Ali v Victorian WorkCover Authority
[2022] VCC 196
•2 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02657
| MOHAMMAD ALI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2022 (e-hearing) | |
DATE OF JUDGMENT: | 2 March 2022 | |
CASE MAY BE CITED AS: | Ali v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 196 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to spine – psychiatric impairment – pain and suffering – loss of earning capacity – substantial organic basis
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335(2)(d)
Cases Cited:Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering & Anor v McKenzie [2014]; Richter v Driscoll & Ors (2016) 51 VR 95
Judgment:Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Ms M Fudim | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr P Lamb | IDP Lawyers Pty Ltd |
HER HONOUR:
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) in relation to an injury suffered by the plaintiff while working for Tender Choice Foods Pty Ltd (“the employer”) on 30 November 2016 (“the said date”).
2Predominantly, the application was brought pursuant to clause (a) of the definition of “serious injury”.[1] The relevant body function is the lumbar spine. There was also an application for psychiatric impairment pursuant to clause (c) if the Court found a non-organic pain disorder driving the plaintiff’s current condition.[2]
[1] Transcript (“T”) 3
[2] Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227
3Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
4The impairment of body function must be permanent, in the sense it is likely to continue into the foreseeable future.
5Under the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described (at the date of the hearing) as being “more than significant or marked” and as being “at least very considerable”.
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8The word “severe” in clause (c) is a word of stronger force than the word “serious”.[3]
[3] Mobilio v Balliotis [1998] 3 VR 833 at 846
9A chronic pain syndrome can result in an impairment under clause (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a chronic pain disorder which meets the severe criteria of a claim under clause (c).[4]
[4] per Ashley JA in Veljanovska v Socobell Oem Pty Ltd (supra)
10In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Meadows v Lichmore[6] in reaching my conclusions.
[5] (2005) 14 VR 622
[6] [2013] VSCA 201
14The defendant’s case was primarily that the Court could not find a substantial organic basis for the consequences and if that finding was made, it was very difficult to disentangle the physical and psychiatric causes. If it was a psychiatric case, the consequences were not “severe”. Further, the plaintiff had not suffered the requisite loss of 40 per cent.[7]
[7] T4 - Mr Doig’s view of capacity
15The plaintiff swore two affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
16The plaintiff was born in February 1988 in Pakistan and is currently aged thirty-four. He attended school to Year 8 and then worked in a number of jobs in Pakistan, including as a painter, shoemaker and rickshaw driver. He has limited English skills. He can read English. He needed an interpreter at times during the hearing.[8]
[8] T8
17In May 2013, he came to Australia by boat. He spent a month in detention on Christmas Island and then a month in detention in Darwin. He then moved to Melbourne and was not able to work for an extended period due to his visa status. Prior to starting with the employer, he was in good health.
18In late 2015, he started as a machine operator on a casual basis full time in the employer’s food processing factory. His work involved a large amount of manual handling, including carrying trays of meat, packing them into boxes and packing boxes onto pallets. The work was fast paced and physically demanding (“the duties”).
19In the financial year 2015-2016, the plaintiff’s taxable income was $14,507.
20On 30 November 2016 (“the said date”), the plaintiff was required to get rolls of plastic to put into a machine and in the process of lifting one of the larger rolls, he felt pain in his lower back (“the incident”).
21The plaintiff working, thinking the pain would go away. That night, he went to his doctor, Dr Ebrahim Pishan, who prescribed medication and put him off work for two days.
22The plaintiff returned to work and pushed on with the pain. On 8 December 2016, he saw his general practitioner, Dr Shahroze Khan.
23The plaintiff continued to work, but by the end of December that year, was forced to stop due to his back pain, and has been unable to return to work since.
24His treatment included physiotherapy and his general practitioner, who referred him to a number of specialists, including Dr Gassin, pain specialist, whom he first saw in June 2018; Mr Etherington, orthopaedic surgeon, whom he first saw in July 2018, and Professor Bittar, neurosurgeon, whom he first saw in February 2019.
25As of October 2019,[9] the plaintiff had been advised his back condition was best managed conservatively, as well as having physiotherapy. He started a pain management program but was unable to continue it.
[9] Plaintiff’s first affidavit
26His back pain and inability to work led to a deterioration in his mental state and he was referred for treatment with psychologist, Ms Shagufta Riaz, and, more recently, Dr Geoffrey Hogan, psychiatrist.
27The plaintiff’s medication then included Pristiq and Seroquel daily and seeing Dr Hogan about every three weeks. He was no longer seeing the psychologist, because he could not afford to.
28His quality of life had then been severely impacted by his lower back injury. He was a young man, but now had constant pain in the lower back, which fluctuated in intensity, depending on his activity and, on occasions, increased for no apparent reason.
29The pain was typically an aching and burning sensation across his lower back and into both legs, and he also experienced pain in both feet and a burning sensation in the soles of his feet.
30The plaintiff was then significantly restricted by reason of his lower back injury and had difficulty performing tasks involving lifting, pushing, pulling, twisting, bending or tasks in general, which placed a strain on his lower back.
31His mental state had deteriorated as a result of constant pain, and he was often anxious and depressed and became angry and frustrated easily. He lost self-esteem and lacked motivation, and at times hated himself.
32He had experienced chest pain a number of times and on two occasions, had been to hospital. He did not know the cause of his pain.
33He has used heavy medication, which caused his chest pain and dizziness, which was noted in medical reports, particularly having taken Tramadol.[10]
[10] T22
34His sleep was disturbed. It had improved in recent times with the prescription of Seroquel, but he often found it hard to sleep and woke due to pain. He was often tired and lethargic during the day.
35He was devastated that he could not work. He had come to Australia to start a new life and wanted to work so he could support his family back home and also hoped to start his own family. His dreams had been shattered.
36Prior to his back injury, he was active with friends, including playing snooker and soccer casually and going out on weekends. Because of constant pain, he had very little interest in seeing other people.
37At the time of his injury, he believed he was earning approximately $1,300 gross per week. He was no longer able to work by reason of his constant pain and physical restrictions.
