Appeldorff v Oak Park Formwork Pty Ltd (in liquidation)

[2009] VCC 247

a

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-07-04962

PETER APPELDORFF	Plaintiff
v
OAK PARK FORMWORK PTY LTD (in liquidation)	First Defendant
&
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE MILLANE
WHERE HELD:	Melbourne
DATE OF HEARING:	12 & 15 December 2008
DATE OF JUDGMENT:	27 March 2009
CASE MAY BE CITED AS:	Appeldorff v Oak Park Formwork Pty Ltd (in liquidation)
MEDIUM NEUTRAL CITATION:	[2009] VCC 0247

REASONS FOR JUDGMENT

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Catchwords: s.134AB Accident Compensation Act 1985 - serious injury

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Tobin SC	Slater & Gordon Limited
Mr M Roche
For the Defendant	Mr R S Stanley QC	Herbert Geer
Dr C Holland
HER HONOUR:

Introduction

1 The plaintiff seeks leave under s.134AB of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages for injury arising out of or in the course of a period of employment as a manual labourer with the defendant commencing in August 2003, and in particular on 22 October 2003.

2          The application is made under paragraph (a) of the definition of serious injury for the recovery of pain and suffering and loss of earning capacity damages in respect to permanent impairment of the function of the plaintiff’s lumbar spine.

The areas of dispute

3          In amongst the many factors affecting the determination of this application, I note that:

(a)	the plaintiff has a longstanding history of substance abuse (in the main alcohol-related, that is, he has been an alcoholic since the age of 30) and of depression, conditions for which he received treatment before and since the injury. These are conditions the plaintiff said had not precluded a return to his pre-injury employment or the exercise of any residual physical earning capacity following the lower back injury;
(b)	there was radiological evidence of pre-existing minor degenerative changes in his lumbosacral spine and evidence of attendances for treatment of lower back pain prior to October 2003;
(c)	based on the plaintiff’s evidence of two episodes of intravenous drug use in 2004, it is likely that the plaintiff contracted the Hepatitis C virus some years before it was detected in about 2005 or 2006 following, he said, a blood test to check his cholesterol levels. The plaintiff also said that before and since its detection his Hepatitis C condition had not been symptomatic and did not impact on his employability (that is, his residual physical earning capacity), although because of delays in the public health system treatment for this condition was not due to commence until March 2009. Indeed, in cross-examination the plaintiff denied ever complaining to his doctors that he was suffering from lethargy or fatigue presumably in association with this disease, the type of which he reported doctors said may not affect him for decades; and
(d)	having been diagnosed with renal cell cancer (whilst undergoing ultrasound examination in association with his Hepatitis C condition), in 2008 the plaintiff underwent a left radical nephrectomy. Subject to ongoing review, according to his treating urologist, Dr Redwig, this condition does not affect his capacity for employment of any type or, so the plaintiff said, his willingness to seek employment.

4          The defendants conceded a compensable lower back injury caused by the plaintiff’s employment in the period alleged and an unrelated total loss of earning capacity. They submitted that:

(a)	the injury amounted to aggravation of a pre-existing degenerative lumbar spine which, allowing for the investigations and the medical evidence (before and since the work-related injury), probably did not cause the prolapsing of the disc at the L4/5 level;
(b)	in view of the X-ray evidence of degenerative changes and the attendances for treatment of back pain, when the plaintiff resumed employment with the first defendant in August 2003, he already had a “light work back”;
(c)	any work-related injury to the plaintiff’s lumbar spine no longer materially contributed to the pain and suffering and economic loss consequences of which the plaintiff complains;
(d)	if other non-work-related medical conditions are put to one side, the plaintiff has a capacity for suitable employment, for example as a security guard, driveway attendant or shop assistant; and
(e)	the plaintiff was not a reliable witness. In part, this submission appeared to rely on the opinion of psychiatrist, Dr Sale, who thought the plaintiff may be suffering from early neuropsychiatric consequences of alcohol abuse, that is, short-term memory impairment and also, until recently, the plaintiff’s failure to admit his previous intravenous drug use.

The evidence called and tendered

5          The plaintiff deposed to the accuracy of his affidavit, sworn on 19 July 2007. He gave evidence and was cross-examined.

6          The material tendered by him also consisted of: (a) medical reports from treating doctors, Drs Pitt, Barkley, Redwig (the last of which was co-signed by Medico-Legal Advisor to Royal Hobart Hospital, Fleur Dewhurst), and rheumatologist Dr Ingpen; (b) reports from the plaintiff’s medico-legal experts, consultant rheumatologist Dr Webb and orthopaedic surgeons Mr Williamson and Mr Shannon; (c) a report from orthopaedic surgeon Mr Strangward, to the insurer; (d) “Workcover Worker’s Claim Form” and “Employer’s Claim Report”; (e) an agreed “Summary of taxation” and a Summary of pay records; (f) a letter from the Australian Taxation Office with copy “PAYG Payment Summary” report for the plaintiff; (g) a Vocational Assessment report prepared by Evidex; and (h) copy ‘Request for Conciliation’ form and ‘Conciliation Outcome Certificate’

7          Drs Pitt and Barklay gave evidence and were cross-examined. For convenience both doctors were interposed as witnesses prior to the plaintiff being called to give evidence.

8          The defendants called no evidence. However, they tendered copy reports of orthopaedic surgeon Mr Carey, and psychiatrist Dr Sale.

9          At hearing the plaintiff gave evidence that he had viewed video and DVD surveillance film obtained by the defendants, one of which (in October 2007) he said showed him walking with a limp after the injury in 2003. It was a condition the plaintiff said he had most of the time, which required care when walking to avoid jarring his back. Apart from this evidence, I infer from the defendants’ failure to rely on any surveillance film obtained, that, if shown, it would not have assisted the defendants in either damaging the plaintiff’s credit or contradicting his evidence about his physical activities and limitations.

