Abdula v Andsmit Pty Ltd
[2015] VCC 1678
•18 November 2015 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05492
| DANIEL ABDULA | Plaintiff |
| v | |
| ANDSMIT PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13, 16 and 17 November 2015 | |
DATE OF JUDGMENT: | 18 November 2015 (Revised) | |
CASE MAY BE CITED AS: | Abdula v Andsmit Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1678 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the low back
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Woolworths Limited vWarfe [2013] VSCA 22; Acir v Frosster Pty Ltd [2009] VSC 454; Smorgon Steel Tube Mills Pty Ltd v Majkic (2008) 21 VR 193
Judgment: Leave granted to bring proceedings for pecuniary loss damages. Pain and suffering damages – leave conceded.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Gorton QC with Ms M S Tait | Zaparas Lawyers |
| For the Defendant | Mr C A Miles | Wisewould Mahony |
HIS HONOUR:
1 In the course of Mr Abdula’s employment with ‘Mr Rentals’ between 7 September 2011 and 24 February 2012, he suffered an admitted compensable injury to his lumbar spine. The defendant conceded it qualifies as a “serious injury” under paragraph (a) of the statutory definition in regard to pain and suffering consequences. Permanent loss of earning capacity is not admitted as satisfying the 40 per cent or more test.
2 The plaintiff also submits an aggravation occurred in the course of employment by way of a thoracic spine injury coming on top of a symptomatic scoliosis at that level. It had required treatment after coming to the attention of the plaintiff and his doctors when he was about 15 years old. He is now 36 years old.
3 The defendant does not admit any thoracic spine aggravation was suffered in the course of his employment. In addition a paragraph (c) application for leave is brought with respect to an Adjustment Disorder with associated Depression and Anxiety. The defendant does not admit this occurred in the course of employment. The defendant also submitted that the paragraph (c) condition should be analysed as an aggravation and does not qualify as “severe”.
4 I will deal with loss of earning capacity attributable to the impairment of the lumbar spine which is the admitted serious injury in terms of pain and suffering.
5 Mr Abdula worked as a mobile representative for the defendant company known as Mr Rentals which hired out goods. He performed heavy work, attending at various premises, delivering and picking up and manoeuvring heavy household items. These included refrigerators, washing machines and other heavy items, sometimes up stairs and along corridors when a trolley could not be used.[1]
[1]Plaintiff’s Court Book (“PCB”) 13 and 14
6 On or about 13 January 2012, he injured his low back when handling a very heavy washing machine at premises where it was difficult to manoeuvre.[2] He reported the injury but worked on over the next five or six weeks until he could not cope as he was in so much pain.
[2]PCB 14
7 He saw his general practitioner on 20 February 2012 and the history of being injured moving the washing machine as recorded. A CT scan was ordered. He saw his general practitioner on 24 February 2012 to discuss the results of the CT scan. That discussion led to an immediate referral off to the neurosurgeon Mr A Drnda, prescriptions for Panadeine Forte, together with Endep for “PRN leg pain/pain numbness”.[3]
[3]Exhibit A, pages 22-23
8 It is worth noting at the outset that there were many pages of clinical notes tendered from his family doctor. These start fifteen years ago, in December 2000.[4] Over all the years prior to January 2012, there are only about nine or ten references to back symptoms and without hearing from the doctor, they are in the context of the scoliosis problem in the thoracic spine. Only one specific reference to low back appears, and that is in 2010. The difficulties for a court required to make findings working from such brief notes when the practitioner is not called has been commented on repeatedly.[5]
[4]Exhibit A
[5]See Davies v Nilsen & Transport Accident Commission [2014] VSCA 278 and Woolworths Limited v Warfe [2013] VSCA 22
9 Doing the best I can on these years of clinical records, I conclude that on the probabilities, the plaintiff suffered no low back symptoms of consequence until January 2012. From then on, when the CT scan showed clear pathology and he was immediately referred off to a specialist neurosurgeon, as well as being given narcotic painkillers such as Endone, his low back impairment has been not only constant but unrelenting. The notes show that on the probabilities, his pre-existing scoliosis in the thoracic spine only caused intermittent symptoms. It only needed sporadic visits to the doctor over the years, occasional prescriptions and the odd day off here and there. When it is remembered he had worked in several physically-demanding jobs, including as a handyman, I find the thoracic condition caused no real impairment of his ability to work or enjoy life.