38Dr Khan referred him to Dr Robert Gassin, pain specialist, whom he saw in June 2018.
39In January 2019, the plaintiff had a CT-guided epidural injection into his lower back organised by Dr Khan. No surgery has been suggested.[11] He has had limited response to the injections – just three or four hours – and then like he was before, and then extra pain, and after two or three days, like he was before.[12]
[11] T24
[12] T25
40In November 2020, Dr Khan referred him to another pain specialist, Dr Ali Mehr, whom he saw on 23 September 2020. Dr Mehr referred him to a pain management program, however, WorkCover did not approve the program.
41In November 2021, Dr Khan referred the plaintiff to see a gastroenterologist as he developed stomach pains from his medication.
42The plaintiff continues to see Dr Hogan and Dr Khan once a month. He does exercises for his back at home every day, as shown by his physiotherapist.
43He currently takes Tramal, 200 milligrams a day for back pain; Lyrica, 25 milligrams, three tablets a night, for nerve pain, and Dothep, 75 milligrams, two tablets at night, for depression. Sometimes, he smokes cannabis to help with his back pain.
44He continues to suffer from constant back pain, fluctuating in severity, which worsens with prolonged sitting, standing and walking. His back pain is worse in colder weather. He has to avoid sudden movements and bending his back.
45He sits to put on his shoes and socks. He gets pain in both legs and numbness in his right leg. He feels a burning sensation in the soles of his feet and when he walks, his legs feel achy and sore in the bones.
46He continues to be woken by back pain several times a night, and feels tired during the day, and sometimes has to have a sleep.
47He can drive locally; however, after about fifteen to twenty minutes, he gets increased pain in the back of his legs.
48He is constantly anxious about his back pain and feels down most days. He feels like his life has been ruined by his back injury and he feels hopeless about the future. He has little energy or motivation to do anything. He feels antisocial and avoids seeing people if he can.
49When asked about the effect of his mental health on his current condition, he stressed his problems were related to pain. The main factor was the pain that interfered with his socialising. His quality of life was affected by pain. He could not do activities because of his physical inability. He feels down and worried because of lower back pain.[13]
[13] T9
50He is currently on a bridging visa, and because of the status of his visa, he is no longer in receipt of SRSS payments.[14] He does not know whether he will be permitted to stay but denied that was quite distressing for him:
“… Because I - my mum passed away. … I have a[n] injury, a physical injury, so I - many time I tried to do something for myself, but I stand - I - I stand for my right, I stand for - to fight till my right, you know.
… the thing is because from the day when I got injured and also I've lost my mother, so basically I figured my life has ended already, so I - it doesn't worry me.”[15]
[14] T12
[15] T11
51When his mother died about three years ago in Pakistan, he could not go to the funeral due to his back pain, as he was worried about his ability to withstand the long flight.
52He lives in shared accommodation with two friends who do most of the cleaning and cooking now. Pre injury, he shared equally in these tasks. Sometimes he does grocery shopping, however he avoids carrying heavy bags. He can lift very light things and do light shopping.[16]
[16] T21
53Pre-injury, he enjoyed gardening. He mainly loved planting plants, but now is rarely in the garden due to back pain.
54Prior to his back injury, he enjoyed an active lifestyle and had lots of friends and was social. He played snooker with his friends once a week and soccer about twice a week. He now rarely plays snooker due to his back pain and does not remember when he last played soccer after his injury. The pain destroys him “everywhere,” affecting his social life.[17]
[17] T21
55He has not worked at all since December 2016, and has very little education and transferable skills. His English is poor. He has not been offered any retraining by WorkCover; however, he doubts he could do any anyway.
56His back pain is unpredictable and can vary from day to day and from hour to hour. He cannot sit or stand for long, and he cannot concentrate for long due to his medication and pain levels.
57He does not believe he can work as a packer, product assembler or machine operator due to his back pain and lack of concentration. He also does not believe he can work as a production clerk. His English and computer skills are too basic for that role.
58He has not done any courses or other retraining since his injury. He had not considered a computer course. Going back to school really depended on his English.
59He is currently not looking for a job, nor has he since 2016. His pain does not give him motivation.[18] He denied that with a bit of computer training and some more English, he would be more employable. He did not like using a computer. He agreed he told Recovre that he was not ready to return to work at the moment because of physical and mental factors, with the main thing being pain.[19]
[18] T14
[19] T15
60The suggested job of production clerk had not been mentioned to him. Whether he could sit and stand depended on his pain. He cannot push himself, even on a good day. Probably half-an-hour in the afternoon he could do a job, it depended on his pain.[20]
[20] T18
61He had not stood up while giving evidence “because I can’t stand in front of you guys because I have respect for you guys”.[21]
[21] T18
62There was no re-examination.
Treaters
63The plaintiff was referred to Complete Care Physiotherapy, where he saw Asmit Yadafav from 4 January 2017. He had five sessions thereafter, and as at April 2018, was attending a community-based rehabilitation program at Monash.
64The plaintiff was referred to Monash Health Community Physiotherapy in 2017, where he saw Julie Paxino.
65The plaintiff was referred by Dr Khan to Pain Injury Solutions – Doveton Osteopathy, in 2019.
66The plaintiff has been under the care of Dr Khan of First Health Medical Centre in Hampton Park.
67The plaintiff presented to the rooms on 8 December 2016 with complaint of severe lower back pain since the previous week lifting at work.
68In his most recent report of June 2021, Dr Khan detailed the plaintiff’s treatment to date.
69He noted the plaintiff’s medications included Dothep, 25 milligrams nocte, which helped with his mood and sleep. The plaintiff took Tramal, 150 milligrams BD, for back pain.
70Dr Khan believed the plaintiff’s back pain was a result of his work, which involved heavy lifting and repetitive bending. He considered the plaintiff needed long-term physiotherapy, hydrotherapy and pain management, and would also benefit from cognitive behavioural therapy through a psychologist and regular review with his psychiatrist.
