Angleleski v Bitzer Australia Pty Ltd
[2009] VCC 276
•2 April 2009
Dithnaoz dith
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI 07 04420
| SLAVE ANGELESKI | Plaintiff |
| v | |
| BITZER AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | Wodak |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7, 10 November 2008 |
| DATE OF JUDGMENT: | 2 April 2009 |
| CASE MAY BE CITED AS: | Angleleski v Bitzer Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0276 |
REASONS FOR JUDGMENT
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Catchwords: serious injury application – low back injury resulting from specific incident – whether later spontaneous worsening without identified cause – aggravation – pain and suffering – pecuniary loss – s134AB Accident Compensation Act
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh | Holding Redlich |
| For the Defendant | Mr R Gorton QC with | Minter Ellison |
| Ms A Ryan |
Introduction:
1 On 18 February 2002, Slave Angeleski injured his back, while working with Bitzer Australia (the incident). Mr Angeleski had medical treatment and resumed work. In March 2004, without apparent cause, the condition of his back worsened. Arising from the incident, and the flare up of his symptoms in March 2004, Mr Angeleski applies for leave to commence a proceeding for damages for personal injuries, for pain and suffering damages and for pecuniary loss damages. He makes the application under s134AB Accident Compensation Act 1985 (the Act).
2 Mr Angeleski claims that the injury has impaired the function of his low back and or his lumbar spine. The real dispute is whether the pathology in Mr Angeleski’s lumbar spine was caused or aggravated by the incident, and the sudden recurrence in March 2004.
The evidence
(a) for Mr Angeleski 3 Slave Angeleski swore two affidavits in support of his application[1]. In addition there was an affidavit of his son, Goran Angeleski[2]
[1] Mr Angeleski’s first affidavit was sworn on 16 July 2007, PCB pp20-27; his second affidavit was sworn on 23 April 2008, PCB pp28-31
[2] Goran Angeleski’s affidavit was sworn on 10 October 2008, PCB pp32-34
4 Mr Keogh tendered and relies on the following material:
No Author Description Date PCB pages
1. Dr D Yeung Medical report 10-07-06 035-037 2. Dr D Yeung Medical report 09-08-06 038-040 3. Dr D Yeung Medical report 23-02-08 041-042 4. Dr D Yeung Medical report 30-09-08 043 5. Dr A Polonowita Medical report 02-03-07 044-045 6. Mr H Weaver Medical report 27-10-08 046-051 7. Mr L Young Vocational assessment 29-10-08 052-077 8. Mr B Barrett Medical report 06-12-07 077A-077B 9. Mr B Love Medical report 15-04-05 077C
10. Mr B Love Medical report 15-04-05` 077D 11. Dr R Dorey MRI lumbar spine report 03-06-05 077E
12. Dr J P Steg CT lumbar spine report 12-03-02 077F 13. Dr J P Steg CT lumbar spine report 31-03-04 077G
14. Dr J French CT lumbar spine 11-02-05 077H 15. Ms R Sewell Physiotherapy report 01-04-04 077I 16. Ms R Sewell Physiotherapy report 17-08-06 077J-077L 17. Bitzer Letter to Mr Angeleski 08-08-07 077M
(b) for Bitzer Australia 5 Mr Gorton tendered and relies on the following material:
No Author Description Date DCB pages
1. Slave Angeleski Claim for compensation 15-03-91 004 2. Slave Angeleski Claim for compensation 14-05-91 005 3. Slave Angeleski Claim for compensation 17-05-91 006 4. Mr P Nottle Medical report 01-11-02 013 5. Mr P Nottle Medical report 16-12-02 014 6. Mr P Nottle Medical report 27-12-02 015 7. Mr M Menelaus Medical report 29-05-91 029-032 8. Mr M Flaim Medical report 03-04-02 033-035 9. Mr C Jones Medical report 29-04-04 036-038
10. Dr M Wyatt Medical report 13-10-04 039-041 11. Dr W Kemp Medical report 03-02-05 042-044 12. Dr C Castle Medical report 30-09-05 045-050 13. Dr C Castle Medical report 13-10-05 051-052 14. Mr I Jones Medical report 19-10-07 053-057 15. Mr I Jones Medical report 19-09-08 058-060 16. Mr A Buzzard Medical report 02-10-07 061-074 17. Mr A Buzzard Medical report 24-07-08 075-082 18. Ms C Ebstein Return to work plan 18-08-04 083-084 19. Ms L Schneider Vocational assessment 11-09-07 128-148
Slave Angeleski’s background and personal circumstances
6 Slave Angeleski was born in Macedonia in 1957. At the time of the hearing of the application he was aged 51. He attended school until the age of 15, and then began working on his parents’ farm. At the age of 21, he migrated to Australia, in 1978.
7 He worked as a labourer, as a process worker, and as a machine operator with various employers. In 1995, Mr Angeleski was diagnosed with bilateral carpal tunnel syndrome. In February 1998, he had surgery on his right hand for this condition, and had some months off work after the operation.
8 He commenced full time employment with Bitzer as a process worker on 5 May 1999. He assembled air conditioners and refrigerators. Mr Angeleski describes the work as:
“…heavy physical work as I had to carry heavy refrigerator parts.”[3]
[3] The first affidavit, par 8, PCB p21
9 Mr Angeleski is married, and he and his wife have two adult children, both living at home.
The incident:
10 On 18 February 2002, Mr Angeleski was at work. He pushed a jig with a heavy load of air conditioner pipes, needing his entire body weight to push it. As he did so he:
“…noticed that the wheels on the jig were stiff and not moving very well…When I started pushing the jig, the wheels got stuck and my lower back and abdomen seized up with pain.”[4]
[4] The first affidavit, pars 9-10; PCB pp21-22
11 Mr Angeleski was taken to Sunshine Brimbank Medical Clinic. He was advised to rest at home for a couple of days, and provided with Panadol Forte and Cerebrex.
Mr Angeleski’s history after 18 February 2002:
12 Mr Angeleski resumed work on 21 February 2002, but ceased work during that morning. His doctor prescribed physiotherapy, which provided only temporary relief. On 6 March 2002, he tried to work once more, and lasted a couple of days before the back pain caused him to stop work again.
13 On 30 March 2002, Mr Angeleski resumed full time normal work. Although he did not cope well, he pushed himself:
“…because I felt as though I had no choice but to work. I suffered from constant pain in my low back and abdomen… My back pain became so bad that nothing helped it. I also had pain in both hips and pain and numbness down my left leg. I had trouble lying down as well as sitting. I used to wake up in the middle of the night in extreme pain.”[5]
[5] The first affidavit, par 17,PCB pp22-23
14 In September 2002, Mr Angeleski was diagnosed with an abdominal herniae. These were repaired surgically in December 2002. He worked full time over the next year, despite severe back pain,. In October 2003, his general practitioner, Dr Yeung, recommended to Bitzer that Mr Angeleski be permitted to stretch his back for five minutes every hour. This was accepted.