10        I note that by a WorkCover Worker’s Claim Form apparently signed by the plaintiff on 3 November 2003, he sought compensation in respect to “LEFT LATERAL L4-5 DISC BULGE, POSS. COMPRESSING LEFT L4 NERVE”. It appears that until they were terminated in late 2005, the plaintiff received weekly payments of compensation in respect to this injury. The Conciliation Outcome Certificate dated 15 February 2006 indicates that following a conciliation hearing the Conciliation Officer was satisfied that there was “a

genuine dispute with respect to the liability to make or continue to make
weekly payments”.

The plaintiff’s background

11        The plaintiff is 45 years of age, having been born on 16 February 1964, and he is single. He was educated to Year 10 level, and he describes an employment history which included work as a pastry-hand, with a period of work as a security officer in a casino, followed by 12 to 13 years working as a croupier and gaming attendant either in Australia or overseas. Thereafter it appears that the plaintiff spent a short period as a labourer, followed by 3 years as a storeman and approximately 12 months as a builder’s labourer. This employment preceded three separate periods of employment with the first defendant performing heavy labouring work, punctuated by other shorter periods of employment working on tug boats and as a labourer in a mine in Western Australia (that is, for two to three months between September and November 2001).

12        The plaintiff’s initial period of employment with the first defendant was between 25 July 2000 and 27 December 2000. The second commenced soon after the plaintiff returned from Western Australia, that is, from 20 November 2001 until 26 June 2002, working on the Collins Street extension, a job from which the plaintiff said he was retrenched due to a downturn in work. His last period of employment with the first defendant commenced on 5 August 2003, working on the Western Ring Road extension, until on or about 22 October 2003, when as a result of his back injury the plaintiff ceased employment. Since then he has not returned to gainful employment and he is currently receiving a disability pension.

13        According to the plaintiff, in February 2006 he moved to Tasmania, one reason for this being to give moral support to his mother who was ill.

14        At hearing, a considerable amount of evidence was devoted to the question of whether, notwithstanding any impairment of his lower spine, the plaintiff was capable of returning to employment as a croupier (that is, at intervals, standing, sitting and leaning to deal and collect from a gaming table). In my view, the plaintiff’s evidence concerning the requirements of this position suggests that despite his experience in this activity, it probably would not constitute suitable alternative employment. However, I will say more about this and other employment issues as part of my discussion of the plaintiff’s current earning capacity in due course.

15        As I have already said, all of the work the plaintiff performed for the first defendant involved heavy manual labour, and, as the plaintiff swore in his affidavit, during his last period of employment with the first defendant he:

“5. ... was employed in that job for more than 2 months working an average of approximately 44 hours per week. My job involved stripping formwork from a poured area of concrete, carrying the formwork to a new area, assisting in the erection of the formwork for the next concrete pour and then assisting in the operation of the pour by operating a vibrating needle. The concrete barriers were being erected in sections of irregular shapes and sizes and from 20 metres in length upwards. The formwork used for the concrete pours was made of plywood, approximately 10mm to 13mm thick, erected against a framework of ‘LVL’ laminated timber which was approximately 6 inches wide by 3 inches thick. The panels of formwork were known as ‘shutters’ and the shutters would vary in length of anything from 1 metre to in excess of 4 metres. The shutters were extremely heavy – a shutter which is 1 metre long would weigh approximately in excess of 40 kilograms and the shutters in excess of 4 metres long could weigh in excess of 200 kilograms.

6. My work involved a lot of bending, lifting, pushing and pulling of these extremely heavy weights, working in cramped and awkward conditions to lift and carry the panels and climbing and carrying them over rough, uneven and muddy ground. We typically had to work very quickly in stripping and reassembling the shutters as the formwork carpenters and concrete pourers could not commence their jobs until we had done ours. Most of the lifting of the shutters was done by me with one other person, and up to three other people for the heaviest shutters.

7. In addition to those duties I was also required to transport

materials and tools from one completed section to the next.”

The circumstances of the injury

16        Both in his affidavit and in his evidence at hearing, the plaintiff said that after he commenced working with the first defendant in August 2003 he started to experience back pain and that this pain progressively worsened (in cross- examination he agreed that he was suffering pain in his back for a period of eight to nine weeks before he ceased work).

17        According to his affidavit, on Saturday, 18 October 2003, work on the Western Ring Road site was completed, and on the following Tuesday the plaintiff recommenced work at the first defendant’s site at the Austin Hospital. This work was apparently delayed by rain, and, as he said in paragraph 8 of his affidavit, on Wednesday, 22 October 2003, the plaintiff:

“... was attending to the stripping of scaffolding and the cleaning of the site. Over the course of the day the pain in my back got progressively worse to the point were [sic] I simply couldn’t cope with it any longer. I ceased work during that day and consulted general practitioner, Dr Harris at the Betta Health Medical Centre in Brunswick.”

18        As is evident from the plaintiff’s affidavit, the first defendant was in the business of providing formwork at construction sites. As far as I can tell from the material I have read, the plaintiff has consistently reported that he suffered lower back pain in association with carrying heavy objects or moving scaffolding at work in the weeks prior to and on the date he sought medical treatment and ceased work (and in cross-examination he denied giving any different account). In these circumstances, I was not satisfied that general practitioner, Dr Barkley’s record, that on 27 October 2003 the plaintiff told him “Hurt back, slipping with a scaffold” detracts from the reliability of his account to specialists or in his sworn affidavit, none of which contain a report of any specific incident of back injury.

Pre-existing back condition and treatment received up to and including
October 2003

19        The plaintiff was Dr Barkley’s patient between 1999 and November 2006, after which he said he moved to Tasmania. He first came under Dr Barkley’s care in respect to his work-related lower back injury from 23 October 2003. The doctor’s multiple reports between 2004 and 2008, directed to the insurer and the plaintiff’s solicitors, establish that when on 22 October 2003 another general practitioner, Dr Harris, first examined the plaintiff he noted that “his

movement of the lumbo/sacral spine were [sic] painful. SLR, R 90, L90

causing referred pain to the lumbar region.”

20        The next day, following his own examination of the plaintiff, Dr Barkley recorded that his patient complained of “severe back pain”. Relevantly, he also noted spasm in the plaintiff’s lumbar region (that is a physical sign consistent with a symptomatic disc injury) and prescribed anti-inflammatory, strong painkilling, and muscle-relaxant medication as well as providing a WorkCover certificate.

