Anderson, Simon Robert v Goulburn-Murray Rural Water
[2009] VCC 993
•29 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY
Case No. CI-07-01998
| SIMON ROBERT ANDERSON | Plaintiff |
| v | |
| GOULBURN-MURRAY RURAL WATER AUTHORITY | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 27 and 28 July 2009 |
| DATE OF JUDGMENT: | 29 July 2009 |
| CASE MAY BE CITED AS: | Anderson, Simon Robert v Goulburn-Murray Rural Water Authority |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0993 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1958 - injury to the lower back - whether the consequences were least very considerable for pain and suffering and loss of earning capacity - whether there was any need to undertake disentangling - whether the plaintiff had discharged the onus he bears under subsection (19)(b) and (38)(g) with respect to loss of earning capacity - leave granted for pain and suffering: section 134AB (19)(b), (38)(c), (g) and (h)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Nevin Lenne & Gross |
| Mr I Fehring | ||
| For the Defendant | Mr D Myers with | Wisewould Mahony |
| Ms J Forbes | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 29 May 2007 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant on 23 March 2005.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr T Monti appeared with Mr I Fehring of Counsel for the plaintiff and Mr D Myers appeared with Ms J Forbes of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. •
The plaintiff tendered the following evidence - the Plaintiff's Court Book ("PCB") pages 8-49; 59-75; 291-295a and 366-369: Exhibit A
•
The defendant tendered the following evidence - the Defendant's Court Book (“DCB”) pages 13-78, and from the Plaintiff's Court Book pages 169; 176; 189; 226; 424; 426; 431; 437; 442; 445 and 446: Exhibit 1
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 19 January 1968. He is now forty-one years of age. He is a married man with two children, a daughter who is thirteen years of age, and a son who is eleven years of age. He described his marriage as being less than harmonious.
10 The plaintiff was born in Gippsland. He last attended a high school, obtaining entry to Year 11, which he failed to complete. He was seventeen years of age when he left school. He subsequently entered the workforce and was then employed full-time, with periods of unemployment being relatively rare.
11 His employment history includes farming work, factory work and one job as a furniture salesman in Sale for about six months. The plaintiff has never been employed in clerical work in an office setting.[5]
[5] Transcript 44
12 The plaintiff commenced employment with the defendant on 3 February 1997 as a labourer. He was employed continuously from that date until he suffered injury on 23 March 2005, which is a period of some eight years.
13 On 23 March 2005, the plaintiff was using bolt cutters to cut reinforced mesh. He stepped backwards. His pants became hooked on some mesh which resulted in him losing his balance and falling backwards. He fell heavily on his buttocks and left hand.[6]
[6] PCB 9
The Plaintiff's Medical Treatment
14 The plaintiff reported the occurrence of the incident to his supervisor. It would appear that it was suggested by his supervisor or another employee of the defendant that he seek medical attention.
15 The plaintiff first saw Dr Chan, general practitioner, on 24 March 2005. Dr Chan recorded that the plaintiff told him that he had aggravated pre-existing lower back pain, and he gave a similar history to Mr Critchley, orthopaedic surgeon, to whom he was referred for treatment.[7]
[7] PCB 67, and in Mr Critchley's clinical notes at PCB 249. Mr Chew, orthopaedic surgeon, obtained a similar history, at PCB 77
16 The plaintiff admitted that he had suffered occasional aches and pains in his lower back for which he had received treatment by way of massage. The previous lower back problems were short-lived.[8] He said that he had not had any significant time off work as a result of any prior lower back problem.[9]
[8] PCB 10
[9] Transcript 46
17 Dr Chan referred the plaintiff to Mr Critchley, who saw him on 14 April 2005. Mr Critchley referred the plaintiff to have a CT scan which was taken on 15 April 2005 [10] and an MRI scan which was taken on 17 May 2005.[11]
[10] PCB 28
[11] PCB 29-30
18 Mr Critchley subsequently referred the plaintiff to Dr Lovell, physician, who suggested that the plaintiff have a spinal cord stimulator implanted into his lower back.[12] That suggestion was not pursued with any seriousness at any stage thereafter.
