Aliganga v Victorian WorkCover Authority
[2019] VCC 518
•18 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03232
| OSCAR TAPANGAN ALIGANGA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27 and 28 February and 1 March 2019 | |
DATE OF JUDGMENT: | 18 April 2019 | |
CASE MAY BE CITED AS: | Aliganga v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 518 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering – loss of earning capacity – whether injury to lumbar spine is organic in nature – whether injury resulted in serious injury consequences – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokas vStaff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover Authority vNguyen [2016] VSCA 284; Herald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292; Georgopoulos vSilaforts Painting Pty Ltd & Ors [2012] VSCA 179
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J C Plunkett | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr D Churilov | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Belway Labour Management (“the employer”) on or about 27 March 2014.
2 The plaintiff seeks leave to bring proceedings for damages in relation both to loss of earning capacity and pain and suffering.
Relevant legal principles
3 The application was originally brought pursuant to subsections (a) and (c) of the definition of “serious injury” as defined in s134AB(37) of the Act, namely:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function … .
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder.”
4 During his closing address, Counsel for the plaintiff abandoned the application in relation to paragraph (c) of the definition of “serious injury”.[1] The application is in made respect both of pain and suffering and loss of earning capacity.
[1]See Plaintiff’s written submissions dated 28 February 2019
5 The impairment of body function relied upon is function of the lumbar spine.
6 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s134AB(1) of the Act, the relevant physical injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 20 October 1999. As set out in s134AB(37) of the Act, the impairment of the body function must be permanent.
7 The plaintiff’s burden of proof on the application is on the balance of probabilities.
8 In relation to the physical injury which relates to the impairment of a body function, by s134AB(38)(b) of the Act, it is the “consequences” of the bodily impairment which produce the “pain and suffering” or “loss of earning capacity” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”.
9 Section 134AB(38)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
10 Sections 134AB(e) and (f) of the Act set out the statutory formula by which the Court must measure, if relevant, the plaintiff’s loss of earning capacity prior to any grant of leave. This formula provides that the plaintiff must establish a loss of earning capacity of 40 per cent or more, as measured in accordance with the Act.
11 In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
12 In determining the application, the Court:
(a) must assess whether “the injury” is a “serious injury” as at the time the application is heard.[2] In relation to the assessment of the pain and suffering consequences of an injury, it has been held that this task is largely a question of impression or value judgment;[3]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[4]
[2]Section 134AB(38)(j) of the Act
[3]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[4]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
13 In reaching my conclusions in this matter, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor.[6]
[5](2005) 14 VR 622
[6](2006) 14 VR 602
14 The plaintiff relied upon two affidavits, gave viva voce evidence with the assistance of an interpreter and was cross-examined at length.
15 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[7] The defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross-examination.
[7]The plaintiff’s Court Book was marked as exhibit P1; the defendant’s Court Book was marked as exhibit D1
16 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and previous injuries
17 The plaintiff was born in July 1969 in the Philippines.[8] He came to Australia in 2000. He lives in Craigieburn with his wife and their youngest son. The plaintiff’s eldest son has moved out of home.[9]
[8]Exhibit P1, page 54
[9]Exhibit P1, page 54
18 The plaintiff went to secondary school in the Philippines and completed further study in commerce. He then worked for his father as a purchaser of construction goods.[10] He came to Melbourne in 2000, where he began working as a room attendant and houseman in hotels.[11]
[10]Exhibit P1, page 55
[11]Exhibit P1, page 55
19 From 2002 to 2006, the plaintiff worked for Autoliv as a labourer and process worker until he was made redundant.[12] Since this time, he has worked for various different labour-hire companies and has also worked for periods of time as a direct employee of various companies. In recent times, he has always been employed as a manual labourer doing factory jobs.[13]
[12]Exhibit P1, page 55
[13]Exhibit P1, page 55
20 In February 2013, the plaintiff began working for the company, Belway Labour Management Pty Ltd (“the company”). He worked for the company on a casual basis. He worked as part of a large labouring team at an industrial estate in Somerton which is known as the “Austrak Business Park”.[14]
[14]Exhibit P1, page 55
21 The plaintiff was employed by the company to work in the various warehouses in the estate. He would spend most of his time loading and unloading freight, lifting boxes on and off pallets. The boxes varied in weight and could be heavy.[15]
[15]Exhibit P1, page 55
22 On 30 April 2013, the plaintiff suffered an injury to his left wrist while working for the company in the “Bev/Chain warehouse” in the estate. He was lifting boxes of red wine from a B Double trailer to a pallet. The boxes were above head height in the trailer. As he was unpacking the boxes, they fell from above head height onto him and he suffered injuries, including an injury to his left wrist.[16]
[16]Exhibit P1, page 55
23 The plaintiff reported the wrist injury to the company. In respect of that injury, he came under the care of his usual general practitioner, Dr Joseph Philip. Dr Philip arranged for x-rays of his left arm and neck on 30 April 2013 and again on 2 May 2013.[17] He had an ultrasound of his left hand on 6 June 2013. He had a plaster cast put on his left wrist and was assisted by a sling. He took medication for the pain. He was put on modified duties at work.[18]
[17]Exhibit P1, page 55
[18]Exhibit P1, page 56
24 Due to his wrist injury, he was relying more on his right arm, and because of this, developed a sore right elbow. He had an ultrasound of his right elbow on 15 August 2013. He had a series of physiotherapy treatments. At this time, he was working for about five hours per day, doing a mixture of duties.[19]
[19]Exhibit P1, page 56
25 The plaintiff had a further x-ray of his left wrist on 29 October 2013. He was referred to a surgeon, Mr lshfaq Hussaini, who examined the plaintiff in October 2013 and again in December 2013 in relation to both his left wrist and right elbow.[20]
[20]Exhibit P1, page 56
26 The plaintiff remained on light duties at this time. He thinks he would have returned to full-time work once his wrist injuries recovered, if he had not gone on to hurt his back.[21]
[21]T28, Lines 17-26
The incident
27 At the time of the incident, the plaintiff was engaged in a very physical job which involved cutting and pulling thick plastic wrappings off pallets. The plaintiff deposes to the fact that this was awkward work which involved repetitive bending, reaching, twisting and pulling from heights which ranged from above head height down to about floor level.[22]
[22]Exhibit P1, page 56
28 On 27 March 2014, in the course of cutting and pulling the plastic off pallets, the plaintiff felt pain in his lower back and down his left leg.[23] He went to see the company doctor, Dr Husam AI-Harafi. Dr AI-Harafi arranged for a CT scan of the plaintiff’s lumbar spine on 31 March 2014.[24] The report of the CT scan disclosed the following:[25]
[23]Exhibit P1, page 56
[24]Exhibit P1, page 56
[25]Exhibit P1, page 70
“Alignment is normal. There is mild disc height reduction at LS/S1 with minor irregularity of the superior endplate of S1 posteriorly. Heavy ossification is present in the sacroiliac ligaments which affectively (sic) fuse the superior aspects of the sacroiliac joints. More inferiorly, the sacroiliac joints appear normal. There is no apparent sacro-iliitis.
