Vernham v Victorian WorkCover Authority

[2021] VCC 158

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-01616

THOMAS ARTHUR VERNHAM	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2021 (via Zoom hearing)
DATE OF JUDGMENT:	2 March 2021
CASE MAY BE CITED AS:	Vernham v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 158

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – injury to lumbar and cervical spines in the course of employment as a forklift driver – disentanglement of consequences from other physical injuries, including left and right shoulders, and left elbow and from psychological condition – credibility of the plaintiff – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity

Judgment:Leave granted in respect to pain and suffering and loss of earning capacity damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Brett QC with Mr T Nathanielsz	Zaparas Lawyers
For the Defendant	Mr J Valiotis	Russell Kennedy Lawyers

HIS HONOUR:

Preliminary

1       Mr Vernham commenced work with Jayco Corporation Pty Ltd (“Jayco”) in 2000 as a forklift driver.  From about 1999, he had lower back problems, diagnosed as psoriatic arthritis, with a possible disc bulge.  He said this largely resolved and that while he got episodes of back pain from time to time, he was able to work with Jayco over a considerable period without difficulty.

2       Further, as a child he was the subject of sexual abuse and although he did not suffer psychological symptoms for a considerable time, in the course of making a WorkCover claim in respect of his physical injuries in this application, he fell into acrimonious dispute with the insurer and Jayco.  As a result, he suffered a Major Depressive Disorder, alternatively a Chronic Anxiety Disorder with Depressed Mood.

3       Mr Vernham claims the forklift work for Jayco was physically demanding and there were changes to the tyres of the vehicle he was required to drive, which led to increased jarring and vibration, and consequently, pain in his lower back and neck.  In addition, driving the forklift led to soft tissue injuries to his left and right shoulders and left elbow.

4       Mr Vernham has had a raft of treatment for his spinal condition and at an early point, a neurosurgeon, Mr Michael Wong, recommended a three-level cervical discectomy and fusion.[1]  That did not take place, and he has been since treated conservatively, including with physiotherapy, chiropractic therapy and an exercise program.  He has also been prescribed pain relieving and anti-inflammatory medication from time to time.

[1]Plaintiff’s Court Book (“PCB”) 63

5       Mr Vernham has also had treatment in respect of his shoulder conditions.

6       Mr Vernham fell into dispute with his employer and the WorkCover insurer after he suffered injury and at one point made violent threats to persons involved in this claim.  This led to prosecution in the Magistrates’ Court and he was placed on a Diversion Order.[2]

[2]Defendant’s Court Book (“DCB”) 252

7       As a result, he claims to have been marginalised at work because of his injury, suffered a “mental breakdown” around August 2014 and left work.  He has not worked since.  His employment was formally terminated in February 2015.

8       In relation to his spinal injury alone, he claims a range of consequences, including ongoing pain requiring medication, a restriction in walking and sitting for limited periods, radiation of pain into his left hand, with numbness and tingling and restriction of a range of recreational and social activities.  He says his spinal condition alone would prevent him from obtaining suitable employment. 

The application

9       This is a serious injury application.  Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity.  The body function said to be lost or impaired is the spine, including the cervical and lumbar spines.  Leave is sought in respect of both pain and suffering and loss of earning capacity.

10      Mr Valiotis, counsel for the defendant, identified the issues in the application as:

·There were significant credit issues, as a result of which the evidence of the plaintiff and the histories provided to doctors could not be relied upon.

·The consequences of Mr Vernham’s spinal injury, both as to pain and suffering and loss of employment capacity, had to be disentangled from the consequences of his other physical injuries, including left and right shoulders and left elbow, and also from his significant psychological condition.

·When regard was had to other cases in the range of possible impairments, the consequences to the plaintiff, both as to pain and suffering and economic loss, did not meet the statutory test.

The Plaintiff’s evidence as to the consequences of his spinal injury

11      Mr Vernham deposed that despite an episode of back pain around 1999 or 2000, that pain resolved, and it did not prevent him undertaking his work as a forklift driver.

12      Around 2009, he began to experience pain in his lower back, left shoulder and neck.  He said the forklift driving work was physically demanding, and due to the changes to the vehicle and its tyres, he would feel tension or pain up his spine over rough surfaces.  By 2013, he was working under an increased workload, and the spinal pain continued.  The pain was intermittent but manageable, and he saw his doctor in June 2013.

