Appleton v Coles Supermarkets Australia Pty Ltd
[2023] VCC 1369
•17 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-03941
| ANDREW APPLETON | Plaintiff |
| v | |
| COLES SUPERMARKETS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Sale | |
DATE OF HEARING: | 29, 30 September and 3 October 2022 | |
DATE OF JUDGMENT: | 17 August 2023 | |
CASE MAY BE CITED AS: | Appleton v Coles Supermarkets Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1369 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the back – pain and suffering – pecuniary loss – credibility
Legislation Cited: Accident Compensation Act 1985 (Vic), s134AB, Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s3, s5, s325
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Richter v Driscoll (2016) 51 VR 95; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Smorgon Steel Tube Mills Pty Ltd v Majkic (2008) 21 VR 193; Acir v Frosster Pty Ltd [2009] VSC 454; The Herald & Weekly Times Ltd v Jessop [2014] VSCA 292
Judgment: Grant the plaintiff leave to commence proceedings to recover damages for pain and suffering and pecuniary loss
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr A Macnab SC Mr S Scully | Lander & Rogers |
Table of Contents
Introduction
Legal principles
Witnesses and evidence
Background
Medical history and injury
Post-injury medical treatment
Compensable injury
Issues and submissions
Plaintiff’s submissions
Defendant’s submissions
Credit
Loss of earning capacity consequences
Pre-injury earning capacity
After injury earning capacity
What amount was the plaintiff earning at the date of the hearing?
Did the plaintiff have a capacity to return to his pre-injury employment?
Did the plaintiff have a capacity to work in suitable employment and if so, in what roles?
If the plaintiff had capacity to work in suitable employment, were the plaintiff’s attempts to participate in rehabilitation or re-training reasonable?
If the plaintiff had capacity to work in suitable employment as either a sales assistant or a sales representative, what was the applicable hourly rate at which he could earn?
If the plaintiff is able to work in suitable employment as either a sales assistant or a sales representative, how many hours per week does he have a capacity to work?
Conclusion on whether the plaintiff has suffered a loss of earning capacity of more than 40 per cent
Is the loss of earning capacity permanent?
Narrative test
Conclusion
HER HONOUR:
Introduction
1By Amended Originating Motion dated 18 November 2021 but issued on 9 December 2021, Mr Appleton (“the plaintiff”) sought leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (Vic) to bring proceedings for the recovery of damages for pain and suffering and pecuniary loss.
2The plaintiff claimed to have suffered a “serious injury” as defined in paragraph (a) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act, being a permanent serious impairment or loss of the function of the spine. He alleged the injury arose by way of a gradual process over time due to the nature of, and/or by way of, multiple insults in the course of his employment as a butcher with Coles Supermarkets Australia Pty Ltd (“the defendant”), from late 1996 to 4 September 2020. This was conceded by the defendant which accepted that the plaintiff was entitled to a certificate in respect of pain and suffering.
3At the trial the plaintiff abandoned a foreshadowed claim to have suffered a “serious injury” as defined in paragraph (c) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act.
4The only remaining issue at trial was whether the plaintiff had suffered a loss of earning capacity of 40 per cent or more, entitling him to bring proceedings to recover pecuniary loss damages.
5Although there was no formal application made to amend the Originating Motion to refer to the Workplace Injury Rehabilitation and Compensation Act (“the Act”), according to s5 of the Act, where a plaintiff seeks compensation for an injury arising out of, or in the course of, employment by way of gradual process over a period beginning before and continuing after 1 July 2014, the Act (as opposed to the Accident Compensation Act) will apply. There was no dispute between the parties that the plaintiff’s injury occurred during the course of employment over a period beginning before and continuing after 1 July 2014 and that the significant event which resulted in the plaintiff ceasing work occurred on 11 May 2016 when the plaintiff had a further significant flare-up of back pain while lifting crates of chicken off pallets. In those circumstances, in my view the Act was the applicable legislation and I propose to deal with the plaintiff’s case on that basis.
6It is consequently necessary to consider whether the plaintiff has suffered a “serious injury” as defined in s325(1)(a) of the Act by reference to the pecuniary loss consequences suffered by him.
Legal principles
7Where a plaintiff claims to have suffered a “serious injury” as defined in s325(1)(a) of the Act, the term “serious” is satisfied by reference to the consequences to the worker of any impairment or loss of body function with respect to either pain and suffering and/or loss of earning capacity, when judged by comparison with other cases in the range of possible impairments or losses of body function.[1]
[1]Section 325(2)(b) of the Act
8Where pecuniary loss consequences are in issue, leave must not be granted unless the worker establishes that, at the date of the application, the worker has suffered a loss of earning capacity of 40 per cent or more, measured as set out in s325(2)(f) of the Act,[2] and the worker will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.[3]
[2]Section 325(2)(e)(i) of the Act
[3]Section 325(2)(e)(ii) of the Act
9Section 325(2)(f) of the Act determines the calculation of the relevant loss of earning capacity by comparing the gross income the worker is earning, or is capable of earning, in “suitable employment” at the date of the hearing (“after‑injury earnings”), and the gross income the worker was earning, or was capable of earning, in suitable employment “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).
