Alexander Dimovski v Amcor Limited
[2010] VCC 1728
•6 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES LIST
GENERAL DIVISION
Case No. CI-09-03646
| ALEX DIMOVSKI | Plaintiff |
| v | |
| AMCOR LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 and 26 October 2010 |
| DATE OF JUDGMENT: | 6 December 2010 |
| CASE MAY BE CITED AS: | Alexander Dimovski v Amcor Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1728 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity – permanent impairment of the plaintiff’s lumbar spine – contribution if any of employment to long-standing degenerative lower back condition
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Richard W McGarvie S.C. | Nowicki Carbone & Co |
| Michael J Ruddle | ||
| For the Defendant | Robert W Dyer | Herbert Geer |
| HER HONOUR: |
Introduction
1 By originating motion filed on 5 August 2009 the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
2 The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of the plaintiff's lumbar spine by reason of injury to his lumbar spine throughout the course of his employment with the defendant between 20 October 1999 and July 2006, including a specific episode on 14 August 2000.[1]
[1] Statement of Claim, Plaintiff's Court Book ("PCB") 5-9.
3 On 5 June 1989 the plaintiff commenced employment with the defendant as an assistant printer. With training he became a qualified printer. According to the plaintiff over many years, until July/August 2006, his duties as a printer involved "considerable heavy lifting and quite a lot of bending and twisting ..."[2] The plaintiff's uncontradicted evidence was that lower back pain and symptoms prompted him to take a voluntary redundancy package.[3]
[2] PCB 12.
[3] PCB 14.
4 It appears that the plaintiff first attended for treatment of lower back pain on either 21 or 24 May 1997 when his general practitioner, Dr Ristevski also ordered a plain x-ray of the plaintiff's lumbar spine. The doctor's evidence and the clinical notes record, amongst other things, lower back pain, greater on the right side than the left, following a lifting incident the day before and tenderness over the lumbar spine, more on the right than the left side.[4] Relevantly, the radiologist's report dated 30 May 1997 confirmed pre-existing degenerative disease by stating:
"There is slight narrowing of the L3/4 disc with moderate osteophyte bridging. Early osteophyte lipping is seen throughout the rest of the lumbar spine. Degenerative changes are seen of the facet joints with asymmetry, sclerosis and some osteophyte overgrowth."[5]
[4] Transcript 73 and Defendant's Court Book ("DCB") 36D.
[5] DCB 11.
5 Apparently, after receiving this report the doctor, whilst noting the degenerative changes especially at the L3/4 levels, did not exclude there being a muscular component to the plaintiff's pain. Nonetheless, as he said in re-examination, this doctor had not considered operative treatment a viable proposition because of the generalised nature of the problem demonstrated by the film.[6]
[6] TN 88-89.
6 Other than an attendance on 29 March 1999 for treatment of lumbar pain and stiffness followed by two days off work, consistent with the plaintiff's claim that he recovered from the episode in 1997, the plaintiff continued working until 14 August 2000, from which date the plaintiff said he suffered ongoing and worsening problems with his back. The plaintiff said that on this date he suffered severe back pain whilst he and a co-worker attempted an awkward lift of a wax rubber roller weighing approximately 70 to 80 kg ("the lifting incident").[7]
[7] PCB 13.
7 This injury was reported to the defendant after which the plaintiff was referred to its physiotherapist. The plaintiff was then placed on lighter duties for two weeks working his usual eight-hour shift with at least restriction on lifting[8] before returning to normal duties.
[8] The report from a physiotherapist on 14 August 2000 recommended restrictions on lifting and bending, rests at hourly intervals and sitting when necessary – PCB30.
8 Subsequently, it appears that the defendant accepted the plaintiff's WorkCover claim[9] in respect to this incident and paid his medical expenses, including the cost of a back brace purchased by him. The plaintiff's unchallenged evidence was that, following this incident, he attended the company's physiotherapist when he could either on his Monday visits to the defendant's premises or at the physiotherapist’s rooms in Kew and he performed the exercises recommended.
[9] DCB4-5.
9 Relevantly, on 16 August 2000 the plaintiff also attended his doctor whose notes confirm a complaint of right lower back pain radiating to the plaintiff's right thigh and leg caused by a lifting incident at work on the morning of 14 August 2000. In addition to prescribing the anti-inflammatory medication Voltaren Rapid, it appears that the doctor arranged for plain x-rays of the lumbosacral spine which on 22 August 2000 reportedly revealed:
"Alignment is normal. On the frontal view there is a slight retrolisthesis of L3 on L4 on the lateral view. There are lipping changes seen throughout. There is some disc space narrowing seen at the L3/4 and L4/5 levels. There is some early degenerative disc vacuum phenomena at the L4/5 level. There is no spondylolysis on oblique views. The pedicles and sacroiliac joints were considered normal."[10]
[10] PCB 54.