…
There is a shallow disc protrusion at L4/5 which projects a little more towards the left, with disc just touching the left descending L5 nerve root.
At LS/S1 a shallow broad based disc protrusion is in the midline and projects towards the right, displacing slightly the right S1 nerve root within the neural canal. There is however only mild canal stenosis.
Conclusion: Disc disease at L4/5 and L5/S1 with minimal neuronal impact but no major canal stenosis.”
29 Dr AI-Harafi certified the plaintiff unfit for work from April 2014 to July 2014.[26]
[26]Exhibit P1, page 56
30 The plaintiff’s left wrist problems improved when he stopped working because he was not putting too much strain on his left wrist;[27] however, his back pain continued to trouble him and he had to start taking prescribed medication to help manage the pain.[28] He had an MRI scan of his lumbar spine on 27 May 2014. The report of that investigation stated:[29]
“… At L4-L5, there is a minor posterior paracentral disc bulge and ligamentum flavum hypertrophy; The vertebral canal remains patent. There is only very minimal neural exit foraminal stenosis identified. Only minimal contacting of the traversing left L5 nerve root in the subarticular recess.
At L5-S1, there is a broad-based posterior paracentral disc bulge with disc signal abnormality noted. There is right lateral recess and foraminal extension. There is associated right mild bilateral neural exit foraminal stenosis. There is mild contacting of the traversing right S1 nerve root in the subarticular recess.
…
Conclusion: Mild mechanical changes al L4-L5 and L5-S1 levels with mild contacting of the traversing left L5 and right S1 nerve roots in the subarticular recesses. Mild neural exit foraminal stenoses as described.”
[27]Exhibit P1, page 57
[28]Exhibit P1, page 57
[29]Exhibit P1, page 71-72
31 In April 2014, the plaintiff began having physiotherapy treatment for his back from physiotherapist, Ms Gita Khatri.[30]
[30]Exhibit P1, page 57
32 In or about August 2014, he resumed work on light duties, doing paperwork for four hours a day, five days a week. He was referred to an orthopaedic surgeon, Mr de la Harpe, who examined the plaintiff in October 2014. He continued with physiotherapy treatment and continued to take Lyrica medication for the pain.[31]
[31]Exhibit P1, page 57
33 The plaintiff deposes to the fact that from in or about September 2014 to in or about May 2015, he had no allocated duties but continued to attend the workplace.[32] He continued to attend at the workplace up until May 2015 but says he was not doing anything except sitting in the canteen. There were no suitable light duties available for him.[33] He became very frustrated and depressed by his situation.[34] He began having treatment from a psychologist, Kaming Ng.[35]
[32]Exhibit P1, page 57
[33]Exhibit P1, page 57
[34]Exhibit P1, page 57
[35]Exhibit P1, page 57
34 In January 2016, the plaintiff was assessed by a psychiatrist, Associate Professor Saji Damodaran, who prescribed Pristiq, an anti-depressant medication. The plaintiff continued to receive treatment from Kaming Ng. He was also referred to a pain specialist, Dr Zamil Karim, who examined the plaintiff in July 2016.[36] He was then referred to the Dorset Rehabilitation Centre, where he was first assessed in August 2016.[37]
[36]Exhibit P1, page 57
[37]Exhibit P1, page 58
35 An MRI scan performed on 14 September 2016 is referenced in the plaintiff’s Court Book but the full report is not included. The reference to the imaging study says that it demonstrated “lower lumbar spondylosis with Modic changes in the L5/S1 endplate but without significant neural compression”.[38] I note that there is no indication in this quote as to which side the observed neural compression is occurring. I note further, that the previous studies had demonstrated both left L5 neural compression and right-sided S1 neural compression. There is nothing in the reference which I have to the 2016 imaging study, to suggest that situation had changed at that time.
[38]Exhibit P1, page 129
36 The plaintiff commenced a pain management program at the Dorset Rehabilitation Centre, and completed the program in July 2017. The program included physiotherapy, hydrotherapy, exercise physiology, occupational therapy and psychology treatment.[39]
