Vezzoso v Marchem Australasia Pty Ltd
[2019] VCC 18
•23 January 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-01780
| NATHANIEL MIRKO EDUARDO VEZZOSO | Plaintiff |
| v | |
| MARCHEM AUSTRALASIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2019 | |
DATE OF JUDGMENT: | 23 January 2019 | |
CASE MAY BE CITED AS: | Vezzoso v Marchem Australasia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 18 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to thoracic spine – pain and suffering consequences only – whether consequences “very considerable” – whether condition permanent – disentangling of psychological symptoms
Judgment: Leave granted in respect of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms H Donmez | Shine Lawyers |
| For the Defendant | Mr J L Batten | Russell Kennedy |
HIS HONOUR:
Preliminary
1 Mr Vezzoso was employed by Marchem Australasia Pty Ltd as a truck driver and general hand. On 24 July 2015, he suffered an injury to his mid-spine when he was lifting heavy paint tins onto a truck. He reported the incident and ceased work that day.
2 He saw his general practitioner, and an MRI scan revealed a disc protrusion at the T8-9 level. He had a period off work and then returned on modified duties, but had a disagreement with his employer and left that employment. Treatment has been mainly conservative, with physiotherapy and anti-inflammatory and pain-relieving medication. Eventually, he returned to alternative work, first in real estate and then as a truck driver. Presently, he works full time for a company delivering large bookcases to schools throughout Victoria and interstate. The work is manual, although he has a mechanical tailgate on his truck to help with the unloading.
3 At the present time, he receives no active treatment. He takes over-the-counter medication and visits his general practitioner occasionally. He has received no substantial specialist treatment and there is no indication for surgery.
4 He claims ongoing pain and restriction in a range of activities of a social, domestic and work nature.
5 At the conclusion of the application on 23 January 2019, I granted leave to the plaintiff to bring common law proceedings. These are the reasons.
6 This is a “serious injury application”. Leave is sought in respect of pain and suffering only. The body function said to be lost or impaired is the mid-spine. At the outset, the application involved both physical injury and psychological injury, although the latter was abandoned.
7 Mr Batten, for the defendant, identified the issues in the application as:
·Range – that is, the consequences to the plaintiff, when assessed in comparison to other injuries and consequences, did not meet the “very considerable” test.
·The injury suffered by the plaintiff, and the consequences which followed, were not permanent.
·There were psychological symptoms which had to be disentangled from the physical.
Range
8 The plaintiff was an impressive witness. I assessed him as giving an honest and fair account of the injuries sustained and the consequences to him. He made concessions where appropriate. There were no major credit issues put to him. Mr Batten did not, in final addresses, suggest I ought to have significant reservations as to his credibility.
9 The plaintiff’s affidavits and the histories to the various doctors set out the consequences he claims to suffer as a result of his mid-spinal injury. I am satisfied he has suffered the following consequences, assessed as at the present time:
·Mr Vezzoso suffers constant pain in the area of his thoracic spine, sometimes extending to the shoulder blades. To some medical practitioners, the extent of the pain was described as around 2 out of 10, although varied according to the activities in which he is engaged. On occasions, the pain radiates into his buttocks and legs.
·A range of recreational activities which he enjoyed prior to the injury have been largely taken from him. I accept he was a keen social soccer player and has not returned to that sport. He is also restricted in go-karting, horse riding and fishing.
·He is restricted in the heavier domestic chores, which are largely carried out by his partner. He does assist with the cooking and, on occasions, vacuuming, although slowly.
·He takes an anti-inflammatory medication, Voltaren, daily, and Nurofen on most days. These are both over-the-counter medications. He no longer takes prescription medication. He attended a physiotherapist over a period, although has not had that treatment since 2017. The physiotherapist recommended a range of stretching and strengthening exercises, which he carries out each day.
·His intimate relationship with his partner is affected.
·He has restrictions in bending, twisting, pushing and turning under stress.
·Previously, he had difficulties with sleep, but has no major sleep problems at the present time.
·He sees his general practitioner every two or three months, but does not receive any specific treatment.
·He is able to carry out his truck-driving work, although at a slower pace than before. On longer trips, he has to stop and rest.