10 Prompted by this result a CT scan from L3 through to S1 was also arranged on 5 September 2000, revealing as the doctor agreed moderate generalised disc bulges at the L3/4 and L4/5 levels and a small disc bulge at the L5/S1 level without also indicating any radiological evidence of compromise of the right-sided nerve roots.[11]
[11] PCB 55 and TN 77-79
11 In cross-examination the plaintiff indicated that, despite constant back pain between 2000 and mid-2006, he continued working and other than intermittent attendances on his doctor, he self medicated by using a lot of creams and taking spa baths. He said that since ceasing work in 2006 his back condition had remained largely unchanged probably because he was no longer working or bending, lifting and twisting. [12]
[12] TN 44-46
12 Between the incident in August 2000 and taking a voluntary redundancy package in mid-2006, according to the doctor's clinical notes and evidence the plaintiff attended his surgery on numerous occasions for treatment of various medical conditions. His back condition was mentioned in the doctor’s notes made for some of these attendances. For instance, on 5 December 2000 and 15 October 2002 the doctor recorded complaints of ongoing back pain and on 15 July 2004 of back pain and stiffness. Notably, in re-examination the general practitioner readily adopted the proposition that the pattern of complaints of back pain recorded by him on 18 May, 9 June, 14 July and 16 August 2005 and again on 26 June, 14 July[13] and 23 July 2006 were indicative of deterioration in the plaintiff's back condition.
[13] This attendance coincides with what appears from the clinical notes to be a prescription of the anti- inflammatory medication, Mobic -- DCB 36K.
13 The clinical notes made, the doctor's final report on 3 September 2010 and his evidence in re-examination generally corroborate the plaintiff's claim that in 2006 he took a redundancy package because he felt his worsening back pain did not allow him to continue working.[14]
[14] PCB29(b) and TN90-99.
14 In his affidavit and at hearing the plaintiff said that following the lifting incident, in addition to back pain, he had developed symptoms in his left leg which became worse than those in his right leg.[15]
[15] PCB14 and TN 44-45.
15 Following the termination of his employment as a printer in late July 2006 the plaintiff’s next recorded attendance for treatment of back symptoms was on 3 October 2006 when the doctor also noted back pain radiating to the plaintiff’s legs. Post-20 October 1999 this and the record when this was next recorded on 19 October 2006, represent the earliest clinical record of complaint of left leg symptoms.
16 Accordingly, the general practitioner's limited records do not directly corroborate the claim that left leg symptoms developed prior to termination of the plaintiff’s employment.[16]
[16] This claim was also made by the plaintiff to many of the specialists.
17 If, as the defendant submitted (in all of the circumstances I think correctly), the left leg symptoms probably developed in the months after the plaintiff ceased work, these symptoms may nevertheless constitute a consequence of work- related aggravation injury to the plaintiff's lumbar spine, with a worsening of his symptoms in the period shortly prior to the termination of his employment. This finding of fact nevertheless requires that I give more careful consideration to the opinions expressed by specialists who were given an account by the plaintiff that left leg symptoms had developed at an earlier time.
18 Without specifying when and over what period or periods this medication was taken following the August 2000 incident, in his affidavit the plaintiff also said that he did not like taking medication, although he had trialled "some
medication from time to time including Anapax, Movalis, Panadeine Forte and Panadeine ..."[17][17] PCB 13-14.
19 Based on the history summarised above the plaintiff submitted that the lifting incident had rendered his degenerative lumbar spine more seriously symptomatic without preventing him from returning to his normal heavy duties, including working overtime. However, as evidenced by the cluster of medical attendances for treatment of back pain and in accordance with the definition of "injury"[18], heavy work had aggravated the underlying condition and had led to worsening of symptoms in about June and July 2006 which caused the plaintiff to terminate his working life prematurely.
[18] That is the definition applicable from 3 December 2003.
20 Accordingly, as I have already mentioned, notwithstanding the episodes of back pain in 1997 and 1999, following the lifting incident the plaintiff said his back was more seriously symptomatic, but not to the extent that it prevented him from returning to his normal duties and performing overtime. The injury on which this application ultimately focussed was the aggravation of the underlying condition through ongoing use of the plaintiff’s back in stressful work circumstances with worsening of his symptoms in 2006 immediately prior to him ceasing work.[19]
[19] TN 132.
21 It appears that on 23 November 2006 the plaintiff submitted a claim for impairment benefits. Amongst other things, he acknowledged that he suffered back pain on and off from around May 1997 without lodging a claim for compensation. In addition, he nominated lower back and right and left leg injury sustained "or" of which he first became aware on 14 August 2000.[20] In this application the plaintiff relies on the condition affecting his lower back, right leg and left leg.
[20] DCB 6-7.
22 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering and any loss of earning capacity consequences of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the lumbar spine, are more than "significant" or "marked" and at least "very considerable".
23 In summary, the plaintiff is required to establish a compensable injury after 20 October 1999. This requires that he establish the nature of the injury suffered. By definition compensable injury includes recurrence, aggravation, acceleration, exacerbation or deterioration of pre-existing injury or disease. He must also establish the consequences as at the date of hearing, in this case both the pain and suffering and loss of earning capacity consequences, to which compensable injury materially contributes; and that these consequences are serious in the sense that they are permanent and "very
considerable".