13      Around July 2014, there was a change to the tyres of the forklift which resulted in increased jarring and vibration.  He said this immediately increased the pain in his lower back and shoulders.  He consulted Dr Chia, the “work doctor” and undertook physiotherapy.  He was also having psychological counselling for worsening symptoms.

14      In August 2014, he was placed on light duties by Dr Chia.

15      Around 2008-2009, Mr Vernham started to feel neck pain, which radiated to both arms.

16      Mr Vernham’s medication has included Panadeine Forte and an anti-inflammatory, Mobic.  He now takes Panadol Osteo, usually several per day.  He has had physiotherapy treatment, although funding ceased at the behest of the WorkCover insurer in 2016.

17      In 2018, Mr Vernham commenced a multi-disciplinary pain treatment at Kingston Pain Centre.  In 2019, he was placed upon a disability support pension and in October of that year, accepted as a participant in the National Disability Insurance Scheme, although this was related to his psychological symptoms.

18      At the present time, he claims his neck is painful and stiff and it is difficult to rotate.  He has constant lower back pain.  He is unable to walk or sit for more than twenty minutes.  There is referred pain from his neck, down his arms, and he has numbness and tingling into his left hand.  His sleep is interrupted.

19      In 2018 and 2019, he underwent chiropractic treatment.

20      In 2020, he commenced a course in Equine Assisted Learning and has completed the first part of the course.  He has considered starting a business assisting people who suffer psychological disorders.

21      In October 2020, he started a Certificate IV in Mental Health Peer Work and hopes to finish the course later this year.

22      Mr Vernham is recently married.  Some years before his injury, he was a competitive equestrian and competed in eventing.  He has ridden horses on a number of occasions over the past twelve months, but finds it very difficult.  He rides a motorcycle occasionally, although has difficulty, mainly because of his shoulder problems.

23      Mr Vernham says that he could work three to five hours per week providing the work was not physical nor demanding. 

24      In re-examination, Mr Vernham was asked whether, if he was not suffering pain and restrictions in his shoulders and elbow, nor from psychological symptoms, he would still be able to work as a forklift driver given his neck and back pain, and said he would not be able to do so.[3]

[3]Transcript (“T”) 75 Line (“L”) 5-13

Medical opinions as to spinal injury

25      Dr Stephen Hall, rheumatologist, provided a report dated 5 August 2011.[4]  Mr Vernham had been referred to Dr Hall by his treating general practitioner, Dr Caldwell.  Dr Hall said at the time that psoriatic arthritis was his main problem.  He noted referred pain from the neck.  He thought the condition would settle over the next few years. 

[4]PCB 57

26      Dr Irmgard Chia undertook a medical examination of Mr Vernham on 30 July 2014.[5]  The symptoms complained of included lower back and upper thoracic spine.  She noted: 

“He has developed a negative attitude to his job and this behaviour has impacted on his coworkers, supervisors and managers. He focuses on every detail that doesn’t go his way and gets annoyed and frustrated.”[6]

[5]DCB 9

[6]DCB 10

27      Dr Chia thought his back problem had probably resolved.  She noted further:

“… I felt he was a nonstop whinger and constantly annoyed that his previous direct line of communication with the owner (Gerry Ryan) and senior staff was no longer present.”[7]

[7]DCB 12

28      Dr Chia said that he had full capacity for pre-injury duties.

29      Dr Michael Wong, neurosurgeon, saw Mr Vernham in May 2015.[8]  He received a history of five years of neck and arm pain.  He said Mr Vernham had a reduced capacity for pre-injury employment and recommended a C5/6-6/7 cervical discectomy and fusion.  Approval for the surgery was sought from the WorkCover insurer, but was refused.

[8]PCB 59

30      Dr Malcolm McCowan, Mr Vernham’s general practitioner, provided reports of 2015 and 2018.[9]  He  had been treating Mr Vernham for over twenty years.  There were a range of medical issues including a psychological condition described as Post-Traumatic Stress Disorder, and a Major Depressive Disorder.  He noted the left shoulder and left elbow problems which required cortisone injection.  He said Mr Vernham had suffered pain in his back from 2014 as a result of his forklift duties.  He thought Mr Vernham could not continue his work as a forklift driver as a result of his various physical injuries and psychological condition.