21        On reviewing his patient on 27 October 2003, Dr Barkley said that he was sufficiently concerned by ongoing back symptoms to order a CT scan of the plaintiff’s lumbo-sacral spine which was undertaken on 29 October 2003. The radiologist reporting on this occasion relevantly noted that:

“Scans have been performed from L1 to S1.

L5-S1 – There is no disc bulge or prolapse and no canal stenosis or foraminal stenosis. There are no facet joint degenerative changes.

L4-5 – There is moderate disc bulge in the left lateral position which merges with the left L4 nerve immediately outside the intervertebral foramen and is possibly compressing it. There is no other disc bulge or prolapse and no canal stenosis or right foraminal stenosis. There are mild degenerative changes of the left facet joint. The right facet joint is normal.

L3-4 – There is no disc bulge or prolapse and no canal stenosis or foraminal stenosis. There are no facet joint degenerative changes.

L2-3 & L1-2 – There is no abnormality at these levels.

Conclusion: Left lateral L4-5 disc bulge, possibly compressing the left L4 nerve. Left L4-5 facet joint degeneration.”

22        According to Dr Barkley, pending approval of the WorkCover claim, he delayed referral of the plaintiff for physiotherapy until December 2003.

23        As it turns out, a year earlier, on 23 October 2002, Dr Barkley ordered a plain X-ray of the plaintiff’s lumbo-sacral spine because as he said he wanted to investigate the cause of complaints of recurrent back pain. The report accompanying this investigation stated that there was “Minor distal [sic] degenerative change only”. However, as Dr Barkley explained, he understood the maker of this report to have meant “discal”, not “distal” as typed.

24        In his affidavit the plaintiff acknowledged a pre-existing injury in an earlier employment “like a torn muscle in my right upper back” which resolved after a short period off work, and “a bout of back pain in September/October of 2002 that resolved quickly and without incident..” However, in cross-examination, when informed that Dr Barkley had referred to lower back injury in 1999 which led to about two to three weeks off work and in March 2007 whilst clearing plaster a right lower lumbar pain, which also led to time off work, the plaintiff responded, “I can only recall once”.

25        In a letter to the insurer dated 3 August 2005 Dr Barkley provided information concerning the plaintiff’s attendances at his clinic from June 2002. He was cross-examined in some detail about his clinical records over this period, no doubt because in this letter Dr Barkley reported a number of attendances for treatment of a variety of conditions including, back pain, the first being on 3 September 2002 (for “some back pain”) for which the plaintiff was advised to “continue the Vioxx”. This was an anti-inflammatory medication apparently previously prescribed on 13 June 2002 for treatment of “acute torticollis spasm of the neck with underlying disc degenerative changes”.

26        Notwithstanding the suggestion to Dr Barkley that the entry in the clinical records for 3 September 2002 meant that the plaintiff was still using the Vioxx medication originally prescribed, based on the doctor’s responses I was not persuaded that the entry meant more than the plaintiff still had medication available from the earlier date, the use of which Dr Barkley suggested be resumed to treat the back pain reported by the plaintiff in September 2002.

27        It appears that the plaintiff’s further presentation on 22 October 2002, complaining of, amongst other things, some back pain, prompted the doctor to order the X-ray investigation I have already mentioned, although there is no further entry in the clinical records concerning the plaintiff’s lower back condition (which in view of the reported result of the X-ray is hardly remarkable) until after he started work with the first defendant on 3 August 2003. In this regard, the entry for 3 September 2003 records that the plaintiff complained of “some discomfort in the lower back”, a sore throat and a runny nose, for all of which Dr Barkley prescribed Panadeine and antibiotics.

28        I have separately summarised the evidence regarding the plaintiff’s lower back complaint in the 13 months or so prior to his resumption of employment with the first defendant because, consistent with his evidence at hearing, it shows that notwithstanding the evidence of minor degenerative changes in the plaintiff’s lumbo-sacral spine and some complaints of lower back pain, Dr Barkley never formed the view that the plaintiff’s lower back condition required further investigation or that he should refrain from returning to heavy labouring employment. This evidence and the absence of any medical record of complaints of referred leg pain or of muscle spasm (subsequently noted by the general practitioner and some other specialists whose reports I discuss below), really counters the defendants’ submission that, when from August 2003 he resumed employment with the first defendant, the plaintiff already had “light work back”.

29        Nevertheless, to understand the complexities of this case, one has to also come to grips with the plaintiff’s complex current medical status and the treatment of his substance abuse and depression, starting in the period preceding the work-related lower back injury suffered in the latter part of 2003.

30        Dr Barkley’s evidence (during which he was taken to clinical notes) and his letter (which apparently summarised the clinical notes), provide some means of understanding the plaintiff’s earning capacity and quality of life in the period preceding his injury. For instance, as far as I can tell, after the plaintiff was retrenched from the Collins Street extension site, from 9 July 2002 he had one very short period of employment in March 2003 with ‘Galaxy’ before he resumed his employment with the first defendant, this time at the Western Ring Road site. Otherwise he was either unemployed or Dr Barkley certified him as unfit for work.

31        For instance, on 9 July 2002 Dr Barkley certified the plaintiff as unfit for work for two months because of anxiety and depression and substance abuse. In August 2002 the clinical record indicates that the plaintiff again attended for treatment of substance abuse and, as I have already mentioned, in September 2002 he was treated for “some back pain” and depression and anxiety (for the latter of which he was prescribed Ciprinol and Ducene).

32        On 22 October 2002, apart from referring the plaintiff for X-ray of his lower back, Dr Barkley also referred him to a psychiatrist for treatment of his mental state and his substance abuse and he again certified the plaintiff as unfit for work, this time for three months. Indeed, in cross-examination, the plaintiff conceded that throughout 2002 he received treatment for depression and that because of this, when he was out of work, he may have received sickness benefits.