[39]Exhibit P1, page 58
The Plaintiff’s evidence
37 The plaintiff swore two affidavits, the first on 9 February 2018 and the second on 22 February 2019.
38 In summary, his evidence as to the pain and suffering consequences which he experiences is as follows:
Experience of pain, medication and treatment
(a) he has constant pain in his lower back that extends down into his left leg and left foot. At times he gets a burning sensation in his lower back and left buttock, down to his toes. He also gets a feeling of numbness and pins and needles in his left leg and foot;[40]
[40]Exhibit P1, page 58
(b) his pain gets worse if he sits or stands in one position for any length of time or if he walks for any distance. Bending and twisting movements cause extra pain. He constantly changes his position to get comfortable. He finds that the best position is lying down flat with various pillows, including one under his left knee;[41]
[41]Exhibit P1, page 58
(c) he avoids any activities which involve heavy lifting or strenuous use of his back. He often uses a walking stick for additional support if he is feeling unstable,[42] because he feels like he might fall over. He has had falls at home before, so he is worried about this possibility;[43]
[42]Exhibit P1, page 59
[43]Exhibit P1, page 65
(d) he continues to see his WorkCover general practitioner, Dr Rahleleh Parshekooh, about once per month[44] and his usual general practitioner, Dr Philip, for everyday problems such as blood pressure and cholesterol. He sees Dr Philip quite infrequently[45] and his psychologist, Kaming Ng, on a monthly basis. He has seen specialists to assess his need for spinal surgery and also to address his pain management issues;[46]
[44]Exhibit P1, page 63
[45]Exhibit p1, page 63
[46]Exhibit P1, pages 60, 89-97
Medication
(e) the plaintiff presently takes Lyrica,150 milligrams per day, Panadol as required, usually three every day, Pristiq (for his depression and anxiety) 100 milligrams at night, and Nexium to offset the side effects of the other medications.[47] He also rubs Tiger Balm on his back and puts Deep Heat patches on his back to alleviate the pain;[48]
[47]Exhibit P1, page 58-59
[48]Exhibit P1, page 64
Ability to sleep
(f) he struggles to sleep because of the pain, which wakes him up three to four times every night. This makes him feel tired throughout the day;[49]
[49]Exhibit P1, page 59
Activities of daily living
(g) his back injury severely restricts his activities of daily living. Before suffering his injury, he used to enjoy church activities, watching his son play basketball and cooking and hosting guests at his home. He enjoyed being part of the expat Filipino community. He loved singing and enjoyed karaoke. He now avoids all of these activities as he is limited in his ability to sit and stand and he is also embarrassed by his condition.[50] He has difficulty concentrating and thinking about things;[51]
[50]Exhibit P1, page 59
[51]Exhibit p1, page 65
(h) because of his pain, he is restricted in what he can do around the home and garden. He avoids the heavier chores such as mowing, digging, vacuuming, cleaning and scrubbing. He can do some basic activities at home, but usually in short bursts. He found that the occupational therapy that he received as part of his pain management program did help him to set daily goals and to try and pace himself with small tasks around the home;[52]
[52]Exhibit P1, page 59
(i) his wife helps him with dressing and undressing as these activities can aggravate his back pain;[53]
[53]Exhibit p1, page 65
(j) he has become very withdrawn and stays at home most of the time,[54] although sometimes he goes shopping with his family in order to get out of the house. If he is feeling good he will go in with them and carry some of the lighter things.[55] He has lost a lot of confidence. He used to be happy and outgoing;[56]
[54]Exhibit P1, page 60
[55]Exhibit P1, page 65
[56]Exhibit P1, page 60
(k) he tries to walk as much as he can to keep active. He regularly walks to the front of the house and back. He also does home exercises to keep him flexible;[57]
[57]Exhibit P2, page 65
(l) he has lost interest in a lot of things, including sex. He is angry that he is not able to help or “be there” and “be strong” for his family when he is needed, not just financially but also emotionally;[58]
[58]Exhibit P1, page 60
(m) he recently went back to the Philippines to see his mother, who is dying. He found that trip very hard on his back because of the time spent sitting on the plane. He would not have gone if it was not for the fact that his mother was so sick and he wanted to see her before she dies;[59]
[59]Exhibit P1, page 63
Psychological illness
(n) he continues to suffer from depression and anxiety. At times he has been suicidal since suffering his back injury;[60]
[60]Exhibit P1, page 60
(o) he feels sad and cries a lot. He has become very anxious. He gets panic attacks where he struggles to breathe. This happens especially when he is alone. His mental problems have severely affected his relationship with his wife, family and friends;[61]
(p) he wants to stay at home all day and not see anyone. He closes the blinds at home as that make him feel a bit better;[62]
[61]Exhibit P1, page 60
[62]Exhibit P1, page 66
Work and earning capacity
(q) due to his back injury, he has not been able to perform any employment since 2015; [63]
[63]Exhibit P1, page 60
(r) he would like to go back to work but does not feel capable of any work due to his back pain. He does not think he could be a consistent or reliable employee for anyone due to his back pain and mental health issues. His only income is Centrelink;[64]
(s) prior to suffering his back injury, he was earning income at a rate of approximately $21 per hour and when he was working full time, he was earning an income of about $800 gross per week;[65]
[64]Exhibit P1, page 66
[65]Exhibit p1, page 60
39 Under cross-examination the plaintiff gave the following evidence:
(a) he completed a business administration degree in the Philippines.[66] That course involved four years of study. After that he worked in his father’s business as a purchaser;[67]
[66]T37, Lines12-17
[67]T37, Lines 18-22
(b) his first job in Australia was with AutoLiv as a labourer and involved picking, packing, process work and product assembly;[68]
[68]T38, Lines 8-11
(c) although he speaks reasonable English, there are times when he does not pick things up and has to ask people to clarify “because of the accent”;[69]
[69]T39, Lines 7-12; see also T40, Lines 24-31
(d) he worked for about two years at Specsavers. In that job he was picking, packing and process working;[70]
[70]T40, Lines 18-23
(e) he left Specsavers to care for his young son, who had asthma. He cared for his son for a period of around nine months;[71]
[71]T41, Lines 10-16
(f) he agreed that he worked for a company called QP Management Pty Ltd while living in Perth. He commenced that role in about November 2011.[72] Initially, he said that he did not ever work while he was in living in Western Australia.[73] Later, he agreed that he was working as a cleaner at a hotel in Perth: “that’s a long time ago … you reminded me … It’s all coming back now …”;[74]
[72]T41-43
[73]T43, Lines 7-24
[74]T47, Lines 10-27
(g) he may have attended for an x-ray of his lower back due to pain from lifting while in Perth.[75] The doctor “… prescribed medication for me”;[76]