[9]PCB 65-66

31      Mr Eden Raleigh, orthopaedic surgeon, treated Mr Vernham in September 2015 for his left shoulder problem.[10]  He noted disc bulges in his neck, which he thought would be contributing to the pain in his left shoulder and elbow.  He noted an MRI scan of the left shoulder showed significant joint arthritis and a partial thickness tear.  He arranged an injection into the acromioclavicular joint.

[10]PCB 68

32      Mr Vernham was referred to the Neurosurgery Department of Monash Health in July 2018.  Dr Reece Sher, neurosurgery registrar, noted chronic neck pain from 2014 with “clicking sounds in his neck and cervicogenic headaches”.[11]  That practitioner thought the CT scan suggested C5-6 and C6-7 disc desiccation with disc bulges.  There was nothing to suggest surgical intervention and conservative management was advised.

[11]PCB 73

33      Mr Vernham was examined in 2018 and again in 2020 by Dr Mohammed Awad, neurosurgeon.[12]  He was provided with a history of the onset of back and neck pain in 2010, associated with his forklift driving.  Mr Vernham described constant neck pain ranging between 5 out of 10 to 8 out of 10, and lower back pain of 5 out of 10 to 8 out of 10.  He had available an MRI scan of the cervical spine of May 2015, which he said showed a C5-6 and C6-7 disc prolapse with osteophyte complexes and bilateral foraminal stenosis.  He thought that Mr Vernham, in the course of his work duties, had suffered an aggravation of underlying degenerative process in his cervical and lumbar spines.  Dr Awad also noted left arm radiculopathy.  He attributed the aggravation of the degenerative process to heavy work activities on the forklift.  He thought the restrictions in his neck and spine were likely to continue into the foreseeable future. 

[12]PCB 84 and 96

34      As a result of his spinal condition alone, Dr Awad thought that Mr Vernham would be unable to undertake any work involving pushing, pulling, bending, twisting, lifting, repetitive lumbar spine movements or overhead reaching.  He believed Mr Vernham would be unable to return to his pre-injury duties on either a full or part-time basis.  He said, taking into account Mr Vernham’s age, education, training, skills, work experience and his mental health, that he did not have any realistic capacity for suitable alternative employment.  He thought his spinal condition would preclude him from a range of social, domestic and recreational activities, would restrict his motorbike and horse riding and that these restrictions were likely to persist in the long term.

35      Mr Vernham was examined by Dr Joe Slesenger, occupational physician, in 2020.[13]  He received a history of an episode of back pain in 2002.  Those conditions progressed and deteriorated.  There was a further deterioration of back pain in 2014 related to the changed tyres on the forklift.  Mr Vernham said he had developed neck pain in 2008/2009, which radiated into both arms.

[13]PCB 112

36      Dr Slesenger noted ongoing back pain which had required physiotherapy treatment and injections into the lumbar spine.  There was some radiation of pain into the left leg.  The pain was aggravated by activity.  Mr Vernham said that the neck pain was persistent and restricted the range of movement to the neck.  There was tingling into both hands.  Mr Vernham told Dr Slesenger he was not taking medication in January 2021. 

37      In the lumbar and cervical spines, Dr Slesenger said Mr Vernham had suffered a soft-tissue injury to those areas with aggravation of degenerative disease, which was related to his forklift driving.  He made a range of recommendations on restriction of work-related activities.[14]  He said Mr Vernham was not fit to return to his previous duties, on the basis of his lumbar spine impairment alone.  As to alternative duties, he said there would be a range of restrictions on work duties and work hours should be restricted to four hours a day, three days a week.  He said:

“However, I note a number of barriers to him returning to work, including the limited transferability of his pre-injury experience, the length of his occupational disability, the absence of support from a return to work coordinator and the absence of retraining.

