Aktifan v APS Group (Industrial) Pty Ltd (Trading as Australian Personnel Solutions)
[2012] VCC 465
•27 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-01273
| SULTAN AKTIFAN | Plaintiff |
| v | |
| APS GROUP (INDUSTRIAL) PTY LTD (Trading as Australian Personnel Solutions) -and- WORKSAFE VICTORIA | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 April 2012 | |
DATE OF JUDGMENT: | 27 April 2012 | |
CASE MAY BE CITED AS: | Aktifan v APS Group (Industrial) Pty Ltd (Trading as Australian Personnel Solutions) & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 465 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: compensable injury - whether the pain and suffering consequences meet the statutory test
LEGISLATION: Accident Compensation Act 1985, s.134AB
CASES CITED: Barwon Spinners Pty Ltd and Others v Podolak (2005) 14 VR 622
RULING: plaintiff's Originating Motion is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie | Henry Carus & Associates |
| For the Defendant | Mr P Trigar | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 24 March 2012 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr S McCredie of Counsel appeared for the plaintiff and Mr P Trigar of Counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 9-26; 29-75; 78-84; and 87-88, and from the defendants Court Book ("DCB") pages 36-52: Exhibit A;
· The defendants tendered their Court Book pages 16-35; 70-74; 124 and 138-147: Exhibit 1
6 The application is brought under the definition of “serious injury” contained sub-s. (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Sub-s.(38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Sub-s.(38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd and Others v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s. (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622, at paragraph 11
8 I am required by s.134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Issues
9 The sole issue ventilated by the parties was whether the impairment of the function of the plaintiff's lower back resulted in pain and suffering consequences which met the statutory test.
The Plaintiff's Background
10 The plaintiff was born on 16 November 1971. He is now 41 years of age. He is Palestinian by origin, but born in Kuwait. He migrated to Australia in 1993. His parents migrated to Australia before him. He is a married man. He has two children who were born in January 2008 and August 2010.
11 The plaintiff completed his secondary education in Kuwait. His university studies in engineering were interrupted by a war and because of his inability to fund his education. Following his migration to Australia he enrolled in an engineering course at Swinburne University. He continued his studies at a university in Tasmania gaining a Bachelors degree in engineering in 2001.
12 The plaintiff was unable to obtain work as an engineer. Between 2001 and 2007 he obtained temporary employment. He obtained employment with the first defendant in January 2007. The first defendant is a labour hire company. He mostly worked as a picker selecting orders, and doing general manual work.
The Injury
13 In March 2008 the first defendant referred the plaintiff to Patrick Logistics in West Melbourne. He commenced working for it on 13 March 2008.
14 On 20 March 2008 the plaintiff, and some other workers, were required to unload a 40 foot shipping container filled with boxes. In the course of manually handling the boxes he experienced pain and discomfort in his lower back. On the following day the plaintiff rested. However, the pain and discomfort persisted. He returned to work on 25 and 26 March unloading containers. On 26 March he was again required to unload a 40 foot container containing boxes weighing 57kg and 75kg. His lower back pain and discomfort worsened.
15 The plaintiff first saw a medical practitioner on 2 April 2008. He returned to work on modified duties with the first defendant. He has not worked since September 2008.
The Plaintiff's Medical Treatment
16 The plaintiff first saw Dr William, general practitioner, on 2 April 2008. On examination he demonstrated tenderness to touch. Straight leg raising was aggravated by pain. Dr William referred the plaintiff to have a CT scan which was taken on 3 April 2008.[2] Dr William agreed with the conclusions reached by the radiologist that the CT scan showed a small posterior disc protrusion/displacement associated with the second ligamentum flavum at L3/4 and L4/5 without significant impingement of the thecal sac.[3]
[2]PCB 87
[3]PCB 46-47
17 Dr William referred the plaintiff to have physiotherapy. He prescribed him anti-inflammatory medication. He also referred him to Mr Chong, orthopaedic surgeon who he first saw in June 2008. Initially, Mr Chong considered that the plaintiff had suffered a severe strain to his lower back with a lumbar disc protrusion at L4/5. He considered that the plaintiff was unfit to return to work, and that he should continue using medication. He suggested Mobic (an anti-inflammatory), and Panamax (a painkiller).[4]
[4]PCB 29-30
18 Mr Chong saw the plaintiff on a number of occasions subsequently. It would appear that he last saw the plaintiff in April 2010. In the meantime the plaintiff was referred to have an MRI scan which was taken on 22 September 2008.[5] Mr Chong considered that it confirmed the findings on the CT scan of minor disc bulges at L3/4 and L4/5 was no nerve root impingement.[6] Following Mr Chong's inspection of the MRI scan he was of the opinion that the plaintiff was temporarily, but not permanently incapacitated from his usual work. He considered that he was able to undertake full-time light work with a restriction on lifting to no more than 5kg and that he should wear a back brace for support at all times.[7]
[5]PCB 88
[6]PCB 34
[7]PCB 35
19 By October 2009 Mr Chong's opinion changed. He was of the opinion that the plaintiff should not resume his usual work saying that he was totally restricted for that work, and that he should be retrained for office work. He considered that the plaintiff's incapacity to that extent was contributed by his injury, but also because the plaintiff was physically unfit and weighed 116kg. He suggested that he should be referred to a rehabilitation centre and that he required medical supervision, physiotherapy, advice from a dietician, attendance at a gym to get fit, and development of motivation.[8]
[8]PCB 41-42
20 Mr Chong's last medical reports dated 7 April 2010[9] and 9 September 2010[10] are not overly edifying. In the first of those reports it would appear that he saw the plaintiff again because of difficulties the plaintiff was experiencing with recurrent pain when getting out of bed in the morning. The pain apparently subsided after about half an hour. Mr Chong found no abnormality. He prescribed the plaintiff Indocid (an anti-inflammatory). In the second of those reports he said that he last saw the plaintiff on 30 April 2010. He said that the plaintiff continued to suffer from pain in his lower back, although the intensity had decreased. He was still of the opinion that the plaintiff was unable to do any physical work,[11] and in that context I infer the heavy work which the plaintiff said he was performing when he was injured in March 2008.