[12] PCBs 67
19 Dr Chan subsequently referred the plaintiff to Mr Chew, orthopaedic surgeon, to obtain a second opinion. It would appear that the plaintiff saw Mr Chew in August 2005[13] and again in November 2005.[14]
[13] PCB 77
[14] PCB 76
20 Dr Chew obtained the relevant history of the occurrence of the incident, and also a history that the plaintiff had suffered intermittent lower back problems in the past. After examining the plaintiff and reviewing the radiology, Mr Chew was of the opinion that the plaintiff's pain was related to multilevel disc degeneration. He was also of the opinion that a degree of spinal stiffness was setting in.
21 Dr Chew was also of the opinion that the plaintiff could not return to his pre- injury work and that he would have to find a job he could cope with.[15]
[15] PCB 78
22 Mr Critchley referred the plaintiff to Mr Ratcliffe, physiotherapist, who first treated the plaintiff on 19 May 2005. It would appear that Mr Ratcliffe treated the plaintiff for at least a year, with treatment focused on pain management, mobilisation of the plaintiff, heat treatment and educating, advising and counselling the plaintiff and also hydrotherapy.[16]
[16] PCB 48-49
23 The plaintiff was also treated by Ms Wright, psychologist, during the same period that the plaintiff was receiving treatment from Mr Ratcliffe. Ms Wright wrote to Mr Ratcliffe suggesting assistance with an exercise regime for the plaintiff because it was her opinion that it would assist in the management of the plaintiff's chronic pain.[17]
[17] PCB 48
24 The plaintiff was referred for treatment to a pain clinic in Bendigo under the care of Dr Murphy, physician, in October 2008.[18] The treatment involved three-week inpatient treatment.[19] It involved hydrotherapy, walking and instruction about exercises.[20]
[18] PCB 291-292
[19] Transcript 26 and 30
[20] Transcript 45-46
25 The plaintiff has continued to see Dr Chan. Dr Chan was of the opinion that the plaintiff had evidence of pre-existing Scheuermann’s disease which had resulted in the plaintiff suffering chronic lumbar back pain, however, he was of the opinion that as a result of the incident, the plaintiff suffered multilevel disc injury to three discs consistent with the appearances on the MRI scan.
26 Essentially, Dr Chan was of the opinion that the plaintiff was unfit for work by reason of the extent of the work restrictions he believed should be imposed upon the plaintiff, which incapacity he believed would be permanent. He was also of the opinion that the plaintiff's prognosis for recovery from the pain he was experiencing was only fair, and in relation to a return to work he considered that to be poor.[21]
[21] PCB 295
27 At present the plaintiff is not receiving any active medical treatment. Dr Chan is prescribing him painkilling medication, namely, Indocid and Tramadol.[22]
[22] PCB 295
The Medical Evidence
28 The plaintiff has been examined by a number of specialists on a medico-legal basis. Their opinions relevant to the injury suffered by the plaintiff do not differ very much, however, there is variation in their opinions regarding the extent to which the plaintiff's injury disables him.
29 It is sufficient, in the circumstances, to give only a short summary of each of those opinions:
ƒ
Mr Leitl, orthopaedic surgeon, examined the plaintiff for the defendant on 28 June 2005. He was of the opinion that the plaintiff had suffered a lumbar disc injury and an aggravation of pre-existing lumbar degenerative disc disease. He was of the opinion that the plaintiff's prognosis was poor; was not fit for his pre-injury work, but was capable of light work such as office work.[23]
ƒ
Mr Moran, orthopaedic surgeon, examined the plaintiff for the defendant on 21 April 2006. He was of the opinion that the plaintiff had suffered an aggravation of pre-existing multilevel disc degeneration in his lower back. Initially he was of the opinion that the plaintiff was unfit for all work, but he revised that opinion when he was informed that the plaintiff was to undertake three-week inpatient pain management clinic treatment which led him to say that its completion would see the plaintiff being fit for part- time light duty work by the end of 2006.[24]
ƒ
Mr Scott, general surgeon, examined the plaintiff on 28 November 2006 for the defendant. He was of the opinion that the plaintiff had suffered work- related multilevel disc degeneration of his lumbosacral spine. He was of the opinion that at the time he saw the plaintiff that he was totally unfit for work by reason of his physical injury and his psychological state, but on the basis of his physical injuries alone, he considered that he was fit for light work only with restrictions such as no prolonged standing, prolonged sitting, repetitive bending, heavy lifting or pushing and pulling or raising his arms above shoulder level.[25]
ƒ
Mr Brearley, orthopaedic surgeon, examined the plaintiff on 19 December 2007. He was of the opinion that the plaintiff suffered significant injury to the lumbar discs resulting in an intra discal rupture, protrusion and tearing of the L3-4 disc and damage to the supporting intervertebral ligaments. He was also of the opinion that the injury to the lower back resulted in referred pain into the plaintiff's neck. He was of the opinion that the plaintiff was not fit for any employment based upon the severity of the plaintiff’s lower back pain, his age, education and vocational skills, and because of the work restrictions that he considered were relevant to be imposed upon the plaintiff.[26]
ƒ
Mr Westh, orthopaedic surgeon, examined the plaintiff on 11 November 2008. He was of the opinion that it was likely that the incident resulted in the plaintiff suffering an aggravation of underlying multilevel disc degenerative disease. He was of the opinion that the physical injury and the impairment caused by it incapacitated him for his pre-injury work and he considered the plaintiff to have poor future work prospects because of his lower back injury and also because of his age, education and vocational skills.