33        It follows from this evidence (and the plaintiff’s responses in cross- examination) that before 22 October 2003, depression and alcohol abuse were recurrent health problems, the treatment of which included two unsuccessful attempts to detoxify, that is, in March 2001 and again in April 2003. The plaintiff also acknowledged that another,attempt to detoxify, in October 2004, was unsuccessful.

34        However this notwithstanding, at hearing the plaintiff said that he had not used marijuana for “quite a while”, and that he had reduced his drinking to “probably a large bottle or two large bottles of beer” a day. Moreover, he attributed excessive consumption of alcohol to “boredom”, that is to say, so far as the plaintiff was concerned, when working he managed his substance abuse problems better.

35        I generally found the plaintiff’s evidence on this issue to be plausible and, in keeping with Dr Barkley’s evidence, that previously the plaintiff’s alcoholism (and it seems his depressive condition) had not prevented him from returning to heavy construction work, which from August 2003 the plaintiff resumed and in which he sustained very long hours of work before his lower back injury brought this employment to an end.

The treatment received and medico-legal examinations subsequent to lower back injury

36        On 20 November 2003 the plaintiff was examined by orthopaedic surgeon, Mr Strangward, at the request of the insurer.

37        Relevantly this specialist:

(a)	appeared to understand from the plaintiff had he been “symptom free” during his last formwork job (which accords with Dr Barkley’s evidence and records);
(b)	obtained a history of gradually worsening back pain at work on 22 October 2003 and by the next day the plaintiff “developed some left

sciatic symptomatology with aching in the back and the thigh and

towards the calf”;

(c) viewed the October 2003 CT scan (“there was no report with the films”) from which (in contrast to the radiologist’s finding of a “left lateral L4-5 disc bulge, possibly compressing the left L4 nerve.”) he noted “…a

large lumbar disc prolapse to the left of midline involving the intervertebral canal at L4/5, elsewhere the discs appear well preserved

in my view.”;

(d)	recorded that with rest there had been improvement in the plaintiff’s condition;
(e)	said that the plaintiff reported aching and discomfort in his back and into the “buttock areas and down the back of left thigh and sometimes into the inner aspect of the left thigh or perhaps to the calf.”;
(f)	on clinical examination, amongst other things observed, “[q]uite a marked degree of muscle spasm” in the plaintiff’s back with “a slight lean to the right”, extremely limited lateral flexion, somewhat better rotation with stiff and very limited forward flexion;
(g)	accepted that there was a work-related injury and (in the absence of any early history of lower back pain or the X-ray film or report) opined that the plaintiff’s “moderately heavy” work had exacerbated symptoms “from a likely pre existing [sic] lumbar disc bulge or prolapse”. This is one of the opinions on which the defendants relied in arguing that the injury suffered was a mild exacerbation of pre-existing degeneration; and
(h)	foreshadowed permanent restriction to work “of a lighter nature”.

38        On 20 April 2004 rheumatologist, Dr Ingpen, saw the plaintiff on referral from Dr Barkley. His last report dated 20 September 2005 indicates that:

(a)  (subject to some confusion about dates), Dr Ingpen obtained a generally consistent history of previous work-related backache (“but [the plaintiff] regarded this as normal and not limiting”) which progressively worsened in late October 2003 when the plaintiff required treatment from his local doctor. In the days following this attendance the plaintiff had:

“…pain radiating into his right leg became a dominant factor but by the time of consultation this had eased somewhat and the pain radiating down his left leg was of dominant concern. The pain did not extend into the foot and tended to fluctuate significantly. He reported that he had attempted to maintain fairly normal basic activities of daily living but pain increased with prolonged standing and walking and also prolonged sitting. He was taking Panadeine Forte for pain control.”;

(b)	this specialist did not obtain any history of alcoholism or depression;
(c)	on examination Dr Ingpen noted, amongst other things, a limp favouring the left side, a lumbo-sacral tilt to the right (an observation also made by Mr Strangward) “which diminished recumbency” diminished straight leg raising on the left side and a weakened left knee reflex;
(d)	this specialist probably viewed the CT scan result noting “a left lateral

L4/5 disc bulge and some degeneration of the adjacent facet joint.

There was no evidence of instability”;

(e)	on 29 July 2004 the plaintiff underwent MRI examination of his lumbar spine and, so the doctor said, the plaintiff coped well with a procedure whereby Dr Ingpen administered “a small volume of caudal epidural injection of corticosteroid and local anaesthetic”;
(f)	Dr Ingpen probably agreed with the radiologist’s assessment of the MRI film, that is, the conclusion that there was:

“Degenerative disc disease throughout the lumbosacral spine… with considerable disc space narrowing at all levels including the lumbosacral junction with broadbased disc bulging at L4-5 extending into the neural foramen on the left side contacting but not displacing or distorting the exiting left 4 nerve root. This has significantly reduced in size since the previous CT scan.”;

(g) on 12 August 2004 the plaintiff reported improvement in leg pain:

“… but he was still suffering considerable low back pain and stiffness extending into the right buttock and to a lesser extent diffusely into the leg. He was noted to be moving better and to have largely lost the lumbar scoliosis previously noted. There remained minor Limitation of straight leg raising on the right side of the femoral stretch had improved as had the knee reflex. He was prescribed Mobic 15mg per day to take in conjunction with Effexor 75mg per day. …” (sic);

(h) Due to “diffuse lumbar stiffness”, Dr Ingpen arranged for a number of tests and other than an abnormal liver function test (which he thought was “possibly due to alcohol intake” but because of his later diagnosis of Hepatitis C virus I expect may have been a consequence of this condition) these tests were normal;

(i)         on review on 14 December 2004 Dr Ingpen noted that there was evidence of further improvement, although the plaintiff’s “physical signs … were unaltered”. On this occasion there was also discussion of surgical intervention which appears to have been deferred in favour of further physiotherapy and a Pilates regime;

(j)	when last reviewed by Dr Ingpen on 3 May 2005, he noted “a slow progressive improvement in lumbar spinal function”, with the plaintiff reporting an increase in his standing, walking and sitting tolerances;
(k)	against a background of “very slow spontaneous improvement” Dr Ingpen favoured ongoing conservative management of the plaintiff’s lower back condition;
(l)	Dr Ingpen diagnosed “… defined multiple level intervertebral disc

degeneration but superimposed upon this has suffered a specific L. 4/5

intervertebral disc protrusion involving the L4 nerve root”. This suggests that, notwithstanding the evidence of pre-existing degeneration, Dr Ingpen felt that the protrusion at the L4/5 level was attributable to the plaintiff’s work activities in late October 2003;

(m) in circumstances where he thought the plaintiff would “remain limited

with respect to heavier and more vigorous physical activities

indefinitely” Dr Ingpen recommended “[r]e-education into an occupation
with less physical demands…”.