[9]PCB 43. A letter directed to Dr William
[10]PCB 44
[11]PCB 44
21 The plaintiff was treated by Mr McGrath, physiotherapist from whom a number of reports were obtained. Mr McGrath was of the opinion that the plaintiff had suffered an acute strain to his lower back. He considered that the plaintiff required three years of physiotherapy treatment (from August 2009) comprising 15 physiotherapy treatments over the following 12 months and then 10 visits over the following 24 months.[12] The plaintiff was also referred to Mr Woodman, physiotherapist by CRS[13] for an assessment. He saw Mr Woodman on 10 June 2009. He expressed a similar opinion to Mr McGrath that the plaintiff required a supervised exercise program. He considered in the long term that the plaintiff's injuries would resolve, but would be aggravated by activities in the meantime.[14]
[12]PCB 67
[13]Commonwealth Rehabilitation Service
[14]PCB 75
22 The plaintiff has had little medical treatment from Dr William, Mr Chong or either of the physiotherapists recently. He last saw a medical practitioner in September 2011. He was prescribed a two week course of Naprosyn (an anti-inflammatory) for lower back pain by Dr William.[15] The plaintiff said that he suffered stomach problems when he took medication. The plaintiff's entitlement to medical and like expenses was terminated in December 2010. He made no attempt to challenge the termination.
[15]Transcript 14
The Medicolegal Opinions
23 Mr Myers, vascular surgeon, examined the plaintiff on 5 September 2009 and 15 March 2012. He was of the opinion that the plaintiff had aggravated previously asymptomatic degenerative intervertebral disc disease in his lumbar spine. He considered that the plaintiff was not fit for his pre-injury work. He doubted there would be any significant worsening of the plaintiff's lower back, nor any significant improvement.[16]
[16]PCB 83
24 Mr Dooley, orthopaedic surgeon examined the plaintiff on 17 September 2009 for the defendant. His opinion is not very different from that expressed by Mr Myers. Mr Dooley was of the opinion that the plaintiff had aggravated underlying degenerative disc disease. He repeated the very matters addressed by Mr Chong that the plaintiff undertake low impact exercise, a fitness program, and that he lose weight. He considered that the plaintiff would have difficulty undertaking heavy physical labour on a full-time basis, but was fit to undertake light physical work and clerical duties.[17]
[17]DCB 38
25 Mr Trigar referred me to the medical reports of Dr Homolka, occupational physician;[18] Dr Yong, occupational physician;[19] Dr Harris, general practitioner,[20] and Dr Gee, occupational physician.[21] The opinions expressed by those medical practitioners do not vary in any material degree to the opinions expressed by Dr William, Mr Chong, Mr Myers and Mr Dooley regarding the diagnosis the injury, the impairment it causes and the consequences to the plaintiff in terms of the pain and restriction of movement that he suffered at the time he was last examined by those medical practitioners, and the limitations that they would place upon him.
[18]DCB 16-35
[19]DCB 40-52
[20]DCB 70-71
[21]DCB 72-74
Consequences
26 I have considered the plaintiff's evidence contained in his affidavits; the affidavit evidence of his brothers;[22] the medical evidence to which I was referred by Mr McCredie and Mr Trigar; and the submissions made by Mr McCredie and Mr Trigar. I am not satisfied that the plaintiff has suffered pain and suffering consequences which meet the statutory test.