10 In the course of his evidence, Mr Vezzoso described the activities involved in his current employment. He started with a company in October or November 2018. The company is accommodating. He enjoys the work. The truck has a comfortable, supportive seat. He loads large and heavy aluminium bookcases onto the truck by means of a rear hydraulic tailgate lift. He then drives the truck to various schools around Melbourne, stopping at three to six schools per day, and delivers about four bookcases per school. Sometimes he is by himself and sometimes with a jockey.
11 Occasionally he drives long distances, including interstate. The bookcases are on large castor wheels which he said were relatively easy to manoeuvre. He hopes to be able to continue in this employment, although he worries that as he is slower in the work he undertakes than other employees and that he has to stop on trips to take a break, there is a risk he may lose employment. His employer has told him to “pick up the pace”. He has had very little time off work and is able to cope with the duties.
12 Prior to the current job, he had other employment as a truck driver. In mid-2018, he worked for a number of months as a tow-truck driver for a company, Total Transport Australia. He contracted meningitis and was put off work. Before that, he started with another company, Valpo, removing rubbish from demolition sites. On occasions, he would use a large hammer to break material. His truck broke down and was not fixed. He left that employment. Before that, he was a sales consultant for a while. He also worked in real estate.
13 He walks a significant distance each day. For a period, he was involved in organising, online, a large number of people involved in a game known as Pokémon Go. That involvement assisted him in getting over considerable psychological issues which had developed after the injury, and which led him to seeking and receiving psychiatric treatment. With his partner he enjoys various online activities and initiatives.
14 Various reports of the plaintiff’s treating general practitioner, Dr Hai Ha, were tendered. She diagnosed a disc protrusion at T8-9. She said the plaintiff was only fit for modified duties, including the following restrictions:
"Pt limited to lifting a maximum of 2kg
No bending
Pt will be unable to drive a truck or forklift
No repetitive movements
Pt to sit for a maximum of 45 minutes
Pt to stand for a maximum of 60 minutes.” [1]
[1]Plaintiff’s Court Book (“PCB”) 42
15 Dr Hai said that aside from some possible physiotherapy, Mr Vezzoso did not require ongoing medical treatment. She said he did not have the capacity to return to full-time unrestricted duties and there were ongoing limitations in what he could do at work. She also noted that he was unable to pursue some social, domestic and recreational activities.
16 I was assisted by the reports of Dr David Kennedy, consultant industrial physician. In his most recent report of October 2018,[2] that practitioner thought Mr Vezzoso had a capacity for modified occupational duties, but should avoid repeated bending, twisting and turning on his thoracolumbar spine when it was under load, and manual handling of more than 10 to 15 kilograms. He also noted that Mr Vezzoso’s activities of daily living, and domestic social and recreational activities, were affected. He thought the prognosis fair and that is was likely Mr Vezzoso would continue to have problems in his mid-spine, particularly with any excessive bending, twisting or turning of the spine under load.
[2]PCB 50-54
17 Dr David Barton, occupational physician, provided a report of October 2016.[3] At that time, he thought Mr Vezzoso had developed a mild soft-tissue injury, complicated by a degree of illness behaviour. He said there were motivational factors which affected the situation, and from a physical point of view, thought Mr Vezzoso could return, essentially, to normal work. He thought the prognosis was excellent, although it was difficult to predict whether he would recover from the illness behaviour. At the time, Mr Vezzoso was not working since his failed return to work with the defendant some nine months earlier. Given his efforts to return to the workforce in recent years, it cannot now be said he lacks motivation.
[3]Defendant’s Court Book (“DCB”) 44-48
18 Associate Professor Umberto Boffa, occupational physician, in his report of August 2017, [4] said that Mr Vezzoso had chronic mechanical thoracolumbar back pain without radiculopathy. He thought it was an aggravation of pre-existing degenerative change in the thoracic spine. At the time of his report, the injury had not resolved, and he thought Mr Vezzoso was fit for modified duties on a full-time basis, providing he was able to move positions and avoid repetitive bending, twisting and pushing.