39        On 10 May 2004 another rheumatologist, Dr Webb, examined the plaintiff at the request of the insurer. As his report shows, Dr Webb’s examination took place prior to Dr Ingpen receiving approval to perform an MRI and administer the caudal epidural injection to which I have already referred. In any event, I note that Dr Webb obtained a history that was consistent with there being back pain in the weeks preceding a date in late October 2003 when, because of very severe back pain, the plaintiff sought medical treatment and ceased work. Relevantly, Dr Webb:

(a) (consistent with earlier reports to other doctors) received reports of “…

pain down the legs. Either can be involved, but at the present his main problem is pain in each buttock, and down the back of the left leg to the

ankle”;

(b)	took into account the CT scan result, noting as it did “a left lateral L4-5 disc bulge, possibly compressing the left L4 nerve” and against a background of pre-existing degenerative disease appeared to accept that there had been work-related aggravation and exacerbation through injury to the plaintiff’s L4/5 intervertebral disc;
(c)	determined that the plaintiff was totally unfit for all work although it was too early to comment on “any permanent impairment resulting from this industrial injury”.

40        As Dr Barkley’s reports demonstrate, in October 2004 the plaintiff was “treated for alcohol intoxification” and he needed assistance in finding housing. Moreover, on 13 September 2005 (subsequent to the plaintiff’s last attendance on Dr Ingpen) the plaintiff complained of:

“… back pain in the lower lumbar spine. He complained of any jolting or going over bumps caused pain and he complained of pain going down to the left buttock and left posterior thigh. [sic]

On examination there was spasm. Medication was prescribed.
In addition he had been seeing Dr Parekh for his depression.”

41        During cross-examination, apart from indicating that he last attended for hydrotherapy and physiotherapy treatment in 2004, the plaintiff acknowledged that he had not applied for employment since then. Nevertheless, the medical opinion I have summarised indicates that during 2004, by reason of injury- related impairment of his lower back, the plaintiff was probably totally incapacitated for employment.

42        According to his clinical records, in late 2006 Dr Barkley treated the plaintiff’s back condition on 9 October and again on 1 November 2006 (when the doctor provided “a repeat of his medication”). However, as I have already mentioned, after 23 November 2006, on which date Dr Barkley treated the plaintiff for “pain in his feet”, he did not consult this doctor again. Nevertheless, in the treating general practitioner’s opinion, due to “chronic back pain” and the nature of the injury suffered, the plaintiff was unfit for work and unlikely to be able to return to manual labouring work.

43        On 13 April 2006, orthopaedic surgeon, Mr Carey, conducted an impairment assessment. I am unable to tell from his report what documents accompanied the request for him to undertake this assessment. However, based on his clinical examination, the CT and MRI scan film (which, as a result of the comments made by him, suggest that Mr Carey probably viewed this film) and a history of the plaintiff developing back pain four weeks prior to injury on 22 October 2003, Mr Carey:

(a)	diagnosed work-related intervertebral disc injury at the L4/5 level;
(b)	noted the existence of extensive degenerative changes throughout the plaintiff’s lumbar spine; and
(c)	took a history of lower back pain with referred pain into lower limbs and despite the “minimally reduced left ankle jerk reflex” he was not satisfied that there was objective evidence of “radiculopathy”. As submitted by the defendants, notwithstanding evidence of some pressure on the nerve, this finding and the findings of other specialists do not indicate evidence of true radiculopathy.

44        On 1 November 2006, orthopaedic surgeon, Mr Williamson, examined the plaintiff at the request of his solicitors. His report indicates that Mr Williamson was given to understand that whilst working long hours and performing heavy work during October 2003 the plaintiff developed back pain and he consulted a doctor after a significant increase in pain which by the following day, the plaintiff described as “severe” and disabling pain.

45        However, with rest and treatment and the caudal epidural injection administered by Dr Ingpen, Mr Williamson noted improvement but not to a level which would enable a return by the plaintiff to his previous occupation as a labourer. According to Mr Williamson the plaintiff reported, amongst other things:

(a) “…ongoing low back pain. He said that his pain was constant in nature and it was aggravated by walking, particularly up slopes. He said that his pain was improved by taking analgesics. He described some associated intermittent pain radiating into the posterior aspects of both thighs, particularly after sitting for more than twenty minutes. He described no associated lower limb paraesthesia or weakness or

disturbance of bladder or bowel control or sensation”; and

(b) medication consisting of “up to eight Panadeine Forte tablets per day

for his pain. He occasionally takes Mobic and Valium. Mr Appeldorff said that his general health is good but he has been recently diagnosed

as having Hepatitis C and takes Efexor for depression…”.

46        Based on the history received, his examination and the radiological evidence, Mr Williamson attributed the plaintiff’s symptoms, that is his chronic lower back pain and some bilateral lower limb pain:

“… to a low back injury sustained in the course of his employment in October 2003. Investigations revealed a left sided L4-5 disc prolapse as well as degenerative changes involving the L5/S1 intervertebral disc.

The development of Mr Appeldorff’s symptoms is consistent with the stated cause. In the absence of any pre-existing, hereditary or lifestyle factors outside the workplace, it is most likely that Mr Appeldorff’s symptoms arose as the result of his emp0loyment [sic] as a labourer and were unlikely to have arisen had he not undertaken that employment. Similarly the development of an L4-5 disc prolapse and degenerative changes within the L5/S1 intervertebral disc can be attributed to a work-related injury.”.