ƒ
Mr Francis, surgeon, first examined the plaintiff or 3 July 2006. He was of the opinion that the source of the plaintiff's pain was the multilevel disc disease evident in the plaintiff’s lower back.[27] He re-examined the plaintiff on 24 September 2007[28] and again on 11 March 2009. Whilst Mr Francis did not alter his opinion regarding the plaintiff's injury, he expressed serious misgivings about whether the degree of the plaintiff's incapacity overall was due to the incident. He referred to the plaintiff's lack of motivation and positive attitude as being a major factor in his failure to improve.[29]
[23] PCB 35-36
[24] PCB 41-42
[25] PCB 63 and 65
[26] PCB 71-73
[27] DCB 21
[28] DCB 60-62
[29] DCB 68-69
30 All of the medical practitioners who assessed the plaintiff on a medico-legal basis had available the relevant radiology, and it would appear they all had regard to it when formulating their opinions.
Serious Injury
Pain and Suffering
31 In the course of Mr Myers’ final address, he did not contest the fact that the plaintiff had suffered an injury which resulted in an impairment of the function of the plaintiff’s lower back and that the impairment was permanent.
32 However, Mr Myers submitted that I should not accept that all the consequences are the result of the impairment of the function of the plaintiff’s lower back. He submitted that a significant enough portion of the consequences were derived from a secondary psychological reaction to the injury to the plaintiff’s lower back, and therefore, it was for the plaintiff to undertake the so-called "disentangling" in order to satisfy me that the consequences of the impairment of the function of the plaintiff’s lower back met the statutory test.
33 There is unanimity in the medical evidence that the plaintiff did suffer an injury to his lower back as a result of the incident; that the injury persists; that the physical consequences described by the plaintiff to the examining medical practitioners are causally connected to the original injury, although, some of the medical practitioners refer to secondary psychological consequences as contributing to the overall consequences suffered by the plaintiff.
34 I am satisfied that the plaintiff suffered a dramatic fall when the incident occurred’ and as a result suffered, at the least, a significant aggravation of the multilevel degenerative changes in his lower back which rendered his lower back painful. I am also satisfied that the injury to the plaintiff’s lower back has impaired the function of his lower back, and that the impairment is permanent.[30]
[30] The preponderance of the evidence points to the injury being an aggravation of multilevel disc degeneration rather than the discal injury and the level of it referred to by Mr Brearley
35 I have little doubt that the foregoing conclusions that I have reached are supported by the medical evidence which I have reviewed. There seems to be little or no disharmony amongst those medical practitioners who have examined the plaintiff on any of those matters.
36 I am not satisfied that there is any merit in the submission made by Mr Myers that the so-called disentangling is called for. In Shock Records Pty Ltd v Jones;[31] Zivolic v Hella Australia Pty Ltd[32] and Jayatilake v Toyota Motor Corporation Australia Ltd,[33] the Court of Appeal held that if a judge at trial is satisfied that the physical injury resulting in an impairment of a body function is the cause of pain and suffering consequences and loss of earning capacity consequences, then no so-called disentangling is required.
[31] [2006] VSCA 180, per Bell AJA, at paragraph 79
[32] [2007] VSCA 142, per Redlich JA, at paragraphs 19-20
[33] [2008] VSCA 167, per Ashley JA, at paragraphs 19-21
37 There is no doubt that the plaintiff suffered a secondary psychological reaction to the onset of the physical injury to his lower back, but the mere presence of that secondary psychological reaction and observations made by examining medical practitioners that it has produced a chronic pain syndrome does not of itself mean that any so-called disentangling is required.