[75]T48, Lines 20-31
[76]T48, Lines 27-28
(h) he commenced work with Belway as a part-time casual in February 2013. About nine weeks later, he hurt his wrist.[77] He accepted that the document which showed his hours worked at Belway may be accurate. He accepted that his hours with Belway varied dramatically.[78] He said that his supervisor determined what hours he worked;[79]
[77]T49, Lines 1-7
[78]T49, Lines 14-22
[79]T50, Lines 6-14
(i) he accepts that following some time off after his wrist injury, he returned to work on modified duties, doing about 25 hours per week;[80]
[80]T51, Lines 16-20; T52, Lines 1-4
(j) at the time he hurt his lower back on 27 March 2014, he was working five hours per day, five days per week doing light duties;[81]
[81]T52, Lines 18-22
(k) he did not accept that three weeks after his back injury, he asked his general practitioner to fill in a report in respect of an application to become a disability pensioner.[82] He agreed that he discussed the use of a walking stick with Ms Khatri. He denied that she said that he did not need a walking stick for his condition. He said that she tried to get him to walk without it and “she did realise… that I was in pain, that I could hardly walk … .”[83] He said that the reason he uses a stick is because “I was frightened of falling … I know I was getting a bit unbalanced … there was a time when I had a fall and luckily my wife was around to help me …”;[84]
[82]T54, Lines 17-31
[83]T55, Lines 11-21
[84]T56, Lines 1-12; see also T77, Lines 24-31
(l) on 19 August 2014, he returned to work four hours per day five days per week.[85] He agreed that he told Ms Khatri that he was “getting on alright” with his return to work “because I thought I was going to get back to work and I said that four hours was ok at the time;”[86]
[85]T56, Lines 17-24
[86]T57, Lines 4-24
(m) he agreed that he told Dr Andrew Miller, occupational health consultant, that between July 2014 and January 2015, there was not much change in how his back felt.[87] He acknowledged that Dr Miller took a history of him returning to work on 19 August 2014 doing light clerical duties five hours a day, five days a week. He acknowledges that he told Dr Miller that he had been coping quite well with those duties. He said that at this time he mostly was “just sitting in the canteen”;[88]
[87]T58, Lines 5-23
[88]T58, Lines 24-30
(n) he agreed that after returning to work, between August 2014 and January 2015, he only had three days off work because of his back.[89] During this time, he also accepted that on four occasions he worked nearly 30 hours in one week;[90]
[89]T59, Lines 1-10
[90]T59, Lines 11-31; T60, Lines 1-9
(o) he agreed that he was not just sitting in the canteen during this time. He said “I was given light duties, doing paperwork, sitting down and then often, I would be sent to the canteen” because of hazards around the workplace, including a forklift moving through the area.[91] He said there were days when he was told to sit there because they did not have anything for him to do, and then sometimes “they’ll tell me to do my exercise”;[92]
[91]T60, Lines 10-15
[92]T60, Lines 22-28
(p) he was challenged as to why he had not told any doctors that he was often sitting around in the canteen when they asked him about his work duties. He said “I thought [they were] … talking of the actual work … asking me about that”.[93] He said “my mind is blank with all the medication I take … I didn’t think that … was important;”[94]
[93]T62-63
[94]T63, Lines 3-9
(q) he agreed that he would have been able to continue with Belway on light duties if that business had not moved premises to the city area;[95]
[95]T63, Lines 12-22
(r) he does not recall Dr Karim telling him that the 2016 MRI scan of his lower back was “normal”;[96]
[96]T69-70
(s) he said that the back pain makes his depression worse. He agreed that when he is very depressed, he feels that the pain is worse;[97]
[97]T78-79
(t) he said that he does not know whether he could do the 25 hours of light duties he was on at Belway, at another place of work “… because of my injury, the pain – my concentration is not good and I sometimes just get blackout. I don’t know about what I am doing, so I can’t tell you whether I’ll be good at it or not;”[98]
[98]T81, Lines 1-20
(u) he has not looked for any work since he stopped with Belway in May 2015 “because I thought who would hire me with my lower back pain … and also because of how I feel, the pain, and I don’t think I could actually do anything;”[99]
(v) he could not recall asking a doctor to fill in a form to enable him to obtain a driver’s licence. He has a learner’s permit, but has never had a full licence “because I failed the actual driving test”.[100]
[99]T82-83
[100]T85, Lines 4-31; T86, Lines 1-3 and 28-31; T87, Lines 1-6; T88, Lines 3-18
Medical evidence regarding loss of earning capacity and pain and suffering
40 Following the incident, the plaintiff continued to see his treating general practitioner, Dr Al-Harafi, who, in his report dated 22 September 2015, described the plaintiff’s symptoms in the following manner:
“Mr Aliganga started to suffer from lower back pain during his work in March 2014 after unwrapping plastic pallets.
The pain radiates to the right leg with numbness. He can walk for about 20 mins with a stick. He stated that he cannot push or pull heavy objects more than 5kg.
…
His range of movement in the lumbar spine is limited in all directions with pain, there is no leg weakness and reflexes are normal.
He did [a] CT Scan of lumbar spine on 02-04-2014 and this showed shallow disc protrusion at L4/5 and L5/S1, with slight displacement of the right S1 nerve joint.
MRI of lumbar spine on 27/05/2014 which showed disc bulge at L4/5 and L5/S1, with mild contact of left L5 nerve root and right [S1] nerve root.
…
3. At this stage he is unable to return to work since his main proble[m]s (back injury and mental issue) are ongoing … .”[101]
[101]Exhibit P1, pages 78-79
41 In a report dated 22 November 2018, the plaintiff’s current general practitioner treating his lumbar spine issues, Dr Raheleh Parshekooh, made the following observations:[102]
[102]Exhibit P1, pages 86-87
“… Mr Aliganga first presented to our clinic on the 27th March 2014 and was seen by Dr Husam Alharafi.
… Diagnosis was found to be Disc damage on L4/5 and L5/S1.
Left L5 and Right S1 nerve roots involved in the sub articular recesses neural exit foraminal stenoses...
… client’s current condition
Depression/anxiety and neuropathic pain …
… Unfit to return to work …
My client’s current capacity for work generally
None…work future seems unlikely due to as above limited movements also requires the use of a walking aid. Mentally (poor sleep, irritability and depression) … .”[103]
[103]Exhibit P1, page 86;
42 In a report dated 22 February 2019, Dr Joseph Phillip, who sees Mr Aliganga for his day-to-day ailments, reported the following matters:[104]
“…I am giving this report in the light of Oscar seeing me for his pain and other related medical issues.
Oscar had a work related back injury in 2014 and has been on work cover since then. He is managed by another GP. Oscar in my opinion will be unable to or is unlikely able to engage in any useful employment. He continues to suffer pain [restriction in his] movements and his activities of daily living, levels of happiness, enjoyment and lifestyle have been effected for the worst.