24 Any psychological or psychiatric consequences of the plaintiff's physical injury cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury.
25 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical capacity for suitable employment post-injury and his attempts to participate in rehabilitation and retraining, he has a capacity for any employment which, if exercised, would result in him earning more than 60% of his pre-injury earnings determined in accordance with ss134AB(38)(f) of the Act.
26 The onus rests on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[21]
[21] s134AB(19)(b).
27 As from 1 July 2010 the Act (as amended) redefines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, whether or not the suitable employment is available and is of a type or nature that is generally available in the employment market.
28 If the plaintiff satisfies the loss of earning capacity requirements in s134AB of the Act, he will be entitled to leave in respect to both these damages and pain and suffering damages without further determination of this aspect of the application.
The Areas of Dispute
29 Essentially, the defendant accepted that from 20 October 1999, whilst there may have been work-related aggravation of underlying degenerative disc disease which would have accounted for low back pain, the effect of this was temporary and the plaintiff's present complaints were due to the natural progression of the underlying disease process. Accordingly, the consequences claimed by the plaintiff, including the left leg symptoms first recorded by the general practitioner in October 2006, are not so the defendant submitted relevantly linked to any work-related organic injury.
30 In this regard, apart from its specialists’ opinions, the defendant relied on the progressive changes demonstrated by the radiology. The defendant submitted that the radiology evidenced no change to which the plaintiff's employment could be said to have made a significant contribution.[22] Of course the radiological evidence and the doctors’ interpretation of this are included in the many evidentiary matters to which I must have regard in determining this application.
[22] TN118-19.
The Evidence Called and Tendered
31 The plaintiff deposed to the accuracy of his affidavit sworn on 12 March 2009 and his further affidavit sworn on 17 February 2010. He was cross-examined at length.
32 The material tendered by the plaintiff consisted of his Court Book from which a number of documents had been removed and to which, with the leave of the Court, the general practitioner’s further report dated 3 September 2010 and the result of a MRI scan obtained on 26 August 2010 were added.
33 Relevantly, the material tendered by the plaintiff included an affidavit sworn on 12 February 2010 by a friend of the plaintiff, Sonia Stojanovski who was not required for cross-examination. Generally speaking, this affidavit tended to corroborate the plaintiff’s claim that following the lifting incident in August 2000 back pain and symptoms had continued to impact on his lifestyle and capacity. For instance, this witness noted that:
• the plaintiff was less active; •
when the plaintiff returned from work his behaviour suggested to her that the plaintiff had discomfort in his back;
• due to his back condition the plaintiff walked differently; •
when the plaintiff attempted to hang washing on the line he had to hang the items one at a time because he unable to bend over and carry the basket; and
•
whereas their families previously went camping or took day trips together their social interaction was now limited to catching up over coffee.[23]
[23] PCB 20-24.
34 The defendant tendered its Court Book from which a number of documents had been removed and to which, with the leave of the Court, a copy of a separation certificate was added. The defendant also tendered 2 video films taken on 24 December 2009 and 5 January 2010 and on 1 and 5 March 2010.[24]
[24] I was told that the duration of each video was 31 minutes and 42 seconds and 9 minutes and 52 seconds respectively.
35 These surveillance films depicted the plaintiff, at times accompanied by his wife, going about his daily tasks such as shopping and checking the tennis results at the TAB. The later segment of film showed the plaintiff bending, twisting and squatting whilst inspecting displayed items at a supermarket. On each of the two occasions the plaintiff was filmed rising to his feet from a squatting position, he appeared to move easily and quickly. The plaintiff explained in cross examination that he was able to do this because he knew how to move properly.
36 Having regard to the limited period over which it was obtained and the modest range of activity captured in the film I was not satisfied that, of itself, the film contradicted the evidence and in particular the medical consensus that the plaintiff is probably significantly incapacitated in all areas of his activity by persistent lower back and left leg symptoms for the foreseeable future.
37 The plaintiff is a worker with a long history of hard work. Relevantly, during cross-examination, he was taken to three statements in the defendant's Court Book made on 3 June 2009 by the following individuals:
• the defendant's Print Manager, Stephen Robert Royal; • the defendant’s Printing Supervisor, Lorenzo Silvano Morelli; and • the plaintiff's printing assistant, David Roy Vinton.
38 All these statements confirm that after resuming his normal duties in 2000 the plaintiff never complained that he was unable to manage his work. Mr Morelli did recall that after reporting the injury, from time to time, the plaintiff mentioned he had some back pain without indicating that it was sufficiently serious to take time off or seeking to return to light duties. He also "vaguely" recalled the plaintiff complaining about back pain in 2004. Mr Vinton, who worked closely with the plaintiff, said that the plaintiff "grumbled at times that
he did not want to lift things because he was too old now ..."[25]
[25] DCB 43.