47        This report indicates that relevantly Mr Williamson attributed the disc prolapse at the L4/5 level to the plaintiff’s work as a labourer.

48        At the time he examined the plaintiff, Mr Williamson felt that the plaintiff would benefit from a multi-disciplinary pain management and rehabilitation program and from retraining for sedentary or light manual duties. Clearly, as with other doctors, this surgeon viewed the plaintiff as permanently unfit to return to his pre-injury labouring duties, although he also felt that with retraining there was some prospect of a return to alternative duties.

49        To summarise then, until the plaintiff journeyed to Tasmania, by reason of his lower back work-related injury, most of the treating and medico-legal doctors viewed the plaintiff as permanently unfit for heavy labouring work, although for some there remained the possibility that with retraining he could undertake alternative employment.

50        Notably, at least Mr Williamson, when commenting on the plaintiff’s capacity for employment, understood that the plaintiff had by then been diagnosed as suffering from Hepatitis C.

51        Allowing for some of the limitations in the histories received by the various doctors, it seems to me that all of the medical evidence points to there being a significant work-related escalation in lower back pain and the onset of leg symptoms, particularly on or about 23 October 2003 and since then chronic lower back pain. In association with these symptoms, the radiological evidence points to either a disc prolapse or a significant aggravation of an already degenerate disc at the L4/5 level. This evidence is consistent with the plaintiff having suffered a work-related and significant aggravation injury of lower back disc degeneration also involving either a prolapse at the L4/5 level or the extension of a pre-existing bulge or prolapse.

Treatment and medico-legal examinations from 2007 onwards

52        Following the plaintiff’s relocation to Tasmania he was first examined by general practitioner, Dr Pitt, on 2 May 2007 when to treat his lower back pain he sought to renew his prescription for Panadeine Forte. According to Dr Pitt, on this occasion the plaintiff also reported worsening symptoms of depression and alcohol abuse which caused this doctor to increase the plaintiff’s daily dose of Efexor to 150mg as he believed that the plaintiff “was probably undertreated before that”.

53        Dr Pitt submitted two handwritten reports in 2008. He gave evidence by video link and he was cross-examined.

54        The written reports and his evidence indicate that Dr Pitt:

(a)	reviews and continues to prescribe medication for treatment of the plaintiff’s lower back pain (every four to six weeks), that is Panadeine Forte (four to six tablets per day) for lower back pain and Diazepam 5mg (one to two daily) if needed. However, Dr Pitt said that he has changed the plaintiff’s anti-depressant medication to “Mirtazopine 30mg nocte”;
(b)	received reports from the plaintiff of “ongoing incapacity from low back

pain with left leg radiation & associated depression symptoms

(moodiness, poor sleep, anxiety, excessive worrying, insomnia, etc)”. In cross-examination Dr Pitt agreed that these symptoms (as well as poor appetite and being house bound) were related to the plaintiff’s diagnosis of depression);

(c) (based on material provided to him by the plaintiff’s solicitors which appeared to include MRI scan findings and medical reports) opined that the plaintiff had “degenerative disc disease, through out the

lumbosacral spine… with a broad based disc bulging at L4/5 to involve

the neural foramen on the left hand side”;

(d)	agreed (in cross-examination) that the plaintiff’s suffered from a number of “significant medical problems” and that substance abuse and depression could complicate the successful treatment of the Hepatitis C virus, although the plaintiff has a “good prognostic genotype”;
(e)	could not comment on the period over which the Hepatitis C virus had affected the plaintiff, although he noted that the plaintiff’s abnormal liver function tests indicated that the disease was active;
(f)	agreed (in cross-examination) that lethargy, which can impact on a patient’s motivation is a symptom of Hepatitis C. Nevertheless, Dr Pitt was not specifically questioned about whether there was any link between the lethargy and lack of motivation the plaintiff reported in his affidavit (at paragraph 16) and his Hepatitis C condition which, at hearing, the plaintiff said was asymptomatic;
(g)	noted that if he had been successfully treated for the renal cancer this would not affected his capacity for employment, moreover he had no reason to believe that the plaintiff’s cancer had spread;
(h)	agreed (in cross-examination) that the plaintiff’s alcoholism, depression, Hepatitis C and renal cell cancer would limit his ability to ever hold down a job;

(i)         agreed (in re-examination) that the plaintiff’s ability to retrain or “working ability” was affected by his pre-injury depression and alcohol abuse. In other words, my assessment of whether retraining and rehabilitation are likely to improve the plaintiff’s capacity for employment must take into account these pre-injury and ongoing factors;

(j)	opined that with the passage of more than four years the plaintiff’s prognosis was “very guarded”; and
(k)	thought that because of his lower back injury in the short term the plaintiff was “ … unemployable and in the long term with a possible

structured return to work plan he may be able to undertake light work.

He remains unfit for heavy manual labour indefinitely”.

55        It was apparent from this general practitioner’s responses, both in cross- examination and re-examination, that in his opinion a combination of medical problems currently totally incapacitated the plaintiff for work and rendered him unemployable. These problems included the successful completion of treatment for the Hepatitis C virus, due to commence in early 2009 (during which treatment the plaintiff’s depression needed to be monitored).

56        However, if other factors were put to one side, as I have already mentioned, Dr Pitt nevertheless thought that the plaintiff’s lower back condition made him unfit for heavy manual labour (“indefinitely”), although with retraining in the future the doctor considered that light manual work was a possibility. In this regard, his opinion sits comfortably with the earlier specialist opinions of, for instance, Mr Strangward, Dr Ingpen and Mr Williamson.

57        Orthopaedic surgeon, Mr Shannon, examined the plaintiff twice (on 23 October 2007 and on 22 October 2008) at the request of the defendants’ solicitors.

58        In addition to noting that there was “no significant past history of back trouble”, Mr Shannon appears to have recorded a history of lower back injury that generally accords with that provided to other medical practitioners.