He does have an Adjustment disorder, depressive and anxious symptoms for which he was referred to a Psychologist, and is on medication. This impacts his relationships, his personal life and his moods daily … .”
[104]Exhibit P1, page 88
43 In a report dated 4 October 2014, Ms Gita Khatri, physiotherapist, observed:[105]
“… Mr Aliganga was first seen on the 22/04/2014. The initial assessment of Mr Aliganga indicated that he had severe restriction in range of motion in his back, pain in both legs and numbness/pins and needle feeling in left leg. Furthermore the Patient’s functional capacity was greatly compromised and walking was limited to 10-15 mm. This suggested that Mr Aliganga had L4/5, L5/S1 Disc disease.
“Mr Aliganga looked brighter and happier and is able to walk and manage his light duty work reasonably well. He does stretches, home exercises and does walking … however the patient continues to have significant fear of mobility, low confidence and continues to use a walking stick. He also has pain, ongoing stiffness and weak core stability, which needs ongoing physiotherapy to gradually improve his flexibility, strength and endurance. Thus Mr Aligailga (sic) will benefit from ongoing physiotherapy with the aim to improve his functional capacity, manage his back pain and improve his mobility and confidence to premorbid state ….”
[105]Exhibit P1, pages 106-107
44 In his report dated 9 November 2018, Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, diagnosed the plaintiff as suffering:[106]
[106]Exhibit p1, pages 129
“- Chronic back pain
- Chronic left-sided body pain and numbness
- History of work-related injury on 27/3/2014
- Exacerbation of lumbosacral spondylosis
- Chronic pain syndrome
- Myofascial pain syndrome
- Central sensitisation
- Depression.”
45 In Dr Aliashkevich’s opinion, having regard to the plaintiff’s persisting and refractory pain, neurological signs and symptoms, treatment and medication requirements and functional limitations as noted on examination, he was not fit either for pre-injury employment or any other suitable employment.[107] Dr Aliashkevich specifically stated that he agreed with “the opinions of Dr Karim and Dr Al Harifi that [the plaintiff] has no current capacity to perform suitable employment in a reliable, consistent and productive manner. I consider he is a high risk candidate for reinjury and exacerbation of his symptoms with any employment.”[108]
[107]Exhibit P1, pages 131-132
[108]Exhibit P1, page 132
46 Dr Aliashkevich thought that the plaintiff ought avoid the following activities:[109]
[109]Exhibit P1, pages 130-131
“- lifting and carrying weights over 1-2 kg
- regular or vigorous pushing/pulling
- using heavy tools
- heavy dragging and carrying
- turning and twisting
- squatting
- driving as a passenger over 20 min
- stooping, bending, kneeling and crouching
- climbing steps or ladders
- walking on uneven grounds
- prolonged sitting, standing or walking over 10-15 minutes
- tolerating static postures for longer than 10-15 minutes
- exposure to vibrational jarring forces
- repetitive or sustained bending to reach below the knees.”
47 In relation to the plaintiff’s pain and suffering generally, Dr Aliashkevich stated:[110]
[110]Exhibit P1, page 132
“As a result of his ongoing pain, your client is limited in his domestic, social and recreational activities. He does not do the cooking, cleaning, laundry or shopping but he did these before. He doesn't go shopping and cannot lift anything at all. He relies on a walking stick since his back injury in 2014. He is able to shower himself but his wife will help him with getting dressed. He is limited to walking or standing for about 10 minutes, and sitting will depend on the chair and be maybe for about 10 to 15 minutes. He did not drive a car before and he can travel as a passenger for about 15 to 20 minutes. If longer he will move in his seat or ask to stop the car. He previously enjoyed singing and basketball but did not do those now. He finds things are depressing now but he will listen to music, pray, watch YouTube, and his wife will go to work and she will call him when he's on his own. Sometimes he cannot be bothered moving because of the pain.
Given long-standing character of his limitations, I consider such incapacity is likely to continue for the foreseeable future.
…Your client has scored the intensity of his pain as around 7/10 … .
In my opinion, your client's prognosis is poor. He suffered from chronic pain since the stated work-related injury and requires further investigations and treatment, as outlined above. He has a number of prognostic red flags and predictors of unfavourable long-term outcome:
- failed response to previous conservative treatment
- failure to achieve sustained benefit from pain management program
- long unemployment
- depression
- overweight
- central sensitisation
- involvement in work-related injury, and
- litigation.
I am uncertain, whether he will be able to achieve any meaningful functional recovery in the foreseeable future … .”
48 In his report dated 26 November 2018, Dr James Chan, occupational physician, stated, in relation to pain and suffering:
“Mr Aliganga reported…sustaining an injury to his lower back with left leg sciatica on the 27th March 2014. Radiologically there are discal changes at L4/5 and L5/S1 on a background of degenerative changes noted. Therefore, it appears that he sustained an aggravation of underlying degenerative changes of the lumbosacral spine and then developed a secondary chronic pain syndrome…
… With regards to the second incident reported on the 27th March 2014, the onset of lower back and left leg pain occurred in the course of work based on the history provided. There has been no other history of lower back problems prior and the condition has not settled since onset. Chronic pain is considered to have a biopsychosocial model. Mr Aliganga reports psychological symptoms, these symptoms and how they contribute to his chronic pain would be best assessed by an expert in this field, such as a psychiatrist.[111]
… Mr. Aliganga currently reports pain in his lower back and left leg (goes down to outer three toes of left foot) at a baseline level of 8/10. This pain can increase to 9 to 10/10 with increased activity. The pain is increased by increased activities and interferes with his ability to sleep and affects his ADL's as noted below.
He has difficulties with squatting and kneeling. He also has difficulties with steps and stairs. His driving tolerance in a car (as a passenger, he does not drive) is up to a maximum of 15-20 minutes before he becomes more uncomfortable. Sitting tolerance is a similar duration and he reports difficulty getting out of the chair if sitting longer. Static standing tolerance is 5-10 minutes and he has difficulties walking up inclines. He reports that he can only sleep about 2-3 hours before being awakened by pain. He reports being constantly tired and needing naps of up to 30 minutes in duration at least once and sometimes more times per day. He reports difficulties with memory and concentration. His walking tolerance is also about 10 minutes before he needs to find a seat.