Whilst I note that he aspires to return to work as a mental health support worker within the equine area, I note that he has no relevant qualifications and is currently not being supported by a return to work coordinator and currently, there is no return to work plan in place.”[15]

[14]PCB 126

[15]PCB 127

38      Dr Slesenger also noted a range of impairments and restrictions in respect of his left shoulder injury.

39      Dr Dhasaraj Naidu, Mr Vernham’s current treating general practitioner, provided a report of January 2021.[16]  He first commenced treating Mr Vernham in December 2017.  He said Mr Vernham had suffered aggravation of cervical and lumbar spondylosis in July 2014, which caused neck, shoulder and back pain.  He noted Mr Vernham’s complaint of poor sleep and inability to sit or stand for twenty minutes, anxiety and stress.  He thought the prognosis for recovery from the symptoms was poor and that the incapacity would continue for the foreseeable future.  He said Mr Vernham would be unlikely to return to pre-injury duties and his symptoms, together with his psychological difficulties, would make it very difficult for him to return to gainful employment.

[16]Exhibit A

40      A CT scan of the lumbar spine performed in November 2014 showed degenerative changes at L4-5 with a broad-based disc bulge.

41      On behalf of the defendant, Mr Vernham was examined by Dr Catherine Bones, occupational physician on 5 March 2020.[17]  To that practitioner, Mr Vernham said he first experienced lower back pain in 1997, which required physiotherapy and a period on modified duties.  He suffered further back pain in 2010 related to his work duties and it progressed from there.  In 2014, with an increase in his workload, there was a further aggravation of his back pain. 

[17]DCB 94

42      Mr Vernham first suffered neck pain around 2010, again related to his work duties.  Dr Bones noted a mild diffuse disc bulge at L4-5 on CT scanning.  Further, there was degenerative change at C5-6 and C6-7, with mild canal narrowing in the cervical spine.  Mr Vernham described an interest in equine assisted learning or therapy.  He complained of a range of activities which elicited lower back pain, including tying his shoelaces, lifting 3 to 5 kilograms and with restrictions in sitting and standing tolerance to thirty minutes.  Mr Vernham complained of sleep disturbance related to his lower spine and that he was no longer able to ride a horse.

43      Dr Bones said that the lower back pain was related to osteoarthritis and psoriatic arthropathy.  She considered that his neck condition was related to degenerative process in the cervical spine.  Dr Bones further considered that Mr Vernham’s employment between 2009 and 2014 did not materially contribute to his neck or lower back condition as there was insufficient evidence to support the proposition that the vibration of a forklift was likely to cause injury to the spine.  She said, further, that “the incident” on 23 July 2014, which she said occurred over a period of about two hours, was unlikely to have caused any significant aggravation of the lower back or neck condition.[18]  There is no explanation in Dr Bones’ report as to what “the incident” of 23 July 2014 was, save for a history that after forklift tyres were changed and within two hours of operating the forklift he noted an increase in lower back pain.

[18]DCB 105

44      Dr Bones said there were psychosocial issues which compounded Mr Vernham’s pain experience.  She further considered Mr Vernham’s forklift work did not contribute to any aggravation of his underlying cervical or lumbar spine conditions.  The effects of the work-related aggravation, she said, had now ceased.  Thus, she said, at the present time, Mr Vernham was not suffering any work-related injury, but to the extent that he did have symptoms in the cervical and lumbar spines, that was related to the underlying degenerative process.  To the extent that he suffered neck and lower back symptoms, she suggested various restrictions in any full-time employment.[19]

[19]DCB 107ꟷ108

45      Mr Vernham was further examined by Dr Ian Dickinson, orthopaedic surgeon, in March 2020.  He received a history of the onset of lower back and neck pain in the course of his employment duties driving a forklift.  Mr Vernham described ongoing neck pain radiating across the shoulders.  A steroid injection into the area was said to provide little relief.  In relation to the lower back, Mr Vernham described pain all across the lower back.  Dr Dickinson noted a previous diagnosis of psoriasis, the shoulder problems, and psychological issues.  As had other practitioners, he described the degenerative changes to the lumbar and cervical spines on radiology as “mild to moderate”.[20]  He said Mr Vernham presented in a deconditioned state.

[20]DCB 122

46      Dr Dickinson concluded:

“The pains that Mr Vernham has do not have an organic basis. The nature of the symptoms and the nature of the physical findings are not clinically consistent.