15 Since about February 2005, Mr Angeleski has had bilateral groin herniae, limiting his capacity for heavy work.[6]
[6] Transcript p16
16 Mr Angeleski saw Dr Yeung again in March 2004, because his low back pain had worsened significantly. On 19 April 2004, Mr Angeleski returned to part time work, on light duties. Since then he has not resumed full time normal work[7].
[7] The first affidavit, pars 19-21, PCB p23
17 Mr Angeleski was cross examined about what occurred in March 2004:
“In March 2004 you went back to see Dr Yeung complaining about a sudden
change in the symptoms in your back, didn't you? Yes.
That sudden change in the symptoms in your back was that they were much
more severe than they had been before March 2004? Yes.
Since that change in March 2004 you have been much more limited in what you
could do than before then? Beg your pardon?
You have had more pain from March 2004 than you had before then? Yes.”[8]
[8] Transcript p13
18 In November 2005, after Mr Angeleski suffered a heart attack, a stent was inserted. He resumed work a couple of weeks later. In May 2006, Mr Angeleski sought psychiatric treatment, because he felt stressed. His back pain worsened. Mr Angeleski described his situation:
“It is particularly bad in the mornings when I wake up. My back is very stiff and I have to slide slowly off the bed . I then walk to the bathroom and take two Panadeine Forte and one Fenec, an anti-inflammatory tablet…I start work at 7am and finish at 11:15am…My current duties involve making the doors on air conditioners. I do not do any heavy lifting. After work I go home, get changed and rest.”[9]
[9] The first affidavit, pars 30-32, PCB p 24
19 On 8 August 2007, Bitzer terminated Mr Angeleski’s employment. He ceased work in September 2007, and has not been in paid employment since then.
20 Mr Angeleski now suffers constant low back pain, radiating intermittently into his left leg. His back pain is aggravated by bending, lifting, twisting and sitting. His sleep is disturbed because of his pain.[10]
[10] The second affidavit, pars 12-14, PCB p30
21 Mr Angeleski’s account of his life and of the restriction of his social and domestic activities is supported by the affidavit of his son, Goran Angeleski[11], who was not required for cross examination. I accept his evidence.
The medical evidence on which Mr Angeleski relies
[11] The affidavit of Goran Angeleski, pars 2-7, PCB pp 32-33
22 Mr Angeleski was first seen at Sunshine Brimbank Clinic by Dr Dinh on 18 February 2002 with central low back pain, after the incident. He stated that it was the first time he had experienced back pain[12]. On examination he was tender, and had a reduced range of movements of his lower back. He was prescribed analgesia, panadeine forte, and celebrax, an anti inflammatory agent, and advised to rest for a few days. He resumed work on 21 February 2002, and returned to the clinic with persistent low back pain and stiffness, and referred for physiotherapy and advised to continue his medication[13].
[12] Mr Angeleski made similar statements to many examining doctors. The evidence discloses previous episodes of low back pain in 1991. I accept that these episodes took place, and that Mr Angeleski had forgotten about them.
[13] Dr Yeung’s report, 10 July 2006, PCB p35
23 Mr Angeleski resumed work, on light duties for two days in early March 2002, but could not continue because of low back pain. A CT scan of his lumbar spine revealed no significant abnormality. Mr Angeleski resumed full time work on 30 March 2002[14].
[14] Dr Yeung’s report, 10 July 2006, PCB p35
24 On 1 November 2002, Mr Peter Nottle provided a surgical assessment for Mr Angeleski, through his general practitioner, Dr Calcutt, concerning a left sided umbilical hernia and a left indirect inguinal hernia, which Mr Nottle repaired by laparoscopic procedure on 11 December 2002[15]. Mr Angeleski appeared to recover from them satisfactorily[16].
[15] Mr Nottle’s report, 16 December 2002, DCB pp13-14
[16] Mr Nottle’s report, 27 December 2002, DCB p15
25 On 22 March 2004, Mr Angeleski consulted Dr Yeung because of a flare up of chronic back pain. On examination, he had a significantly reduced range of lumbar spinal movements. A CT scan showed disc degeneration changes at L2-3. Mr Angeleski did not work from 22 March to 19 April 2004. He was prescribed analgesia, non steroidal anti inflammatory medication, and increased physiotherapy. When he resumed work, Mr Angeleski performed light duties for four hours a day[17].
[17] Dr Yeung’s report, 10 July 2006, PCB p36
26 Dr Yeung accepted that Mr Angeleski had chronic back pain since February 2002, due to lumbar disc disease. He was cross examined about his diagnosis:
“After having received that scan and having seen the plaintiff, you wrote medical
certificates for him to be off work with muscle strain? Yes.
Did that remain your diagnosis of the problem in his back after that February
2002 injury? Yes, my diagnosis is muscular strain of the back.
That would be, so that I can clearly understand that, a muscular strain of the back doesn't involve disc damage or symptoms from disc injury, does it? No. They are very often associated together so very often there's a disc problem which we don't always see on CT scan, sometimes the muscle getting spasm as well.
You being aware of that possibility didn't include in your diagnosis a disc problem of any sort, did you? Diagnosis of a disc problem?
You didn't diagnose disc problems when you saw him in the early part of 2002, did you? Very often I don't put disc or back, I just put muscular strain because for me they are very often associated to each other so I treat it and assuming that this is going to be a - that he's going to recover for the next - or quite soon so we just treat it on that basis.”[18]
[18] Transcript pp34-35
27 Mr Gorton persisted in identifying the diagnosis made by Dr Yeung:
“That is why you write your certificates but what I was really asking you about is this proposition, you did not diagnose a disc problem in the early part of 2002, did you? No.”[19]
[19] Transcript p35
28 Dr Yeung said that he tried to encourage patients with back pain to persevere at work, if they can, without forcing things[20]. He said that on 18 March 2004, Mr Angeleski told him that the work that he had been performing up to and just before that day had caused his back condition to significantly worsen. Dr Yeung added that the nature of back pain is that it fluctuates from time to time[21].
[20] Transcript pp35-36
[21] Transcript p36
29 Dr Yeung put Mr Angeleski off work, and arranged for a CT scan to be performed. This revealed disc problems at L2-3. He was questioned further:
“In February 2002 he suffered a problem which produced symptoms from the
back? Yes.
In March 2004 he suffered a problem which made him more incapacitated than he had been before then? Yes.
From March 2004 onwards he was much more restricted in the work that he could do? Yes.
You put him off work for a month or so altogether? Yes.