38 Mr Brearley and Mr Westh appear to have been specifically requested to ignore any secondary psychological consequences of the impairment of the function of the plaintiff’s lower back. Both were able to do so without any difficulty, indeed the conclusions reached by both of them are consistent, in that they both concluded that the nature and extent of the impairment of the function of the plaintiff’s lower back would restrict the plaintiff to a very significant degree.[34]
[34] Mr Brearley, at PCB 72, and Mr Westh, at PCB 294a
39 I prefer the opinions of Mr Brearley and Mr Westh because they are the most recently expressed opinions from specialists with orthopaedic qualifications. They appear to me to have obtained a reasonable history of the occurrence of the incident and they appear also to have weighed up the appearances on the radiology together with the results of their clinical examinations in reaching their conclusions. I am less impressed by the opinions of Mr Francis because in an overall sense he stands alone in the doubt he has expressed about the plaintiff's general motivation, however, he has accepted that the plaintiff did suffer an injury to his lower back with some consequences.
40 The plaintiff has sworn four affidavits[35] in which he describes the consequences to him of suffering the impairment of the function of his lower back. The plaintiff described never being free of pain and requiring the use of painkilling medication which I have already described above. He described not being able to sleep for more than four to five hours per night and suffering interference with his sexual relationship with his wife. He described interference with his ability to engage in a wide variety of sporting, recreational, social and domestic pursuits such as fishing, gardening, social outings with friends and family, going to the pictures, going shooting, maintaining his home and being unable to play and interact with his children.[36]
[35] Sworn on 28 January 2009, at PCB 8-15; 27 November 2007, at PCB 16-23; 28 January 2009, at PCB 24-27 and 17 July 2009, at PCB 27a-27b
[36]
41 Mr Myers cross-examined the plaintiff at some length regarding the plaintiff's evidence that he is unable to sit, stand, walk or engage in a simple exercise programme. Mr Myers submitted that the plaintiff's evidence that he can only sit for ten minutes and stand for ten minutes;[37] can walk 100 to 150 metres at best[38] and is only able to do about four to five sit-ups at a time is an exaggeration of the plaintiff’s degree of incapacity and is evidence of the chronic pain syndrome referred to by some of the medical practitioners who have examined the plaintiff.
[37] PCB 11-15; 17-21; 24-27 and 27a-27b
[38] Transcript 25
42 I harboured some doubts about the quality of the plaintiff’s evidence regarding the consequences to him of the impairment of the function of his lower back. None of the medical practitioners who have examined the plaintiff have put the degree of his disablement as high as the plaintiff has.
43 I am concerned to have regard to a number of authorities which direct me to the method I must follow in making a value judgment whether the plaintiff's claim for pain and suffering consequences is at least very considerable.
44 In Cakir v Arnott’s Biscuits Pty Ltd[39] the trial judge found that the plaintiff was not a credible witness. The plaintiff gave an inaccurate history regarding previous back problems. Neave JA observed:
“However, even if the appellant deliberately denied that he had previously suffered from back problems, an adverse finding on the appellant’s credibility did not, in my view, justify refusal of the appellant’s application. In order to conclude that the appellant was not entitled to leave to commence common law proceedings it was necessary for his Honour to analyse and give appropriate weight to all the evidence both as to the cause and as to the seriousness of the appellant’s injury. …”[40]
[39] Transcript 42-43 [2007] VSCA 104
[40] at paragraph 49
45 Furthermore, in Forder v Hutchinson,[41] Nettle JA made the following relevant observations:
“In the fifth place, I consider that the judge was in error in confining his analysis to an assessment of the appellant’s and the respondent’s credibility. That may well have been a logical place to start, but it was by no means the place to finish. The question for the judge was not merely whether he accepted or rejected the appellant as a witness of truth, but whether the inference could properly be drawn from the whole of the evidence that the respondent’s manipulation of the appellant’s neck caused the appellant’s symptoms. It was necessary therefore for his Honour to consider the evidence which stood independently of the appellant’s testimony and then to consider it in conjunction with the appellant’s testimony. That evidence included the physiological evidence recorded in Professor Terrett’s and Mr Kingsley Mills’ reports; the opinions recorded in their reports; and the respondent’s admissions. His Honour ought also have taken into account the opinion of Dr Gale. As noted earlier, Dr Gale said there had been reports of damage to the vertebral arteries occurring after or as a result of neck manipulation and that, in this instance, if there were rapid movement towards the left, a vertebral artery, which passes to the brain in the cervical vertebrae, could have been involved. If that occurred, Dr Gale said, it could provide another possible mechanism for the appellant’s symptoms, when, due to some altered blood circulation in the brain, some disturbance of vestibular functions could have been initiated.” [42]
[41] [2005] VSCA 281
[42] At paragraph 42. In Allsmanti Pty Ltd v Ernikiolis [2007] VSCA 17, per Ashley JA, at paragraphs 47- 49, who observed that film and the plaintiff's presentation to examining medical practitioners was only part of the evidence in that case and did not disable the trial judge from considering all of the evidence going to the question of whether the plaintiff had suffered a serious injury. In Grace v Elmasri and Transport Accident Commission [2009] VSCA 111, at paragraph 136, the Court of Appeal overturned the decision of the trial judge in denying a plaintiff serious injury where the trial judge considered that the plaintiff's credit was seriously impugned, observing that the trial judge was required to weigh the whole of the evidence and to look at all of the factors raised in the application in an overall context.