[22]PCB 19-24. Objection was taken by Mr Trigar to significant portions of the affidavits of the plaintiff's brothers. Some of the objections were conceded by Mr McCredie. It was ultimately left to me to determine what was admissible, and otherwise what weight to give to the evidence contained in their affidavits
27 The plaintiff has shown himself to be an intelligent man. He completed his schooling in Kuwait and entered a university to study engineering. On his arrival in Australia he was able to obtain entry into a university to study engineering which he completed at a university in Tasmania. The only impediment to securing employment as an engineer is his inability to find a job.
28 In terms of the plaintiff's capacity to work, relied on as a pain and suffering consequence, it was limited to his capacity to undertake work of the kind he was performing when he was injured. The preponderance of the medical evidence points to the plaintiff being unable to undertake that sort of work. It is abundantly clear to me from the plaintiff's affidavit that it was unreasonably heavy manual handling work. However, the preponderance of the medical evidence points to the plaintiff having a residual capacity to perform lighter manual work, and certainly a capacity to perform clerical work, both on a full-time basis.
29 The plaintiff is able to sit at a computer for up to 4-5 hours at a time.[23] He is able to walk for up to 15 minutes. He has difficulty in the mornings more now than when he was having physiotherapy treatment. Previously he would have difficulty getting up and being able to start walking for about 10 minutes, but now without the assistance of physiotherapy treatment it can be between 30-45 minutes before he is able to get up and start walking.[24] The plaintiff also said that the gym that he was attending once a week, over a six-month period, was beneficial. It was my impression that the plaintiff did not take any step to continue having physiotherapy treatment or going to a gym because it was no longer funded by the defendants.
[23]Transcript 32
[24]Transcript 50
30 In his first affidavit the plaintiff quoted from the histories he gave to Mr Myers and Mr Dooley which he said were a summary of some of the consequences he has suffered. In essence he said that the pain in his lower back impairs his capacity to stand; walk; swim or attend a gym; rise from squatting position; undertake exercise to control his weight gain; and he has not tried to run or jog.[25]
[25]PCB 13-14
31 In his second affidavit he expanded upon the consequences including interference with sleep; interference with sexual activity; dramatic weight gain; difficulty sitting in the car; difficulty using public transport because of jolting and bumping; getting up and moving in the mornings needing to take half an hour to do stretches or exercises to relieve the pain from lying in his bed.[26]
[26]PCB 17
32 The plaintiff also said that he played volleyball and soccer before he injured his lower back. I found it difficult to determine how often he engaged in those sporting activities and whether we did so with a team or socially. His evidence was vague, and unconvincing.
33 Whether a worker suffered a serious injury or not is to be determined by what the worker has lost in terms of pain and suffering consequences, but undoubtedly what the worker has lost can be determined by what the worker has retained. What the plaintiff has lost is that he now has pain which restricts his capacity to undertake heavy labouring work, but not any other work for which he is qualified by his university training or light labouring work or clerical work.
34 The plaintiff has had a range of conservative medical treatment. His treating medical practitioners are all of the opinion that the plaintiff has pain and restriction of movement, but otherwise a significant capacity to engage in physical work on a full-time basis. It is quite apparent that the plaintiff can sit at a computer for 4-5 hours which I think is probably consistent with what someone in an engineering role or a light labouring job or clerical job would be required to do. It seems to me that the plaintiff has a significant capacity to function at those levels.
35 Those levels are indicative also of whether I can accept that the plaintiff has the level of pain and restriction of movement which he says he has at present. Furthermore, the plaintiff has not had any significant medical treatment for some time. I do not accept his explanation that he could not continue with physiotherapy or going to the gym because the defendants would not pay for it. Mr McGrath suggested intermittent physiotherapy treatment over three years. The plaintiff was only attending a gym once a week over a six-month period. I find it difficult to accept that he could not afford that level of treatment given the lengthy evidence which was adduced during cross examination of the family support he has, and in particular, the building program which is being undertaken. It gave me the strong impression that the plaintiff comes from a strong family network where the financial circumstances of the members of the family are inextricably bound up.
36 What I do accept of the plaintiff's evidence is that he has a level of pain in his lower back which is tolerable. It does not prevent him from undertaking work as an engineer or light factory work or clerical work. It does not prevent him from sitting at a computer for extended periods of time. It does not prevent him from pursuing the course he is currently undertaking in building and construction at a TAFE College.
37 I am not convinced, on a careful assessment of the plaintiff's evidence and the medical evidence, that the interference with sleep he experiences and his mobility are other than modest to moderate at best. I do not accept that he was the sportsman that he attempted to make out that he was for reasons I have already canvassed. I am likewise not convinced that he suffers any significant sexual interference. There was no medical evidence to that end, and indeed, Dr William found it difficult to connect such a complaint with the onset of the plaintiff's lower back injury.[27]
[27]PCB 55
Conclusion
38 I am not satisfied that the pain and suffering consequences contended for by the plaintiff meet the statutory test. The plaintiff's Originating Motion is dismissed.
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