From that time onwards you certified him as fit for work four hours a day, light happens in March 2004? Yes, I mean from my experience as a GP a lot of patients come in with back pain. We always encourage them to try to go back and do what they can because rehabilitation very often is better if they can go up to their workplace but often there's a point where they can not put up with the pain any more and then they come and say, look, no I can't put up with this any more, sorry. Then we don't push it too much then.
work? Four hours a day light duties.
So you diagnosed muscle strain in 2002? Yes.What injury did you diagnose him as suffering in March 2004? A similar muscular strain.”[22]
[22] Transcript pp38-39
30 Mr Gorton attempted to pin Dr Yeung down as to what happened on 18 March 2004:
“You're not now able to say whether or not he told you it was a sudden flare-up in pain or something that had happened gradually over time? I can't say how, sir. I can't say exactly something happened today but tomorrow he is in pain. I can't say that. But from what I understand he's just been getting worse.”[23]
[23] Transcript p39
31 Dr Yeung said that Mr Angeleski did not identify a specific incident, but said that his pain had got worse due to work[24]. Dr Yeung agreed that CT scans taken in 2002, 2004 and 2005, showed changes, with broad-based bulging being reported on the most recent investigations. He agreed that there had been deterioration in the state of his L2-3 disc between 2004 and 2005. He thought that this deterioration could be general degenerative change, or it could be injury based. He could not say which it was[25].
[24] Transcript p40
[25] Transcript pp41-42
32 Dr Yeung considered that Mr Angeleski’s work significantly contributed to his back condition[26]. As to the relationship between Mr Angeleski’s present condition and the incident, Dr Yeung said:
“One of the things the court will be concerned with here is what is the relevance of the injury first reported in February 2002 to his current condition? Well once a disc is loose it can look normal on CT scans but it can still move around. Depending on his position, what he does, it can move back and press the nerve and it can go back into (indistinct) and not press anything so it varies from whatever movement position he is. So if you ask me whether that happened at that time - it is very difficult to know at what point in time this happened but it happened somewhere along that time frame.”[27]
[26] Dr Yeung’s reports, 10 July 2006, PCB p37; 9 August 2006, PCB p40
[27] Transcript p48
33 Dr Yeung considered it unlikely that Mr Angeleski could resume full time normal work, although capable of four hours light work a day. Later, Dr Yeung thought that because of the worsening of his back symptoms, with radiation into both legs, due to a lumbar disc problem, and his other medical problems, including inguinal hernia, diabetes and ischaemic heart disease, Mr Angeleski was totally and permanently incapacitated[28].
[28] Dr Yeung’s reports, 23 February 2008, PCB p42; 30 September 2008, PCB p43
34 Dr Polonowita, psychiatrist, first saw Mr Angeleski on 15 May 2006, and during June 2006, concerning complaints of pain, which he said that his doctor had told him he had to live with. Mr Angeleski stopped attending Dr Polonowita, who was unable to offer an opinion whether he had a work related psychiatric problem[29].
[29] Dr Polonowita’s report, PCB p45
35 Mr Weaver, orthopaedic surgeon saw Mr Angeleski on 23 October 2008. He gave Mr Weaver a history of continuing low back problems since February 2002, following the incident. Mr Weaver examined Mr Angeleski, and saw a CT scan of 11 February 2005 and an MRI scan of 3 June 2005, which showed multiple level degenerative change in his lumbar spine, especially at L2-3, and to a lesser extent, L4-5. He thought that this was early onset aging, which was confirmed by unrelated problems of diabetes and a cardiac condition at an early age.
36 He accepted that Mr Angeleski’s employment had contributed to the lumbar disc pathology, and that the incident was the straw that broke the camel’s back[30]. Mr Weaver gave this explanation in his evidence:
“I think the pathology is - throughout his lumbar spine has developed over a very considerable period indeed and I don't think that the pathology itself changed on or about 18 February 2002. I think what happened is that he first became aware at that stage that he really had a problem - a problem which hadn't troubled him up to that point and I think he became symptomatic from then onwards.”[31]
[30] Mr Weaver’s report, PCB pp48-49; transcript p55
[31] Transcript p55
37 Mr Weaver considered that the incident was one of several factors contributing to Mr Angeleski’s presentation. He thought that Mr Angeleski’s spinal condition had progressively deteriorated, and was symptomatic[32]. He diagnosed multiple level lumbar intervertebral disc pathology with symptoms that would continue indefinitely.
[32] Transcript p55
38 Mr Weaver considered that Mr Angeleski needed conservative management of his low back condition. He assessed Mr Angeleski as having the capacity for limited light work.
39 In December 2007, Mr Barrett, orthopaedic surgeon, conducted a medico- legal assessment of Mr Angeleski. He found significant limitation of painful lumbar spinal movements. There was radiological evidence of generalised disc changes at most lumbar levels, most noticeable at L2-3, and slightly less at L4-5, which he considered were causing Mr Angeleski’s continuing symptoms. Mr Barrett thought that conservative treatment was appropriate, and that physical activity should be kept to a minimum[33].
[33] Mr Barrett’s report, PCB pp77A, B
40 Mr Love, orthopaedic surgeon saw Mr Angeleski in early 2005. He considered that Mr Angeleski’s symptoms were consistent with lumbar disc disease, with probable spinal canal stenosis. He advocated conservative management, but thought that if the symptoms persisted, surgical spinal decompression may need consideration[34].
[34] Mr Love’s report, 15 April 2005, PCB pp77C, 77D
41 Mr Love’s prediction of spinal canal stenosis was confirmed by an MRI of Mr Angeleski’s lumbo-sacral spine conducted on 3 June 2005 and reported by Dr Doney:
“L2/3 disc: Mild annular bulging of the L2/3 disc is seen , indenting slightly the anterior wall of the theca. The disc bulge extends through the recesses and exit foramina bilaterally producing mild stenoses.. Canal dimensions remain within normal limits at this level.
The exiting L2 nerve roots are unaffected.
The traversing L3 nerve roots are displaced fractionally posteriorly bilaterally, but no nerve root compression results.
. . . . . . . . . . . .
L4/5 disc: Minimal annular disc bulging is noted. Canal and foraminal dimensions are well within normal limits. No compressive radiculopathy.”[35]
[35] Dr Doney’s report, 3 June 2005, PCB p 77E
42 These findings are in contrast with a CT scan of Mr Angeleski’s lumbar spine on 12 March 2002 from L3 to S1. There were minor spondylitic changes in the lower lumbar spine, projecting anteriorly and laterally, with no osteophyte formation seen. There was no evidence of spinal canal stenosis and no disc herniation[36].