71Dr Khan did not believe the plaintiff was the right candidate for surgery as he was quite young. All conservative methods should be tried before any invasive procedures are recommended. Further treatment will depend as per specialist recommendation.
72Dr Khan thought the plaintiff may need retraining as he did not think it advisable to return to his pre-injury duties.
73The plaintiff attended Dandenong Hospital Emergency on 30 May 2017, describing months of chest heaviness, which he stated was associated with the use of Panadeine Forte, which he took for chronic back pain. The diagnosis was chest pain NEC.
74The plaintiff attended Emergency on 22 December 2017 with lower back pain. He was reassured and told there was no need for imaging. Regular simple analgesic as needed.
Dr Gassin – musculoskeletal and pain management
75The plaintiff was referred to Dr Gassin by Dr Khan in June 2018.
76On examination, the plaintiff appeared to be somewhat anxious-looking and had a limited range of lumbar movement. He reported pain at the L5-S1 level on all movements. There was little tenderness to palpation of the lower back, but the plaintiff was noted to have moderate paravertebral muscle hypertonus.
77Dr Gassin thought it difficult to ascertain the source of the plaintiff’s ongoing lower back pain and he thought it possible that some of the symptoms were arising from one or more of the lumbar discs; however, he suspected there were non-organic factors affecting the plaintiff’s presentation.
78Dr Gassin suggested treatment focused on self-management and rehabilitation. He requested funding for the Precision Ascend Pain Management Program.
79Following a review in September 2018, the plaintiff advised of a severe exacerbation of his pain, which kept him bedbound for about six hours. That had resolved, but he remained in significant pain, just moderately controlled.
80Dr Gassin noted the plaintiff recently had a lumbar MRI scan. He thought the plaintiff’s pain was most likely arising from one of the low lumbar discs.
81Noting the plaintiff had been accepted for the pain management program, he suggested the plaintiff limit his intake of Palexia, suggesting he return to see him once had had completed the pain management program if his symptoms remained problematic.
82The plaintiff was rereferred to Dr Gassin in April 2019, having been examined by Mr Etherington and Professor Bittar.
83Dr Gassin advised Dr Khan that, unfortunately, there was little else he could offer the plaintiff, as he had previously had a facet joint injection of cortisone which led to an increase in pain. He had started the pain management program, but had been unable to complete it due to an exacerbation of his symptoms. WorkCover was not then paying for physiotherapy or psychological support. He encouraged the plaintiff to try and remain as active as possible and try and lead his life as normally as possible despite his ongoing pain, and he made no plans to review him.
Dr Geoffrey Hogan, psychiatrist
84On the first attendance in June 2019, the plaintiff reported ongoing lower back pain, which he said had been very severe, and radiated to both legs since the incident. Current stressors, in addition to pain and limitation of activities, included financial difficulties, and he said his mother had died over the last year, having not seen her for six years.
85Dr Hogan noticed the plaintiff’s difficulty with sleep and problems with household activity. Concentration was impaired.
86In his first report, Dr Hogan detailed attendances until 1 October 2019, noting, thus far, there had been a significant improvement in depressive symptoms and that it was likely, in the long term, depressive symptoms would not impede a capacity for employment. However, he regarded the prognosis with respect to the back injury as uncertain. Certainly, then, the plaintiff was not capable of any employment and was certainly restricted in terms of daily activities.
87Dr Hogan reported in November 2021, detailing treatment until 7 October 2021.
88He then believed the plaintiff’s capacity for employment remained as per his prior report, and that the plaintiff was incapable of any manual employment because of his chronic back pain and persistent depressive symptoms.
89Given the duration of the plaintiff’s chronic pain and its intractability to treatment, Dr Hogan would anticipate that that pain was now permanent, but that was a matter for specialist comment. There were also significant and disabling depressive symptoms, including impact of memory and concentration, with respect to any employment.
Ms Riaz, clinical psychologist
90The plaintiff was referred by Dr Khan to Ms Riaz at Equilibrium Psychological Services in April 2018.
91The plaintiff accessed treatment for his depression, anxiety and back and leg pain caused by the work injury.
Investigations
92Dr Khan organised a lumbar CT scan on 15 December 2016. It was reported there was multilevel bulging of the lumbar discs on a background of constitutionally narrow canal. This resulted in mild to moderate central canal narrowing of the L2‑3, L3-4 and L4-5 levels.
93Dr Hill from Dandenong Super Clinic arranged a lumbar CT scan on 2 February 2017. It was reported a few Schmorl’s nodes were demonstrated, the largest one in the inferior endplate of L4, and may suggest early degenerative change. Otherwise, there was no other abnormality that could be identified throughout the lumbosacral spine and facet joints appeared unremarkable. There were only minimal disc bulges at L4-5 and L5-S1, worse on the left.
94Dr Khan arranged a lumbar MRI scan in March 2017. It was reported there were minor disc bulges at L2-3, L3-4 and L4-5. There was mild canal stenosis seen at L2-3 and L3-4, predominantly secondary to congenitally short pedicles.
95Dr Khan arranged a further MRI scan of the lumbar spine and S1 joints in July 2018. It was reported there was L4-5 disc bulging with congenitally short pedicles resulting in mild L4-5 canal narrowing, with effacement of the left descending nerve roots in the lateral recess.
96Dr Khan arranged a lumbar CT scan in July 2018. It was reported there was a congenitally narrowed central canal between L2 and S1 secondary to a combination of short pedicles and vertical body shape. There was no definite canal stenosis at any level; however, there was congenital mild narrowing of both L4 and L5 neural foramina. The facet joints were normal.
97An x-ray of the lumbosacral spine and sacroiliac joints in July 2018 was consistent with a demonstrated decrease in AP diameter of the lumbar canal on MRI scan.
98Following an erect weightbearing lumbar MRI scan organised by Dr McCallum, pain specialist, in September 2018, it was concluded there was mild central canal narrowing at L4-5. There was mild bilateral neural foraminal narrowing at L4-5. There were multilevel mild broadbased disc bulges.