10 On 29 August 2011, only about a week before starting with the defendant on 7 September 2011, he was at his doctor’s clinic and it was noted “upper back pain lately, controls with analgesia”. Depression was also recorded. Medications were prescribed.[6] On the very same day, he wrote the letter applying for the job with the defendant.[7] He then started work with the defendant nine days later. He was able to work over the next four-and-a-half months up until 13 January 2012. There is no evidence of time off other these months.
[6]Exhibit A – PCB 25
[7]PCB 145
11 These facts support a conclusion on the probabilities that the congenital condition and depression were no real handicap to him in terms of whatever he wished to do.[8]
[8]PCB 12, 17.2 and 17.4
12 A letter from Dr F Hong in July 2004 refers to the thoracic scoliosis causing daily pain.[9] It may well have been at that time, eleven-and-a-half years ago, but he seems to have successfully put up with it over the years. He kept working at different jobs and would have continued to do so except the “serious injury” to his lumbar spine changed all that.
[9]Defendant’s Court Book (“DCB”) 57
13 In about 2009 for example, he was doing manual work for Langtex but there is not a single visit in the note for spinal issues, thoracic or lumbar, at that time. He did this manual work for about a year and he coped with it.[10] He also led a physically active recreational life outside work, unrestricted by any health problems.
[10]T45
14 He earned a total of total of over $31,000 from this handyman work with Langtex. Between 2009 and 2011, there was also a variety of other physically-demanding duties he carried out. He did picking and packing work at Aussie Disposals for some weeks. Arrow Bronze was another job involving manual work, at which he worked for some months and was able to perform.[11]
[11]PCB 147
15 Extensive notes prior to 13 January 2012 also reveal treatment was needed for psychological problems including stress and some depression but again, the need was limited. About seven or eight visits only are for stress, insomnia or depression reasons. This situation was also probably under control and of little or no ongoing consequence in regard to work or enjoyment of life.
16 True it is that on 29 August 2011, the same day he applied for the Mr Rentals job, depression was recorded in the notes, as well as a mental health referral. However, “mood better” is recorded in the extremely brief note of 2 November 2011 and this was when he was in the middle of the four or so months of heavy work he was performing for the defendant.
17 The danger of trying to read too much or too little into very brief computer-driven notes has already been pointed out, and the parties urge different findings I should reach.
18 On all the history, I find there was probably no psychological condition that was interfering with work capacity at the time of injury. There is a psychological aspect to his problems now but the organic low back condition, on its own, in my opinion, disqualifies him from work, and I will elaborate on these reasons. The current psychological problems came on on top of that and present further problems for the plaintiff.
19 The plaintiff’s evidence described a very large number of medications he continued to take for the constant low back and leg pain at the time of the first affidavit in 2013.[12] He said that he would not be able to work on a reliable and regular basis at that stage.[13]
[12]PCB 15-16
[13]PCB 17
20 His November 2015 affidavit related the continuation of this constant low back pain and left leg symptoms.[14] He is still taking four medications regularly but because of bad side-effects, he is reducing it.[15]
[14]PCB 17.3 – 17.4
[15]PCB 17.7 – 17.8
21 As to work, he said:
“I cannot think of any work that I could reliably cope with on an ongoing basis due to my back pain.”[16]
[16]PCB 17.8
22 For a genuine man who has had experience in a variety of jobs, physical and otherwise, I accept this self-appraisal as reasonable and one that is supported by a large body of treating and medico-legal opinions. I also accept his evidence that he has only about three hours per day in which he could reliably be active.[17]
[17]PCB 17.8
23 The plaintiff was cross-examined over two days and it was helpful to both hear and observe him. His credit was not really put in issue in this case. There was no attack mounted as to his credibility nor could I see any reason to doubt it. I found him a reliable and honest witness. He did not shy away from a combination of a low back condition, a thoracic scoliosis and a mental or psychological problem affecting his life.
