(Not) Restricted
AT Melbourne
CIVIL DIVISION
Serious Injury
Case No. CI-09-04222
MICHAEL FRANCIS INCE / Plaintiffv
SUPPLY CHAIN MANAGEMENT PTY LTD
AND
VICTORIAN WORKCOVER AUTHORITY / Defendants
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JUDGE: / HER HONOUR JUDGE COHENWHERE HELD: / Melbourne
DATE OF HEARING: / 8 and 9 November 2010
DATE OF JUDGMENT: / 26 November 2010
CASE MAY BE CITED AS: / Ince v Supply Chain Management Pty Ltd & Anor
MEDIUM NEUTRAL CITATION: / [2010] VCC
REASONS FOR JUDGMENT
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Catchwords: Serious Injury Application; aggravation of lumbar spine degeneration; whether effects or injury permanent; whether plaintiff meets test of “serious” as to loss of earning capacity; whether minimal medication indicates minimal pain or minimal impairment; Accident Compensation Act (Vic) 1985 ss 134AB(19)(b), (38)(e),(f),(g).
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APPEARANCES: / Counsel / SolicitorsFor the Plaintiff / Mr R. Smith SC with
Mr I. Fehring / Arnold Thomas & Becker
For the Defendant / Mr D. Myers / Wisewould Mahony
HER HONOUR:
1 Mr Michael Ince applies to the Court for leave to bring a claim for damages against his former employer, Supply Chain Management Pty Ltd, in respect of injury he suffered to his back in the course of that employment. To obtain leave, he must satisfy the Court that he suffered a “serious injury” within the definitions and requirements of s.134AB of the Accident Compensation Act 1985. He relies on part (a) of the definition of “serious injury”, claiming to have suffered permanent serious impairment of the function of his lower back. He seeks leave to bring proceedings in respect of both pain and suffering and pecuniary loss damages.
2 Mr Ince claims that his employment duties with the first defendant required him to drive a forklift repeatedly – between 50 and 150 times a day – over a lip or small step between the level of the warehouse floor and the level of the bitumen yard at his employer’s bondstore premises. He claims that repeated jolting and jarring from this task caused injury to his low back, with pain first occurring in about April 2005, increasing from about June, and culminating in severe pain after an instance of jolting over the floor lip on 18 August 2005. He was unable to continue work that day, reported the injury, sought medical attention a few days later, and lodged a workcover claim. Although he returned to work some weeks later, at light or modified duties, he was retrenched in December 2005. His case is that his back injury has caused very considerable pain and suffering and loss of enjoyment of life, and has been a material cause of his being unable to undertake full-time or sustained suitable employment, causing loss of earning capacity of at least 40%, and that he is likely to remain so disabled for the foreseeable future.
3 The defendants do not dispute that at the relevant time the plaintiff was employed by the first defendant[1], and reported such an injury. They do not seriously argue that he suffered no work related injury to his back at about that time. They argue, however, that the effects of that injury were not permanent, or, if any were permanent, then the consequences do not reach the level or extent required to meet the test for serious injury, either as to pain and suffering or as to loss of earning capacity. In particular, the defendants argue:
i) in respect of pain and suffering he is not disabled from performing normal everyday personal activities, has had very limited medical treatment, and takes minimal medication;
Ii) that the plaintiff has ongoing employment capacity which he has not fully utilized. They argue that he has not made reasonable attempts to obtain alternative or additional work to what he has in fact obtained, or to retrain or rehabilitate himself for further or alternative employment. They argue that he cannot satisfy the Court under the requirements of sub-sections 134AB(19)(b) and (38)(g) that he has a permanent loss of earning capacity of at least 40 per cent.
4 The evidence consisted of the documents tendered as set out in the attached schedule, the oral evidence of Mr Ince on cross-examination and re-examination, and the oral evidence of his treating GP, Dr Mei Pang, who was required to attend for cross-examination.