39 Nevertheless, I think it clear from both the plaintiff's evidence and Dr Ristevski's evidence and clinical notes that, even if as his co-workers’ statements suggest the plaintiff had not made much of this, the plaintiff's back condition was sufficiently troublesome for him to purchase and use a back brace at work, to avoid heavy lifting and to obtain treatment and medication from his general practitioner from time to time.
40 However, following the lifting incident, whilst his back condition probably remained symptomatic, based on all of the evidence including various matters the plaintiff agreed he had told some of the doctors, I formed the view that at times he had exaggerated his circumstances following the lifting incident. For instance, the plaintiff told neurosurgeon, Mr Dohrmann, that due to back and left leg pain he was unable to move for at least several days after the lifting incident and that he continued working notwithstanding "constant" pain.[26]
[26] PCB 33.
41 Initially, in response to questioning by a number of specialists between March 2007 and November 2009, the plaintiff failed to recall earlier investigation and treatment of lower back pain in 1997. That he did this more than once indicated to me some reluctance on his part to acknowledge a history that might not help his case, rather than poor recall.
42 Notwithstanding these matters, the plaintiff otherwise presented as a witness who had endeavoured to explain and describe for both the doctors and the Court the circumstances relating to his employment, the injury and symptoms suffered and the consequences he believed were attributable to ongoing work-related impairment of his lumbar spine.
Background Matters
43 The plaintiff was born in Macedonia and migrated to Australia for the first time in 1971. At hearing the plaintiff's spoken English whilst not perfect was good. However, he deposed that his ability to read and write in English was not perfect.[27]
[27] PCB 15.
44 The plaintiff is 62 years of age and married with two adult children. Currently, he receives a carer 's benefit because he looks after his wife.
45 The plaintiff completed high school in Macedonia after which he spent some 16 months in the army before migrating to Australia where he worked mainly in the mining industry in Western Australia.
46 Between 1971 and 1977 the plaintiff returned to Macedonia where he worked in sales and married. In 1988 the plaintiff returned to Australia where he spent a few months in Perth working in spare parts prior to commencing his employment with the defendant.
47 The plaintiff did not return to gainful employment after accepting the voluntary redundancy package. In effect, he claimed to no longer have the physical capacity to perform his pre-injury duties or similar factory type work for which he was suited by reason of his age, skills, education and experience. Furthermore, he relied on these factors as also evidencing an inabiIity to undertake retraining or rehabilitation for alternative employment.
The plaintiff's current condition and treatment
48 In his affidavit the plaintiff relevantly said:
"15. I still have back pain and symptoms extending into the left leg. I have a slight limp. I also have decreased sensation in my left leg, which I am particularly aware of when I shower. I have a reduced capacity for bending and lifting. I see Dr Ristevski from time to time. I have not had any specialist treatment. I take medication when I have to. Currently, I take anti- inflammatory medication Mobic every night. Whilst I try to walk for exercise, I find that my capacity to walk for long distances has been reduced. From time to time, I go to the swimming pool to exercise. I have a reduced capacity for sitting or standing for lengthy periods of time. My sleep is interrupted. I can drive a car but driving for long distances is difficult for me now."[28]
[28] PCB 15.
49 At hearing the plaintiff said that his lower back had remained symptomatic, it involved left-sided lower back pain and the pain extended into his left leg with numbness in his left thigh. He confirmed that he is not under the care of a specialist for treatment of his lower back and lower back and leg symptoms, that he remains on a conservative treatment regime and that he continues to consult his general practitioner. In his further affidavit the plaintiff added, amongst other things, that he takes Mobic daily and painkilling medication, Panadeine Forte as needed. [29]
[29] PCB 18.
50 As Dr Ristevski said in his evidence the plaintiff's condition has not improved since he ceased working. In addition, further radiological investigation ordered by this doctor, CT scans in December 2006 and March 2009 and MRI scan in August 2010 all demonstrate pathology which indicates a probable organic basis for the plaintiff's ongoing complaints of pain at times radiating into both legs and later into his left leg.[30]
[30] TN 90-91.
51 Without repeating the reported radiological findings in full, in summary:
•
the result of the CT lumbar spine scan obtained in December 2006 reported -- "Prominent degenerative changes are seen to involve the
lumbar discs and facets."[31]
[31] PCB 56.
• the result of the CT lumbar spine scan obtained in March 2009 reported -- "1. Multilevel intervertebral disc degenerative change. 2. Grade 1 degenerative anterolisthesis and broad based disc bulge result in mild canal stenosis at L 3/4 level. 3. Severe right L4/5 subarticular recess stenosis. 4. Left L2/3 foraminal stenosis likely impingement of the exiting left L2 nerve root. 5. Posterior displacement
of the exited right L4 nerve root lateral to the foramen."[32]
• the result of the MRI lumbosacral spine scan obtained in August 2010 - - "Degenerative changes in the lumbar spine with left neural foraminal bulging disc osteophyte complex at L2-3 level, bulging disc osteophyte
complexes at L3-4 and L4-5 levels as described."[33]
[32] PCB 58.
