Vella v Victorian WorkCover Authority
[2020] VCC 482
•22 April 2020 (Oral Judgment)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-04667
| JASON VELLA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 April 2020 | |
DATE OF JUDGMENT: | 22 April 2020 (Oral Judgment) | |
CASE MAY BE CITED AS: | Vella v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 482 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Serious injury application – cervical spine injury – failure to call a witness - credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Peak Engineering v McKenzie [2014] VSCA 67; Ronchi v Portland Smelter Services Ltd [2005] VSCA 83; Hesse Blind Roller Company v Hamitoski [2006] VSCA 121; Jones v Dunkel (1959) 101 CLR 298; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292.
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Morrow | Slater & Gordon Lawyers |
| For the Defendant | Ms M Cameron | Thomson Geer |
HIS HONOUR:
1 Mr Jason Vella was working for his employer, Thornhill, as a machine service technician on large industrial machinery when he suffered injury on 15 January 2016. That injury occurred when he tried to stop a piece of heavy equipment sliding off the back of a trailer. That he suffered injury in compensable circumstances is not in dispute. The nature of the injury and its consequences are.
2 These matters are important because Mr Vella claims that his injuries are to the cervical spine primarily and that the consequences meet the relevant threshold of being considered a serious injury. Particularly, Mr Vella submits that he has suffered either a soft tissue injury of his cervical spine or an aggravation of cervical spondylosis with frank C5-C6 prolapse in conjunction with a separate bursitis of the left shoulder. He bases his claim, however, on the cervical spine injury.
3 While the defendant agrees there is at least a soft tissue injury of the cervical spine, they do not formally concede that there is a frank disc prolapse. Further, they argue that the consequences of that admitted soft tissue injury are not as Mr Vella submits. Rather, the defendant submits that Mr Vella has significantly embellished the consequences that he complains of. The defendant submits that the actual consequences he suffers from are of insufficient severity to be considered serious when regard is had to the test laid out in section 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
4 In a supplementary submission the defendant argues that the consequences of the cervical spine injury cannot be stripped away from those of the left shoulder bursitis injury, as is required in Peak Engineering v McKenzie [2014] VSCA 67. The defendant argues that without such stripping away being performed the cervical spine injury and the left shoulder bursitis injury have consequences which are so entangled that a proper assessment of the consequences for each injury cannot properly be made so as to allow an analysis of whether both or either reach the relevant threshold.
5 The parameters of the argument leave the following questions for determination by this court. First, what is the injury or injuries Mr Vella sustained on 15 January 2016 in the course of his employment? Second, what are the consequences of that injury when separated from the left shoulder bursitis injury? Third, do the consequences, which arise from the cervical spine injury, reach the level required to be considered significant or marked?
6 Turning to the first question as to what the injury sustained is, the answer must be an aggravation of cervical spondylosis involving a prolapse at the C5-C6 disc level. This must be so given the opinion of the treating neurosurgeon, Professor Bittar. He saw Mr Vella on referral from his treating doctor, Dr Hocking, on 2 June 2016. He took an accurate record of the incident and symptoms. On the basis of that determination and persistence of symptoms into the left arm in an anatomical distribution, he considered the involvement of C6 nerve pathology.[1]
[1]Plaintiff’s Court Book (“PCB”) 39
7 This tentative opinion was confirmed by the earlier CT scanning of 4 February 2016 which the radiologist described as showing a large disc prolapse.[2] Professor Bittar's opinion was confirmed after further MRI scanning.[3] Ultimately, in his formal report he described the diagnosis as an aggravation of cervical spondylosis. I would prefer this opinion to that of Dr Dooley as it was formed after at least two consultations and the history taking is accurate. I note the report of Dr Dooley contains a number of factual inaccuracies of the most basic kind which suggests a carelessness in his attention.[4]
[2]PCB 31
[3]PCB 29
[4]See particularly the factual errors identified in Mr Vella's second affidavit.
8 Further, Professor Bittar is the treating neurosurgeon rather than an orthopaedic specialist. Therefore, Professor Bittar's speciality is better qualified to form an opinion as to the cervical spine injury. Lastly, the radiology does not support Dr Dooley's opinion of the injury being soft tissue only.