59        In his first report, Mr Shannon speaks of CT and MRI scans without indicating whether or not he viewed the film. This notwithstanding he clearly understood that there was radiological evidence of pre-existing disc degeneration with a disc bulging at the L4/5 level “and a left foraminal disc protrusion”. Relevantly Mr Shannon, amongst other things, noted:

(a)	“spasm on lateral flexion” and reduced straight leg raising, symptoms that were still evident on re-examination by him in October 2008;
(b)	diagnosed a work-related aggravation of pre-existing multi-level long- standing lumbar disc degeneration in the form of an L4/5 disc prolapse, which, despite the absence of the earlier X-ray report is consistent with other medical opinion, some of which also attributes the prolapse to the plaintiff’s work in 2003;
(c)	in the context of it being an L4/5 injury (as with Mr Carey) Mr Shannon placed little weight on the absence of a left ankle reflex;
(d)	by October 2008 deemed the plaintiff “not capable of significant physical work”, that is, restricted to “light bench work”, static security guard and gatehouse keeper duties if the plaintiff “had the option of varying his posture”;
(e)	rejected as “unhelpful” a Vocational Assessment Report presumably prepared for the defendants (but not tendered) and forwarded to him.

60        The last of the medico-legal reports tendered is the report from psychiatrist, Dr Sale, who examined the plaintiff at the request of the defendants’ solicitors on 2 December 2008. Relevantly Dr Sale:

(a)	was apparently informed by the plaintiff that as a consequence of his back injury and his inability to work he became increasingly depressed and started to drink excessively;
(b)	was apparently also informed by the plaintiff that he had reduced his alcohol consumption and that his cannabis use was less frequent;
(c)	took a history in which the plaintiff apparently claimed that past treatment for depression was intermittent and that his Hepatitis C condition was asymptomatic;
(d)	(notwithstanding the plaintiff’s oral evidence admitting this) noted that the plaintiff denied intravenous drug use. As I have already mentioned, this was one of the bases on which the defendants relied to urge a cautious approach to the plaintiff’s evidence;
(e)	diagnosed “persistent pain, chronic depressive symptoms, alcohol

dependence, and may also be experiencing early neuropsychiatric

consequences of alcohol abuse (short-term memory impairment)”;

(f)	reported a guarded prognosis;
(g)	noted the pre-injury history of alcohol dependency and episodic depression;
(h)	recommended work to alleviate depression, which lends support to the plaintiff’s claim that work-related impairment of his lower back has adversely impacted on his pre-existing substance abuse and depression issues.

61        Finally, as I have already mentioned, the plaintiff’s treating urologist, Dr Redwig, has provided a report in which he offered a relatively good prognosis in relation to the plaintiff’s renal cell kidney cancer as well as his opinion that “it is anticipated that Mr Appeldorff’s capacity for employment of any type

currently, and into the future, will not be affected as a result of the cancer

condition”.

62        In cross-examination, and again in re-examination, the plaintiff explained that currently he takes Panadeine Forte for lower back pain (medication he has been using for his lower back pain since his injury in 2003), Diazepam (based on the dosage reported by Dr Pitt I expect this is probably taken as anti- spasmodic medication), Mirtazopine for treatment of depression and Campral, which the plaintiff said helps reduce his craving for alcohol.

63        Based on his responses during cross-examination and the Vocational Assessment Report from Evidex, it appears that after ceasing work at different times occupational and rehabilitation services were provided to the plaintiff which he said ceased by August 2004. However, notwithstanding his concession that he has not sought employment, the plaintiff blamed this on constant back pain which he felt made him unreliable as an employee and disabled him from working for any period of time.

64        I note that the doctors appear to have accepted as genuine the plaintiff’s complaints of pain and ongoing disability and my impression of him as a witness was that he was both straightforward and frank about his personal history and problems.

Compensable injury

65        In my view, consistent with the severity of the symptoms reported and treated and the more sophisticated imaging obtained after October 2003, the plaintiff probably suffered a significant aggravation injury which either caused or extended the prolapse identified in the scans obtained in 2003 and 2004.

66        In these circumstances, the plaintiff has satisfied me that his employment was a significant contributing factor to this injury and what now remains is –

(a)	to determine any consequences to the plaintiff to which his compensable injury materially contributes; and
(b)	to determine whether these consequences are “serious” in accordance with the Act.

Does the loss of earning capacity consequence of the compensable injury meet the statutory definition of serious injury?

67 Sub-section 134AB(19) of the Act requires that I be satisfied that the injury is a “serious” injury and for the purpose of showing a loss of earning capacity in accordance with sub-s.(38) it places the onus on the plaintiff of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.

68        Suitable “employment” is defined in s.5 of the Act to mean:

“… employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following-

(a)	the nature of the worker's incapacity and pre-injury employment;
(b)	the worker's age, education, skills and work experience;
(c)	the worker's place of residence;
(d)	the details given in medical information including the medical certificate supplied by the worker;
(e)	the worker's return to work plan, if any;
(f)	if any occupational rehabilitation services are being provided to or for the worker.”

69        Relevantly, according to sub-s.134AB(38):

(i)	paragraph (b), the term “serious” is to be satisfied by reference to the consequences to the plaintiff of any impairment or loss of function of his lumbar spine with respect to a loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of a body function;
(ii)	paragraph (c), the impairment or loss of function of the plaintiff’s lumbar spine shall not be held to be serious unless the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or loss of a body function, fairly described as being more than significant or marked and being at least very considerable;
(iii)	paragraphs (e)(i) and (ii), the plaintiff must also establish that at the date of hearing he has a loss of earning capacity of 40 per centum or more (measured in accordance with sub-paragraph (f)) and that after the hearing a loss of earning capacity will continue permanently which will be productive of financial loss of 40 per centum or more;
(iv)	paragraph (f), at the date of hearing requires a comparison between the plaintiff’s gross annual income from personal exertion which he is earning or is capable of earning in suitable employment (that is, the “after injury earnings”) with the gross annual income that the plaintiff was earning or was capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred (that is the “without injury earnings”);
(v)	paragraph (g), the plaintiff does not establish the loss of earning capacity required by paragraph (b) 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 the plaintiff’s attempts in rehabilitation or retraining, a capacity for employment including alternative employment or further or additional employment which, if exercised, would result in the plaintiff earning more than 60 per centum of gross income from personal exertion had the injury not occurred; and
(vi)	paragraph (j), the assessment of serious injury is at the time the application was heard.