10Section 325(2)(g) further provides:
“a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, 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—
(i) has; or
(ii) after rehabilitation or retraining, would have—
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 cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
… .”
11“Suitable employment” is defined in s3 of the Act to mean:
“… employment in work for which the worker is currently suited—
(a) having regard to the following—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv)the worker’s place of residence;
(v) any plan or document prepared as part of the worker’s return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market.”
12In Barwon Spinners Pty Ltd & Ors v Podolak,[4] Ormiston, Chernov and Phillips JJA considered what was meant by the phrase “suitable employment” in s5 of the Accident Compensation Act 1958. Their Honours observed (at paragraph [25]) that the concept:
“… looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker’s incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing ‘suitable employment’ for a worker resident in Melbourne. The expression ‘whether or not that work is available’ emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether or not the job is currently available.”
[4](2005) 14 VR 622 (“Barwon Spinners”)
13In Richter v Driscoll,[5] the definition of “suitable employment” arose for consideration.[6] Osborn JA said (at paragraph [146]):
“… Suitable employment means employment in work for which the worker is currently suited. The Act then provides for factors which must be considered in assessing whether the worker is able to return to employment in work for which the worker is currently suited. The factors listed in paragraphs (a)(i) to (iv) go to characteristics of the worker bearing on his or her employability and are not limited to physical capacities. The factors listed in paragraphs (a)(v) and (vi) go to factors related to processes intended to facilitate a return to work either by way of work plans or rehabilitation services. The significance of return to work is emphasised in the objects of the Act. The outcome of these processes may or may not have been successful, but, for present purposes, these factors are relevant in that they go to the capacity of the worker to return to work in employment in the broad sense that I have sought to explain.”
[5](2016) 51 VR 95
[6]Richter v Driscoll (ibid) at paragraph [80]
14The defendant bears the evidentiary onus to establish the existence of jobs which satisfy the characterisation of “suitable employment” and are within the plaintiff’s “after-injury” earning capacity;[7] although as the Explanatory Memorandum to the Workplace Injury Rehabilitation and Compensation Bill 2013 makes clear, “employment may be suitable employment regardless of whether it is available in the employment market”.
[7]Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 at paragraph [115]
15To meet the requirements for a “serious injury”, in addition to establishing the worker has suffered a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act, the loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of body function, must be fairly described as being more than significant or marked, and as being at least very considerable.[8]
[8]Section 325(2)(c) of the Act
Witnesses and evidence
16At the hearing, the plaintiff gave evidence and was cross-examined. He tendered the Affidavit of Andrew Appleton sworn 6 May 2021, Supplementary Affidavit of Andrew Appleton sworn 13 September 2022, Affidavit of Deborah Appleton sworn 14 September 2022, and extracts of the Plaintiff’s Further Amended Court Book dated 29 September 2022 being various reports from treating medical practitioners, medico-legal reports, radiology reports, supplementary Flexi Personnel Earnings Report dated 23 September 2022, report of Dr Gavin Weekes dated 16 June 2022, report of Dr Richard Sullivan dated 27 October 2021, Curriculum Vitae of Dr Joseph Slesenger, a Summary of Certificates of Capacity of Andrew Appleton and Plaintiff’s calculation of pecuniary loss.
17The defendant tendered extracts of the Amended Defendant’s Court Book dated 29 September 2022 being medical reports of Dr Sam Soliman dated 27 July 2021 and 19 July 2022; 130-week vocational assessment report of Recovre dated 20 July 2018 and an additional document titled “Dr Kulatunge Work Capacity Checklist” dated 15 June 2020, and an Earnings in Suitable Employment Table Summary.
Background
18The plaintiff was born in August 1967. At the date of the trial, he was aged 55 years.
19He is married and has two adult daughters and one grandson.
20Following completion of Year 10, the plaintiff worked in an abattoir and trained to become a butcher. He also worked for several years with utility companies laying gas and water mains.
21The plaintiff had a motor vehicle accident at 18 years of age and suffered lower back pain, which settled after several years of chiropractic treatment.
22In October 1996, the plaintiff was employed by Wagstaff Pty Ltd in an abattoir cutting carcasses and putting meat on hooks.
23In late 1996, the plaintiff commenced employment with Coles Supermarkets Australia Pty Ltd (“Coles”) Wonthaggi as a butcher. His daily duties included manual handling. Trucks delivered pallets of boxed meat and crated chicken. He pulled the pallet jacks from the loading dock to the cool room where he stacked the boxes and crates of meat and chicken. This required him to lift them up to two metres from ankle height to above head height. Each box weighed between 22 and 30 kilograms, and each crate weighed between 20 and 26 kilograms. The work involved repetitive lifting, twisting, turning, carrying and reaching which he said put stress on his back.
Medical history and injury
24In October 1996, while employed at Wagstaff Pty Ltd, the plaintiff developed some lower back pain from his duties. Following a back x-ray and physiotherapy, he was cleared to return to work in November 1996.
25In May 2014, the plaintiff experienced some further low back pain and consulted his general practitioner.