5 Mr Ince acknowledges that he has poor memory as to dates. My impression of him as a witness was that he was genuinely trying to tell the truth as best he could recall, and was not deliberately vague or misleading. He answered frankly and at times against his interest. I did not regard him as embellishing or exaggerating his disabilities. I am satisfied that overall his evidence should be believed. However, he was shown to be unreliable on some details, especially in his recollection of timing or dates, and where that occurred if there is alternative more reliable evidence it will be preferred.
6 Dr Pang impressed me as a witness who knows and understands her patient well, he having been treated at her clinic since April 2000. She made appropriate concessions, but was firm when she did not agree with the suggestion on cross-examination. My impression was that she gave answers honestly and was not trying to embellish or deliberately support her patient’s case.
The legislative tests
7 The plaintiff bears the onus of proof, and must satisfy the court that as a result of a compensable injury he has suffered consequences which meet the descriptions “permanent” and “serious”. To be permanent he must show that they are likely to last for the foreseeable future[2]. To be “serious”, he must show that such permanent consequences can be fairly describedas “more than significant or marked” and “at least very considerable”[3] when compared with the range of possible other impairments of a body function [4].
8 Further, to obtain leave to bring a claim for pecuniary loss damages, he must satisfy the court that he has suffered permanent loss of earning capacity from personal exertion of at least 40%[5]. That loss must be measured by comparing the worker’s without injury earnings, by considering his earnings in the 3 years before and 3 years after the injury to determine a figure to fairly reflect his earning capacity had the injury not occurred[6], with what he is actually earning or is capable of earning[7]. What he is capable of earning must take into account the reasonableness of his attempts to participate in rehabilitation or retraining for alternative or further or additional employment[8]. The worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment, and the extent of such inability[9].
Findings as to the plaintiff’s relevant personal circumstances and background
9 Mr Ince is now aged 48. He grew up in Melbourne. He did not do well at school and left after Year 10, aged 15. He then undertook an apprenticeship as a motor mechanic, which he pursued for some years, but did not “get his papers” because he did not complete the schooling requirements. He also did not like the work. Since his late teens, he has worked in many different labouring type jobs, mainly in the transport area, including forklift driving and as a storeman. He still holds a forklift licence. He has never been employed for clerical work, and I accept his view that he is “no good” on computers.
10 At the age of 18 or 19, Mr Ince was diagnosed with bipolar disorder. He describes the condition as having waxed and waned over the years. He has been on long-term medication, including Lithium and, more recently, an anti-psychotic drug called Zyprexa. He has had multiple[10] admissions to hospital in respect of that condition. Although his bi-polar condition has rendered him unable to work from time to time, up to August 2005 he had always managed to return to full-time employment after flare-ups in that condition. He was and remains under the long-term care of a psychiatrist, with primary care from his GP, Dr Pang[11].
11 Mr Ince enjoyed and apparently did well at several sports. He played football into his 30s, but had ceased by the time of this injury. Football had resulted in several injuries leading to surgery - right shoulder reconstruction at about age 23 and left shoulder reconstruction at about age 28, both following dislocations; right knee reconstruction at age 33, and a metal fixation of one finger. All of those injuries and operations preceded his obtaining employment with the defendant, and he had returned to physically strenuous manual work after each of them.
12 He had also suffered previous injury to his back. He at first agreed in cross-examination that he had suffered injury to his back in 1988, but it emerged that he was thinking of a fall during employment from a mezzanine level, and that that was in 1996. In such incident he fell several metres and landed on his feet and severely jarred his back. He was taken to hospital, had some time off work, and had recurring back pain for some time afterwards, but denied that it was for as long as 4 years. If there was also a back injury in 1988, it is clear that he returned to full-time labouring jobs after it. It is also clear that he returned to further labouring jobs after the 1996 injury.