24 I accept his evidence that the congenital scoliosis and some psychological problems were pre-existing but they were no impediment to what he wanted to do prior to the subject low back injury in January 2012. In fact, he was working full time Monday to Friday with regular overtime with Mr Rentals, as well as doing a full day Saturday at times, in heavy awkward work. He was able to perform this work regularly and consistently without any time off.[18]
[18]T88
25 His need to constantly alter posture from sitting to standing and back again was obvious in Court. I accept it is due to the low back problem. I also accept his evidence that it would preclude him from even a sitting job on a regular basis.[19]
[19]T73; T84-85
26 I accept he has “worked out what [his] physical limit is” when it comes to work.[20] Even driving for 45 minutes is more or less his potential in that regard and this is a very real impediment to work in our large city.[21] Accordingly, the plaintiff has looked for work but in this sensible context, given his low back impairment.
“I was trying to find jobs that would allow me to sit, stand and work very short hours … .”[22]
[20]T74
[21]T79-80
[22]T59
27 The defendant pointed out that the plaintiff’s résumé described a man with quite a few different job experiences and competencies. He has a varied work history.[23] He was taken to three job suggestions for alternative work from a report dated 30 October 2015.[24] The plaintiff readily indicated there were quite a number of duties set out there that he thought he could do, but with qualifications.
[23]PCB 146
[24]DCB 41
28 I find these job suggestions largely unhelpful. The vocational assessor did not even bother interviewing the worker.[25] This makes the suggestions largely academic or theoretical, in my opinion. Also, only three medical reports were provided by the defendant’s solicitors.[26] All three were from the insurer’s doctors. Not even all of the defendant’s medical reports were sent. In my opinion, these limited materials are not designed to give a full and fair picture of the plaintiff’s medical symptoms, conditions and capacity.
[25]DCB 42
[26]DCB 41
29 Clearly, by the time of this vocational assessment report only some two weeks ago, the defendant’s solicitors had been served with a large number of reports from the worker’s treating doctors, as well as medico-legal people. From the Court Book index dates, I infer there would have been well over a dozen such reports, for some reason not sent to the vocational assessor, and yet she purports to suggest appropriate alternative jobs.
30 In my view, on all the evidence, this a man who has no realistic capacity for reliable regular employment in any field when the realities of the labour market are considered.[27] I accept his evidence about basing the commitment of a job on a regular basis with a starting time each day when he said:
“It depends on the day. It depends on how I wake up, how much pain I wake up with.”[28]
[27]See Acir v Frosster Pty Ltd [2009] VSC 454 and Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230
[28]T86
31 Looked at realistically, such a person has no capacity for work in any reliable ongoing and regular sense.
32 Turning to the medical evidence and firstly dealing with the treaters, the general practitioner, Dr C Tang, reported on 12 August 2010 about the plaintiff’s severe ear pain and consequential problems from working in jobs where headsets are required to be worn. There has been no contest on the issue and I accept that the plaintiff could not work again in a job requiring that equipment, such as a call centre or receptionist for example.
33 More to the point, Dr L Woo from the same Springvale practice reported in May 2015 on the injuries directly relevant to this case. This is the practice from which there are some fifteen years of clinical notes and other records.[29]
[29]Exhibit A
34 The doctors at the practice are, in my view, better placed than any other practitioner to provide opinions on the issues before me. Dr Woo clearly engaged the disentangling exercise with respect to the pre-existing thoracic scoliosis. As to the low back, he said quite unequivocally:
“As a result of the lower back injury he is unfit for any type of work and he is likely to have pain for the rest of his life.”[30]
[30]PCB 73
35 That statement is consistent with the many treatment options tried, different strong medications and referrals to various specialists that the clinical notes mention on the plaintiff’s unsuccessful journey to get some curative relief for the low back condition. I accept the general practitioner’s opinion. It supports a loss of earning capacity of 40 per cent or more. It is effectively saying the plaintiff’s lower back on its own all but puts him out of the workforce entirely.