26On 2 June 2014, the plaintiff had a CT lumbosacral spine performed. This showed that the L3/4 disc space was slightly narrowed with marginal osteophyte formation consistent with disc degeneration. There was spondylotic lipping present at the L2/3 and L4/5 disc margins. The plaintiff said he experienced a lot of pain at the time and took Panadeine Forte, Tramadol, Ibuprofen and OxyContin to medicate.
27In July 2014, the plaintiff was referred for physiotherapy which he continued while taking Panadol Osteo and Mobic. His symptoms gradually improved.
28An MRI scan of the plaintiff’s lumbosacral spine taken on 3 June 2015, and as noted by Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, concluded that there was a degenerative change extending from L3/L4 down to and including L5/S1 with facet joint degeneration at L4/L5 and L5/S1. There was annular disc bulging noted at multiple levels with contact but no impingement at the L4/L5 level affecting the L5 nerve root, and contact at the L5/S1 level affecting the S1 nerve root.
29In September 2015, the plaintiff experienced a further flare-up of back pain. He was having muscle spasms and difficulty sleeping. He attended his general practitioner and saw Matthew Holmes, chiropractor, and Rachel Morris, osteopath. His back pain improved, although he continued to have ongoing low-grade pain.
30On 1 March 2016, the plaintiff attended Dr Daigala, his general practitioner at the Long Street Family Medicine practice, with chronic back pain. He was prescribed Tramadol and Diazepam and a CT lumbosacral spine was requested.
31The CT lumbosacral spine scan was performed on 18 March 2016 and was reported on 21 March 2016. It revealed mild, posterior, broad-based disc protrusion, with no significant canal stenosis and no foraminal neural narrowing at the L3/4 level. There was moderate posterior broad-based disc protrusion with minor indenting of the thecal sac and no canal stenosis or neural foraminal narrowing at L4/5 level. At the L5/S1 level there was moderate posterior broad-based disc protrusion with minor indentation of the thecal sac but no canal stenosis or foraminal narrowing. The report concluded that there was mild to moderate broad-based disc prolapse at L3/4, L4/5 and L5/S1 with no canal stenosis or neural foraminal narrowing.
32In April 2016, the plaintiff was referred back to Mr Holmes with ongoing nagging low back pain. He was taking Panadol Osteo and Tramadol.
33On 11 May 2016, the plaintiff had a further significant flare-up of back pain while lifting crates of chicken off pallets. He also had some referred pain into his right thigh. This necessitated him taking time off work to recover.
34The plaintiff described the pain to Dr Daigala as intense, giving it a level eight rating. It was complicated with pins and needles along the back of both legs down to the soles of his feet. Movements of his back were also noted by Dr Daigala to be quite restricted in all directions. He was sleeping very poorly due to the pain and could only sit for short periods.
35He tried to continue working but had to stop on 13 May 2016. He had some referred pain into his right thigh and was prescribed Tramadol, Palexia and Panadol Osteo and he was also administered Tramadol injections.
Post-injury medical treatment
36On 17 May 2016, an MRI lumbar spine was requested by Dr Daigala. This was performed on 3 June 2016.
37The MRI lumbar spine report dated 6 June 2016, revealed the plaintiff had multilevel facet degenerative changes with small effusions at L4/5 and L5/S1. There was multilevel disc desiccation, height loss and annular bulging. The annular bulging was minimal at the L3/4 level but there was some minimal left lateral recess narrowing. There was moderate annular bulging at L4/5 and mild to moderate facet hypertrophy. In conjunction, there was bilateral, lateral recess narrowing contacting, but not impinging, the transiting L5-nerve roots on both sides. At the L5/S1 level there was moderate annular bulging with contact but no impingement of the left S1 nerve root.
38The plaintiff resumed seeing Ms Morris.
39On 5 July 2016, the plaintiff was referred to Dr Aliashkevich, neurosurgeon, for consideration of neurosurgical intervention with respect to his lumbar spine. At that stage the plaintiff said he was taking Endone, Palexia SR, Panadol Osteo, Tramadol, Diazepam, magnesium for severe muscle spasms and Nexium for gastric reflux.
40In July 2016 he had further Tramadol injections and saw Dr Gassin, Musculoskeletal and Interventional Pain Management Specialist, for pain management advice. It was recommended that he continue physiotherapy, back exercises and pain management.
41On 3 August 2016, the plaintiff saw Dr Mittal, pain specialist. He had trialled various medications including Pregabalin, which caused him dizziness and mood instability. He was taking Palexia, Tramadol, Endone and Panadol Osteo.
42Dr Mittal recommended that the Tramadol be weaned, and the Endone be swapped for Norspan patches. Recommendations were made that the plaintiff avoid pain triggers including excessive bending, twisting and lifting. It was also recommended that he use a TENS machine and participate in Pilates and hydrotherapy. Medial branch blocks were also noted as a possible future pain-relief option.
43In early September 2016, the plaintiff commenced seeing Robert Brownlow, physiotherapist. He was taking Palexia SR, Endep and Celebrex and was also using a Norspan patch. He was using a TENS machine and had trialled pool membership. He walked up and down in the pool but could not swim due to back pain.
44The plaintiff returned to work on light duties in October 2016. He worked two days for three hours each day with no bending or lifting greater than five kilograms.