46 Even though I accept part of the submission made by Mr Myers that the plaintiff is not as disabled as he says he is, it is rather more the degree of the description given by the plaintiff of his disablement, not the fact that he is disabled which is at issue.
47 In the end I am satisfied that the plaintiff is disabled very significantly as described by Mr Brearley and Mr Westh, however, I do have misgivings about the plaintiff's description of his inability to sit, stand and walk because the degree to which he says he is unable to engage in those physical activities is not entirely supported by the opinions of Mr Brearley and Mr Westh.
48 Giving due weight to the opinions of Mr Brearley and Mr Westh, and accepting that the plaintiff does have pain and is disabled by the impairment of function of his lower back, the conclusion I have reached is that he has suffered consequences which are at the least very considerable when the relevant comparison is made as I have described it in my discussion of the statutory scheme.
49 Mr Myers cross-examined the plaintiff about pain and limitation of movement which the plaintiff said he was experiencing in his shoulders and knees. Mr Myers submitted that to the extent that those medical problems interfered with the plaintiff's capacity to function generally and in work that I should take them into account in determining whether the plaintiff’s lower back injury met the statutory test for pain and suffering and loss of earning capacity.
50 After some debate, Mr Myers did not press the submission principally because it was my view that apart from the evidence of the plaintiff, there was no medical evidence to suggest that those medical problems were causing him any particular degree of interference with his capacity to function, and in any event in Dressing v Porter,[43] the Court of Appeal dealt with a similar point, disposing of it by holding that the trial judge must concentrate upon the claimed injury and whether it has resulted in the impairment of a body function, whether the consequences of that claimed injury meet the statutory test even though there might be other injuries, all medical problems which might themselves satisfy the statutory test.
[43] [2006] VSCA 215
51 It occurred to me that there was little in the submission made by Mr Myers given the nature of the evidence given by the plaintiff about those other medical problems and the lack of any medical evidence to suggest that there is much to be made of those medical problems.
Loss of Earning Capacity
52 I am not persuaded that the plaintiff has discharged the onus he bears to prove that he is totally incapacitated and has satisfied the statutory test for loss of earning capacity.
53 The onus borne by the plaintiff to satisfy the statutory test for loss of earning capacity is a burdensome one. It requires the plaintiff to not only satisfy each of the requirements of subsection (19)(b), but also to satisfy each of the requirements of subsection (38)(g).
54 I am not persuaded that the plaintiff has undertaken rehabilitation and retraining at all seriously and consistent with the requirements of the subsections, and indeed, the strong impression I gained from the plaintiff's evidence is that he has been apathetic and has only been prepared to undertake rehabilitation and retraining on his terms.
55 The plaintiff was offered inpatient treatment at a pain clinic Albury in 2006. He refused the offer because he did not want to be separated from his family for the whole three-week period of the inpatient treatment which would have included weekends. He wanted an ambicab to convey him to and from Albury which would have come at significant expense.
56 Mr Monti submitted that the plaintiff's refusal was reasonable. I do not accept that submission. It must be accepted that the most optimum time for rehabilitation to occur is early on before symptoms and disablement become chronic and less amenable to treatment. It seems to me that the plaintiff's demand to undergo inpatient treatment at a locality closer to where he lives was unreasonable when he had an opportunity to undergo rehabilitation to assist him in coping better with the injury and the disablement it was causing him.
