he was seeing on a regular basis. Dr Makohon said that the July 2007 work incident rendered the plaintiff vulnerable to the type of situation he experienced in November 2010. He referred to the radiology of March 2010, which disclosed left C5-6 disc prolapse with impingement of the left side of the cervical cord and left C6 nerve root. He said that the plaintiff’s ongoing symptoms were consistent with that radiology. His evidence was, had the plaintiff not suffered the original injury on 25 July 2007, it was his opinion that the plaintiff would not have suffered the further injury to the left side as a result of turning his head to the left at work. His evidence was that the left sided symptoms related to the initial discal injuries of July 2007. By May 2012 imaging showed “a significant C5-6 disc herniation on the left side which Mr Han said was likely to cause pain in the area the plaintiff described.
57 Accordingly I accept the evidence of Dr Makohon that had the July 2007 incident not occurred, the plaintiff would not have been vulnerable in November 2010, and that the injury in November 2010 was causally connected to the July 2007 incident
58 There is no reference to the November 2010 flare-up in the reports of Mr D’Urso and Professor Teddy although Professor Teddy was told that the plaintiff suffered spontaneous left arm symptoms about May 2011.
The aggravation
59 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course of, his employment with the defendant. All of the medical witnesses accepted the injury was work-related.
60 The medical practitioners described the injury differently, but the majority opinion was that the plaintiff suffered an aggravation of pre existing degenerative change in his cervical spine.[9]
[9]Dr Makohon said the injury was a strained brachial plexus in the right arm and aggravation of previous cervical spondylosis with a disc injury to both sides of the cervical spine. Mr Han diagnosed a C4-5 disc prolapse with impingement of the right side of the cord and impingement of the right C4 nerve root. Professor Teddy said that there was longstanding cervical spondylosis at multiple levels which had been previously asymptomatic and had been rendered symptomatic by the 25 July incident. Mr D’Urso diagnosed a significant multi-level cervical condition with cord and nerve root compression.
61 The Court must consider what the evidence discloses as to the prior condition of the worker and determine whether the additional impairment was serious.
62 In Petkovski v Galletti,[10] the Full Court said that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment. I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting after July 2007 was serious.[11]
[10][1994] 1 VR 436. Petkovski v Galletti concerned s93 of the Transport Accident Act. Its application to s134AB was affirmed in AG Staff Pty Ltd v Filipowicz [2012] VSCA 60 (4 April 2012).
[11]ibid
63 The evidence is that the plaintiff had been employed with the first defendant since 2000. The plaintiff’s evidence was that prior to the 25 July 2007 injury he was physically fit and active. He had suffered low-back pain, for which he received treatment on a regular basis from a chiropractor. He took anti-inflammatory medication due to his back pain. Immediately prior to the work injury, he complained of neck pain and received chiropractic treatment on one occasion. The plaintiff’s evidence was that it was a different type of neck pain to that which he suffered after 25 July 2007. The plaintiff said prior to the July 2007 injury in respect to his back pain he had excused himself from certain work activities and had occasional days off work, but was otherwise leading an active life. Dr Makohon said he did not treat the plaintiff for neck and arm pain before the work incident of 2007.
64 I accept that at the time of the work injury in 2007 the plaintiff was relatively asymptomatic in respect to his neck and upper limbs, but did receive treatment for low-back pain.
65 In determining the plaintiff’s impairment I must make the assessment as at the date of hearing. Accordingly, I place greater weight on the more up to date evidence of Dr Makohon, Mr Han, Mr D’Urso, and Professor Teddy.
66 Dr Makohon said the plaintiff’s injury had resulted in severe neck pain with neuralgic pains and sensory disturbances in both arms.
67 Mr Han administered an injection of cortisone under CT-guidance which has assisted with the plaintiff’s pain. He said the plaintiff will continue to suffer neuralgic pain in the base of the neck with radiation down his arms.
68 Mr D’Urso said the plaintiff reported persisting symptoms affecting his cervical region and had taken significant periods of time off work because of the symptoms. It is likely that his cervical spine will be symptomatic for the foreseeable future. The cervical spine may be prone to progression.