[33] PCB 67.
52 The film and/or result of MRI scan of the plaintiff's lumbar spine on 26 August 2010 was available to only some of the specialists whose opinions and reports are discussed below.
The Medico-Legal Evidence
53 Neurosurgeon, Mr Dohrmann, orthopaedic and spinal surgeon, Mr Hunt and consultant physician, Prof Myers each assessed the plaintiff and reported to his solicitors on 23 November 2009, 15 October 2010 and 20 October 2010 respectively.
54 Orthopaedic surgeon, Mr Ian Jones assessed the plaintiff at the request of the defendant's solicitors on 5 March 2007, 17 July 2009 and 3 March 2010. In total five of his reports were tendered. Neurosurgeon Mr Nye also assessed the plaintiff on 13 July 2009 and reported to the defendant's solicitors.
55 It was common ground that the plaintiff suffered from multilevel degenerative disease in the lumbar spine first identified radiologically in 1997. Currently this manifests as back pain and symptoms particularly in his left thigh and leg.
56 It was also generally accepted that the plaintiff is permanently incapacitated for his pre-injury duties and any duties of a heavy physical nature. Mr Hunt thought it unlikely that the plaintiff could perform alternative duties because of the extent to which his condition impacted on his activities of daily living.[34] Prof Myers, Mr Jones and Mr Nye each spoke of permanent restrictions on the plaintiff's physical capacity for employment.[35]
[34] PCB 45.
[35] PCB 52 and DCB 29 and 35.
57 The principal difference between the opinions expressed by the specialists is that the defendant's two specialists both hold to the view that the underlying degenerative disease is now responsible for the plaintiff's condition. They both analysed and viewed as minor any progressive changes shown in the 2000, 2006 and 2009 radiological material, although only Mr Jones had the opportunity to consider the MRI results obtained in 2010. Otherwise, on clinical examination, either most or all of the specialists reported findings which included wasting of the left leg, loss of sensation particularly in the left lower limb and reduced or no reflexes in the lower limbs.
58 A number of the specialists also accepted that there was some evidence of radiculopathy. For instance, in November 2009 Mr Dohrmann diagnosed "chronic back pain and referred left leg pain with evidence of radiculopathy
due to lumbar spondylosis and disc degeneration at several levels, particularly at L3-4. He has symptoms and signs suggestive (though not unequivocally
diagnostic) of left L3 or L4 radiculopathy."[36] Whilst accepting the possibility of radiculopathy Mr Nye similarly believed that this involved the L3 or L4 discs. More recently, Mr Jones has also considered radiculopathy a possibility.[37]
[36] PCB 36.
[37] DCB 28.
59 It seems that, until he was reminded of this by Mr Jones, Mr Nye and Mr Dohrmann, the plaintiff at first denied any history of back injury or symptoms prior to the lifting incident in August 2000. When this history was drawn to his attention the plaintiff invariably said that any earlier back problems in 1997 had resolved before the lifting incident.
60 Save for this matter and some differences in emphasis and detail, from reading the reports I formed the view that, generally speaking, between 2007 and 2010 the plaintiff probably gave all of the specialists very similar histories. Moreover, whilst he identified the lifting incident in August 2000 as the starting point for his back problems, in one way or another, each of the specialists understood from the plaintiff that even after resuming his normal duties, his back condition remained symptomatic until he ceased work in mid-2006.
61 For instance, Mr Jones, who was the first of the specialists to examine the plaintiff, was told that:
•
the plaintiff worked the day following the lifting incident despite lower back pain and pain affecting the whole of his left leg;
•
within a day or two of the lifting incident the plaintiff saw his doctor and was sent to undergo x-rays;
•
the plaintiff attended the company physiotherapist once a week for approximately 2 months following the incident;
• the plaintiff avoided activities at his work that were demanding on his back; •
whilst the plaintiff's back "settled down a bit" he found that if he lifted buckets and rollers at work he experienced more back and leg pain;
•
the plaintiff had tablets available but tended to avoid taking medication and continued working full-time until 2006.[38]
[38] DCB 13-14.
62 Relevantly, Mr Jones diagnosed generalised degenerative disc disease and facet joint disease affecting particularly the lower three segments and the L3/4 level of the plaintiff's lumbar spine manifested by back pain with slight stiffness and some referred pain into the plaintiff's left leg. Mr Jones predicted persisting symptoms with a slow deterioration in the plaintiff's condition in the long-term.
63 As to the relationship between any work-related back injury and the impairment of the plaintiff's lower back Mr Jones said:
"Clearly this man had previous problems in his back prior to the reported incident on 14.08.00. X-rays taken in 1997 show changes of moderately advanced L3/4 spondylosis and some mild degenerative change at the L4/5 disc. These changes, as does his condition in general, appear to be largely constitutional in aetiology. It is possible that his back condition may have been aggravated by the incident he described on 14.08.00 but I believe he has recovered from the effects of this injury and that his current impairment bears no significant relationship to his employment.