70        The plaintiff has not returned to gainful employment since he ceased work with the first defendant on or about 22 October 2003 and his after injury earnings from personal exertion are nil. On the plaintiff’s behalf it was submitted that, by reason of work-related ongoing impairment of his lower back, the plaintiff is totally incapacitated for all employment.

71        As I have already said, the defendants submitted that by reason of supervening health problems the plaintiff is, and remains, totally incapacitated for employment and that on the evidence he has not established a loss of earning capacity to which his back injury makes a material contribution.

72        This submission notwithstanding, the preponderance of medical evidence supports a finding that, by reason of ongoing work-related lower back impairment, the plaintiff is permanently unsuited for his pre-injury labouring work, that is, due to his lower back impairment the plaintiff is (and for the foreseeable future will remain) physically incapacitated for his pre-injury employment.

73        Some doctors entertain the possibility that with training the plaintiff may be capable of some light work in the future although none have offered an opinion about the number of hours the plaintiff would be capable of working in light duties.

74        I have touched on some of the evidence concerning the plaintiff’s health problems apart from the injury-related impairment of his lower back.

75        The plaintiff said that the Hepatitis C condition had always been asymptomatic and to a limited extent this claim is supported by his further evidence that the disease was only discovered during a cholesterol test.

76        Nevertheless, based on Dr Pitt’s evidence, I think it likely that until successfully treated lethargy associated with the Hepatitis C virus probably does impact on the plaintiff’s residual earning capacity, that is, any capacity to perform lighter duties with or without retraining. However, currently the renal cell cancer and the plaintiff’s longstanding depression and alcoholism (which are being treated, and in the case of his drinking, apparently to good effect) probably do not impact on the plaintiff’s earning capacity.

77        I have read the very detailed report from Evidex prepared by occupational therapist, Ms Henderson, and dated 30 September 2008. I think it plain from her analysis of the various occupations that potentially match the plaintiff’s education, experience and transferrable skills (and, allowing for the impairment of his lower back, his functional capacity) there is no occupation which represents “suitable employment” for this plaintiff.

78        In accepting this I have also considered Ms Henderson’s opinion that the position of a gaming cashier working four hours per day, three days per week could represent suitable employment for this plaintiff. This is employment which she reported paid an average full-time gross weekly sum of $721. Accepting for the moment the soundness of the occupational therapist’s belief that the plaintiff could have a light work capacity of 12 hours per week in the position of a gaming cashier, this translates to gross weekly earnings of $227.

79        The evidence before me indicates that in the 11 weeks between 12 August 2003 and 21 October 2003, the plaintiff earned between $1,054.96 and $1,815.05 gross per week, with an average of about $1,300 gross per week. I was invited by the plaintiff’s Counsel to accept that, extrapolated over one year, this gross figure most fairly reflected the plaintiff’s earning capacity had the injury not occurred. This notwithstanding, the evidence is that there were fluctuations in the plaintiff’s gross earnings in the three years before the injury, as for instance in the year ending 30 June 2002 when the plaintiff’s taxable gross income was $43,463. Nevertheless, it was submitted that the average of the plaintiff’s earnings over the period of employment with the first defendant most fairly represented the plaintiff’s physical earning capacity from manual labour had the injury not occurred.

80        The last-mentioned submission is indirectly supported by the fact that the WorkCover Worker’s Claim Form and the Employer’s Claim Report both show that each week the plaintiff worked 38 ordinary hours and that he performed substantial regular overtime of between 12.5 and 16 hours. For his ordinary hours the plaintiff was apparently paid at the rate of $19.44 per hour. Accordingly, the plaintiff’s weekly gross earnings were $738 (that is $38,376 gross per annum) plus overtime. However, as his gross earnings in the 11 weeks prior to injury demonstrate, the overtime (and therefore the hours) worked by the plaintiff was very substantial indeed.

81 In these circumstances, for the purposes of the Act, I accept that the plaintiff’s without injury earnings figure could be as high as approximately $67,600 gross per annum. Nevertheless, even if this figure is pitched at lower figure of $38,370 gross per annum (that is for a 38 hour week), an earning capacity of up to 12 hours per week in light duties as a gaming cashier would not take the plaintiff over the statutory threshold.

82 Therefore, applying the tests under the Act, by reason of his ongoing lower back impairment –

(a)	I find that the plaintiff has a loss of earning capacity of 40 per centum or more (sub-s.134AB(38)(e)(i)) and will, after the date of hearing, continue permanently (that is, for the foreseeable future) to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more (sub-s.134AB(38)(e)(ii));
(b)	I am satisfied that rehabilitation and retraining are unlikely to improve the plaintiff’s capacity for employment or to improve it to a level that would take him over the statutory threshold (sub-s.134AB(38)(g); and
(c)	the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of a body function, the plaintiff’s loss of earning capacity is fairly described as more than significant or marked, and as being at least very considerable.

83        In the past, other Judges of this Court (as, for instance, His Honour Judge I.J.K. Ross in Patterson v Burbank Plumbing & Maintenance Services (2007) VCC 1527) have accepted that, under the Act where the Court gives leave with respect to loss of earning capacity consequences, a plaintiff is not limited to bringing proceedings for recovery of damages in respect to any loss of earning capacity. I note that this approach accords with the Minister’s comments in the Second Reading Speech (Victoria, Hansard, Legislative Assembly, 23 May 2000, 1171 (Hon M.M. Gould, Minister Assisting the Minister for WorkCover)) where he said:

“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.”

84        Accordingly, in this case I accept that, having granted leave in respect to loss of earning capacity consequences, I am not required to also determine that the pain and suffering consequences for this plaintiff (one of which must be the loss of the opportunity to return to his pre-injury labouring employment) amounts to a serious injury in this case.

Orders
85	Leave is granted to the plaintiff to bring a proceeding for damages in respect to pain and suffering consequences and loss of earning capacity consequences of injury to his lumbar spine suffered in the course of his employment with the first defendant.