…

Mr Vernham has no physical condition in relation to his work activity.”[21]

[21]DCB 124

47      Dr Dickinson had noted inconsistent signs, including:

“… a bizarre gait, tenderness to light touch, grossly restricted neck and lumbar movements, giving way and pain production on power testing, restriction of abduction and flexion of both shoulders without any restriction of other movements, and production of pain in the trapezius regions on those movements.”[22]

[22]DCB 125

48      Dr Dickinson said there was evidence of non-organic and functional overlay signs.  There was no restriction from physical injury for a return to work on pre-injury full-time duties.

Credibility of the Plaintiff

49      Mr Valiotis submitted I should have significant reservations about the plaintiff’s credibility.  This was based upon:

·The surveillance film of Mr Vernham which showed an inconsistency between what was depicted on the film, and his evidence before the Court, and histories to the various medical practitioners.

·The incidents disclosed in the affidavit of Ms Catherine Kalab.

·Mr Vernham’s claimed restrictions were inconsistent with his travel on a number of occasions to Europe and Canada.  It was not until his second affidavit, sworn 29 January 2021, that any details of the travel was disclosed.  Further, these events had not been provided in the histories to medical practitioners.

·Mr Vernham’s plans to undertake a business, either counselling for psychological issues, or his involvement with “Equine Assisted Learning”, showed he had a work capacity beyond that which he claimed.

·Mr Vernham’s claimed inability to work using a computer was inconsistent with the fact that he was active on Facebook and other social media.

Surveillance film

50      The plaintiff was depicted in surveillance film on 22 January 2015.  At the time, he was shown with a friend moving various items out of a house he had been staying in, into a utility vehicle.  He was shown with his associate lifting a bedroom chest of drawers and several bedside tables.  He was also shown carrying a cardboard box on his shoulder and placing it in the back of a car.

51      The furniture items did not appear to be particularly heavy, although they were somewhat awkward.  The weight of the cardboard box was not known.  The activities depicted happened over a period of fifteen or twenty minutes.

52      I do not see those activities as being particularly inconsistent with Mr Vernham’s evidence, nor his history to the doctors.  He has not claimed an inability to lift things.  In cross-examination, he said the items were not heavy and were made of particleboard.  He said he had taken medication, and some months before, had an injection into his shoulder.

53      I do not accept the surveillance film as particularly affecting his credit.

Affidavit of Ms Catherine Kalab

54      In an affidavit of Ms Catherine Kalab, affirmed 11 February 2021, Ms Kalab, a former friend and housemate of Mr Vernham, described a number of activities in which he was involved between October 2014 and January 2015.  She noted he rode his motorbike, moved furniture and belongings into her house, and moved a horse float used to transport those items.[23]  She said Mr Vernham did not complain or show any restriction.  She said he also moved a washing machine and mowed her back lawn.

[23]DCB 4-8

55      Mr Vernham responded to the allegations in an affidavit sworn 15 February 2021.[24]  He deposed that he had fallen out with Ms Kalab and that they had been romantically involved in the past.  He explained the activities in which he was involved.

[24]PCB 205

56      Again, I do not see the matters raised as significantly affecting Mr Vernham’s credit.  They were all relatively minor incidents.  Mr Vernham has not suggested he is unable to undertake the activities referred to.

Overseas travel

57      Mr Vernham’s first marriage broke down.  In January 2015, he entered a relationship with his current wife, Emma.  According to his affidavit, sworn 29 January 2021, he travelled to Canada to visit Emma in 2015, and in 2016, lived with her for approximately seven months in Canada.  In 2018, the couple travelled to the United Kingdom and France.  He again travelled with Emma in 2019.  According to the affidavit, he found the travel difficult, but managed it with the assistance of medication.

58      Mr Vernham is shown in various Facebook posts in many locations.[25]  He said he did not do any hiking, but only walked short distances.

[25]DCB 226-242

59      I accept this travel coincided with the establishment of his relationship with his now wife.  Nonetheless, I accept the defendant’s submission that this amount of travel is somewhat inconsistent with the restrictions he claims his injuries cause him.  Not only is there the travel on planes to and from Europe and Canada, but also movement around within those countries.  I accept this does impact his credit to some, although not to a great extent.