I believe this man's employment with Amcor now no longer bears any significant contribution caused by his work to his lower back and left leg ... (sic)"[39]
[39] DCB 15.
64 In March 2010 Mr Jones also expressed his view that the pathology identified in the plaintiff's back probably would not have impacted on his ability to work as a printer to age 55, that is 2003, although by 2008 he thought that the progression of the plaintiff back condition would have precluded him from working as a printer to the age of 60.[40] Even if this were correct, as the High Court explained in Darling Island Stevedoring & Lighterage Co Ltd v Hankinson,[41] it cannot be said that an aggravation injury had ceased simply because the underlying disease would have proceeded to a similar stage in its own unaided progression.
[40] DCB 30.
[41] [1967] 117 CLR 19 at pages 26-27.
65 Mr Nye was told that:
• following the incident on 14 August 2000 the plaintiff continued working and avoided lifting over a period of one month; • the plaintiff obtained medical advice, radiological investigation was arranged and he received physiotherapy treatment both at work and at the therapist's practice; • subsequently the plaintiff noted left leg pain, although the date for the onset of this symptom was not established; • normal work duties were resumed, medication was used and the plaintiff may have had hydrotherapy. [42] [42] DCB 32.
66 Whilst Mr Nye’s views were similar to those expressed by Mr Jones, he more readily accepted that the plaintiff's employment had resulted in aggravation of his pre-existing underlying condition, although he too thought that the consequences of aggravation "were temporary and under the circumstances
employment has not had a permanent effect and in this regard the specific
incident is considered to have been insignificant." He also felt that any progression over time of the multilevel degenerative disease in the plaintiff's lumbar spine present from 1997 and shown by the radiology had been minor.[43] However, based on the materials before me, I am unable to account for Mr Nye's reference to radiological film which included film he said was obtained on 8 April 1999.
[43] DCB 34.
67 In the final analysis I have preferred the opinions expressed by the plaintiff's medico-legal specialists for two reasons. Firstly, because their conclusions generally accord with the opinion expressed by the general practitioner who, having treated the plaintiff in respect to his back condition over many years, probably best understands the history concerning his back condition and treatment. Secondly, and more specifically, because each of these specialists appear to have given weight to the evidence that I have found proven, that is that following the lifting incident the plaintiff’s continued to perform heavy and demanding duties and his lower back remained symptomatic and painful, a state of affairs that by mid-2006 drove him to accept a redundancy package.
68 As my discussion of their reports below indicates, in arriving at this conclusion I have also allowed for some differences in the histories received. For example, Prof Myers appears to have been told that in 1997 the plaintiff was treated for pain in the back and left knee and from the history he received Mr Dohrmann no doubt assumed that left leg, rather than right leg pain was reported following the lifting incident.[44] Nevertheless the specialists' reports prepared in October 2010 and particularly Prof Myers' report indicate that they had regard to radiological evidence and they showed a reasonably good understanding of relevant factual issues and of how the plaintiff articulated his complaint.
[44] PCB 49.
69 Commencing with Mr Dohrmann, I note that he was told that:
• after the lifting incident the plaintiff had low back and left leg pain; •
following the lifting incident the plaintiff was encouraged to return to work at the earliest opportunity in non-physical supervising roles;
•
over subsequent months the plaintiff continued working having regular physiotherapy from a company physiotherapist;
•
the plaintiff eventually returned to normal duties but tried to avoid the excesses of heavy lifting;
•
there was a slow partial improvement but eventually the plaintiff did "too much" again;
•
the plaintiff continued working between 2000 and 2006 despite constant pain;
•
the plaintiff wanted to work and play an active role despite his difficulties;
•
the plaintiff felt "less and less energy in his body, and more and more pain" and encouraged by the prospect of a redundancy package he elected to cease work in 2006;
•
the plaintiff took this package "because he was struggling to continue on account of pain."[45]
[45] PCB 33 and 36.
70 As I have already mentioned Mr Dohrmann clearly acted on the basis that there was a history of left leg symptoms from the date of the lifting incident when he diagnosed chronic back pain and referred left leg pain with evidence of radiculopathy due to lumbar spondylosis and disc degeneration at several levels, particularly at L3-4. Amongst other things, he agreed with the Medical Panel diagnosis of aggravation of pre-existing lumbar degenerative disc disease.[46] He predicted that the plaintiff was likely to continue experiencing back and leg pain for the foreseeable future and that he was unlikely to respond significantly to any particular forms of therapy.[47]
[46] Other than the summary contained in Mr Hunt's report at PCB 44 the Medical Panel's opinion was not included in the materials tendered at hearing.
[47] PCB 36.