9 In sum, then, I find Mr Vella sustained an aggravation of cervical spondylosis involving the disc prolapse at the C5-6 level. In addition, it is uncontroversial that he also sustained bursitis of the left shoulder arising on 15 January 2016 during the course of his employment.[5]
[5]PCB 30, 27.
10 Turning, then, to the question of the consequences of the injury to the cervical spine, the defendant mounted its attack on Mr Vella's case by submitting that this was a range case, as Ms Cameron put it in closing. She argued Mr Vella's affidavit evidence as to the consequences was tarnished by reason of the following matters:
(a) the contradictory behaviours shown in one hour and 33 minutes of surveillance footage;[6]
[6]It was admitted that 15 hours of surveillance was undertaken. The portion shown, then, was only a small sample of the material ultimately available.
(b), the failure to call any evidence from his wife who has intimate knowledge of his condition and is seen at relevant critical times on the surveillance footage;
(c) the lack of notes from his treating doctor's practice supporting assertions of ongoing treatment and prescription of medication such as Endone and Lyrica.
11 Turning to the surveillance footage. The surveillance footage comprised three stanzas – attendance at a hobby fair, the coaching of an under-12s soccer game and, lastly, the packing up of equipment from the hobby fair. While only portions of the video were played to Mr Vella in cross examination, by consent I watched the entire video during the luncheon adjournment. The surveillance footage must be looked at in the context of the overall evidence of the case. This is particularly so as to Mr Vella's evidence as to his activities before the video surveillance footage was taken. In his affidavit material he described his work prior to the injury as heavy,[7] and that he prided himself on being strong.[8]
[7]PCB 10
[8]PCB 14
12 To his treating doctors, after the injury, he noted that lifting over 15 kilograms was difficult.[9] His treating doctor, in fact, had restricted him to lifting five kilograms. All doctors opined that he could lift but it should not be heavy and repetitive lifting. In cross examination he freely admitted to returning to work after the accident. In his affidavit he spoke of how he had to take time off and modify his work with Thornhill after the injury to reduce the heaving lifting component.
[9]PCB 34
13 It is to be remembered that Mr Vella has always worked in heavy machinery service work and, though, he has reduced his heavy lifting, he has never claimed to do no lifting at work. He once again freely admitted in cross examination having to regularly lift his 10 kilogram tool bag in his current job with Vertimax.
14 With that background set out, I find the surveillance footage shows no lifting of weight in excess of what he has deposed to. The closest one might get to it is in the third stanza of the video, being the packing up of equipment but these weights were all said by Mr Vella to be well under 10 kilograms and this appeared to be so, given the ease with which they were moved by him and others.
15 It was also submitted that in the soccer coaching stanza Mr Vella was seen gesticulating with his left arm above the height he demonstrated in court or that he had told Professor Bittar,[10] and that his treating doctor had recorded.[11] I consider this point to be well made but Mr Vella did point out that none of these movements were with weight. I accept that, but do find that there is a degree of embellishment regarding the range of movement Mr Vella has in the left shoulder. What is more significant, however, is that I consider that Mr Vella used medication, Lyrica the night before, Voltaren during and Nurofen after the game in respect of his pain. I will return to this matter but I note that his gesticulating occurred in circumstances where he had taken significant pain medications.
[10]PCB 34
[11]PCB 41
16 This stanza of the surveillance footage did not convince me that Mr Vella was significantly embellishing his condition, as was put. Rather, I prefer his affidavit evidence, the contemporaneous recording of his symptoms by his treating practitioners and the explanation as to the purported discrepancy shown in the surveillance that he gave during cross examination. For example, he explained that the pain caused by coaching was an aggravation of his normal pain state such that he had to take further medication after finishing the game.
17 I am fortified in that view by the report of Mr Bittar of 21 April 2020 who thought, after reviewing the video, that it was entirely consistent with his diagnosis and expectations as to the course of Mr Vella's injury.[12]
[12]Exhibit P3
18 It was also submitted that an inference ought be drawn against Mr Vella for the failure to have his wife give evidence regarding the scenes she is shown in during the surveillance footage. This occurred in a context where the defendant had provided Mr Vella with the surveillance footage on 20 September 2019 after his first affidavit and application for a serious injury certificate had been rejected. The plaintiff, then, was under no illusion that the surveillance footage was part of the reason the defendant had rejected his application.