99Dr Etherington organised a lumbar CT scan in December 2018. It was concluded there was a mild disc bulge demonstrated at the lower three levels, flattening the anterior thecal. There was no suggestion of nerve root impingement.
100The plaintiff underwent a CT-guided L4-5 epidural injection in July 2019.
Professor Bittar, consultant neurosurgeon
101The plaintiff was first seen by Professor Bittar at the request of his solicitors in November 2017. The most recent examination in February 2019 was at the request of Dr Khan. Examination findings and diagnosis were similar on both examinations.
102In 2019, the plaintiff complained of ongoing lower back pain radiating into both legs. He did not report any benefit from the L4‑5 facet joint injections. There was no evidence of radiculopathy. Lumbar spine flexion was more painful on extension.
103Professor Bittar noted the September 2018 MRI which demonstrated some canal narrowing and foraminal narrowing at L4‑5. The previous conventional MRI scan of April 2017 did not demonstrate any neurocompressive lesions.
104Professor Bittar thought the symptoms were most likely emanating from the lumbar intervertebral discs. The plaintiff’s condition remained work related.
105He thought the plaintiff was totally incapacitated for work as a result of his work-related lumbar spine condition, and that incapacity was permanent.
106As a consequence of the plaintiff’s injuries, the plaintiff did not have the capacity to perform pre-injury duties or modified duties. He would be likely to be precluded from undertaking work or activities involving forceful pushing, pulling or heavy lifting; repetitive pushing, pulling or lifting; prolonged or repetitive bending, reaching, twisting or stooping, and prolonged sitting, standing or walking.
107Professor Bittar had available the December 2016 lumbar CT scan and April 2017 MRI scan.
108In his opinion, the plaintiff presented with aggravation of lumbar spondylosis and Chronic Pain Syndrome to which his employment had been a contributing factor.
Dr Ali Kian Mehr, rehabilitation medicine and neurophysiology specialist
109Dr Mehr wrote to Dr Khan, thanking him for referring the plaintiff in December 2020. He had available the lumbar MRI scans of September 2018 and April 2017.
110On examination, the plaintiff was cooperative. He had bilateral lumbar paravertebral muscle spasm and tenderness over the left lumbosacral region. He had moderate restriction of lumbar flexion and extension.
111Dr Mehr believed the plaintiff had aggravation of the lumbar spondylosis as a result of work-related injury, and he also suffered from a Chronic Pain Syndrome.
112Dr Mehr noted the plaintiff could not carry or lift more than 2 to 3 kilograms. He could not bend more than 60 degrees or extend his lumbar spine more than 10 degrees. He could not twist and repetitively bend, push, pull and squat.
113He suggested the plaintiff needed to attend a pain management program, because Precision, at that stage, did not offer any in-person pain management program. He thought the plaintiff needed to gradually reduce his Tramadol.
114He referred the plaintiff to Dr Babak Farr and Dr Bob Agefar, pain specialists, in December 2020.
115Dr Mehr reviewed the plaintiff in April 2021.
116At that stage, the pain management program had not happened. It was potentially to help the plaintiff to have a better quality of life. Dr Mehr did not expect that much functional improvement to the extent that the plaintiff would return to pre-injury work or any heavy physical work.
117Dr Mehr reviewed the plaintiff via Telehealth in May 2021. He noted that the insurer had rejected the request for the approval of assessment for pain management.
118In a letter of 18 June 2021, Dr Mehr diagnosed chronic low back pain with radiation to the lower limbs that was discogenic, and facetogenic pain in the lumbar region.
Medico-legal evidence
Associate Professor Bruce Love, orthopaedic surgeon
119Professor Love first saw the plaintiff at the request of the insurer in January 2017.
120On examination, there was quite marked muscle spasm in the paraspinal muscles of the thoracolumbar spine. The plaintiff described pain in the midline of the lumbar spine and in the paraspinal region, and pain in both legs.
121The working diagnosis at that time was of a man best considered to be suffering from a musculoligamentous soft tissue injury of the lumbar spine. The description of the CT scan did not allow one to provide provision as to the underlying pathology.
122Professor Love thought it reasonable to accept the cause of injury was the lifting injury.
123Professor Love thought the plaintiff had no capacity for pre-injury duties and it was difficult to judge the expected duration of the incapacity.
Dr Gavin Weekes, pain specialist
124Dr Weekes first saw the plaintiff in October 2018. The plaintiff then described lower back pain radiating down both legs to the soles of his feet.
125Dr Weekes noted the CT scan of December 2016 and February 2017 and the MRI scan of April 2017.
126On examination, both flexion and extension of the lumbar spine was mild to moderately restricted, secondary to pain. There was bilateral paraspinal tenderness in the lower lumbar spine and over the sacroiliac joints.
127Dr Weekes diagnosed lumbosacral spondylosis.
128He thought the plaintiff’s employment had been a contributing factor to his condition.
129He considered there was an organic basis for the plaintiff’s pain. The plaintiff displayed some evidence of spondylosis on the imaging to date, and had significant signs suggestive of spondylosis.
130The plaintiff’s back injury has wholly contributed to the fact that he is unable to return to pre-injury or alternate suitable employment. He would have no reasonable expectation to obtain and maintain regular employment on the open market, considering his symptomatology, previous workplace experience, qualifications, lack of English, and ongoing disability.
131Dr Weekes re‑examined the plaintiff in January 2021.
132On this occasion, both flexion and extension were mild to moderately restricted, and the plaintiff was tender bilaterally over the lower lumbar facet joints and bilaterally over the sacroiliac joints. He again diagnosed lumbosacral spondylosis.
133As a consequence of the plaintiff’s lower back injury on its own, Dr Weekes thought the plaintiff would have no capacity to perform pre-injury duties. The plaintiff’s level of pain disability and level of English proficiency and lack of transferable skills would make it highly unlikely he would be able to obtain and maintain any employment in the open job market.
134On re‑examination in late 2021, there were similar findings on examination, diagnosis and views as to employment capacity.