Mr Aliganga reports having some difficulties carrying out his personal hygiene tasks, particularly washing his feet and between his toes with his wife helping.
He does no cooking, cleaning (except washing and drying dishes for short periods and folding clothes) or gardening. He reports not liking going shopping (previously enjoyed this task). He does not drive.”[112]
[111]Exhibit P1, pages 139-140
[112]Exhibit P1, pages 138-139
The issues
The Plaintiff’s credit
49 The plaintiff was questioned closely in relation to matters affecting his credit during the hearing. Counsel for the defendant pressed the plaintiff during cross-examination about the accuracy of matters referred to in both his own affidavits and various doctors’ reports.
50 For instance, it was put to the plaintiff that he had worked in Perth and possibly injured his lower back while there.[113] He was challenged about the nature of the light duties which he performed upon his return to work following the injury to his lower back.[114] It was suggested to him that he had effectively adopted the role of a disabled person following his lower back injury, including in his use of walking stick.[115] He was challenged about the nature of his experience of pain and his alleged tendency to engage in “pain behaviour”.[116] He was asked at length about whether he had taken steps to apply for a driver’s licence.[117]
[113]T48, Lines 20-28
[114]T60, Lines 10-15
[115]T55, Lines 2-21
[116]T68-69; T74-78
[117]T85-88
51 In relation to each of these issues, the plaintiff answered all questions and proffered reasonable explanations. On occasion it appeared that the plaintiff had not been as forthright in his evidence as he might have been, for example in relation to the issue of whether or not he had ever worked while living in Perth. In the end, acknowledging the large amount of medication which the plaintiff takes and the effect that has upon him, including in relation to concentration and memory, I am unable to conclude to the requisite standard that the plaintiff deliberately misled the Court on this issue.
52 In any event, having had the benefit of observing the plaintiff while he was giving evidence to the Court and despite some observed unreliability in aspects of the giving of that evidence, I formed the view that the plaintiff was, on the whole, a co-operative witness who appeared to be doing his best to give accurate responses to the questions asked of him. He did not appear to be artful in the manner in which he gave his answers. At times he appeared somewhat distracted and confused. Overall, he was unsophisticated in his presentation to the Court.
53 Furthermore, I find that the plaintiff's account of events has remained fairly consistent throughout the period during which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court. To the extent that inconsistencies were noted in various pieces of documentation or omissions made from the plaintiff’s affidavit, it was my observation that these issues arose, at least in part, due to language difficulties.
54 After a consideration of all the evidence and in particular, the evidence of the plaintiff, I consider that he was a credible witness, in the sense of being a truthful person. I did not form the impression that he was attempting to mislead the Court or exaggerate his symptoms in relation to the key matters before the Court.
Compensable injury
55 The details and occurrence of the incident are not in dispute.
56 Apart from questioning the plaintiff’s credit, the defendant submitted that there is an issue as to whether and to what extent the pain and suffering consequences alleged by the plaintiff have a “substantial organic basis”.[118] This is also relevant to an assessment of the plaintiff’s loss of earning capacity. The key to this analysis lies in the medical reports tendered into evidence.
[118]Meadows v Lichmore [2013] VSCA 201 at paragraphs [21]-[24], per Maxwell ACJ; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover Authority v Nguyen [2016] VSCA 284
57 It is well established that in serious injury applications where this issue is raised, a two-step process of analysis should be adopted.[119] As mentioned above, the first is to ask whether there is a substantial organic basis for the relevant consequences relied upon. If the answer to that question is in the affirmative, and if the relevant consequences satisfy the statutory criterion, then the application will succeed without the need for any “disentangling” of the physical versus the psychological contributions to those consequences.[120]
[119]Meadows (ibid) at paragraph [21]
[120]ibid
Substantial organic basis
58 Each of the plaintiff’s relevant treaters gave opinions that the injury to the plaintiff’s lumbar spine was organic in origin:
(a) in his report dated 22 September 2015, Dr Al-Harafi, the plaintiff’s then treating general practitioner, described the plaintiff’s injury in the following manner:
“Mr Aliganga started to suffer from lower back pain during his work in March 2014 after unwrapping plastic pallets.
… [A] CT Scan of [the] lumbar spine on 02-04-2014…showed shallow disc protrusion at L4/5 and L5/S1, with slight displacement of the right S1 nerve joint.
[An] MRI of lumbar spine on 27/05/2014..showed disc bulge at L4/5 and L5/S1, with mild contact of left L5 nerve root and right [S1] nerve root.”[121]
[121]Exhibit P1, pages 79-80
(b) in a report dated 4 October 2014, Ms Gita Khatri, physiotherapist, expressed the opinion that the plaintiff’s symptoms were consistent with disc disease at L4-5 and L5-S1;[122]
[122]Exhibit P1, pages 106-107
(c) Mr de la Harpe, orthopaedic surgeon, expressed the view that the plaintiff is suffering from degenerative and discogenic back pain;[123]
[123]Exhibit P1, page 90
(d) Dr Zamil Karim, specialist anaesthetist and pain physician, observed that the plaintiff “describes pain located over the lower lumbar region radiating into his lower left limb down to the level of his toes”. He said that “imaging … done in 2014 shows minimal disc disease with some posterior protrusion of the L4-5 and L5-S1 disc with minimal contact of the nerve roots”. He thought that there was cause to conduct a further MRI scan, and postulated the need for “a targeted nerve root sleeve injection or an epidural steroid injection to manage his ongoing radicular pain;”[124]
(e) Mr Kaming Ng thought that the psychological symptoms from which the plaintiff was suffering were “perpetuated by constant stress from physical pain …”.[125]
[124]Exhibit P1, pages 94-95
[125]Exhibit P1, page 100
59 The plaintiff’s medico-legal experts were of the same opinion:
(a) in his report dated 9 November 2018, Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, noted that the most recent MRI (performed on 14 September 2016) demonstrated “lower lumbar spondylosis with Modic changes in the L5/S1 endplate but without significant neural compression …”. Mr Aliashkevich diagnosed the plaintiff as suffering, inter alia, from the following organic conditions related to “a work related injury on 27/03/14”:[126]
[126]Exhibit p1, pages 129
“- Chronic back pain
- Chronic left-sided body pain and numbness
…
- Exacerbation of lumbosacral spondylosis
…
- Myofascial pain syndrome
- Central sensitisation.”