[36] Dr Steg’s report, 12 March 2002, PCB p 77F
43 A further CT scan of Mr Angeleski’s lumbar spine, on 31 March 2004, from L3 to S1, revealed minor bony spondylitic change, with no canal stenosis or disc herniation[37]. Another CT scan of the lumbar spine, on 11 February 2005, showed no protrusion, but degenerative changes at L2-3 and L4-5[38].
[37] Dr Steg’s report, 31 March 2004, PCB p 77G
[38] Dr French’s report, 11 February 2005, PCB p 77H
44 Rebecca Sewell, physiotherapist, treated Mr Angeleski for his lower back after his injury on 18 February 2002[39]. On 1 April 2004, she reported to his treating doctor that in the past two weeks:
“…he has suffered an acute aggravation, with no apparent mechanism of
injury.”[40]
[39] Ms Sewell’s report, 17 August 2006, PCB p 77J
[40] Ms Sewell’s report, 1 April 2004, PCB p77I
45 Ms Sewell considered that Mr Angeleski had musculoskeletal injuries which were totally related to the incident[41], that his back condition was chronic, preventing his return to his pre injury employment. She thought that he could perform light duties. She thought that he had a permanent impairment .
The medical evidence on which Bitzer relies:
[41] Ms Sewell’s report, 17 August 2006, PCB p 77K
46 In 1991, Mr Angeleski reported low back pain to his then employer on three occasions: on 7 March 1991[42], 8 May 1991[43] and on 14 May 1991[44]. He was seen by Mr Menelaus, surgeon, on 29 May 1991, and told Mr Menelaus that back pain was first experienced in December 1990, and that it worsened in January 1991. He related it to his work. He had some time off work, some physiotherapy, and was given Ducene and Panadeine Forte. Mr Angeleski’s duties were modified. Lumbar spinal x ray on 21 May 1991 showed no significant abnormality. Mr Menelaus considered that Mr Angeleski’s work at least aggravated, if not caused his symptoms of relatively minor backache, which he diagnosed as a ligament strain or inflammation.
[42] Claim form 15 March 1991, DCB p4
[43] Claim form, 14 May 1991, DCB p5
[44] Caim form, 17 May 1991, DCB p6
47 Mr Flaim, surgeon, examined Mr Angeleski on 3 April 2002. Mr Angeleski stated that since the incident, his back pain had improved progressively, and that his low back pain troubled him less than pain in both buttocks. Mr Flaim accepted that as a result of the incident, Mr Angeleski had an acute attack of low back and bilateral buttock pain, which had improved, allowing his return to alternate duties, before resuming normal work in about one week.
48 Mr Flaim could not make a specific diagnosis, but thought that the presentation was consistent with resolving lumbar strain. He considered Mr Angeleski to be genuine[45].
[45] Mr Flaim’s report, 3 April 2002, DCB pp33-35
49 On 29 April 2004, Mr Clive Jones, orthopaedic surgeon, examined Mr Angeleski, who described how he had injured his back, pushing a trolley on 18 February 2002. He said that in March 2004, his back became “very bad”, without a new injury. Mr Jones considered that Mr Angeleski was genuine. He saw a CT scan made on 31 March 2004, which showed generalised degenerative changes, most marked at L2-3 level. There was no significant canal stenosis.
50 Mr Jones accepted that Mr Angeleski continued to experience back pain from his injury on 18 February 2002, with on going symptoms since then and a recent exacerbation, without a new injury. He accepted that Mr Angeleski’s employment was a significant contributing factor[46].
[46] Mr Clive Jones’ report, 29 April 2004, DCB pp36-37
51 Dr Wyatt, occupational physician assessed Mr Angeleski on 24 September 2004. She considered that he presented with common or non specific lower back pain, with no features of worrying pathology. Dr Wyatt added her opinion that:
“…it would be reasonable to accept Mr Angeleski developed back pain in the context of the particular incident at work…At this point it would be reasonable to accept the employment as a significant contributing factor to Mr Angeleski’s back problem, and materially contributing to an incapacity for work from his back problem.”[47]
[47] Dr Wyatt’s report, 13 October 2004, DCB p41
52 Dr Wyatt regarded Mr Angeleski as able to resume work, performing light duties.
53 Dr Kemp, rheumatologist, accepted that Mr Angeleski injured his lower back on 18 February 2002. He disagreed with Dr Yeung’s diagnosis of a low back pain or muscular strain, reasoning that a strain would have resolved within the first few weeks. Because Mr Angeleski’s symptoms had not improved significantly with conservative treatment, and as there was present marked lumbar paravertebral muscle spasm, he suspected an underlying lumbar intervertebral disc injury, and recommended further investigation.
54 Dr Kemp considered that Mr Angeleski’s work was a significant contributing factor to his low back injury as well as to the causation of his herniae[48].
[48] Dr Kemp’s report. 3 February 2005, DCB pp42-44
55 Dr Castle, occupational physician, saw Mr Angeleski on 5 September 2005. He considered that Dr Yeung’s diagnosis of muscle strain in the low back was incorrect[49]. His physical examination of Mr Angeleski was consistent with L2- 3 and L4-5 disc bulges, without evidence of radiculopathy. Dr Castle’s diagnosis was of back pain of unknown or uncertain origin.[50]
[49] Dr Castle’s report, 13 October 2005, DCB p51
[50] Dr Castle’s report, 30 September 2005, DCB p49
56 Dr Castle accepted that Mr Angewlevski had sustained injury in February 2002. He questioned whether the disc changes at L2-3, 3-4, 4-5 and at L5-S1 were caused by what happened in February 2002. That was the “moot point”. He accepted that Mr Angeleski’s injury was work related, and that this injury materially contributed to his incapacity. Dr Castle acted on Mr Angeleski’s history that he had not experienced back problems before February 2002, and that he developed back pain as a result of the incident. He considered that Mr Angeleski could manage four hours of light work a day at that time[51].
[51] Dr Castle’s report, 30 September 2005, DCB pp49-50
57 Dr Castle advised that some back pain proves intractable, persisting despite all appropriate interventions[52].
[52] Dr Castle’s report, 13 October 2005, DCB p52
58 On 15 October 2007, Mr Ian Jones, orthopaedic surgeon, examined Mr Angeleski, and investigations available to him. He considered that Mr Angeleski had age related multi level lower lumbar spine degenerative disease, with associated disc bulging at L2-3 and L4-5, but without evidence of disc prolapse. He thought that the incident aggravated pre-existing degenerative changes, and that Mr Angeleski’s symptoms were related to his lower lumbar degenerative disc disease. This would permanently preclude him from resuming his pre-injury employment. This limitation was not due to the injury on 18 February 2002, but to the progressive degenerative condition. Mr Jones considered that he could perform light duties[53].