45In December 2016, the plaintiff saw Dr Eaton, occupational and environmental physician. He also continued to see Dr Mittal.
46On 15 March 2017, under the care of Dr Mittal, the plaintiff underwent a trial of a medial branch block.
47On 25 May 2017, the plaintiff underwent right-sided L3 to L5 radiofrequency denervation.
48The plaintiff was able to work four hours per day for four days per week.
49The plaintiff’s condition improved and in July 2017, the Norspan patches were ceased.
50On 14 October 2017, the plaintiff had a further MRI of the lumbar spine. The report dated 16 October 2017 revealed mild disc desiccation at L2/3, L3/4, L4/5 and L5/S1 with circumferential disc bulges, most prominent anteriorly at L2/3 and L3/4. These were associated with osteophytic spurring. There was no central canal stenosis or focal nerve root compression. Two instances of urinary retention were noted since May. There was no saddle anaesthesia, and no explanation for the urinary retention was identified.
51On 9 November 2017, the plaintiff was reviewed by Dr Aliashkevich. Dr Aliashkevich noted that the “imaging demonstrated unchanged reduced height and posterior bulging of the intervertebral disc L5/S1 with a small, midline annular tear as the most likely cause” of the plaintiff’s symptoms. Dr Aliashkevich considered the plaintiff probably had “facetogenic back pain given his long-lasting relief to lumbar medial branch blocks.” He did not consider the plaintiff would require surgery on his lumbar spine then but suggested that he return to Dr Mittal for consideration of repeated medial branch blocks or radiofrequency denervation.
52The plaintiff commenced seeing Dr Weekes, pain specialist, on 20 December 2017. He had evidence of degenerative disc disease and facet arthropathy without evidence of spinal cord or nerve root compression. He had an average pain score of seven out of ten and he denied any significant leg pain.
53On 25 January 2018, the plaintiff underwent a further right L3 to L5 radiofrequency denervation with Dr Weekes.
54He was reviewed by Dr Weekes following that procedure on 14 February 2018. He showed no signs of improvement. When examined, the vast majority of tenderness was over his right sacroiliac joint.
55When reviewed by Dr Weekes again on 14 March 2018, the plaintiff was continuing to work four hours a day four days a week. He continued to show no improvement from the radiofrequency denervation procedure. Dr Weekes recommended he undergo a diagnostic right sacroiliac joint injection. This was performed by Dr Weekes on 12 April 2018.
56Dr Weekes reported following further review of the plaintiff on 24 April 2018, that the plaintiff continued to complain of quite severe ongoing lower back pain, intermittently radiating down his right leg to his foot. Dr Weekes noted the leg pain was a new symptom. The back pain was worse than the leg pain, with an average pain score of seven out of ten. The plaintiff continued to take Palexia 200mg twice a day and continued in the workforce for 16 hours per week.
57On 8 May 2018 at the request of Dr Weekes, the plaintiff underwent a further MRI lumbar spine and an x-ray. The MRI lumbar spine showed there were some minimal posterior intervertebral disc bulges at L2/3, L3/4 and L4/5; however, they were non-neurocompressive. The neural foramina were minimally narrowed at the L5 level bilaterally, due to a mild degree of ligamentous hypertrophy, predominantly within the lateral recesses. There was a small contribution from the minimal broad-based L5/S1 disc bulge.
58The x-ray revealed there was no change in alignment on flexion or extension and no spondylolisthesis.
59On 9 May 2018, Dr Weekes reviewed the plaintiff again. He recommended a trial of neuromodulation and made a request of the plaintiff’s insurer to arrange this.
60A further review was undertaken of the plaintiff by Dr Weekes on 6 June 2018 at which time the plaintiff was awaiting approval for a trial of neuromodulation.
61On 26 September 2018 when the plaintiff was reviewed again by Dr Weekes, a trial of neuromodulation had still not been approved by the insurer. The plaintiff was continuing to work light duties four hours a day four days a week with lifting restricted to no more than ten kilograms. He was taking Palexia 100 milligrams twice a day. He was struggling to cope at work and his mental state remained poor.
62Dr Weekes next reviewed the plaintiff on 19 December 2018. He was continuing on Palexia 150 milligrams twice a day and had opted for a trial of Norflex 100 milligrams twice a day. He was continuing to see a psychologist.
63On 13 February 2019, following rejection of Dr Weekes’ application for the plaintiff to undergo a trial of neuromodulation, Dr Weekes suggested the plaintiff undergo a multi-disciplinary, cognitive-based, pain management program.
64On 20 April 2019, the plaintiff was stood down by the defendant.
65The plaintiff saw Dr Weekes again on 8 May 2019 at which time the pain management program had been approved. The plaintiff was continuing to take Palexia and Norflex and he was continuing to see a community-based psychologist who had diagnosed him with post-traumatic stress disorder.
66From November 2019 to February 2020, the plaintiff attended a multi-disciplinary pain management program at Frankston.
67Dr Weekes said in his report dated 18 May 2022 that when he saw the plaintiff on 5 February 2020, he continued to complain of severe levels of lower back pain. He was also experiencing symptoms down his right leg. He was taking Palexia 150 milligrams twice a day, Endone 5 milligrams twice a day and Norflex 100 milligrams once a day. Dr Weekes recommended a trial of neuromodulation.