(b) in his report dated 26 November 2018, Dr James Chan, occupational physician, provided an opinion indicating that the plaintiff “has sustained an aggravation of underlying degenerative changes of the lumbosacral spine and then developed a chronic pain syndrome …”.[127] Dr Chan specifically stated that Mr Aliganga reports psychological symptoms and observed that “these symptoms and how they contribute to his chronic pain would best be assessed by an expert in this field, such as a psychiatrist”;[128]
(c) Dr Leon Turnbull, psychiatrist, provided a report dated 30 November 2018. In that report, Dr Turnbull expressed the opinion that the plaintiff’s depressive symptoms occurred “largely because of his ongoing back condition and his difficulty dealing with pain … .”[129] He diagnosed the plaintiff as suffering from “progressive depression secondary to his back pain that has been worsened by his cessation of employment …” (which the doctor noted was due to the fact that the company had moved locations).[130]
[127]Exhibit P1, page 139
[128]Exhibit P1, page 140
[129]Exhibit p1, page 149
[130]Exhibit P1, page 149
60 The defendant’s medico-legal experts gave the following opinions:
(a) in his various reports, the latest dated 20 February 2019, Dr Joseph Slesenger, a specialist occupational physician, stated that the plaintiff suffered a mechanical injury to the lumbar spine and has since developed a Chronic Pain Disorder.[131] He also thought there was evidence of “functional overlay”.[132] He expressed the opinion that the plaintiff’s physical injury was a contributing factor to his current medical condition, but “this contribution is a minor one”.[133] This opinion should be read in the context of the opinion which Dr Slesenger went on to express, viz, that based on the plaintiff’s “physical compensable condition alone”, he is of the opinion that the plaintiff retains only a partial capacity for work, with restrictions which when assessed objectively are clearly significant in nature,[134] viz:
[131]Exhibit D1, page 7
[132]Exhibit D1, page 7
[133]Exhibit D1, page 7
[134]Exhibit D1, pages 46-47
· Avoid repetitive bending or twisting
· No push, pull, carry or lift over 5 kilograms
· Avoid exposure to whole body vibration
· Avoid prolonged static postures
· Avoid repetitive left wrist tasks
· Work limited to four hours a day, five days per week;”[135]
(b) in his two reports dated 14 May 2018 and 11February 2019, Mr Roy Carey expressed the opinion that the plaintiff is suffering from a Chronic Pain Syndrome or disorder “with multiple signs of abnormal illness behaviour, in the absence of any specific diagnosable pathologies”.[136]
[135]Exhibit D1, pages 46-47
[136]Exhibit D1, page 84
61 Mr Carey’s opinion is at odds with the eight experts relied upon by the plaintiff and the defendant’s other medico-legal expert in relation to this matter. On that basis, the weight of the evidence satisfies me that the consequences of the plaintiff’s injury to his lumbar spine, have a substantial organic basis.
Is the compensable injury permanent for the purposes of the Act?
62 Having considered the relevant reports from Mr Aliashkevich,[137] Dr James Chan[138] and Dr Slesenger,[139] I find that the plaintiff is likely to continue to suffer from symptoms in his lumbar spine for the foreseeable future. Thus, I find that the injuries sustained by the plaintiff in the incident are permanent for the purpose of the Act.
Is there a need to disentangle consequences suffered by the Plaintiff which are psychological in nature, from the physical consequences of his injuries?
[137]Exhibit P1, page 129
[138]Exhibit P1, page 141
[139]Exhibit D1, page 47
63 As set out above, Counsel for the defendant submitted that in this case, there is a need to disentangle the plaintiff’s physical consequences from the psychological consequences suffered by him.
64 The plaintiff bears the burden of proof in any disentangling exercise which needs to be undertaken.
65 I have accepted that there is a substantial organic basis for the physical consequences of the injury to the plaintiff’s lumbar spine.
66 Applying the principles set out above, no further disentangling needs to be undertaken. The only matter left to decide is whether the physical consequences of that injury produce a sufficient degree of impairment to satisfy the relevant test under the Act.
Conclusions as to economic loss
67 It was submitted by Mr Plunkett that the plaintiff’s pre-injury earning capacity was 37 hours per week at a rate of $21.13 per hour.[140] Taking into account the agreed rate of inflation[141] (which produces an applicable hourly rate of $22.61), the plaintiff’s submission is that his “without injury” earning capacity for the purposes of this application is 37 hours x $22.61, or $836.57.
[140]T22; see Worker’s Claim Form at page 32, exhibit P1
[141]The fact that the applicable rate of inflation was agreed between the parties is referred to in the plaintiff’s written submission at paragraph 45. No issue was take with this assertion by counsel for the defendant
68 It was said on behalf of the plaintiff that 37 hours per week is the figure which most fairly reflects the plaintiff’s working capacity had the injury not occurred, even if as a casual worker, he was not always offered those hours. In support of this proposition, the plaintiff’s counsel referred to the decision of The Herald & Weekly Times Ltd & Anor v Jessop.[142]
[142][2014] VSCA 292 at paragraphs [53], [55], [60] and [64]
69 By contrast, the defendant submits that the plaintiff’s actual hours of work must be taken into account by this Court. If that exercise is undertaken and an average of the hours worked by the plaintiff in the nine weeks during which he worked for Belway prior to the injury to his lower back injury is calculated, then the plaintiff averaged 26.11 hours per week. Taking into account the agreed rate of inflation, the figure which on the defendant’s argument most fairly reflects the plaintiff’s working capacity had the injury not occurred, is 26.11 x $22.61, or $590.34 per week.