[53] Mr Ian Jones’s report, 19 October 2007, DCB pp55-56
59 Mr Jones reviewed Mr Angeleski on 19 September 2008, and found no change. Mr Jones was now aware of Mr Angeleski’s previous back symptoms, commencing in December 1990, with exacerbations in 1991. These pre-existing symptoms reinforced his opinion that the incident aggravated pre-existing degenerative disc disease, or a possible previous injury. Mr Jones’ prognosis was one of persisting lumbar back pain and stiffness. He thought that Mr Angeleski could return to suitable employment, full time[54].
[54] Mr Ian Jones’s report, 19 September 2008, DCB p59
60 On 1 October 2007, Mr Buzzard, surgeon, assessed Mr Angeleski. It was his opinion that as at February 2002, Mr Angeleski had age related degenerative disease in his lumbar spine, aggravated in the incident. Because Mr Angeleski was off work for about one week at that time, Mr Buzzard reasoned that the aggravation was minor, and Mr Angeleski was not now suffering as a result of that aggravation.
61 Mr Buzzard was troubled that Mr Angeleski’s complaints of back pain involving the posterior aspects of his thighs extending to his knees. He regarded this as inconsistent with the imaging which showed no evidence of sciatica, and because of inconsistencies between the straight leg raising test and being able to sit at right angles. As result, Mr Buzzard concluded:
“…that he has functional overlay at least some of which is at a deliberate level”[55]
[55] Mr Buzzard’s report, 2 October 2007, DCB p65
62 Mr Buzzard accepted that degenerative changes in Mr Angeleski’s spine were causing symptoms, which required conservative treatment. He could not explain Mr Angeleski’s complaint of left leg weakness as relating to his back condition, or as due to neurological problems in his leg. He regarded Mr Angeleski as able to work so long as there was no very heavy lifting, bending or stooping.
The issues:
63 Mr Keogh contends that as a result of the incident, Mr Angeleski suffered a low back injury, aggravating pre-existing degenerative changes in his lumbar spine. He contends that this injury continues to cause symptoms from which Mr Angeleski has suffered and continues to do so.
64 Mr Gorton contends that any disability or impairment of Mr Angeleski is the product of his pre existing lumbar spine degeneration, and that the injury suffered on 18 February 2002 was a muscular strain, which has not caused persisting or long term symptoms.
What must be decided:
65 Arising from the competing contentions set out in paragraphs 63 and 64 above, in deciding this application, I must:
(a)
identify a compensable injury, that is one which arose on or after 20 October 1999;
(b) assess the nature and extent of that injury; (c)
ascertain the impairment or loss of body function resulting from the compensable injury;
(d) determine whether the impairment or loss is “permanent”; and (e)
decide whether the impairment or loss is “serious”, that is, at least “very considerable” for Mr Angeleski as to –
(i) pain and suffering and/or
(ii) pecuniary loss
by comparison with other cases; and
(f)
decide as to pecuniary loss, whether Mr Angeleski has established a loss of earning capacity of 40% or more, by comparing “after injury earnings” with “without injury earnings”, and whether, with retraining or rehabilitation, the Plaintiff would have a capacity for employment which, if exercised, would result in earning more than 60% of gross income.
The relevant legal principles:
66 Under s134AB(1) and (2) Accident Compensation Act, so far as is relevant to this application:
“(1) A worker who is, or the dependants of a worker who are or may be, entitled to
compensation in respect of an injury arising out of or in the course of, or due to the
nature of, employment on or after 20 October 1999—
(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except—
(iii) . . . . . .as permitted by and in accordance with this section; and
(b) shall not, in proceedings in respect of the injury recover any damages for
pecuniary loss except—(ii) . . . . . .as permitted by and in accordance with this section.”
(2) A worker may recover damages in respect of an injury arising out of, or in thecourse of, or due to the nature of, employment if the injury is a serious injury and
arose on or after 20 October 1999.”
67 It is for Mr Angeleski to demonstrate, on the balance of probabilities, that he has a serious injury[56], which, as defined in sub-section (37) means permanent serious impairment or loss of a body function.
[56] s134AB(19)(a)
68 In sub-section (37) “serious” and “severe” are explained in sub-section (38), which, so far as is relevant to this application, refers to the consequences to the worker of an impairment or loss of a body function, as to pain and suffering or loss of earning capacity:
“…when judged by comparison with other cases in the range of possible
impairments or losses of a body function…;
69 The sub-section provides that for an impairment or loss of a body function to be serious, the pain and suffering consequence or the loss of earning capacity consequence, when judged by comparison with other cases in the range of possible impairments or losses of a body function must be capable of being fairly described as being more than significant or marked, and as being at least very considerable.
70 Under sub-section(38), in order to establish a serious injury as to loss of earning capacity, the worker must establish:
(e) …in addition to the requirements of paragraph (c) or (d), as the case may
be, that—(i) at the date of …the hearing of an application under sub-section (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii) the worker …will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;
(f) for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing the worker's gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date with the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of "serious injury" and not otherwise;
(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of "serious injury" and not otherwise;
(j) the assessment of "serious injury" shall be made at the time that the
application is heard by the court.”
71 The term “permanent” means “likely to persist in the foreseeable future”[57]. There must also be the probability that the impairment “will last and not mend or repair – or at least not to any significant extent” [58].
[57] sub section 37
[58] Barwon Spinners, per Phillips JA for the Court at paragraphs 18 and 19
72 In Barwon Spinners, Phillips J A explained that[59]:
[59] Barwon Spinners, per Phillips JA for the Court at paragraphs 33 and 34; see also Chernov J A in Grech v Orica Australia Pty Ltd [2006] VSCA 172, par 2, and Ashley J A, par 9
“…one can scarcely proceed to consider the consequences to the Plaintiff of either the injury or the impairment before one has identified precisely the nature and extent of the injury relied upon and of the consequent impairment of a body function said to have been produced. A necessary part of that task of identification will be to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future. Only then, it seems to us, can one proceed to the inquiry about the consequences for the Plaintiff: are the consequences such that they satisfy the "very considerable " test set forth in paragraphs (b) and (c)?
Thus, in order the questions must be: first, what is the injury and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, i.e., likely to last for the foreseeable future; and thirdly, are the consequences for the Plaintiff such as to satisfy the "very considerable" test? If the answer to the second or third of these is no, the injury is not a serious injury as defined by paragraph (a) of sub-s.(37). If the answer to both is yes, it is a serious injury, but then one has identified an impairment which is both permanent and serious (as defined) and the fact that the impairment is permanent will obviously have been a consideration when weighing the consequences; after all, they are the consequences of that impairment. It is hardly likely, if the impairment of the body function will probably last for the foreseeable future, that the consequences upon which the Plaintiff relies to satisfy the "very considerable" test will be otherwise.