135In his February 2022 report, Dr Weekes confirmed his views as to the plaintiff’s incapacity. Whether or not the plaintiff has the capacity to do production clerk work after further training was debatable, as Dr Weekes thought that considering the plaintiff’s level of pain and disability, any further training courses or educational courses would be difficult for him to entertain on a reliable and consistent basis. The specific physical limitations that would prevent him from performing those duties had been previously detailed, and it was likely this incapacity is to be permanent.
136Dr Weekes also noted that Recovre had stated all the four employment roles that they had identified might be achievable after further pain management. The plaintiff had undergone trials of multiple analgesics and multiple physiotherapy sessions, and had indeed tried invasive percutaneous procedures in order to help with his pain, none of which had been particularly successful. Considering the chronicity of his condition, Dr Weekes thought that the plaintiff’s incapacity to return to the workforce was most likely to continue for the foreseeable future.
Dr Joseph Slesenger, occupational physician
137Dr Slesenger first saw the plaintiff in November 2018.
138At that stage, Dr Slesenger diagnosed mechanical injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine, and chronic lower back pain with radiating features, but no evidence of radiculopathy.
139In his view, the plaintiff could not return to pre-injury duties, given their manual handling, postural demands and the repetitive nature. The plaintiff could not return to alternative suitable employment.
140On re‑examination in April 2021, Dr Slesenger noted the plaintiff continued to present with residual lower back pain.
141Clinical examination demonstrated residual restriction to his range of thoracolumbosacral spinal movements but confirmed no evidence of radiculopathy. In addition to his physical symptoms, the plaintiff also described psychological impairment, although that was outside Dr Slesenger’s expertise.
142He confirmed that the plaintiff is unlikely to be able to return to work performing suitable alternative duties on a consistent and reliable basis.
Dr James Rowe, occupational physician
143Dr Rowe examined the plaintiff in January 2022.
144On examination, there was a limited range of back movement.
145He diagnosed lumbosacral disc derangement affecting the lower two discs. He also noted Dr Hogan’s diagnosis.
146He thought the plaintiff’s work with the employer was a significant contributing factor. The prognosis was not good, and he was at increased risk of degenerative disease.
147The plaintiff could not return to work for which he was previously suited, and did not currently have the capacity for employment. The jobs suggested by the vocational assessor were not suitable.
148Dr Rowe thought each of the suggested occupations was particularly unsuitable. The roles identified required physical movements that the plaintiff was unable to perform without risk of aggravating his injury, or a higher level of education than the plaintiff had obtained.
Mr Armin Drnda, neurosurgeon
149Mr Drnda examined the plaintiff on the defendant’s behalf in August 2020.
150On examination, the plaintiff complained of soreness in the whole of his lumbar spine in the midline and just lateral to it. He also experienced bilateral leg pain.
151The plaintiff appeared to be depressed, but without embellishment. Mr Drnda found Waddell’s signs were positive – axial loading, rotation, stimulation and light touch. There was restriction of lumbar movement, and the plaintiff was quite tender along the lumbar spine, and paravertebral muscles were quite tight. All these areas were also trigger points, sending pain up the spine.
152Mr Drnda had available all investigations.
153Mr Drnda thought the plaintiff had developed a Chronic Pain Syndrome due to the interwoven mixture of physical and psychological factors. He may have a Somatoform Pain Disorder, but that diagnosis can be established only by a psychiatrist.
154Mr Drnda thought the claimed injury was an aggravation of a mild pre-existing condition, the effects of the aggravation having not ceased.
155At that stage, he thought the plaintiff did not have a capacity for his pre-injury work with or without restrictions, and did not have a capacity for suitable employment.
156Mr Drnda thought the plaintiff’s symptoms were not due to functional overlay or exaggeration and that his condition was a combination of physical and psychosocial factors.
157He thought the plaintiff’s employment was a significant contributing factor to the onset of his lower back and psychological conditions.
Dr Leon Turnbull, psychiatrist
158Dr Turnbull examined the plaintiff in January 2021.
159He thought that since the injury, the plaintiff had developed mood symptoms and that a Chronic Adjustment Disorder was a reasonable diagnosis; that is, the plaintiff is mentally consumed by his physical difficulties, with social ones added into that, he probably did not respond particularly well to his mother’s death, and continued to be psychiatrically dysfunctional.
160If it is established the plaintiff’s physical condition is work related, that seems to be the main driver of his psychiatric condition. Therefore, his psychiatric condition is indirectly work related.
161Dr Turnbull thought there was a partial incapacity for work on psychiatric grounds.
Vocational evidence
162In the Flexi earnings report dated 1 February 2022, wage rates for a packer were assessed at $21.99 gross per hour (after three months) and $22.26 gross per hour (after twelve months), a product assembler at $20.92 gross per hour, a machine operator at $20.92 gross per hour, and an entry level production clerk at $20.33 gross per hour.
The Defendant’s medical evidence
Mr Greg Etherington, spinal surgeon
163Mr Etherington treated the plaintiff from 2018 to 2019.
164In his August 2018 report, Mr Etherington noted, as of July 2018, the plaintiff’s main concern was an axial lumbar pain.
165Mr Etherington’s impression at that time was the plaintiff had persisting lumbar and bilateral S1 pain, the cause of which was unclear. He organised for a CT scan, MRI scan and x-ray of the lumbar spine and S1 joints.
166On re-examination in October 2018, Mr Etherington did not have those results and emphasised he needed to see the recent imaging studies. He also gave the plaintiff a form for bilateral L4-5 facet joint injections. He noted he was to see the plaintiff after the injection.
167When re-examined in February 2019, the plaintiff said, after the injections, there had been no change in his pain, either for the better or the worse, and, specifically, there was no effect from the local anaesthetic.
168Going through what he could do with his imaging, Mr Etherington really could not find a definite cause for the plaintiff’s pain.
169Mr Etherington noted the plaintiff had been seeing Dr Gassin, as well as Ascend Pain Management and he had been seeing Professor Bittar recently for medical reports.