71 Mr Hunt was told that:
•
the lifting incident had caused severe pain in the plaintiff's back, the injury was reported and the plaintiff was referred to the company's physiotherapist;
•
despite ongoing lower back pain and symptoms the defendant encouraged the plaintiff to continue working on light duties with no lifting for two weeks before the plaintiff returned to his normal duties involving heavy lifting, bending and twisting;
• the plaintiff purchased a back brace to wear at his workplace; •
between 2000 and 2006 the plaintiff often experienced severe pain in his lower back with pain developing in both his legs, with the left leg pain being more severe;
• in 2006 the plaintiff chose to accept the redundancy package offered.[48] [48] PCB 40
72 From the history recounted in his report Mr Hunt clearly accepted that, firstly, the lifting of heavy print rollers throughout the course of the plaintiff's employment had accelerated lumbar spondylosis and that, secondly, the lifting incident involved an acute injury to the plaintiff's lumbar spine which rendered the lumbar spondylosis symptomatic with the development of lower back and leg pain symptoms.[49]
[49] PCB 44-45.
73 Lastly, Prof Myers was told that:
• back pain which had its onset in 1997 became severe following the lifting incident when the plaintiff suddenly developed severe pain in the low back with pain extending into the plaintiff's legs later on; and • the plaintiff continued to work "but was forced to go onto light duties for a time although he was required to return to full work activities until he was finally retrenched when he was unable to cope because of ongoing pain."[50]
[50] PCB 49.
74 Having also viewed the MRI film Prof Myers noted "severe degenerative intervertebral disc disease as the L3/4 and L4/5 levels." He diagnosed aggravation of pre-existing, previously asymptomatic degenerative intervertebral disc disease due to repeated strains being placed on the plaintiff's back in the course of his employment.
75 When making his report it seems that Prof Myers was also asked to comment on the opinions expressed by Dr Ristevski, Mr Dohrmann, Mr Jones and Mr Nye. As he indicated in this report, Prof Myers strongly and unequivocally rejected the opinions of the defendant's specialists including Mr Jones' view that the plaintiff's employment was not a contributing factor to his back complaint and, if it was, his further opinion, shared by Mr Nye, that the plaintiff's employment only had a temporary impact on the underlying condition.[51]
[51] PCB 51-53.
76 After 20 October 1999 the plaintiff continued using his back in stressful circumstances performing heavy work. The strong inference in this case is that this aggravated and worsened the condition of his lumbar spine particularly in August 2000 and again from or around mid-2006.
77 Accordingly, the plaintiff has satisfied me that throughout the course of his employment from 20 October 1999 and particularly on the date of and following the lifting incident, the heavy work performed by him probably aggravated pre-existing degenerative disease which has remained symptomatic.
78 Moreover, the compensable injury probably resulted in additional and permanent impairment which continues to make a material contribution to both pain and suffering and pecuniary loss consequences, although the extent of these consequences requires further consideration.
79 I now turn to consider the loss of earning capacity claim which the plaintiff must establish in accordance with the requirements of s134AB.
Loss of earning capacity consequence under paragraph (a) of the definition of serious injury
80 In relation to his loss of earning capacity claim, in addition to the narrative requirements of loss of any capacity under paragraphs s134AB(38)(e), (f) and (g) of the Act (as amended), the plaintiff was required to prove that at the date of hearing his loss, as measured by reference to the statutory formula, is 40 per centum or more and that, after the date of hearing, a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.
81 The loss of earning capacity is measured by comparing the income the plaintiff is earning or capable of earning in suitable employment at the date of hearing ("the after-injury earnings") and the income that the plaintiff was earning or was capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred ("the without-injury earnings").
82 The income compared is gross income from personal exertion, expressed at an annual rate.
83 A statement of calculation of the plaintiff's loss of earning capacity was submitted to the Court. Subject to a determination that the plaintiff's without- injury earnings were to be assessed using the income earned in the 3 years before and in the 3 years after he accepted his redundancy package, it was conceded that $94,229 gross per annum, the amount earned by the plaintiff in the financial year ending 30 June 2006, probably most fairly reflects the plaintiff's earning capacity had the injury not occurred.[52]
[52] TN142.
84 In this application the defendant submitted that if the date of injury was the date of the lifting incident, the comparison for the purpose of determining the without-injury earnings must involve the three years before and three years after the lifting incident. Were this so, according to the defendant there would be no difference between the plaintiff's without-injury earning capacity and the plaintiff's actual earning capacity.
85 I have concluded that the defendant's argument is misconceived. Essentially, for the purpose of this application, I have accepted that the lifting incident aggravated and rendered more severely symptomatic an already degenerate lumbar spine. However, the onset of incapacitating work-related back pain occurred in the period immediately prior to his redundancy in late July 2006 when by reason of his symptomatic back condition the plaintiff said he felt unable to continue working.
86 In Grech v Orica Australia Pty Ltd,[53] in the course of his discussion of the difference between injury and the consequences of injury, Appeals Justice Ashley made the following relevant observation:
"Suppose that a worker suffers the onset of incapacitating back pain on a particular day at work, but that the same is a manifestation of compensable injury attributable to employment strains over a period of years, such strains having contributed to spinal degeneration and so set the scene for the emergence of incapacitating symptoms. How should pre-injury average weekly earnings then be calculated? Should they be calculated at the time of the first employment strain, or the last, or some other time? And what happens if the breakdown occurs whilst the worker is at home? The practical answer has been that pre-injury average weekly earnings have always been calculated by reference to the worker's earnings at the time of development of incapacitating symptoms.