68On 27 April 2020 the plaintiff had a trial of spinal cord stimulator inserted by Dr Weekes. This was removed on 5 May 2020.
69On 12 May 2020, Dr Weekes reviewed the plaintiff again. Both he and the plaintiff agreed that the trial had been successful. The plaintiff reported reductions in his pain, obtaining about 80 per cent pain relief, with average pain scores decreasing from a nine to a two out of ten. Pain interference scores dropped from nine to one out of ten. Standing tolerances increased from 20 to 60 minutes. Dr Weekes counselled the plaintiff on the option of having a permanent spinal cord stimulator implanted. This was performed on 8 July 2020.
70Dr Weekes next reviewed the plaintiff on 22 July 2020. The plaintiff reported the permanent spinal cord stimulator implant had provided him with some relief. He had achieved about 50 per cent pain relief compared to his previous pain levels. He continued on Palexia and Norflex. Dr Weekes recommended trying to reduce the analgesia medication which the plaintiff endeavoured to do.
71On 13 August 2020, Dr Weekes saw the plaintiff again. The plaintiff was reporting average pain scores of one to two out of ten. He had discontinued Endone and Norflex but was continuing to take Palexia 150 milligrams twice per day. Dr Weekes recommended the plaintiff gradually wean himself off Palexia.
72On 4 September 2020, the plaintiff’s employment with the defendant was terminated.
73When the plaintiff was seen by Dr Weekes again on 11 November 2020, he was experiencing days when he had only slight pain. When he had pain, his average pain score was two to three out of ten. He was able to reduce his use of Palexia to 50 milligrams once or twice a day. Dr Weekes recommended the plaintiff re-engage with physiotherapy, removed his work restrictions and suggested he could return to normal duties.
74Dr Weekes next reviewed the plaintiff on 26 May 2021. It was ten months after the implantation of the neuro-spinal cord stimulator. Dr Weekes reported being told by the plaintiff that he had 80 per cent pain relief. The plaintiff was continuing to take some Palexia IR and was considering returning to the workforce. Dr Weekes said he asked their occupational specialist to see the plaintiff. That was the last occasion he reviewed the plaintiff.
75Dr Weekes said in his report “it is my understanding that [the plaintiff] has not seen an occupational specialist as suggested.”
76On 27 October 2021, the plaintiff saw Professor Bittar. The plaintiff described his pain as generally dull in character with an average severity of three out of ten (without medications) and a maximum severity of six out of ten. Professor Bittar noted he complained that his back pain was exacerbated by a variety of activities including sitting or standing for more than 30 minutes and bending, twisting or lifting more than around 10 kilograms. The plaintiff also reported occasional aching in his right hip, but no significant leg pain. He was taking Palexia, undergoing weekly physiotherapy and was being reviewed by a psychologist every six weeks.
77At the time he was seen by Professor Bittar, the plaintiff reported in his Further Affidavit, he was undertaking a small amount of light unpaid work assisting a friend in a butcher’s shop. The plaintiff said his friend was sick and the plaintiff was “really just minding the shop for him when he was not able to be there.”
78He continued assisting in his friend’s butcher’s shop in a voluntary capacity from October 2021 until February 2022 when the shop closed down.
79In his report dated 16 June 2022, Dr Weekes said he had recently seen the plaintiff again. He was experiencing a little bit less pain relief from the spinal cord stimulator than he had been, but apparently had achieved 40 to 50 per cent pain relief or improvement in his pain. Dr Weekes reported telling the plaintiff that if he experienced a weaning effect from the stimulator, he could return to see Dr Weekes. He also noted the plaintiff had lost weight since he had last seen him and he discussed the option of repositioning the battery which may have been causing the plaintiff some irritation.
80At the date of the hearing the plaintiff was taking Palexia 50 milligrams. He was prescribed this twice a day – one tablet in the morning and one in the afternoon. He was also prescribed Panadol Osteo which he bought over the counter. He took four to six tablets a day as required.
81He intended to return to see Dr Weekes in November 2022 to adjust the spinal cord stimulator.
Compensable injury
82The defendant accepted that the plaintiff had suffered a compensable injury and was entitled to commence proceedings to recover damages for pain and suffering.
83The plaintiff’s injury as identified by both Professor Bittar and Dr Akil was aggravation of a longstanding lumbar spondylosis. He also had chronic pain.
Issues and submissions
Plaintiff’s submissions
84The plaintiff submitted the Court should accept the plaintiff’s evidence. He was an honest man who had suffered a serious injury. He had not exaggerated his symptoms and had not minimised his ability to work. There was nothing in the medical reports to discredit him. His account of his level of disability was supported by the evidence of his wife.
85It was submitted the plaintiff was totally incapacitated for his pre-injury duties and he did not have a capacity to earn an income in suitable employment. He had consequently suffered the requisite 40 per cent or more loss of earning capacity, as per the statutory formula contained in s325(2)(e)(i) and (f) of the Act.
86The opinion of Dr Slesenger was to be preferred to that of Dr Soliman because Dr Soliman did not have the specialist qualifications that Dr Slesenger did. Further, Dr Soliman’s opinions were cursory and not supported by the opinions of the other medical practitioners.