Courses he has undertaken

60      Mr Vernham deposed in his affidavits to having undertaken an Equine Assisted Learning education course in 2018 and 2019.  Apparently this is a course which is attended to assist people with psychological issues through caring for horses.  Further, in October 2020, he started a course at Swinburne University, again to undertake treatment for people with psychological disabilities.  He has completed the first semester of the course.  He aspires to do work in this area, although has limited experience with establishing a business, and relies upon his wife to assist.  He says that he has been unable to commence or establish any business, and it is likely that, even if it was established, his involvement would be on a limited basis. 

61      I do not see Mr Vernham’s involvement in the courses, nor his hope to establish a business, as affecting his credit in any significant way.  To the contrary, it points to someone who is prepared to try different things in an attempt to return to work.  I accept his evidence that if he was able to, he would love to return to work. 

Computer capabilities

62      In various of the medical and vocational reports there is reference to the difficulties Mr Vernham would face in obtaining alternative employment.  One of the difficulties is his lack of computer skills.  It goes without saying that in almost any non-physical area of employment, a prospective employee will need to be able, to a greater or lesser extent, to operate a computer.  Mr Vernham’s evidence is that his background is almost exclusively in factory work, and he has limited technology skills. 

63      Mr Valiotis submits this stands in contrast with his ability to establish and then make posts on Facebook, establish a blog “TomfromTassie” and be involved in LinkedIn.  He has also established a business name “Eggshell Skull Consulting”, which is referred to in his LinkedIn page.

64      In evidence, Mr Vernham said he undertook this work with the assistance of his wife.  While I would not have expected Mr Vernham to have necessarily disclosed these matters in his affidavits, I accept that, to some limited extent, he has some proficiency in the use of a computer.  However, there is a significant difference in being able to make posts on social media and have the skills to undertake computer data entry work and the like in a non-physical occupation. 

65      Accepting that Mr Vernham’s travel over recent years, while referred to in his second affidavit, is more than I would have expected of someone with his injuries, and, further, that his computer skills are a little more than was disclosed, I do not accept that his credit has been significantly impeached.  I am able to largely rely upon his evidence of the injuries he has suffered, in particular to his spine, and the pain and restrictions that have resulted.

Disentanglement

66      There is no doubt that in addition to injury suffered to Mr Vernham’s spine, he has also suffered significant injury to his left shoulder, left elbow and, to a lesser extent, his right shoulder.  He also suffers a significant psychological condition which has required medical treatment.  These injuries and conditions have continued over the last several years and remain present.  They impact his domestic, social and recreational activities, and also affect his capacity for employment.

67      In relation to his shoulders, Mr Vernham started to experience pain in both shoulders around 2009 and 2010.  The pain and restriction he suffered in the shoulders continued, and he has had investigations with radiology and multiple steroid injections into both shoulders without significant relief.

68      According to the opinion of Mr Eden Raleigh in 2015, the main problem was with his left shoulder, which had AC joint arthritis and impingement.  He also noted there was bursitis present.  Earlier this year, Dr Slesenger diagnosed adhesive capsulitis in the left shoulder.

69      While it is not certain whether his right shoulder problems are work related, he nonetheless has complained of pain in that shoulder, which has required physiotherapy treatment and steroid injection.  It would appear that the pain and restriction in that shoulder is not as bad as the left.

70      In addition, he has had problems with his left elbow, diagnosed as tennis elbow, although at the present time the left elbow problem does not seem to be particularly prominent.

71      In addition, he suffers a significant psychological disorder in the nature of a Major Depressive Disorder, alternatively a Chronic Adjustment Disorder with Depressed Mood and Anxiety.  There is little doubt the psychological disorder has had a significant impact upon his life.  It was the reason, largely, that he left employment after an acrimonious dispute with his employer in 2014.

72      Mr Vernham’s social, recreational and domestic activities and interests are affected by all of these injuries and conditions.  It is no easy matter to disentangle the consequences of one from the other.  In relation to his shoulder problems, there is little doubt that Mr Vernham is restricted in lifting and movement of his arms, in particular, at or above shoulder height.  For a man whose work life has been in factories undertaking physical work, and forklift driving, such restrictions would significantly reduce his work capacity.  The anti-inflammatory and pain-relieving medication he has used over the years has been used to treat all of his physical problems. 