70 In support of this submission, the defendant says that the evidence demonstrates that the plaintiff made a “lifestyle” decision to stop performing full-time employment as a permanent worker. It was submitted that “there is no evidence before the Court to suggest that he was going to resume full-time employment in the period of three years post his lower back injury, but for the injury”.[143]
[143]See paragraph 62 of the defendant’s written submission
71 I reject the defendant’s submission as to the plaintiff’s “without injury” earning capacity. I find that the fluctuating hours which the plaintiff admits that he worked, are consistent with the nature of his role as a casual worker. I accept the plaintiff’s evidence and find that he had an intention once his wrist injury had resolved, to get back to full-time hours. I find on the balance of probabilities, taking into account the fact that the plaintiff had returned to work and was working an average of 26.11 hours, that his intention to return to full hours and duties was both realistic and imminent.
72 As to his fluctuating hours upon commencement with Belway, I note the plaintiff’s status as a casual employee. Under oath, the plaintiff explained that his employer determined what hours he would work.[144] I accept the plaintiff’s sworn evidence and find that he would have taken any hours that were offered to him. I find, as demonstrated by the Belway pay records upon which the plaintiff was cross examined,[145] that the figure which most fairly represents the plaintiff’s pre-injury capacity for work, is 37 hours per week.
[144]T35, Lines 9-13
[145]EXHIBIT D1, pages 123-126
73 The defendant placed significant reliance on a view expressed by Dr Zamil Karim in a letter to Dr Al Harafi, dated 21 September 2016. That letter stated, in part:
“Oscar has had an MRI scan of his lumbar spine which is essentially normal. There is minimal disc protrusion at the L5-S1 vertebrae, but this is not causing any significant canal stenosis or nerve root impingement … .”[146]
[146]Exhibit D1, page 122
74 As set out above, the only reference to the September 2016 MRI is contained in the report of Dr Aliashkevich.[147] The words used to refer to the report of that imaging study do not convey the view that the plaintiff’s spine was “normal, or essentially normal” at that time.[148] This matter was put to the plaintiff, who could not recall such a thing being said to him.[149] Dr Karim was not required to attend for cross-examination. The full text of the MRI report was not tendered by the defendant. The portion of that report which is quoted in the evidence refers to some ongoing neural compression. In a report dated 23 November 2017, Dr Karim set out a view he had expressed in August 2016 that “given his ongoing restriction, Oscar was unable to be safely employed or engage in any paid employment.” He did not express any differing view in his November 2017 report.
[147]Exhibit P1, page 129
[148]See paragraph 29, first dot point in the defendant’s written submissions
[149]T69-70
75 I have referred above to the medical and other expert evidence relied upon by the plaintiff in support of his submission that he has no capacity for his pre-injury duties or any other suitable employment.
76 I take into account the opinion of Dr Slesenger, for the defendant, that the plaintiff retains some capacity for work with significant restrictions, viz:
(a) avoid repetitive bending or twisting
(b) no push, pull, carry or lift over 5 kilograms
(c) avoid exposure to whole body vibration
(d) avoid prolonged static postures
(e) avoid repetitive left wrist tasks
(f) work limited to four hours a day, five days per week.[150]
[150]Exhibit D1, pages 46-47
77 In expressing this opinion, Dr Slesenger makes no reference to the practical considerations which impact on the plaintiff’s ability to find suitable employment, such as his age, his level of education, his previous work experience, the difficulties with concentration and memory brought about by interference with sleep and medication intake, his language limitations and his place of residence. In those circumstances, Dr Slesenger’s opinion as to the plaintiff’s current capacity for suitable employment must be accorded less weight than the opinion of those doctors who have considered the full suite of issues which face the plaintiff.
78 I note Dr Carey’s opinion that the plaintiff is in no way restricted for work. I have referred above to my conclusion that his report is at odds with the nine other experts who have commented on the matter. I reject Mr Carey’s opinion.
79 I prefer the opinion expressed by Dr Aliashkevich (who affirms the opinions expressed by Dr Al-Harafi and Dr Karim), that the plaintiff has no capacity for his pre-injury employment and no capacity for any suitable employment.[151] Dr Aliashkevich states that the plaintiff is and remains a “high risk candidate for reinjury and exacerbation of his symptoms with any employment”.[152] Dr Aliashkevich’s opinion in relation to the plaintiff’s current work capacity (which takes into account only those impairments caused by the physical injury to the plaintiff’s lumbar spine), appropriately includes an assessment of practical matters such as the plaintiff’s age, his level of education, his previous work experience, the difficulties with concentration and memory brought about by interference with sleep and medication intake, his language limitations and his place of residence.
[151]Exhibit P1, pages 131-132
[152]Exhibit p1, page 132
80 It was submitted on behalf of the defendant that the plaintiff was able to continue working up to 25 hours per week at Belway, until that employer moved premises closer to the city. It is said that this demonstrates the plaintiff’s post-injury earning capacity and, on that basis, that the plaintiff does not reach the threshold of a permanent loss of 40 per cent or more of his pre-injury earning capacity. I reject this submission.
81 The evidence demonstrated, and I find, that the plaintiff’s employment arrangement was unusually accommodating of the physical restrictions experienced by the plaintiff after the injury to his lumbar spine. In particular, prior to Belway moving premises, the plaintiff was employed on light duties but when there was nothing suitable for him to do, spent his time sitting in the canteen or doing his exercises. I find that the move by his employer to new premises demonstrates the fragility of the plaintiff’s work situation at that time. I accept the plaintiff’s evidence, and find that the extra travelling time from his home to the new location closer to the city, was something with which the plaintiff simply could not cope, due to pain.
82 On the basis of the opinions set out above, the weight of the evidence satisfies me that the consequences of the plaintiff’s injury to his lumbar spine have resulted in the plaintiff being unfit for both his pre-injury duties and indeed, for any alternative employment.
83 I am also required to consider issues of retraining and rehabilitation pursuant to s134AB(38)(g) of the Act.
84 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the fact that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g) of the Act.
85 Accordingly, I will grant leave to the plaintiff to bring proceedings for damages in respect of both pain and suffering and loss of earning capacity.
Psychiatric injury
86 Having decided to grant leave to the plaintiff as set out above, I am not required to decide whether the plaintiff has suffered a permanent severe psychiatric injury as defined in the Act.[153]
[153]See Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179, in particular see paragraphs [106]-[109]
Conclusion
87 Accordingly, pursuant to s134AB(19) of the Act, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity in respect of the injury that he suffered to his lumbar spine on or about 27 March 2014.
88 I will hear the parties on the question of costs.
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