Having given the matter much thought, we think it enough to say this: that the impairment of a body function will answer the description "permanent serious impairment" if it is an impairment which, with consequences (as to economic loss or pain and suffering or both) that meet the "very considerable" test, is permanent, in the sense of likely to last for the foreseeable future. That sufficiently couples both adjectives - permanent and serious (as defined) - and
beyond that it seems unnecessary to go. Certainly nothing in these four appeals raised any problem in that regard.” (emphasis added).
73 The issue whether Mr Angeleski has suffered a serious injury is to be resolved by taking into account all the evidence[60], and not by –
“…trial by doctors’ opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that medical opinion did not of itself provide answers to those questions.”[61]
[60] Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, par 17, per Ashley JA
[61] Grech v Orica Australia Pty Ltd (2006) 14 VR 602, at 611, par 35 per Ashley JA
74 I must be satisfied that Mr Angeleski has an impairment or loss of function the consequences of which, physically based, are serious in terms of pain and suffering or loss of earning capacity, in order to satisfy the definition of “serious injury” under sub section 37(a)[62].
[62] Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, par 18, per Ashley JA
75 A recent review was undertaken by Ashley JA. His Honour used as an example a case where there is said to be a psychological aspect of pain and suffering, raising the question whether the plaintiff has met the burden of proof. His Honour explained that the question –
“…might, as a matter of theory, be resolved by identification of the “quantum” of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the Plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”[63]
[63] Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, par 19
76 His Honour adopted what was said by Bell AJA, about what a plaintiff must establish in a claim for pecuniary loss in a serious injury application: It was for the trial judge to determine whether on the evidence the plaintiff’s injury has caused a loss of earning capacity of 40 per centum or more.
77 His Honour pointed out that the degree to which “disentangling or stripping away” may be needed depended on the circumstances in each case. If the incapacity arose from a work injury, and the severity of symptoms is persuasive that it is the major cause of the claimed loss of earning capacity, there was no need to inquire into the contribution, if any, of other causes[64].
[64] Shock Records Pty Ltd and another v Jones [2006] VSCA 180, and Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, par 20, per Ashley JA
78 It is clear that a psychological reaction to physical injury, often referred to as chronic pain syndrome, may be considered under sub-paragraph (c) of the definition of serious injury[65].
[65] Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227, paragraph 39, per Ashley JA
79 I am satisfied that there were degenerative changes in existence before the incident. Mr Angeleski must demonstrate the effect of the incident on his state at that time and since then, as explained by Southwell and Teague JJ in Petrovski v Galletti[66]:
“ And so it is that when a person is given leave to sue, the principle applies; and the court in assessing damages where the case is one of aggravation of a pre-existing condition, must consider what the evidence discloses as to the prior condition of the claimant. Since it is upon the defendant to do the disentangling, and to show what the probably future course of the pre-existing condition will be (Watts v Rake [1960] 108 CLR 158; Purkess v Crittenden [1965] 114 CLR 164) that evidence may sometimes be held to disclose not much more than that there was a risk of later development of the condition…The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of the impairment of a body function before and after the relevant injury.
But next, the ‘injury’ - that is, the injury which resulted from the accident - must involve serious long term impairment of a body function after the relevant injury”.
[66] [1994] 1 VR 436 @ pp 443-4
80 These issues were also considered by the Court of Appeal in Angelatos v Museum of Victoria[67], and in R J Gilbetson Pty Ltd v George Skorsis [68].
Findings and conclusions:
[67] [1999] 3 VR 157
[68] [2000] VSCA 51
81 There is no issue that the incident took place on 18 February 2002. I am satisfied that it did. I also accept that the incident occurred as Mr Angeleski described it, and that he injured his low back in the incident.
82 The real issue for resolution is what was that injury?
83 The doctor initially treating the injury adopted a conservative approach[69], despite which I am satisfied that Mr Angeleski continued to experience symptoms in his low back[70]. No real challenge was made to Mr Angeleski’s account of these matters. I consider that he was, generally, a reliable and credible witness, and I accept his evidence as to the history of his low back symptoms since 18 February 2002.
[69] paragraphs 22-23 above
[70] paragraphs 12-16 above
84 Mr Gorton contends that Mr Angeleski must establish that he did not suffer a new injury in March 2004, when he returned to Dr Yeung, complaining of a flare up of his low back pain.
85 There is no evidence of any specific occurrence in or during March 2004. Mr Angeleski denies that there was a particular incident at work from which his back pain worsened.
86 I accept Mr Angeleski’s evidence that there was no further event which led to the increase in severity of his back pain. Although criticism of Mr Angeleski’s reliability arises because of his repeated denial to examining doctors of back pain before the incident of 18 February 2002, in my view, this does not mean that his reliability on other matters in contention is shaken.
87 I consider that it is plausible that the episodes of back pain in March and May 1991 discussed by Mr Menelaus[71] were comparatively minor, from which Mr Angeleski recovered without complications, and that he forgot about them by the time he was asked about them later, as he claims. Mr Menelaus diagnosed ligament strain or inflammation.
[71] paragraph 52 above
88 Dr Yeung first saw Mr Angeleski in March 2004. Dr Yeung’s explanation of the deterioration of Mr Angeleski’s back is plausible, and reasonable[72]. It is consistent with Mr Angeleski’s account of persisting with his work after the incident, despite continuing symptoms, which worsened over time, until he was unable to cope.
[72] transcript pp38-39, and paragraph 33 above
89 Ms Sewell, physiotherapist, had treated Mr Angeleski for his low back, and accepted that in March 2004 he suffered an acute aggravation of his low back condition. Although I do not attach as much weight to her opinion as I would to that of a medical specialist, I consider her opinion should be taken into account. Her expertise was not challenged. Her opinion too is consistent with the approach of Dr Yeung.
90 In my view, this description is consistent with common sense, against a background of a degenerate lumbar spine, demonstrated radiographically.
91 Although Mr Gorton sought to confine Dr Yeung to a diagnosis of muscle strain, his original diagnosis, Dr Yeung’s oral evidence, and the contents of his reports, amount to a diagnosis of disc damage[73].
[73] paragraphs 28-36 above
92 Almost all doctors agree about the presence and location of disc damage evident in Mr Angeleski’s lumbar spine. The real issues is whether it was caused or aggravated by the incident, and whether it is responsible for Mr Angeleski’s present symptoms.
93 It is clear from Mr Menelaus’ report that in March and May 1991, Mr Angeleski had episodes of low back pain, for which he was treated conservatively. Radiological examination then did not disclose any significant abnormality. Mr Menelaus accepted that Mr Angeleski’s work caused or aggravated what he regarded as relatively minor backache, the mechanism of which was either a ligament strain or inflammation.