36 This is a realistic view, in my opinion, which I accept. Considering residual earning capacity, the realities of the labour market have to be taken into account as already stated. These realities encompass proper consideration of a person still in constant back pain and leg pain in spite of extensive treatment over almost four years now.
37 A worker on daily medication and who cannot sit or stand for extended periods, as was demonstrated in Court, needs to be assessed in the real world, not in an academic or theoretical sense, in terms of suitable alternative employment.
The plaintiff has been seen for treatment by a number of specialists for the low back. The neurosurgeon, Mr A Drnda, saw him in May 2012. He spoke about how the patient had diligently tried two different physiotherapists but to no avail. Surgery was not indicated. He ended a 2012 report “I think Mr Abdula is very genuine and trying very hard ... .” when speaking of attention to treatment options.[31]
[31]PCB 40
38 In 2014, Mr Drnda reported again. He had seen the plaintiff on a number of occasions in 2012 and 2013.[32] A number of treatment options were tried. The patient had been re-referred to Mr Drnda in 2014 by the Springvale general practitioner. The specialist’s opinion could not be clearer. In relation to the lumbar spine injury, on its own, he said very clearly what this injury and its consequences were regarding work.
“My last contact with the patient was February 2014 and at that time he was definitely completely incapacitated for any work and I believe that he will remain so in the foreseeable future. This is a consequence of lower back injury along.”[33]
[32]PCB 42
[33]PCB 43
39 I take “along” as a typographical error and it should read “alone.” He also said the prognosis was poor.
40 I accept these opinions from a specialist who treated him on separate occasions, years apart, and had the advantage of a number of visits and different treatment options being tried. I accept this opinion as proving on the probabilities a permanent loss of earning capacity of 40 per cent or more due to the low back impairment alone.
41 Mr Michael Johnson, orthopaedic surgeon, saw the plaintiff in September 2013 for low back and leg pain and also noted the adolescent scoliosis in the thoracic spine.[34] He agreed surgery was not an option for either the lumbar spine or scoliosis. He did not comment on earning capacity but he obviously saw a real spinal problem or problems and suggested seeing a second orthopaedic surgeon, Mr Peter Turner.[35]
[34]PCB 47
[35]PCB 49
42 Dr Clayton Thomas, a specialist in rehabilitation and pain medicine, first saw the plaintiff in April 2013 at Mr Drnda’s request. Dr Thomas was also advantaged in being able to see and assess the plaintiff over at least four consultations.[36]
[36]PCB 57-60
43 He said the plaintiff presented with:
“… a complex pain problem with evidence of central sensitisation. He presented as suffering from an organic injury. He presented as being totally incapacitated and quite disabled. Clearly not coping and going nowhere.”[37]
[37]PCB 58
44 As to work, he put it simply, that the plaintiff did not have work capacity.[38] In more detail, he reported, after the final consultation:
“Throughout my involvement with his care I formed the opinion that he did not have capacity for pre-injury employment or work in general. He was markedly disabled. He presented as being totally incapacitated.”[39]
[38]PCB 58
[39]PCB 60
45 I have not heard from this doctor. It seems, from trying to understand his report, that he made these comments about the central sensitisation as having the compensable injury to the low back as at least one of its causes. Depression and anxiety had come on top of the organic spinal impairment, as I read the report, and the spine was what rendered the plaintiff effectively unemployable in Dr Thomas’ opinion.
Mr C Timms, neurosurgeon, was also brought in to treat the plaintiff and saw the plaintiff in July 2014 for back pain and left leg sciatica. He diagnosed a lumbar disc injury at L5-S1 and a worsening or aggravation of the thoracic scoliosis.[40] He thought he should see a specialist thoracic surgeon for that congenital problem. The lumbar injury however would not be benefitted by surgery. He also thought “he was completely incapacitated”[41] when asked a question about his future in regard to work. He seemed to give that opinion in the context of problems at both spinal levels, lumbar and thoracic, but I have not heard from the surgeon as to whether the low back alone was a cause of that incapacity.