19 In that circumstance, he had the opportunity to counteract it with relevant, cogent evidence. Such evidence could have been given by Mrs Vella who is seen in the third stanza of the video repeatedly. She is seen standing with Mr Vella while he unpacks table stands and boxes. It could be expected that she had knowledge as to how much the boxes weighed, what they contained and the weight of the other equipment that Mr Vella is seen lifting.
20 That evidence could not be considered merely cumulative in the sense that it was commented upon by Mr Vella or others. In fact, in his affidavit evidence sworn after receipt of the surveillance footage Mr Vella makes no real detailed comment about the third stanza of the video surveillance footage. Given that Mrs Vella's evidence could not be considered simply cumulative but had the real prospect of being probative, I consider it falls into the category of evidence described by His Honour Nettle JA in Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 as cited in Hesse Blind Roller Company v Hamitoski [2006] VSCA 121.
21 In these circumstances I will draw the inference urged by the defendant and I find that Mrs Vella's evidence would not have helped the plaintiff's case on this point.[13]
[13]See generally Jones v Dunkel (1959) 101 CLR 298
22 Overall, balancing the scenes depicted in the surveillance footage together with the inference arising from the failure to call Mrs Vella against the remainder of the evidence, I do not find that Mr Vella can be said to be significantly embellishing his condition. I come to this finding due, primarily, to the primacy of the finding as to his condition itself - that is a significant spinal injury with nerve involvement. This has been set out above.
23 Equally important, then, is the alignment between that injury and the symptoms found on examination.[14]
[14]See PCB 34, being the report of Professor Bittar where he expresses no doubt that the symptoms stem from the work injury.
24 Thirdly, the surveillance footage, while demonstrating some embellishment of consequences, does not fundamentally contradict the major part of his evidence being pain, his treatment regime and the permanence of his condition. That being said, I find that Mr Vella on the whole gave honest, credible evidence and I find that he is a witness of truth.
25 Turning then to the consequences alleged to arise from the aggravation of cervical spondylosis. When regard is had to the material I find it is reasonably straightforward to strip aside the consequences said to arise from the left shoulder bursitis. This is because it features to such a limited extent in any of the medical material. Professor Bittar notes that he had, in fact, improved by late 2017.[15] Dr Dooley notes that the ultrasound finding of the left shoulder is almost a normal finding.[16]
[15]PCB 33
[16]Defendant’s Court Book (“DCB”) 32
26 It features to almost no independent extent in the report of Dr Hocking who, in his initial reporting, clearly focuses all his comments through the lens of the cervical spine problem,[17] so much so that Mr Hocking did not even refer to the left shoulder ultrasound. The same is to be said for his long-term treating physiotherapist, Mr Boulionis, who considered the left shoulder bursitis insignificant in the scheme of his overall neck pathology and presentations.[18]
[17]See particularly his report of 20 December 2017 at PCB 43
[18]PCB 54
27 Having set that out, I make the following findings as to the consequences flowing from the compensable cervical spine injury alone. As to pain, I find it is almost constant. It is relieved by hot showers and medication but not to a significant extent. Mr Vella described its quality to Professor Bittar as varying between sharp, dull, throbbing, stabbing and aching. Such pain is regularly nine out of 10 and can reach 10 out of 10. It worsens with heavy and repetitive activity.[19] Once per week there is a flare-up.[20] The consistency of pain and flare-ups over four years, week in, week out, is evidence of a significant problem.
[19]See Professor Bittar at PCB 34 and the plaintiff's affidavit at paragraph [40] PCB 12
[20]PCB 12, paragraph [41]
28 Mr Vella takes Lyrica regularly on weekends, Friday and Saturday night to alleviate the pain.[21] He states that it makes him drowsy, so he tries not to take Lyrica during the working week. In addition he also takes Panadol daily,[22] and occasionally Endone, perhaps once per fortnight.[23] He uses Voltaren gel on an almost daily basis.
[21]Transcript (“T”) 24 Line (“L”) 8
[22]T 24 L 27
[23]T 24 L 18
29 He was, however, challenged as to his Endone consumption.[24] My review of the notes and records suggest that he was last prescribed Endone on 27 June 2016.[25] However, there is reference to Endone used by the treating doctor in the note of 13 September 2017 at Exhibit P2.[26] I would prefer that later reference which supports Mr Vella's assertion of ongoing Endone use. On any view, it is only occasional, perhaps being limited to rare onsets of pain.