170Given the plaintiff’s clinical situation, as well as all of the imaging findings, he did not think the plaintiff would be an operative candidate for the future and that he would continue to be an ongoing problem. He suggested the plaintiff reconnect with pain management, and treatment would have to go from there. He made no definite arrangement to see him in the future.
Medico-legal evidence
Dr Graeme Doig, orthopaedic surgeon
171Dr Doig examined the plaintiff at the request of the plaintiff’s solicitors in January 2022.
172He noted that, in terms of current complaints, the plaintiff had now developed significant psychiatric problems which were also affecting his ability to return to work. On questioning about his current musculoskeletal symptoms, he described total body pain.
173On examination, there was no deformity and no areas of acute tenderness.
174Dr Doig diagnosed a soft tissue injury to the lower back with intervertebral disc protrusions on his medical imaging, on a background of congenital spinal stenosis. He thought the plaintiff was now presenting with a chronic pain type of picture, with secondary psychiatric issues which were out of his expertise. The prognosis, in the presence of chronic pain and secondary psychological issues, was extremely poor.
175He noted the plaintiff’s medical imaging revealed intervertebral disc protrusions only, with no obvious rupturing of the disc.
176With respect to his back condition, the plaintiff would have a less than 10 kilogram- lifting, pushing and pulling restriction, with limited bending and twisting through the spine. He required breaks from prolonged sitting and driving on a permanent basis.
177With those restrictions, the plaintiff was not fit for pre-injury employment, and in view of his age, education, previous work experience, including a poor command of English, he would find it extremely difficult to find gainful employment in the future, and would require retraining and upgrading of his English skills to allow him to do so.
178If an appropriate position could be identified with the list of restrictions, the plaintiff should be able to upgrade to normal hours from a purely musculoskeletal perspective. In view of his time out of the workforce, restricted hours initially would be helpful, perhaps four hours, three days a week, with alternative days off to recover, but he would find it extremely difficult to return to fruitful employment at this stage.
179Dr Doig thought the plaintiff would find it difficult to work as a packer, product assembler and machine operator, as these jobs would be too physically demanding. The entry-level production clerk job would be more suitable, but it would require upgrading his English skills and further retraining, and restricted hours would be necessary.
180He thought the plaintiff’s English skills appeared reasonable and, if he could undertake computer training, then this employment position, from a purely musculoskeletal perspective, would be an option.
181Dr Doig provided a supplementary report addressing the vocational options. He was asked to comment on the effects of medication and also whether the plaintiff had a realistic prospect of working as an entry-level production clerk on a permanent and reliable sustained basis.
182In his view, the plaintiff does not have a realistic capacity for suitable employment as an entry-level production clerk on a permanent, reliable and sustained basis. This incapacity will be permanent. In addition to physical restrictions, the plaintiff’s use of sedating medication will affect his ability to concentrate. From a purely physical perspective with restrictions in place, the plaintiff, with an ergonomic set-up and supportive employer, should be able to undertake the duties required as an entry level production clerk without the risk of re-aggravation of his spinal condition.
Dr Philip Haynes, occupational physician
183Dr Haynes examined the plaintiff in January 2022.
184On examination, there was restricted flexion and lateral flexion.
185Dr Haynes thought the available investigations had shown minimal abnormal findings. In his view, the plaintiff’s back pain could not be explained on any organic basis in regard of the investigations performed and he thought he was suffering from chronic pain of non-organic origin. In his opinion, the diagnosis was that of chronic lumbar back pain of non-organic origin.
186Dr Haynes considered ongoing back pain remained related to heavy lifting described in the course of work and that the chronic lumbar pain condition remained materially contributed to by employment.
187If the plaintiff is required to undertake repetitive bending and repeated lifting of 15 kilograms or more, he did not consider the plaintiff could be considered for such a role with his pre-injury employer or another employer. He did not think the plaintiff could be considered fit for pre-injury work with another employer in view of his own reported ongoing back pain.
188However, he thought the plaintiff had a capacity for suitable employment, with a capacity to undertake four hours’ work five days of the week in a role where he is able to sit and stand as required and avoid repeated bending and lifting of more than 5 kilograms.
189Dr Haynes noted work as a packer involved activity which could be performed either sitting or standing, with handling of only small items, and the plaintiff had the capacity to do this.
190In the role of operator/packer, the work description stated either seated or standing work, with lifting less than 5 kilograms. Occasional reaching or slight bending may be required. The plaintiff had a capacity to undertake this role with restrictions for four hours, five days a week.
191The role of despatch packer may require standing or sitting, with lifting of up to 3.5 kilograms. The plaintiff had a capacity to do that job on the hours suggested.
192Dr Haynes did not consider the restrictions in regard to those roles could be considered permanent, since he thought the plaintiff’s back condition should resolve progressively over time, with reassurance, and with avoidance of aggravating activities. It was not possible to state specifically when any further improvement could be expected.
193He did not consider there to be the objective signs of illness or exaggeration, but he did consider there to be a significant non-organic component in regard to the alleged pain. There was no specific correlation between the plaintiff’s reported back pain and the investigation. There was functional overlay and abnormal illness perception issues related to the development of a chronic back pain associated with non-organic factors, mostly likely of psychological origin.
Associate Professor Saji Damodaran, psychiatrist
194Professor Damodaran, psychiatrist, examined the plaintiff in January 2022.
195He thought the plaintiff was presenting with significant anxiety, depression, rumination, preoccupation, and persistent pain, and that was dominating his clinical picture and was pervasive in nature.
196He diagnosed a Major Depressive Disorder, along with a Generalised Anxiety Disorder and also a Chronic Pain Disorder associated with the general medical condition and psychological factors and cannabis use disorder.
197The psychiatric condition was a consequential injury of the physical injury he sustained at the workplace which resulted in the development of persistent pain disorder.
198As a consequence of the psychiatric injury on its own, he thought the plaintiff had no capacity to perform suitable employment. He had no capacity to perform the suggested jobs.
Vocational evidence
199Janette Ash, vocational assessor from Recovre, provided a vocational assessment report dated 22 November 2021, having interviewed the plaintiff by phone on 16 December.