[40]PCB 76
[41]PCB 76
46 He considered the patient should see a scoliosis surgeon such as Mr Johnson or Mr Turner. The plaintiff, of course, had already seen Mr Johnson in 2013, the year before. The patient also followed up the suggestion to see Mr Turner regarding scoliotic treatment by attending at the Royal Melbourne Hospital where he, in fact, saw a registrar, not Mr Turner. The advice was the same. Surgery was not recommended, although the patient is going back in December about the scoliosis.
47 In my opinion, there is a strong body of medical evidence from treaters that supports my finding on the probabilities that the low back alone precludes the plaintiff from any suitable employment on a regular reliable basis for the foreseeable future.
48 The plaintiff also tendered a number of medico-legal reports regarding the low back. They start with Mr P Kudelka, orthopaedic surgeon, in May 2013, so that is now quite dated. But even that early, he gave a permanent percentage AMA assessment of the lumbosacral impairment. He disagreed with the view of Mr Davie, orthopaedic surgeon, who examined the plaintiff for the insurer and had said the plaintiff could work in modified duties.
49 Mr Kudelka saw a deteriorating low back condition that meant the plaintiff was:
“…not fit for any employment involving sitting, standing, bending, stooping, lifting or prolonged driving.”[42]
[42]PCB 143.3
50 A short letter on 13 May 2013 recorded the scoliosis. Mr Kudelka thought it had been aggravated by the work, so there was some combination of the two spinal levels in the overall spinal symptomatology. Doing the best on the reports without hearing any explanation from Mr Kudelka, I accept his statement about work capacity is probably due to the lumbosacral impairment, on its own, for which he found a permanent AMA percentage impairment.[43]
[43]PCB 143.3
51 Dealing with probabilities. The passage of two-and-a-half years and a lot of treatment and investigations have proved Mr Kudelka’s views to be accurate.
52 On 18 May 2015, Dr A Aliashkevich, neurosurgeon and spinal surgeon, examined the plaintiff, and he diagnosed chronic mechanical low back pain. He also recorded the scoliosis but could not say if it was aggravated by work. He said the low back pain was accompanied by “sciatic leg pain dominating on the left side which is likely to persist” given the failure of treatment to date.[44] He offered some treatment suggestions but the prognosis was guarded in view of three years of no improvement in symptoms. I read his opinion as reflecting a situation that probably will remain for the foreseeable future.
[44]PCB 89
53 Dr D Vivian from the Metro Pain Group saw the plaintiff on 30 May 2015 and recorded the lower back pain was the predominant symptom. Associated left leg pain, pins and needles and numbness into the left foot were also part of the symptom picture. The juvenile scoliosis noted at fifteen years of age was recorded. Extensive radiology was noted. No less than eight different types of medication including several narcotics were detailed by Dr Vivian as part of the analgesic treatment.[45]
[45]PCB 92
54 Dr Vivian thought the scoliosis complicated the issue and the L5-S1 disc injury. The de-conditioning of the low back might have aggravated the extent of the scoliosis.[46] He thought surgery would be required for the scoliosis but the spinal problems “make this a very complex presentation with serious implications for the patient”.[47] A team approach was suggested, involving a multi-disciplinary group, specialists and pain management practitioners.
[46]PCB 95
[47]PCB 96
55 Dr Vivian did the disentanglement of the two spinal areas and definitively stated:
“He is now absolutely incapacitated by his pain. He is unfit for work of any description at present because of the effects of the lumbar disc injury along, even without the scoliosis problem.”[48]
[48]PCB 95
56 I agree with that opinion. On the probabilities, it will remain for the foreseeable future
57 The plaintiff also saw Dr Joseph Slesenger, specialist occupational physician, only a couple of weeks ago, on 5 November 2015. He alone gave oral evidence. It was an advantage to be able to hear him explain his reports. He said he spent one-and-three-quarter hours with the plaintiff and tested for non-organic signs or inconsistences but found none.