94 Mr Angeleski denied previous back symptoms when asked about this topic by medical examiners whose reports are now before me. These consultations took place at least a decade, and more, afterwards. On the evidence, I am satisfied that after May 1991, Mr Angeleski resumed full time work, which he continued to perform until the incident on 18 February 2002. I am satisfied that he did not have low back symptoms during this time that interfered with his work capability, or caused him to seek medical treatment or advice.
95 In my opinion, the evidence favours the view that until the incident, Mr Angeleski was asymptomatic concerning his low back, and that the back pain he had in 1991 was isolated, and short term.
96 Mr Weaver considered that degeneration of Mr Angeleski’s lumbar spine had existed for some time before the incident, which served merely to make him aware of that pathological change. I understand Mr Weaver’s explanation to be that it was this incident which made symptomatic that which had existed asymptomatically until then. Mr Weaver accepted that the incident was one of a number of factors contributing to Mr Angeleski’s presentation.
97 Neither Mr Barrett nor Mr Love have expressed a view about any causal connection between the incident and the state of Mr Angeleski’s low back.
98 Mr Flaim only saw Mr Angeleski in April 2002. He accepted that the incident had produced an acute attack of low back and bilateral buttock pain, which he thought was the result of a strain type injury. There is no further report from Mr Flaim, whose opinion is of limited assistance.
99 Mr Clive Jones also saw Mr Angeleski on only one occasion, in April 2004. He too accepted that there was a relationship between the incident and Mr Angeleski’s back injury, and the 2004 exacerbation, without new injury, a view also expressed by Dr Wyatt. Dr Wyatt diagnosed non specific low back pain with no features of worrying pathology in September 2004.
100 Neither Mr Jones nor Dr Wyatt has seen Mr Angeleski, or any of the more recent investigations since their 2004 examinations of him. Their opinions are of limited weight because of this.
101 A similar observation is made concerning the opinions expressed by Dr Kemp, who examined Mr Angeleski in early 2005. He suspected lumbar disc damage caused Mr Angeleski’s symptoms, and accepted injury on 18 February 2002.
102 Dr Castle also saw Mr Angeleski in 2005. He agreed that Mr Angeleski had injured his back in the incident, but was uncertain whether the disc damage present at the levels between L2-3 and L5-S1 was due to the incident or to his work generally.
103 That leads to the opinions of Mr Ian Jones, who first saw Mr Angeleski in October 2007, and again in September 2008. He thought that Mr Angeleski had age related lumbar spine degeneration, and disc bulging without disc prolapse. The incident aggravated the pre existing degenerative changes, and his symptoms were produced by the lower lumbar degenerative disc disease. He considered that the restriction of Mr Angeleski’s work capacity was due to the age related degeneration and not to the effects of the incident.
104 This opinion is similar to that of Mr Buzzard who also saw Mr Angeleski in 2007. Mr Buzzard also found that Mr Angeleski presented with functional overlay, including a deliberate component. Mr Buzzard is alone of the many doctors who examined Mr Angeleski to form this view.
105 I consider that there was nothing in either of Mr Angeleski’s affidavits, or in his oral evidence that warrants concern about exaggeration, let alone, deliberate feigning. He was not challenged in cross examined to suggest exaggeration or conscious exaggeration.
106 Mr Buzzard is a very experienced medical examiner, and his views must be considered. On this occasion, when some others who have medically examined Mr Angeleski and regarded him as genuine, and where there has been no attack on his sincerity, I am not prepared to accept Mr Buzzard’s assessment, particularly where I regarded him as a reliable and plausible witness, and where there was no objective evidence consistent with such a finding.
107 The sole question of substance emerging from the various medical opinions is as to the responsibility of the incident to Mr Angeleski’s current symptoms and any disability and incapacity found to exist.
108 I accept that as a result of the incident, Mr Angeleski injured his low back. I accept that the nature of that injury was the muscle strain diagnosed by Dr Yeung and his colleague, as well as lumbar disc disease. I am satisfied that as at 18 February 2002, Mr Angeleski had pre-existing degenerative disease in his lumbar spine, which was then asymptomatic. I accept Mr Angeleski’s evidence, supported especially in Dr Yeung’s reports and evidence of the developing chronicity of his symptoms over the years until March 2004, despite which he continued to work.
109 I am satisfied that in March 2004, there was a sudden dramatic increase in the intensity of Mr Angeleski’s low back symptoms, without any identified incident. I accept Dr Yeung’s explanation of this development. I am satisfied that this acute change is linked causally to the incident.
110 I accept that since then, Mr Angeleski has continued to suffer pain and symptoms in his low back, as a result of the lumbar disc pathology demonstrated radiographically. In my view, the cause of the symptoms is the significant contribution of the incident, which transformed an asymptomatic condition into one productive of symptoms. The mechanism for that is as described by Dr Yeung. This view is also shared by Ms Sewell, the physiotherapist, and to some extent by Mr Clive Jones. Dr Castle seems to attribute the cause to Mr Angeleski’s employment generally, rather than to the incident specifically.
111 It is for Mr Angeleski to demonstrate that the injury on 18 February 2002 has caused his present symptoms and incapacity, rather than his symptoms and incapacity being the result of pre existing degenerative changes which are unrelated to the events of that day.
112 I consider that he has done so. I accept his evidence as to his work capacity before that date, and that he led a social and domestic life until then which was unrestricted by low back symptoms or pain. Whilst Dr Yeung has used the expression “muscle strain” to describe the injury sustained by Mr Angeleski, I accept that he has also diagnosed disc damage, although he does not mention that on the certificates he issued.
113 It is a view opposed by Mr Ian Jones and by Mr Buzzard.
114 Mr Angeleski was aged 44 at the time of the incident. He is now aged 51. He has not worked since September 2007, and has not sought work since then.
115 His education is limited, as he left school aged 15. His command of English is imperfect. His workplace experience is that of performing manual labouring or semi skilled work, in which he has relied on his physical capabilities to obtain and perform work.
116 For Mr Angeleski to find and be able to work, I consider that he must rely on his physical capabilities.
117 The prevailing medical assessment of Mr Angeleski’s capacity for work is that he is able to perform light work, for four hours a day for five days a week, because of the state of his low back. Dr Yeung has most recently expressed the opinion that Mr Angeleski is totally and permanently incapacitated, but that opinion takes account of other health considerations, apart from the state of Mr Angeleski’s low back. Those other health concerns are not relevant to the determination of this application.
118 I accept that Mr Angeleski can perform light duties for 20 hours a week, that is, for four hours a day, for five days a week.