57 I am fortified in reaching that conclusion because of the opinions of Mr Moran, who considered that the inpatient treatment would afford the plaintiff improvement in his physical condition, and also the opinion of Mr Leitl who considered that the plaintiff was fit for light work. Both Mr Moran and Mr Leitl expressed those opinions at an early stage when the plaintiff was undergoing active treatment and at a time when they considered the plaintiff had an opportunity to improve his physical condition.
58 Furthermore, when the plaintiff did undergo inpatient treatment for a three- week period, he was an inpatient, although apparently not an inpatient over weekends. That episode of inpatient treatment for pain management occurred in October 2008, however, the plaintiff seems to have obtained very little benefit from the inpatient treatment and his evidence has led me to conclude that he was either disinterested in the treatment he was provided or had very little insight into what the treatment was aimed at.[44]
[44] Transcript 45-46
59 Similarly, the plaintiff's efforts to retrain have been modest at best. He has undertaken an introductory course in computers, but the strong impression I gained from his evidence is that he has done little himself to educate himself about the use of computers save for buying some books on computers and using the Internet. The plaintiff said he has asked for financial assistance to undertake more computer courses, but he has otherwise done very little himself using his own resources to determine what jobs he may be able to undertake. He said that all he has done is look for what jobs involve.[45]
[45] Transcript 36
60 Overall it was my impression that since the incident occurred the plaintiff has not taken any steps himself to undertake any serious course of retraining. He has not taken any steps to inform himself of what jobs are available nor what the requirements of those jobs are so that he can determine what course of retraining he would need to undertake in order to qualify for those jobs.
61 The opening words of subsection (38)(g) are that the plaintiff does not establish loss of earnings unless, inter alia, he meets the requirements set out in that subsection to determine whether he has a capacity for work which he can exercise.[46] The conclusion I have reached is that the plaintiff has done very little in that regard.
[46] Barwon Spinners v Podolak (supra) at 637
62 As I have already observed, I do not accept that the plaintiff is as disabled as he has made out. I do not accept that his injury has led to a level of disablement which has near crippled him and has reduced him to someone whose capacity to sit, stand and walk is as limited as he described. It seems to me that part of the cause of the plaintiff’s view that he has such a limited capacity has been produced by the chronic pain syndrome which is part of his overall symptom complex which I have not taken into account when considering the plaintiff's application for pain and suffering.
63 Doubtless there are applications for serious injury for loss of earning capacity where the injury is grave, resulting in grave consequences where logic and sound reason would lead a Court to conclude that the sufferer is in all probability totally incapacitated, however, there are also many cases where the sufferer has a residual capacity for work. In the latter case it is not sufficient for the sufferer to simply say that he or she cannot work because of the injury. To do that without satisfying the Court that reasonable attempts at rehabilitation and retraining have been undertaken or that either no jobs are suitable, or those that are suitable produce a loss of earnings of 40 per centum or more, will probably see the application relevant to loss of earning capacity fail.
64 The conclusion I have reached is that the plaintiff's claim for loss of earning capacity fails because he comes within the latter of the two scenarios I have just referred to. It seems to me that the impairment of the function of his lower back, by not taking into account the consequences of the chronic pain syndrome, are not such as to render him totally incapacitated, but incapacitated for work with the restrictions which most of the medical practitioners would impose upon him relevant to prolonged sitting, standing, walking, driving, repetitive bending and twisting and heavy lifting.[47]
[47] For example, Mr Westh would impose those restrictions on his physical capacity to work, but when looking at his "overall condition" , which I take to mean including the chronic pain syndrome and its consequences, he then considered that the plaintiff's future work prospects were poor
65 The imposition of those work restrictions do not speak of total incapacity, but of a partial incapacity. They do not necessarily preclude the plaintiff from non- labouring work, but rather suggest that he could undertake light non-labouring work. This points up the very difficulty in the plaintiff's case that because he has not undergone the degree of rehabilitation and retraining which he is required to undertake to determine whether he has a capacity for work which he can exercise he has not discharged the onus he bears.
66 Therefore, I find that the plaintiff has not discharged the onus he bears with respect to the statutory test for loss of earning capacity.
Conclusion
67 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant on 23 March 2005.
68 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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