13 He was cross-examined about the content of notes from a CRS consultant in 2000, as to the effect of multiple orthopaedic injuries from football. It was put that that consultant noted various orthopaedic injuries, including what was said to be chronic back pain. Clinical notes, when he first attended his current GP’s clinic in April 2000, included a medical history noting chronic back pain. He says that he does not recall suffering particular back pain in 2000. I accept that he had no recollection of these conversations or of specific back pain in 2000. Whether or not he in fact suffered significant recurrences of back pain in 2000, does not ultimately make a significant difference in this case, because I am satisfied that he was not disabled from full-time heavy labouring work for some years after that. I am satisfied that at or after that time he was able to work for about a year on a garbage truck – jumping on and off and lifting heavy bins - as well as working in a factory for Nestle, and as a farm hand mainly fencing, before commencing with the first defendant.
14 I am satisfied that as at early 2005 he had no significant ongoing back pain, nor impairment in working as a forklift driver or storeman by reason of his low back condition. He was able to and did play regular social golf, albeit not as a club member but with friends a once or twice a week. He was not in a relationship at that time, but had regular contact with his children - a teenage daughter who stayed with him fortnightly, and a son. He could engage actively with them, and liked to engage in some sporting interests with his son, although the right knee restricted his kicking of a football. He lived in a rented flat.
The injury, treatment and subsequent events
15 Mr Ince started working for the first defendant in late 2002 or early 2003, through a labour hire company called Jobwire. When first working there, his duties were the unloading of containers and putting stock away, but, at least by early 2005, he was mainly driving a forklift for which he had long held a licence. He worked at the defendant’s premises full-time, but still through the labour hire company, until about June or July 2005 when he was offered and accepted a permanent position with the defendant.
16 From then onwards he was effectively working as a forklift driver, unloading trucks in the yard and transferring goods into the bond store, and in doing so driving repeatedly over a change in level between the bitumen surface of the yard, which was lower, and the store, which he describes as a difference of approximately three centimetres. This caused ongoing jolting to his back and, from approximately April 2005, he noticed back pain developing. However, nothing was done. He describes his back as starting to get worse and worse and then, on about 18 August 2005 when he drove over the bump, he felt a jolt in his low back and very severe low back pain, such that he could not continue at work. He went off work on that day and lodged a WorkCover claim.
17 On 22 August 2005, he attended his usual general practitioner, Dr Pang, at the Deer Park Clinic, reporting that the low back pain had been coming on over about five weeks and had got worse over the previous two weeks, and was worse with bending, lifting and driving a forklift over the step between the floor levels. On examination, there was tenderness over the L3 to S1 area, over the midline and to both sides, and spasm of the paralumbar spinal muscles with range of movement and straight leg raising restricted. He was advised on back care, told to apply heat and liniments to his lower back, was prescribed Panadeine Forte and referred for a CT scan and for physiotherapy.
18 The CT scan performed on 26 August 2005 was reported as showing multi-level degenerative disco vertebral disease, and a broad-based right posterolateral foramina disc protrusion at L2-3 which may be compromising the descending right L3 nerve root at its origin. He was referred to the neurosurgical clinic at the Western Hospital, where he was referred for an MRI of his lumbar spine. That MRI, performed on 6 December 2005, was reported as showing small right lateral disc protrusions at each level between L2-3 to L4-5 inclusive, without evidence of root compression at any level. There was root displacement apparent, most pronounced at the L2-3 level.[12]
19 In the meantime, in late September 2005, on review at his general practitioner’s clinic, his back pain was found to have been improving and he commenced a return to work on light duties of up to six hours each day. He was initially advised not to drive a forklift or lift weights greater than five kilograms or bend repetitively and to avoid prolonged sitting. During that time he was assigned light duties in the office, but he says this was not real work but just some tasks found for him. He increased his hours over the following period until he resumed working full hours, and out of the office but still on modified duties, which included approximately two hours of forklift driving a day but on smooth surfaces. As to the office duties there was no training for them, he had no previous experience at them, and I am satisfied that these are likely to have been activities created specially for his return to work plan rather than being usual or productive duties for him to jperform as a regular full-time job.