119 I am also satisfied that Mr Angeleski cannot resume his pre-injury duties, that is, the work he was performing on and before 18 February 2002. That opinion is expressed by most of the medical examiners, and I accept it. In my view, Mr Angeleski has been unable to perform his pre-injury work since March 2004 to date, because of the state of his low back. I am satisfied that this incapacity will continue long term.
120 I find that Mr Angeleski now has limited physical tolerances for sitting, standing, walking and driving, and other physical limitations, as he describes them[74], and as supported by his son[75]. I accept this evidence, which was not challenged.
[74] paragraphs 18, 20, and 21 above
[75] See paragraph 22 above
121 For Mr Angeleski to obtain leave to bring a claim for damages for loss of earning capacity he must show that, when judged by comparison with other cases in the range of possible impairments or losses of a body function his impairment or loss of function is serious, and may be fairly described as being more than significant or marked, and as being at least very considerable. That requires Mr Angeleski to demonstrate a loss of earning capacity of 40 per centum or more, measured by comparing his gross income from personal exertion (expressed at an annual rate) which he is earning or is capable of earning in suitable employment as at the date of hearing, with the gross income (expressed at an annual rate) that he was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects his earning capacity had the injury not occurred.
122 Mr Angeleski cannot establish the required loss of earning capacity where he has, or would have after rehabilitation or retraining, and taking into account his capacity for suitable employment after the injury and, where applicable, the reasonableness of his attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in him earning more than 60 per centum of gross income from personal exertion had the injury not occurred.
123 Neither Mr Gorton nor Mr Keogh devoted much attention to rehabilitation and retraining in their respective presentations. I consider that the careful manner of Dr Yeung’s management of Mr Angeleski whilst he remained working for Bitzer more than adequately fulfilled the role of rehabilitation.
124 As for retraining, I observed how Mr Angeleski attempted to give evidence, at times without using the interpreter, and at other times, needing to use the interpreter. Whilst speaking English in a court room cannot be equated with speaking English in a workplace, I considered that Mr Angeleski’s command of English was quite limited. In my view, that limitation would mitigate against his capacity for retraining, as would his age, his lack of qualifications and his physical capacities.
125 Whilst I am satisfied that Mr Angeleski is capable of part time light duties, that work would need to be of an unskilled, or partly skilled nature, and may include some of the occupations listed in the AVL Vocational Assessment, such as product examiner or machine operator[76].
[76] DCB p141
126 Mr Keogh relies on some figures to establish Mr Angeleski’s earnings, pre injury and post injury. Mr Gorton does not challenge the use of these figures for the purpose of determining Mr Angeleski’s claim for leave to commence a claim for pecuniary loss damages, if I reject his contention that on the evidence Mr Angeleski’s capacity for employment is unaffected by any injury he sustained on 18 February 2002. I propose to adopt the figures for which Mr Keogh contends in order to consider the pecuniary loss claim.
127 Mr Keogh contends that Mr Angeleski’s earnings for the year ended June 2000 should be taken to represent his pre injury without injury earnings. That figure is $34,125.00. No issue was taken with this by Mr Gorton. I proceed on the basis that this fairly represents the without injury earnings. To earn 60% of this gross annual sum Mr Angeleski would need to earn $20,490.
128 Mr Keogh further contends that comparative earnings for four workers, engaged in similar duties to those performed by Mr Angeleski in his normal full time work, during 2005, averaged gross annual earnings of $37,997. For Mr Angeleski to earn 60% of this gross annual wage, he would need to earn $22,798.
129 During 2007, when Mr Angeleski worked for Bitzer, for four hours a day for five days a week, performing light duties, he earned $19,811, which is 52% of these comparable earnings. Thus Mr Angeleski earned less than 60% of these comparable earnings given for 2005. There is no reason to doubt that the comparable earnings in 2007 would have been less than those given for 2005.
130 For reasons already discussed, I am satisfied that Mr Angeleski does not have a capacity for employment which is suitable for him which would, in the future, if exercised, enable him to earn more than 60% of his pre-injury gross income.
131 For these reasons, I am satisfied that he has suffered a total loss of earning capacity which is long term and sufficient to constitute a serious injury.
132 In my view, I do not need to determine Mr Angeleski’s claim for pain and suffering consequences, given the decision I have reached on his claim for loss of earning capacity. This is because of the construction of s134AB(38)(b) of the Act which provides:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively”.
133 I consider that the word “or” between pain and suffering and loss of earning capacity is used disjunctively. Properly interpreted, this means that a worker need only establish either the pain and suffering consequences or the loss of earning capacity consequences to meet the needs of a serious injury claim.
134 However, sub-section 38(b) must be read together with s134AB(17), which modifies the interpretation of sub-section 38(b) set out above in the following way. Under sub-section 17, if a worker establishes that the pain and suffering consequences of an injury are serious, but does not demonstrate that the loss of earning capacity consequences are serious, the worker may commence a proceeding for damages for pain and suffering only. The sub-section does not operate in the same way where a worker establishes that the loss of earning capacity consequences of an injury are serious.
135 Further, I agree with and adopt the reasoning of Judge I J K Ross in Patterson v Burbank Plumbing and Maintenance Services[77] that in these circumstances, the application of s134AB(19)(c) must be considered. Sub- section (19)(c) provides that no finding apart from a finding that an injury is a serious injury made on an application for leave to commence a proceeding for damages gives rise to an issue estoppel. I also agree that there is no useful purpose in deciding the pain and suffering consequences of an injury where a decision has been reached that the loss of earning capacity consequences of an injury constitute a serious injury.
[77] [2007] VCC 1527, 10 December 2007
136 This interpretation of sub-section 17 is consistent with the second reading speech of the Minister for Workcover:
“The bill introduces a new concept in relation to the worker having a limited entitlement to bring proceedings if, on the serious injury application the court is not satisfied that the worker has met both the pain and suffering and loss of earning capacity thresholds. If a worker satisfies the pain and suffering but not the loss of earning capacity threshold, then the worker will be limited to an entitlement to bring common law proceedings for the recovery of pain and suffering damages only. If however the worker satisfies the economic loss threshold, the worker will be entitled to bring proceedings for pain and suffering damages and economic loss damages.”[78]
[78] Hansard, Legislative Assembly, 13 April 2000, p1005
137 I also adopt and follow the decisions of Judge Higgins in De Pasquale v A W Dark (Vic) Pty Ltd[79], Judge Strong in Stevens v Everest Australia Pty Ltd[80] and Becirovic v Melbourne Bus Line Pty Ltd[81], a decision of Judge Morrow.
[79] [2005] VCC 158
[80] [2007] VCC 1014
[81] [2007] VCC 1995
138 Mr Angeleski succeeds on his application for leave to commence a proceeding for damages for personal injuries for pain and suffering damages and pecuniary loss damages for the injury the subject of this application.
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