87Alternatively, if, contrary to the primary submission, the plaintiff retained some capacity for suitable employment, the decision in Smorgon Steel Tube Mills Pty Ltd v Majkic[9] applied. Based on the realities of the labour market and the hours the plaintiff was capable of working in suitable roles, he had still suffered a permanent loss of earning capacity of at least 40 per cent. Consequently, he was entitled to commence proceedings to recover damages for pecuniary loss.
[9](2008) 21 VR 193
Defendant’s submissions
88The defendant submitted the plaintiff had the onus of establishing a loss of earning capacity of at least 40 per cent. The plaintiff had failed to discharge that onus.
89The plaintiff’s evidence was unreliable. It exaggerated the nature and extent of his restrictions and his level of disability, which called into question the plaintiff’s credibility. The plaintiff’s affidavit evidence and the accounts he gave to doctors about his injury painted a picture of a man with a high level of restriction, struggling with the most basic domestic tasks; however, that portrait was at odds with the report from the plaintiff’s general practitioner, Dr Tilak Kulatunge, Long Street Family Medicine, about the plaintiff’s work capacity, and with the evidence the plaintiff gave in court on the first day of the hearing. Further, the plaintiff’s evidence should not be accepted because Dr Weekes was not requested to provide, nor did he provide, a view about the plaintiff’s work capacity. Yet he referred the plaintiff to an occupational specialist suggesting he considered the plaintiff had a work capacity. Additionally, neither Dr Slesenger nor Dr Sullivan were provided with a full history of the plaintiff’s activities and day-to-day ability.
90Based on Dr Soliman’s report, the plaintiff retained an earning capacity and was capable of working in suitable employment as either a sales assistant or a sales representative. This was not a case where the plaintiff was not qualified for suitable employment based on the realities of the labour market and consequently the decision in Smorgon Steel Tube Mills Pty Ltd v Majkic[10] did not apply.
[10]Ibid
91Further, even if the plaintiff had suffered a loss of earning capacity of at least 40 per cent, the loss of earning capacity was not permanent.
Credit
92The defendant submitted that the account the plaintiff gave of his injury and its consequences in his affidavits and what he told doctors, painted the picture of a man with considerable restrictions. This was at odds with the evidence he gave in court when cross-examined and called into question his credibility.
93In his first affidavit, the plaintiff said that he lived on a one-acre block. He said he could mow the lawn at his own pace, but he could no longer pull the start-mower. He found it difficult to bend to do the weeding and difficult to reach to do the trimming. He had difficulty maintaining the block. He continued to potter in his shed, but he was no longer making woodwork products. If he had significant repairs to do around the house, he employed tradespeople even though he had previously done the maintenance on his house himself. He could no longer chop wood.
94In his second affidavit, the plaintiff said that he continued to be restricted in his activities. He said he usually did not function for one to two days per week. Otherwise, he did a little bit of gardening. He could still mow the lawn, although he needed someone to start the mower for him. Before he was injured, he used to be an active home handyman and would complete tasks such as house painting himself, but since he was injured, he has had to pay to get maintenance done. He said he struggled with activities of daily living.
95The plaintiff was cross-examined about his physical capacity to perform work at home with a view to demonstrating he had retained a capacity to physically do a lot more than his affidavits portrayed. Various matters were relied upon including the plaintiff’s ability to construct a fence, to perform maintenance on his house, to build furniture, to mow his lawn, to look after his two dogs, to chop firewood, and to provide assistance with plumbing maintenance.
96First, the defendant asked the plaintiff about the construction of a fence at his property which was about a quarter of the length of the boundary with the adjoining neighbour. The fence was constructed over a three-week period in November 2020. The plaintiff worked each day from 9am until the afternoon. He performed various manual tasks associated with constructing the fence involving bending, twisting and lifting.[11] He had a capacity to dig holes with a shovel; to use hammers, drills and saws, and to lift 10-kilogram bags of cement.
[11]Transcript (“T”) 31, Line (“L”) 14
97It was suggested that performance of those activities was inconsistent with the plaintiff being restricted in his physical capability as contended.
98The plaintiff explained he worked on the fence on some consecutive days, but he did not work every day. He also said he did not construct the fence alone. His father assisted him, and he liked to start work at 9am. The plaintiff said they worked on the fence but when the plaintiff’s back hurt, he stopped working.
99The plaintiff agreed he dug “a couple of 600-millimetre holes for the fence with a shovel.” He had to sink concrete posts. He also used a hammer, a cordless drill, an electric saw and a handsaw,[12] and carried post and railings’ timber to construct the framework for the fence. He accepted he was regularly bending and twisting, including bending to drag cement to the holes.[13] He lifted items weighing more than 5 kilograms including 10 kilogram bags of cements,[14] but disagreed he was lifting items that weighed more than 10 kilograms.
[12]T32, L2
[13]T35, L18
[14]T33, L3
100The cement and the timber were purchased from a hardware store about 60 metres from his house. Some may possibly have been purchased in Leongatha. He explained that the staff at the hardware store near his house assisted him to load the timber and cement onto his ute. He agreed that he was actively involved, twisting to lift stacks of wood. He also took the cement and timber out of the ute when he returned home.[15]
[15]T35, L2
101The plaintiff was asked about framing timber stored in one of the two sheds on his property. It was suggested that because the plaintiff had framing timber, he was capable of performing renovation work on his house.