73      Looking solely at the lumbar and cervical spine, I accept Mr Vernham’s evidence that he suffers constant pain in those areas, with some radiation from the neck into his arms leading to tingling and numbness.  I accept his report to practitioners that the pain varies from 5 out of10 to 8 out of 10, depending on the activities in which he is involved.  I accept his evidence that because of his spinal problems, sitting or walking for more than twenty minutes causes increased symptoms.

74      Setting aside for the moment the pain and restriction emanating from his spine, the exercise of disentangling the consequences of the physical injuries and psychological condition falls largely to be determined by the medical practitioners, in particular, upon his work capacity.  Of most significance are the reports of those practitioners who have considered Mr Vernham’s work capacity in respect of his spinal condition alone.

75      Both Dr McCowan and Dr Naidu are his long-term treating general practitioners, and their opinions must be respected.  However, their assessment that Mr Vernham has little work capacity is based upon his various physical injuries, and particularly his psychological disorder.  I do not consider the reports of Dr Chia particularly helpful.  She clearly was unsympathetic towards Mr Vernham and her views are rather extreme.

76      Dr Dickinson, orthopaedic surgeon, concluded that the pain in Mr Vernham’s spine did not have an organic basis because of irregular findings on clinical assessment.  He said the symptoms were unrelated to any work activity.  He went further and said Mr Vernham did not suffer from any physical injury.  He thought, as a result, Mr Vernham could return to full-time pre-injury employment.  He is the only practitioner to form such an opinion and I find his opinion inconsistent with not only the opinion of other practitioners, but also Mr Vernham’s evidence, which I accept, of the aggravation of symptoms in his spine in 2014, and their continuance to date.

77      Dr Bones was not satisfied that over a period of two hours on 23 July 2014 while Mr Vernham was driving a forklift with hard rubber tyres, he could have suffered an injury to his spine.  She was either provided with an incomplete history, or misinterpreted the circumstances under which the injury arose.  This is a little difficult to understand given she was provided with a significant number of medical reports which provide a more detailed history.[26]  She considered there were psychosocial issues involved in Mr Vernham’s presentation and found it was unlikely there was contribution from his work given the circumstances of 23 July 2014.  While she accepted there was an organic basis for his spinal pain, it was related to an underlying degenerative condition and not to work duties, as she determined there was no causal relationship between the vibration of his forklift and the physical injury.

[26]DCB 95

78      I do not accept Dr Bones’ opinion.  Her assessment is not based upon an accurate history of the circumstances giving rise to the lower back condition.

79      I prefer the opinions of Dr Awad and Dr Slesenger.  Each provide comprehensive reports.  Dr Awad considered that because of his cervical and lumbar spondylosis, Mr Vernham did not have the capacity for pre-injury employment, nor any employment save of a sedentary capacity, for several hours a day, several days a week.  He said that practically, taking account of Mr Vernham’s age, skills and work history, he had no real capacity for employment. 

80      Taking account of spinal impairment alone, Dr Slesenger recommended a range of work restrictions, including lifting of less than 5 kilograms, no repetitive bending, twisting or reaching, and no prolonged static postures.  Further, he said Mr Vernham should not be exposed to body vibration.  He said there was no capacity for pre-injury employment.  Any sedentary employment should be restricted to four hours a day, three days per week.

81      Dr Awad and Dr Slesenger were specifically asked to focus upon the spinal condition.

82      It is significant that Mr Vernham has spent his working life essentially as a factory worker and over fourteen years with Jayco as a forklift driver.  He has limited academic achievements and no experience of sedentary non-physical work.  Further, taking into account his age, work skills and experience, I conclude that, considering his spinal injury and the restrictions which that places, alone, he has only very modest work capacity, and only employment of a sedentary, non-physical nature. 

83      As stated, it is no easy matter to disentangle the consequences of Mr Vernham’s various physical injuries and including his psychological disorder.  There is overlap of the consequences of these injuries and condition as it affects his social, recreational and domestic activities.

84      However, for the reasons stated, I am satisfied that in relation to his cervical and lumbar spinal injuries alone, he has little, if any, work capacity.  Given that finding, it is unnecessary for me to determine whether the spinal injury has resulted in consequences which meet the “very considerable” test for pain and suffering.  The loss of work capacity is sufficient.

85      I shall grant leave for the issue of common law proceedings and will make consequent orders.

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