Much the same considerations apply when one is considering "current work capacity" and "suitable employment". Each of these terms is defined in s.5 (1), the definitions referring to the worker's "pre-injury employment". The definitions only work if the external manifestation of unwellness is treated as injury."[54]
[53] [2006] VSCA 172.
[54] Ibid paragraphs 74 and 75.
87 Drawing on His Honour’s reasoning above, in my view and for the purpose of s134AB(38)(f), in order to reach any fair measurement of a worker’s loss of earning capacity where, for example, injury arises out of or in the course of, or due to the nature of employment on or after 20 October 1999, “injury” should probably be equated with the time of the development of incapacitating symptoms. This means that in this application $94,229 gross per annum is the without-injury earnings figure.
88 In this case, I must consider the possibility of employment following the plaintiff's injury by reference to the plaintiff's physical capacity for employment and with due regard to the various factors on which the definition of "suitable employment" in s5 of the Act elaborates. The ultimate concern is whether the plaintiff has a physical capacity for work which, if exercised, would result in him exceeding the statutory threshold of 60% of gross income earned from personal exertion.
89 I was told that since taking a voluntary redundancy the plaintiff has not sought any employment, undergone any retraining or attended in the rehabilitation programs as he believes himself to be totally incapacitated for any form of employment.
90 As I have already mentioned, the onus is on the plaintiff to establish that, after appropriate rehabilitation or retraining, injury-related impairment of his lumbar spine permanently restricts employment options. The determination of this issue also takes into account the reasonableness of his attempts, if any, to participate in rehabilitation or retraining and he must prove any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
The Vocational Material
91 The plaintiff tendered and relied on an Employment Assessment dated 17 February 2010 prepared by Human Resources Consultant, Louise Meilak. Ms Meilak is employed by a recruitment agency, Flexi Personnel.
92 It appears that Ms Meilak interviewed the plaintiff, obtained a detailed history of the plaintiff's work experience, background, injury and treatment, his activities and his account of his physical restrictions. She also said that she took into account the plaintiff's affidavit and without identifying these, the plaintiff's medical reports. The report itself only mentions extracts from the reports submitted by neurosurgeons, Mr Dohrmann and Mr Nye in July and November 2009.
93 Ms Meilak was purportedly asked to provide a report regarding the plaintiff's "realistic prospects of being able to gain suitable employment given his
current incapacity for work as a consequence of the injuries he sustained
whilst employed as a printer with Amcor Limited."[55]
[55] PCB 59.
94 I have ignored those parts of the report which express Ms Meilak's views on, for example, the difficulty confronting the plaintiff in finding suitable alternative employment or on his capacity for suitable employment.
95 Generally speaking, the information obtained by this recruitment specialist helped me more fully assess a number of the factors on which the definition of "suitable employment" in the Act elaborates. For instance, it assisted me in finding that, amongst other things:
• the 62 year old plaintiff is not a man of letters; • the plaintiff's comprehension of forms and his written English language skills are limited; • the plaintiff's experience and skills over a long working life are confined to manual occupations and particularly work as a printer; and • the plaintiff has very basic computer and administration skills. 96 I have already summarised the medical opinions relevant to my determination of the loss of earning capacity component of this application. Based on all the evidence, I was satisfied that:
•
the plaintiff has no current capacity to return to his pre-injury employment or heavy manual work;
•
his education, experience and work history are confined to manual work and working as a printer;
•
were he to return to any form of employment it would require restrictions on repeated bending, unrestricted lifting, twisting and prolonged standing or sitting;
•
his English language skills are limited which when combined with the nature of plaintiff’s injury, his age and level of education indicate a probable inability to undergo occupational retraining; and
•
having regard to, amongst other factors, the plaintiff's incapacity, pre-injury employment, age, education, skills and work experience he is probably not capable of earning in suitable employment in accordance with the amended definition contained in s5 of the Act.
97 Accordingly, applying the test under the Act, by reason of the ongoing impairment of the plaintiff's lower back:
•
I find that the plaintiff has a loss of earning capacity of 40% or more and that he will, after the date of hearing, continue permanently to have a loss of capacity which will be productive of a financial loss of 40% or more;
•
I am satisfied that rehabilitation and retraining are unlikely to improve the plaintiff's capacity for employment or to improve it to a level that would take him over the statutory threshold; and
•
the plaintiff has satisfied me that, when judged by comparison with other cases in the range of possible impairments or loss of body function, his loss of any capacity is fairly described as more than significant or marked and as being at least very considerable.
98 As the plaintiff is entitled to leave in respect to his loss of earning capacity consequences I am not required to separately determine the pain and suffering consequences is aspect of this application.
Orders 99 In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect of pain and suffering and pecuniary loss damages for injury to his lumbar spine suffered throughout the course of his employment with the defendant from 20 October 1999. I will hear from the parties as to the making of appropriate orders.
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