102The plaintiff disagreed, although he accepted that since he stopped working for the defendant, he had done some minor maintenance work on his house.
103The plaintiff said the purpose of the framing timber had originally been to renovate his house. As he explained in re-examination, his house was about 50 years old and when he moved there in 2004, it was a “renovator’s nightmare.” He and his wife had re-plastered, re-floored and painted the whole house. They had a builder friend assist them with renovations to the kitchen. However, the plaintiff said he stopped doing renovation work on the house in 2014. The framing timber, which had been collected over time, remained in the shed.
104It was suggested to the plaintiff he had been able to use a ladder to fix some weatherboards. The plaintiff remembered using a ladder to fix something on the roof, but he could not remember whether he used it to fix weatherboards. He thought it was probably a leak because he remembered taking some silicon and a cordless drill, climbing the ladder with someone steadying it, and getting onto the pitched iron roof.[16] He explained he had to climb the ladder and go onto the roof because if he had not fixed the roof, the house would have leaked. Notwithstanding this, he struggled to climb ladders. He said in re-examination his house required painting and parts of the roof required replacement, but he was no longer able to do that work.
[16]T40, L7
105The plaintiff was cross-examined about tools that were in his shed and it was contended that he made furniture. He explained that his house has two sheds. One shed he said was fairly close to the house and the other was about halfway up the block. At the back of the block was grass. He said he used to do woodwork in the shed closest to the house. There were some drills, sanders and a table saw in that shed. He made tables and chairs which he enjoyed, but he said that was six-and-a-half-years ago. He had stopped because he could not do it.
106The plaintiff was also asked about whether he mowed the lawn at the property. He said before he was injured, he mowed the lawn at his property, which is about one acre, with a petrol push lawnmower. Since he was injured, although he is still able to pull the cord to start the mower, if he does so, after he pulls it a couple of times, his back hurts. In re-examination he said his wife usually starts the mower. If she is not home, he tends not to mow the lawn. He explained that if the mower is started, he can push the mower and he can mow the front lawn. He cannot mow the backyard. He has a horse which looks after that grass.
107The plaintiff was also questioned about his two dogs, a seven-and-a-half-year-old husky and a two-year-old red heeler. He said he buys feed for them in five-kilogram bags which he loads onto his ute. His daughter occasionally orders the food online. There is a dog run out the side of the house. He used to take both dogs for a walk regularly every morning; however, about 12 months ago, when he tried to walk both dogs at the same time, they were too strong for him. Now he just takes the husky. They walk about 100 metres – about five houses – along the nature strip at the front of his house.
108The plaintiff was cross-examined about his evidence that he could no longer chop firewood. He was asked when he last chopped some wood and he said it was probably two to three weeks before the hearing. He cut up some old pallets with a power saw.[17] The plaintiff explained that before he was injured, he used to go out onto farms with a chain saw and chop firewood. Since his injury, he stopped cutting wood in that way and instead purchased pre-cut, one-foot-long, redgum logs from Korumburra Garden Supplies which were usually already split.[18] If he had to split the wood that was cut to get kindling to use in the wood heater at his house, he used an axe. He did not need to swing the axe above head height to chop the firewood. He simply split it.
[17]T43, L17
[18]T43, L22
109The plaintiff was also asked about how he transported the wood. He said he had half a tonne of wood pre-loaded onto his ute every six weeks. He agreed he unloaded the ute himself by carrying the wood from the car to the woodstack at his house, a distance of about two metres, but said it now took him a lot longer than it had before he was injured. He explained that unloading now took two hours in the morning and a further two hours in the afternoon. Prior to his injury, loading and unloading the wood would have taken an hour.
110In the course of cross-examination, the plaintiff was also asked about whether he had done any handyman jobs for anyone around town. He said in the past he had done some maintenance work at his father’s property and some plumbing work at other places. His evidence was that in the past year-and-a-half he had not done any maintenance work at his father’s property, but he had assisted his father, who was a member of the Show Committee in Korumburra and a retired plumber, with some plumbing maintenance work at the showgrounds.
111The plaintiff explained that his father was 83-years-old. He assisted his father once or twice for a couple of hours earlier in 2022, by getting fittings and light tools out of his ute and replacing pipes in the two buildings at the showgrounds.[19] He did not get paid.
[19]T48, L9
112Having considered the plaintiff’s affidavit evidence and his answers during cross-examination, I have formed the view that the plaintiff was a credible witness whose evidence I accept. If the plaintiff’s answers to questions in cross-examination disclosed some level of physical capability, that has to be considered in context.
113First, evidence that the plaintiff was able to undertake some physical tasks around his house, does not tend to the conclusion that the plaintiff should be disbelieved. On the contrary, having considered the plaintiff’s evidence and observed him during cross-examination, it was apparent that he was an honest person. He was frank and forthcoming in his answers to questions and volunteered information contrary to his case. When he was asked what renovation work had been done on his house since he finished work with the defendant, he volunteered he had built a fence and also that he had climbed up a ladder onto a pitched roof to carry out repairs to fix a leak. These were not matters that assisted his case, yet the plaintiff truthfully disclosed them.