[4]DCB 58-62
19 Finally, Dr Tony Kostos, rheumatologist, provided a report of October 2017.[5] He thought there had been some improvement in Mr Vezzoso’s condition since the incident. He thought there were psychosocial factors involved, as he said Mr Vezzoso had less restriction in the movement of his thoracic spine than he observed on examination. He suggested modifications to his exercise program and for Mr Vezzoso to commence freestyle swimming and Pilates. When shown a video surveillance film, he thought that the movements of the plaintiff, as depicted, were not consistent with his examination findings.
[5]DCB 63-65
20 I do not accept the opinions of Dr Barton and Dr Kostos, that there are significant non-organic features involved. That does not accord with my assessment of the plaintiff in the course of his evidence. It is true that he suffered a significant psychological reaction to his physical injury, at times requiring psychiatric treatment, and even a visit to the emergency department of a hospital, but I accept the opinion of his treating psychiatrist, Dr Assadi, that his psychological symptoms largely resolved after treatment by mid-2017.
21 As Mr Batten points out, the plaintiff, to his credit, has returned to employment which requires a significant amount of physical activity in the course of an average day, including driving sometimes long distances, and manoeuvring large and heavy pieces of equipment on and off a truck. I do, however, accept the plaintiff’s evidence that the wheels make the cabinets manoeuvrable and the hydraulic lift means he does not have to do much lifting.
22 Further, as Mr Batten points out, he receives little in the way of treatment and it would appear he is unable to undertake a range of social and domestic activities.
23 Nonetheless, accepting as I do that the plaintiff is a witness of truth, I accept that he suffers the consequences as set forth in his affidavit. He is a relatively young man, and the ongoing pain and restriction in the areas to which he refers, is a significant burden to him. Likewise, the loss of his recreational activities, in particular soccer. I am satisfied that the consequences do meet the “very considerable” test the legislation requires.
Permanency
24 Mr Batten, in accordance with the opinion of Dr Kostos, points out that the plaintiff’s condition has improved over the years. This has come about, at least in part, because of the exercise program he undertakes, the treatment he has had and the fact that he walks regularly. Improvement has led to him resuming quite physical activities in his current employment. Dr Kostos is of the opinion if he maintains a modified exercise regime, including swimming and Pilates, the prospects are that his condition will continue to improve. Dr Barton thought the prognosis excellent.
25 However, again, I prefer the opinion of the treating general practitioner, Dr Ha, and Dr Kennedy, that the state of his thoracic spine is relatively stable, and it is likely that will not change in the foreseeable future. The fact that he is not receiving any significant ongoing treatment is more a measure of the fact that the medical practitioners are unable to do very much for him, rather than because of the paucity of his symptoms. In reality, he faces the prospect of ongoing, albeit moderate, pain in the spine, and ongoing restrictions for many years to come.
26 I am satisfied the condition is permanent.
Disentanglement
27 Mr Batten urges that, in accordance with the opinions of Dr Barton and Dr Kostos, there is an element of illness behaviour or psychosocial factors in Mr Vezzoso’s presentation.
28 Dr Assadi was the plaintiff’s treating psychiatrist, and saw him on a number of occasions in 2016 and 2017. He was discharged from his care in July 2017. According to his report of January 2019, Dr Assadi noted that over that period he had suffered from symptoms of anxiety, including anxiety attacks, depression and social isolation. He entertained suicidal ideas on several occasions. He initially diagnosed Mr Vezzoso as suffering an Adjustment Disorder which was related to his work injury; however, when he had obtained employment in 2017, and after treatment, his situation improved. By July 2017, Dr Assadi said Mr Vezzoso was no longer suffering any psychiatric condition and did not require treatment. He said he was fit for work from a psychiatric point of view. He said the prognosis was favourable.
29 I was impressed by the opinion of Dr Assadi and accept his conclusion that Mr Vezzoso’s psychiatric state is much improved. I accept he suffers little in the way of psychological symptoms at the present time. While psychological symptoms may play some small role in his presentation, I am of the view it is relatively insignificant. There is no real disentangling exercise to be undertaken.
Conclusion
30 I am satisfied that the consequences to the plaintiff of the thoracic spinal injury in July 2015 achieve the “very considerable” level. I will grant leave to bring common law proceedings.
31 I shall make consequent orders.
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