200She concluded the plaintiff presented with a very limited range of transferrable skills, having participated in limited schooling while in Pakistan, and had not undertaken any further training since that time.
201The plaintiff had only ever worked in jobs that did not involve specific skills and, in Australia, had amassed only a few months of total work experience to date, with no workforce participation since early 2017. He had not been given any vocational rehabilitation support to that date and was unsure how to access the labour market and preferred to seek work via friends.
202Given those factors, the plaintiff would be restricted to low skill employment where there were no inherent qualification of experience requirements. His relatively poor English language skills further restricted the available employment options, though he did possess sufficient spoken English language skills to perform low skill employment.
203Ms Ash noted the plaintiff possessed some basic computer skills and his literacy skills were most likely sufficient to perform very elementary administration tasks, such as recording items, weights, transposing numerical data and the like. He had shown an aptitude for enhancing his language skills and had managed to achieve a sound conversational level of English language skills without any formal training. She thought provision of further language and basic computer skills would enhance his opportunity to transfer his existing knowledge into entry-level clerk roles within manufacturing type settings.
204In light of those factors, Ms Ash suggested there were light roles available within manufacturing settings that may become suitable for him, based on the fact that experience and/or training are not prerequisites to gaining work, for example packing and process work roles. She noted that the plaintiff was not considered to possess a current work capacity within the medical reports reviewed and he would need to improve his endurance and pain management via work hardening processes prior to considering the outlined job roles.
205In summary, the employment options currently available were limited and largely restricted to entry level factory, processing and production roles. In light of the medical information available, indicating the plaintiff had no work capacity prior to August 2020, the physical suitability of the identified roles required further medical comment.
206Ms Ash suggested the role of packer with a distribution centre based in Knoxfield, ($22.46 per hour) a job requiring workers to rotate between workstations while performing packing, final assembly and quality control activities, handling very light parts, with some requirement to handle pack boxes weighing up to 6 or 7 kilograms. There were opportunities for postural rotation within this role.
207The second role was operator/packer at a manufacturing business based in Springvale ($27 per hour). The role required workers to rotate between workstations while packing and performing quality control and machine monitoring tasks. There was no manual handling in excess of 4 kilograms.
208The third role was a despatch/packer with a distribution company based in Dandenong South ($34 per hour). It was a very entry level clerk type job role requiring workers to perform some benchtop packing tasks, with the primary activities involving scanning packages, entering items, weights and placing items into crates for postage. There was not any manual handling in excess of 3.5 kilograms.
209Ms Ash concluded that the three worksite assessments demonstrated the physical demands of the actual job roles that exist in the labour market. They outlined low skill employment options that were consistent with the plaintiff’s existing skillset, and which were generally lighter in terms of physical demand, which allowed for some postural rotation across the work day. She acknowledged that the medical reports indicated the plaintiff does not possess a current work capacity and his pain management and physical endurance would need to improve prior to these roles being considered suitable.
210She also suggested work as a product assembler and machine operator. With English language skills and computer skills training, she considered the role of entry level production clerk was suitable.
Overview
211There is no dispute the plaintiff suffered a compensable injury,[22] diagnosed by most medical examiners as an aggravation of lumbar spondylosis.
[22] T4 - date of injury no longer in issue
212However, in issue was whether any current spinal impairment has a substantial organic basis.[23]
[23] T30
213In Meadows v Lichmore Pty Ltd,[24] Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[24] (Supra) at paragraphs [21]-[22]
214Counsel for the defendant relied on the opinion of Dr Gassin, who thought it was difficult to ascertain the cause of the plaintiff’s ongoing lower back pain and “suspected” there were some non-organic factors.[25] Further, Mr Etherington thought the cause of the plaintiff’s pain was unclear.[26]
[25] T30
[26] T31
215Professor Bittar diagnosed a Chronic Pain Syndrome, as did Mr Drnda,[27] who thought the syndrome had some psychological basis.
[27] T35
216It was submitted the Court of Appeal in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis[28] held that a chronic pain syndrome was a non-organic diagnosis.[29]
[28] [2007] VSCA 46
[29] T32
217Mr Doig also diagnosed a soft tissue injury with intervertebral disc protrusions, together with a chronic pain type of picture.
218Further, it was submitted Dr Mehr is a pain physician and ought to be accepted as distinguishing between an organic component and a non-organic component when he diagnosed aggravation of lumbar spondylosis and a Chronic Pain Syndrome. However, it was conceded that in his second report, Dr Mehr diagnosed discogenic and facetogenic pain in the lumbar region.[30]
[30] T33
219Also, psychiatrist, Professor Damodaran, diagnosed a specific psychiatric condition of Major Depressive Disorder and Generalised Anxiety Disorder.[31]
[31] T34
220Counsel for the plaintiff submitted this was really a sub-paragraph (a) case, with Professor Love, from the outset in 2017, of that view, supported later on by Mr Drnda.[32]
[32] T39
221There is no psychiatric evidence of a Somatic Pain Disorder, with Professor Damodaran “going down a different track” of a Chronic Adjustment Disorder. In those circumstances, the reference to a pain syndrome should be seen to be organic. Significantly, Mr Drnda thought there was no functional overlay or exaggeration.[33]
[33] T41
222Mr Etherington did not conclude the plaintiff’s spinal condition was non-organic. He was just saying he could not explain what was the basis of the condition.[34]
[34] T43
223Dr Doig provided an organic diagnosis of a soft-tissue injury to the lower back with intervertebral disc protrusion.
224Professor Damodaran thought, as a result of organic injury, the plaintiff had developed a psychological condition.[35] There is a secondary psychological consequence to a physical injury, as treating psychiatrist, Dr Hogan, described.[36]
[35] T44
[36] T46
225It was also submitted Tramadol or Lyrica would not be prescribed for a non-organic condition.[37]
[37] T47
226I do not accept that Stamboulakis[38] is authority for the proposition that a chronic pain syndrome is solely a non-organic condition. It is a diagnosis made by both physical and psychiatric examiners and must be considered in light of their opinion more generally.