58 He diagnosed a mechanical injury to the lumbar spine, as well as aggravation of the scoliosis. Subsequently, the pain pathways had become altered and the plaintiff cannot control the pain. The “chronic pain disorder” he referred to was organic he reported.[49]
[49]PCB 134; T112, 118 and 128
59 He reported there was work the plaintiff could return to, but with reservations, but on the probabilities, it was unlikely he could in fact return to work in the sense of working reliably or consistently.[50]
[50]PCB 135-136, 138, 142
60 This is an up-to-date opinion that when viewed realistically, amounts to saying there is only a theoretical capacity to work at alternative duties and not a real capacity. Any real work capacity necessarily entails reliability and consistency of attendance and performance by a worker. I accept Dr Slesenger’s opinion on this.[51]
[51]T103-104, 119 and 129
61 As to suggested jobs asked of him, the doctor thought the plaintiff could do 4 hours, four days per week with Wednesdays off, providing he could take 5-minute breaks every hour and he must start at 10.00am to avoid traffic. These restrictions, when examined, really amount to no more than some theoretical capacity. Capacity for work where you can choose when you start, choose to avoid traffic and take 5-minutes off every hour is no real capacity out in the marketplace, in my opinion.[52]
[52]T119
62 In the end, his opinion, once fully explained in Court, amounted to diagnosing organically-based low back pain. The suggested jobs he dealt with carried the rider that the plaintiff is not going to be able to turn up reliably for even those limited jobs.[53]
[53]T128-129
63 Looked at realistically, Dr Slesenger’s evidence, taking his reports and oral testimony together, amount to the plaintiff establishing a more than 40 per cent loss of earning capacity for the organic back condition that has become, in time, a Chronic Pain Disorder.
64 To the insurer, Mr B Davie, in 2012, reported a lumbar disc injury and thought the worker should not return to his previous duties of bending, lifting and carrying but would have to seek lighter more sedentary work. He thought the modified duties were appropriate as long as there was no driving or lifting.[54]
[54]DCB 3
65 It is an old report but even three years ago, Mr Davie saw permanent restrictions on earning capacity for a man then only thirty-three years old. It is an opinion that is somewhat theoretical, as no mention is made of the reliability and consistency required in the concept of real earning capacity. Mr Davie did not see the plaintiff a second time.
66 The defendant had the plaintiff examined by Mr K Siu, neurosurgeon, in September 2014. He only saw the plaintiff once. He thought the scoliosis had been aggravated at work but the “presenting condition” was lumbar spondylosis, that is in the low back.[55]
[55]DCB 14
67 Mr Siu was really only assessing the low back. At the time, Mr Siu thought he had no work capacity and he found no functional element, so his comments are about an organic low back condition, as I read them. He did not comment on prognosis or permanence. Overall, his report seems to refer to the low back on its own, it being the “presenting condition,” but without hearing from him, it is not entirely certain.
68 Mr I Jones, orthopaedic surgeon, also only saw the plaintiff once in April 2015. The scoliosis from teenage years was recorded but the quote “major problem” complained of was in the lower back.[56] He diagnosed degenerative disease in the lower discs of the lumbar spine with the onset of neurological symptoms affecting the left leg.[57] However, he seemed to say the current symptoms were related to the degenerative process rather than the work contribution. When or why the work contribution suddenly ceased and degeneration took over was nowhere explained. Regarding work, Mr Jones said:
“The plaintiff’s apparent and severe limitation of sitting capacity would seemingly restrict his ability to undertake work of a sedentary nature.”[58]
[56]DCB 18
[57]DCB 22
[58]DCB 23
69 He could not readily explain the cause of this limitation in regard to sitting but he seemed to accept it, as there was no criticism of the plaintiff’s performance at clinical examination. Still, he thought sedentary or semi-sedentary employment would be the most sensible in the future
70 Three job descriptions were sent to Mr Jones by the defendant’s solicitors. These were the three already discussed. He thought the plaintiff could do these jobs but with some reservations about the care consultant and the sales assistant’s jobs.[59]
[59]DCB 40A
71 As already stated, I do not accept these jobs are suggestions based on a proper or adequate assessment by the vocational assessor of the real capacity of Mr Abdula. I reject Mr Jones’ opinion about suitability for these jobs for these reasons and also because it is against the great weight of medical opinion in this case, as well as him not dealing with the question of reliability and consistent attendance.
