Chronic pre-existing injury – effect on general damages and economic loss
The work accident occurred on 28 August 2008 when the plaintiff was driving a scraper as an employee of the defendant at a mine site. The plaintiff brought a pesonal injury claim against his employer for the injuries he sustained in the accident. Workcover Queensland was the insurer for the employer. Workcover Queensland admitted liability for the work accident and so only the amount of damages or "quantum" was in issue at the trial. The plaintiff's personal injury claim proceeded to trial on the issues of general damages and past and future economic loss.
The plaintiff was 51 years of age at the date of the work accident and was 55 at the date of trial.
Pre-Accident Medical History
In 1990, some 18 years before the work accident, the plaintiff injured his back at the L5/S1 level. He had a posterior disc protrusion at the L5/S1 level and in 1992 he underwent an L4/L5/S1 instrumental fusion operation inserting metalware into his spine. Following the surgery he had ongoing back pain and was treated with very strong narcotic pain medication.
In the 10 years before the accident, the plaintiff had many jobs but none of them lasted for more than 2 years.
When the plaintiff started working for the defendant, he was taking heavy medications – 200mg Celebrex, 665 mg Duatrol SR, 50mg Endep, 5 mg Diazepam, 20mg Oxycontin twice daily, 10 mg Physeptone twice daily. Pain was a 5-6/10 even on the medication but he gave evidence that it had not stopped him prior to the accident from doing anything. He was working at the defendant's mine site for 2 weeks prior to the accident.
On 17 August 2008, the plaintiff started working as a scraper driver with the defendant. The work accident occurred some 2 weeks later on 28 August, when he was driving a scraper and its rear end slid off onto the slope and as he attempted to drive it down the slope he lost control and bounced around inside the scraper until it came to a stop. He suffered a compression fracture of the L2 with between 50% - 70% loss of vertebral height. He was taken to the Moranbah Hospital by a co-employee, admitted and then later discharged on 3 September 2008.
Immediately after the accident his prescription for Oxycontin increased to three 20mg doses per day and he also took Endone and Physeptone.
The plaintiff was unable to work since the accident and received a disability support pension. He could no longer fish, ride his motorcycle or play darts and couldn't do jobs around house or garden. His pain levels at the time of trial were 9.5/10.
Dr Scott Campbell (Neurosurgeon) – 12 March 2009 – he was of the opinion that the plaintiff's capacity for work at that time (even for alternative employment) was poor due to the chronic pain and poor sitting/standing tolerance. He examined him again on 16 November 2011 and assessed him as a DRE Category IV with a 23% WPI. Dr Campbell considered that 30% of the impairment was attributable to the pre-existing pathology from the 1992 fusion at L5/S1 which meant that there was a 16.1% WPI due to the accident.
Ms Aitken (OT) – 12 March 2010 – she was of the opinion that "the plaintiff was unlikely to be able to continue as a heavy machine operator in the long term and may need to consider retraining into a more sedentary occupation."
Dr Nave (orthopaedic surgeon) – 12 March 2012 - As the crush fracture of L2 was greater than 50%, that was consistent with DRE Category IV for which the impairment range was from 20% to 23% WPI. Dr Nave was therefore of the opinion that a figure in that range was appropriate for the plaintiff‟s injury sustained in the accident.
In relation to the plaintiff's work history, Dr Nave noted that after his fusion between L4 and S1, the plaintiff was on pain relief, returned to work after two years, and was able to manage subsequent duties without any time away from work.
Professor McPhee (spinal surgeon) – 21 June 2010 - Professor McPhee expressed the opinion that, given the plaintiff's degree of incapacity, the maximum impairment of 23% WPI as a result of the compression fracture of L2 applied to the plaintiff. On the basis of the plaintiff's clinical presentation, Professor McPhee considered that it was probable that the plaintiff was totally and permanently incapacitated for work.
Dr Cassar – prior to the accident the plaintiff was suited to sedentary duties and restricted in his ability to operate machinery.
Dr Robertson (forensic toxicologist) – 17 January 2012 – stated that "whilst a person who had been prescribed long term opioid medication for pain relief could develop a tolerance to the medication, the tolerance could be affected by changes in medication levels or use of other drugs. Dr Robertson expressed the opinion that, even if the person on long term opioid medication may appear to have little or no impairment of function due to that medication, the person's capacity to react to novel or unexpected situations may still be impaired."
The defendant submitted that due to the contradictory nature of the plaintiff's evidence as against the documentary evidence, an inference should be drawn that the plaintiff understated his pre-accident problems and their consequences and overstated his abilities.
The defendant argued that the injured worker would not have been employed by the employer had it known about the significant narcotic medication regime of the injured worker.
The defendant also argued that the injured worker had fabricated his curriculum vitae with respect to previous driving experience which would have been a negating factor in considering his employment. The injured worker admitted on cross-examination that he had in fact done this.
Her Honour accepted the plaintiff's evidence about his pain levels prior to the accident and what activities he did undertake with the benefit of medication and the effect of the accident on his pain levels.
Her Honour did not find that the inconsistencies between the plaintiff's evidence and documentary evidence about matters prior to the accident have the significance that was placed on them by the defendant. Her Honour found that the plaintiff was overly ambitious about what physical activities he could have maintained on a medium to long term basis, but for the accident.
The plaintiff was arguing that $80,000 was an appropriate level for this head of damage. The defendant argued $35,000 was appropriate.
Her Honour held that the defendant's submission proposed a reduction for the pre-existing pain that does not reflect the active lifestyle that the plaintiff managed prior to the accident despite the pre-existing back problems. Her Honour said that $50,000 was an appropriate sum, $17,000 of which related to past pain and suffering.
Past and Future Economic Loss
Her Honour held that the plaintiff had no residual earning capacity after the accident.
Despite the plaintiff admitting that he had embellished his CV regarding his previous experience, the Court found that this did not ultimately affect his ability to undertake the work required.
The Court considered factors such as the work history, pre-existing injury and medication regime and found that although the plaintiff was working in a mine site at the time of the accident, he was unlikely to have continued in that particular job in the mining industry for any length of time. The employer ceased its operations on the mine site on 22 December 2009 and past economic loss was allowed at his current employment rate for that period. From that point on to the date of judgment, the calculation of his past economic loss was reduced to reflect his average wage from a significant previous employment (taxi driver) and then reduced by 20%.
Future economic loss was calculated using the average wage of a taxi driver for 10 years (and the most probably remainder of working life years (to age 65)) and reduced by 255.
A summary of damages awarded are as follows:
Interest on $17,000 @ 2% x 3.8yrs
Past economic loss
Interest on $73,255 @ 5% x 3.8 yrs
Past loss of superannuation
Future economic loss
Future loss of superannuation
Past and future lawn mowing including interest
Past and future pool/hydrotherapy expenses including interest
Past and future aids and equipment
Hospital, medical and other expenses paid by WorkCover
Health Insurance Commission
Fox v Wood
Past pharmaceuticals plus interest and future pharmaceuticals
Less WorkCover refund