[24]T 44 L 25
[25]PCB 44 and see counsel at T 45 L 4
[26]T 45 L 16
30 Given that such medication use as described above has been constant for four years, in my view this is a substantial medication regime. There is no evidence that it will change.
31 Mr Vella also has had very regular physiotherapy treatment for his neck. For almost three years this was weekly with Mr Boulionis. However, over the last year this has reduced to fortnightly. As was explained by Mr Vella, however, this reduction was because of cost, as he is now self-funding his physiotherapy treatment, and it is not due to any change in his symptoms. This is an extremely protracted, consistent course of physical manipulation. It speaks of significant ongoing problems. It was suggested that his treating doctor notes do not disclose ongoing treatment in discussion of the neck problem.
32 However, this must be looked at in context. Mr Vella made plain he was getting regular neck treatment with his physiotherapist for his neck and that this was his primary health provider for that condition. In that circumstance he said he always talked to Dr Hocking about his neck but Dr Hocking was more focused on his diabetes,[27] and left the neck treatment to his physiotherapist. Further, the prescriptions for Lyrica suggest that Dr Hocking was able to prescribe multiple scripts for Lyrica, 5 x 56 tablets at once, obviating the need for regular script attendances.[28]
[27]T 45-46
[28]See Exhibit P2
33 These matters blunt the defendant's attack that Mr Vella's evidence is at odds with other evidence, so it should be viewed as significantly embellished as to his treatment and medication regime.
34 A further fundamental impact his injury has had has been on his ability to work as he used to with Thornhill prior to his injury. He gave evidence of having to modify his work at Thornhill to cope with his return to work immediately after his injury. He then spoke of his inability to cope with travel when working at E.W. Cox,[29] his failure to do heavy work at Tuff Lift[30] until ultimately he found a job suitable to his physical limitations at Vertimax.
[29]PCB 18 at paragraph [74]
[30]PCB 18 at paragraph [75]
35 Through what is undoubtedly a significant injury, Mr Vella has soldiered on with a stoic attitude. His ability to remain working stands for his credit and should not be held against him. The fact is, though, that all doctors opine his injury has restricted his ability to work as he did at Thornhill. This is a further factor to be weighed, as was noted in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at [9], even though by itself it is not determinative of whether or not he has sustained a serious injury.[31]
[31]See Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
36 I also note that he complains of ongoing weakness and loss of strength in the left hand caused by his neck injury. This is a significant problem for a manual worker but, determinedly, Mr Vella has pressed on and modified his work by learning to use a lanyard to hold tools and equipment around his neck so that they do not drop from his hand.
37 Mr Vella has also been significantly affected in his recreational pursuits, such as water skiing and riding a towed floatation biscuit. In the context of a man who had a boat and caravan at Nagambie these activities were significantly enjoyable recreational pursuits he is now deprived of.
38 He can no longer perform the heavier home handyman tasks that he did beforehand, such as building carports and large garden beds.[32] He can no longer indulge in his passion for model boats or training his local youth soccer teams as he used to do. The point was well made by Mr Morrow that the plaintiff had attempted to continue on with these activities, just as with his work. Such can be seen by the first and second stanzas of the video surveillance footage.
[32]PCB 17, paragraphs [65]-[66]
39 Mr Morrow submitted that Mr Vella had never denied that he continues to try to engage in these activities. In fact, Mr Morrow suggested this was evidence of the plaintiff having a stoical attitude and attempting to get on with his life as best he could and, rather than being penalised for this, he should be given credit for it. I would accept that submission.
40 Against these losses regard must also be had to the fact that he has retained the ability to perform some activities such as fishing and even doing soccer coaching, but when regard is had to the injury itself and the impacts which I have set out above, particularly the pain consequences, the impact on work, the impact on his sleep and the diminution of his recreational life, I consider these must be classified as more than significant or marked.
41 While the defendant raised an issue as to the permanency of the condition, I find, in keeping with the almost unanimous medical opinion, that Mr Vella's condition is stable and permanent.[33] Mr Dooley provides no contradictory opinion. In all those circumstances, then, I find for Mr Vella and I will grant him a serious injury certificate.
[33]See Professor Bittar at PCB 35 and 36, Dr Hocking at PCB 41, 42 and 45, Mr Boulionis at PCB 57
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