72 The occupational and environmental physician, Mr M Bloom, examined the plaintiff once on 1 June 2015. He diagnosed a considerable non-organic element in the plaintiff’s presentation and thought the plaintiff suffered from a non-organic “Chronic Pain Syndrome”.[60]
[60]DCB 27 and 30
73 In other words, he saw more of a psychologically-based condition. He did not adequately explain why the syndrome was psychological as opposed to organic. He was the only doctor to provide this view, and I reject it. It is against the vast preponderance of medical evidence from treaters and medico-legal experts.
74 The opinion of Dr Bloom was based on only one visit by the plaintiff, and the materials he was sent from other doctors was grossly deficient. He was sent only four medical reports. He only had a small part of the evidence he could have been sent. Even the defendant’s own medical opinions were not all sent to him. Just to mention some examples, Mr Davie and Mr Siu were not given to him. I do not accept Dr Bloom’s views about suitable employment options. They are not soundly based. In any event, he seemed to comment on capacity for full-time work in a theoretical sense rather than looking at the realities.
75 Interestingly, a little over a week ago, the defendant’s solicitors sent him further materials on 5 November 2015. They were still selective. For some reason, he was forwarded clinical notes from Springvale South Medical Centre but only up to February 2012 rather than the complete set that runs for fifteen years up to 2015.[61]
[61]Exhibit A
76 He was still not sent any further medical reports that from both sides by 5 November 2015 the Court Book indexes show total close to 20 reports from various practitioners. Dr Bloom has, in my view, been asked to give a selective opinion, hamstrung by only quite limited evidence to go on. I reject his conclusions.
77 Given the constancy of severe low back pain and leg pain, the failure of different treatments and very large dosages of different analgesics to improve the pain, I do not accept the defendant’s submission that the plaintiff has failed to discharge the onus on him of proving reasonable attempts to find alternative employment by way of rehabilitation and retraining.
78 Apart from the limited enquiries he made, there is really little else he could do. I reject the submission that his true capacity is untested, because he has not really attempted any work.
79 This is a situation where evidence establishes an incapacity for any suitable work where reliability and consistency are factored in, as they must be if capacity to work is viewed realistically.
80 For the reasons mentioned, I am satisfied that the plaintiff has discharged the onus of proving a permanent loss of earning capacity of 40 per cent or more. I find he is unfit for any suitable employment as a result of the impairment of the low back on its own, and he will be so unfit for the foreseeable future.
81 It is not necessary to reach any conclusion as to whether the congenital scoliosis was aggravated by work and the consequences of any aggravation. Similarly, the parties have tendered a number of reports from a psychologist and psychiatrists. These were Dr M Gelman, Ms S Durmaz, Dr M Epstein, Dr P Kornan and Dr A Jager. A number of these experts provided opinions that the plaintiff is incapacitated for work due to a psychiatric condition suffered in the course of his employment.
82 In view of my finding that the plaintiff has discharged the onus with respect to the low back, it is not necessary to refer any further to this material or to reach any findings on the paragraph (c) application.
83 The defendant relied on the plaintiff’s evidence that it was a combination of back pain and psychological problems that handicapped him as to work as presenting some disentangling hurdle the plaintiff has not discharged. I do not agree. The evidence sufficiently establishes that the low back on its own has caused the requisite loss of earning capacity.
84 For the reasons mentioned, I grant leave to the plaintiff to bring proceedings for pain and suffering and pecuniary loss damages.
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