[38] Supra
227Lack of a precise cause for the plaintiff’s ongoing spinal pain does not mean the explanation thereof is non-organic.
228The plaintiff has received treatment for a physical injury in the form of injections and strong painkilling medication.
229Further, as counsel for the defendant conceded, there is no suggestion in this application that the plaintiff is deliberately embellishing his symptoms.[39]
[39] T41
230Taking into account all the evidence, I am satisfied there is a substantial organic basis for the pain and suffering consequences relied on. In those circumstances, if I am satisfied that the pain and suffering consequences meet the statutory criterion, then the plaintiff will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.[40]
[40] T48
Credit
231As Maxwell P said in Haden Engineering Pty Ltd v McKinnon: “… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
232There was no issue as to the plaintiff’s credit in this application. I found him to be a truthful witness who gave credible evidence of his level of pain and disability without embellishment.
Consequences
233As counsel for the defendant advised, the defence “was in relation to diagnoses; essentially it is not in relation to range.”[41] While not instructed to make any concession, no submissions were made in relation to the pain and suffering application.[42]
[41] T36
[42] T37
234As counsel for the plaintiff submitted, there has been a spinal injury suffered in the course of employment which has continued in its consequences to the present time. The pain and suffering consequences are compelling, given the ongoing use of Tramadol – 200 milligrams a day for back pain – and Lyrica – 25 milligrams, three tablets a night for nerve pain – and other treatment modalities, together with two lumbar injections.[43]
[43] T48
235The plaintiff’s complaint of significant ongoing spinal pain was not challenged. He continues to suffer from constant back pain, fluctuating in severity, which gets worse with prolonged sitting, standing and walking. He has to avoid sudden movements and bending his back.
236I am satisfied that the plaintiff has a serious injury, given his ongoing spinal pain and restrictions and need for treatment. Significantly, he is a young, unskilled man – now aged only thirty-four – with little English, who has lost the capacity for unrestricted physical work.[44]
[44] Haden Engineering (supra) at paragraph [15], Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35], Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38]
237In Stijepic v One Force Group Aust Pty Ltd,[45] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[45] [2009] VSCA 181 at paragraph [43]
238The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it is relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
239As it is now over five years since the plaintiff’s injury and there has been little improvement despite treatment, I am satisfied his spinal impairment is permanent.
240Having satisfied the narrative requirements, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
241The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i)“without injury” earnings; and
(ii)“after injury” earnings.
242The former must be calculated by reference to the six-year period specified in s325(2)(f).
243“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
244It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
245The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
246I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.[46]
[46] Barwon Spinners Pty Ltd & Ors v Podolak (supra)
247The parties ultimately agreed on a “without injury” earnings figure of $55,744 based on thirty-five weekly pay periods during which the plaintiff earned $37,512 or $1,072 per week. Sixty per cent of that sum is $643 per week.
248Counsel for the defendant submitted the plaintiff has a capacity for work, with Mr Doig of the view he has a physical capacity for sedentary work, as did Dr Haynes, who thought the other suggested jobs were appropriate.[47]
[47] T36
249It was submitted that with a bit more English and some computer training, the plaintiff would have a capacity for work, as the vocational assessor reported.[48]
[48] Report of Janette Ash
250However, counsel conceded it was a potential capacity, not one at the moment, on that vocational assessment.[49] Recovre’s support for the various jobs was not unqualified.[50]
[49] T38
[50] T18
251Counsel for the plaintiff submitted the plaintiff is a man with limited English skills, the four suggested jobs are not maintainable now and there is no retained work capacity for reliable employment without risk of further injury.[51]
[51] Richter v Driscoll & Ors (2016) 51 VR 95
252The physical demands of the suggested jobs exceed what the plaintiff is physically capable of.[52]
[52] T43
253The packer job is a full-time role, and the worksite assessment involved a job where the heaviest packed boxes weighed 6.8 kilograms and it typically required lifting at and below bench height at a rate of less than once per hour. Manual lifting involved weights up to 6.7 kilograms, and work at workstation 3 involved the transfer of ten boxes weighing 10.3 kilograms.
254There was lifting up to 5 kilograms and also forward reaching involved in the operator/packer role.
255The despatch/packer job was unsuitable because there was no evidence that the plaintiff would be able to undertake the sort of computer entry work required for that employment.
256While Dr Haynes was supportive of the jobs suggested, it was submitted he failed to take into account what was required in terms of lifting, sitting and standing.[53]
[53] T42ff
257Further, there would be issues with the plaintiff’s medication intake affecting his ability to carry out these roles, as Mr Doig pointed out.[54]
[54] T44
258The consensus of medial opinion is that the plaintiff has a very limited capacity for work, with the majority of examiners of the view that he has no capacity for suitable employment.
259Mr Doig thought the plaintiff’s capacity was very limited and related only to the entry level production clerk role, with appropriate physical restrictions, further retraining, a sympathetic employer and a return to work on a gradual basis.
260In my view, this is not a suitable role for the plaintiff with his level of ongoing pain and restrictions, his limited education and English, who has only done manual work.
261While Dr Haynes considered the plaintiff has a capacity for the suggested roles, he thought he could only work four hours a day, five days a week. He considered that specific improvement could be expected over a period of time, but it was not possible to specify any specific timing of improvement.
262Working only 20 hours a week, the plaintiff would still suffer the requisite 40 per cent loss – being unable to earn in excess of $643 per week on a permanent basis.
263I do not believe any of the suggested jobs are suitable for the plaintiff given his ongoing significant pain, restriction and need for strong painkilling medication. These factors would impact significantly on his ability to attend work on a reliable and consistent basis.
264Taking into account all the evidence, I am satisfied the plaintiff has suffered the requisite loss of 40 per cent on a permanent basis.
265I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
266In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. By virtue of his physical condition and work background, he is not a suitable candidate for computer training and I do not believe any improvement in his English language skills would significantly improve his job prospects.
267As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of ss(g).
268Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
269Having found the plaintiff has a serious injury in relation to his (a) application, it is not necessary to consider the application pursuant to (c).
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