69 Professor Teddy described the plaintiffs prognosis as degenerative changes of a moderately severe nature at multiple levels that would be prone to further episodes of neck/arm pain/dysaesthesia in future times.
70 In May and June 2012, the plaintiff was reporting daily pain since January and the need to take time off work to cope with the pain. The plaintiff’s pain is managed with cortisone injections, analgesic medication and chiropractic treatment. Surgery will only be considered if injections are no longer effective. He currently manages the pain with Endone and Panadeine Forte or Temazepam for sleeping. He receives chiropractic treatment monthly.
71 The defendants had not had the plaintiff examined by any neurologist or neurosurgeon. In the absence of such medical reports from the defendants, I accept the plaintiff’s medical evidence. This is particularly so, given the fact that none of the plaintiff’s evidence was challenged.
72 The plaintiff gave evidence that he had stood for election at Federal and State levels. As I understood his evidence, there were four occasions, and as recently as 2010. He said the work did not take up much of his time. He was required to talk to people, attend meetings and letterbox the area.
73 The plaintiff’s evidence was that he has been involved in weightlifting since the age of fifteen, training up to five times per week. He coached weightlifting at work. He gave up weightlifting, which he misses as a result of his neck and arm pain.
74 As a result of the pain in his neck and upper limbs, the plaintiff is now restricted in the walking that he can perform. Previously he walked 7.5 kilometres Saturday, Sunday and almost daily during school holidays. In the past six to eight months, he would have walked six to twelve times on that regime.
75 His sleep is affected. Previously he slept soundly. Now he wakes up, up to five times a night, from pain in his neck, arms and shoulders. He now takes Temazepam or Panadeine Forte, or both, to assist with sleep. Some weeks he does not require medication; other weeks he will use medication between one and three times per week. He often wakes fatigued, which interrupts his concentration at work, and he doses off at school during staff meetings.
76 He has had substantial periods off work due to the pain in his neck and upper limbs which he has reported to his doctors. By 2011 he was taking on average two to four weeks off per year because of the pain in the neck and upper limbs. In 2012, he had two occasions when he took three to four weeks off. No doctor has suggested that the periods off work were unreasonable. He works as a teacher but suffers problems with using the computer, marking and turning his head. He has weakness in his arm and his right arm is weaker than his left. He has problems lifting and a number of the doctors have noted wasting.
77 He takes medication, as required, for the neck and upper limb pain. Since December 2011 he was taking Panadeine Forte, Lyrica and Endone. When the pain is at its worse he will take six to eight Panadeine Forte per day, but for no longer than a two-week period.
78 Whilst he has retained the capacity to travel, his evidence was that he was assisted by a CT-guided injection and took medication daily. Upon his return from China, in 2012, he had two weeks off work before returning to work.
79 The evidence was that prior to July 2007 the plaintiff suffered lower back pain which on occasions required him to take time off work and for which he received chiropractic treatment. Since July 2007 the plaintiff’s main problem was neck pain. Mr Jensen referred to the plaintiff’s low back pain and was aware of the long history of chronic back problems but said he was not involved in the management of his back. Mr D’Urso reported that the plaintiff’s lumbar spine condition remains symptomatic but to a lesser extent than the neck. Dr Makohon said the neck was the plaintiff’s main problem. Professor Teddy and Mr Han did not refer to the plaintiff’s back condition.
80 I accept the evidence that since July 2007 the back has played a minimal role in the plaintiff’s medical presentation. The defendants did not produce medical evidence to the contrary. Accordingly, I accept that the back condition has limited effect on the plaintiff’s current condition.
81 The plaintiff was described by his general practitioner as stoical, which accorded with my assessment of the plaintiff. I accept that the injury suffered by a stoical plaintiff is not to be viewed as any less serious merely because he manages to remain more active than might have been expected given the level of pain.
82 Taking all the evidence into account, I am satisfied that it is fair to describe the pain and suffering consequences as being more than “significant” or “marked” and properly regarded as “considerable” when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test for pain and suffering. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments.[12] No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
[12]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [44]
83 I am satisfied that the neck injury is permanent, given the evidence from all medical witnesses.
84 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
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