114Further, when the plaintiff was capable of performing tasks, he said so. For instance, he told Dr Soliman that house maintenance was difficult. He said he could not mow the lawn himself, but he could do it after someone started the mower for him. This information was consistent with his affidavits and his evidence in cross-examination.
115Second, the plaintiff is a physical person who always worked in physical roles. Before he was injured, the plaintiff worked on his house, chopped his own wood and performed a range of other physical domestic tasks. It is not surprising that he wanted to continue to try to perform those sorts of tasks after he was injured.
116Third, some of the physical activities referred to by the plaintiff were undertaken out of necessity. As his evidence made clear, he was living in an old house, which necessarily required maintenance including, for instance, climbing up a ladder onto a pitched roof to repair a leak. Similarly, he split wood because he needed to have firewood to heat his house. He walked his dogs and mowed his lawn because those jobs needed to be done. He should not be penalised because he continued to try to live as normal a life as possible. In my view, those are not matters which impugn the plaintiff’s credit.
117Fourth, although the plaintiff was cross-examined about a variety of matters related to his physical capability, there were many other matters about which he was not challenged which demonstrated he was unable to function properly. For instance, he was not challenged about his evidence that before he was injured, he had been an active handyman. He was not challenged about his sleep having been affected by his injury. He was not challenged about needing someone else to start the mower.
118Fifth, many of the physical activities undertaken by the plaintiff occurred at a time when the plaintiff had experienced an improvement in his back condition because of the implantation of the spinal cord stimulator in combination with pain medication. When the plaintiff constructed the fence in November 2020, the spinal cord stimulator had been inserted into the plaintiff’s spine. For a period, in combination with pain medication, the plaintiff experienced a reasonably good result with pain levels of one to two out of ten. This meant, as he acknowledged, his activity level increased and he was able to perform some physical activities like constructing the fence. He was also able to lose 12 to 13 kilograms. However, as his activity had increased, his pain had also increased[20] and he continued to struggle.
[20]T61, L25 to T62, L31
119Notwithstanding the implantation of the spinal cord stimulator, construction of the fence still took three weeks, rather than one week which the plaintiff said it would have taken before he was injured,[21] and he was forced to stop work, at times, because his back was hurting. Additionally, he has not subsequently constructed other fences, nor undertaken any other building projects on the property. Similarly, whereas the plaintiff had previously been able to unload wood from his ute in a single period of one to two hours, after he was injured, unloading the wood had to be undertaken over two periods, each of two hours. The plaintiff was also no longer able to cut wood logs and had to split kindling from a position at waist height, not above his shoulders.
[21]T120, L2
120All of these matters tend to the view that the plaintiff’s evidence should be accepted. However, even if aspects of the plaintiff’s evidence in cross-examination differed from his affidavits, that does not mean the plaintiff was not credible. This is especially so when the plaintiff’s diminishing physical capability, after implantation of the spinal cord stimulator, was supported by various medical opinions, and also the affidavit from the plaintiff’s wife. Further, having viewed the plaintiff give evidence, I formed the view that he was stoical which is a further reason his evidence should be accepted.
121The medical evidence provided by doctors who examined the plaintiff and reviewed his MRI scans and x-rays, did not suggest the plaintiff had exaggerated his level of restriction.
122When the plaintiff saw Professor Bittar on 27 October 2021, he noted the plaintiff’s significant history of back pain following a transport accident and subsequent workplace accident with a previous employer. There was a resumption of back pain in 2014 and a further flare-up on 11 May 2016. This resulted in the plaintiff consulting various neurosurgeons, pain management specialists and occupational physicians, as well as undergoing lumbosacral x‑rays, CT scans, MRI scans, medial branch blocks, radiofrequency denervation. Following a trial of spinal cord stimulation in April 2020, Professor Bittar noted the plaintiff had a permanent spinal cord stimulation system implanted in mid-2020.
123Following review of the CT lumbar spine, the lumbosacral x-rays and MRI scans, Professor Bittar observed the plaintiff had broad-based disc bulging at L3/4, L4/5 and L5/S1 without neural compression. There was also multilevel facet joint arthropathy with effusions noted at L4/5 and L5/S1. He opined that the plaintiff presented with aggravation of lumbar spondylosis which was causing lower back pain.
124When seen by Professor Bittar, the plaintiff was noted to have pain of three out of ten. Professor Bittar identified from the plaintiff’s history that the permanent spinal cord stimulation system had offered him significant benefit whilst he was fairly sedentary, but that as the plaintiff had attempted to increase his physical activity, particularly when he was working with his friend, his pain levels had increased. Professor Bittar also noted there was no abnormal illness behaviour and there was an organic basis for the plaintiff’s condition.
125Similarly, Dr Sullivan in his report dated 27 October 2021 noted the clinical diagnosis of aggravation of lumbar spondylosis. He noted the plaintiff presented with low back pain at or below the belt line, which occasionally radiated into the gluteal region. He relied on opioid-based analgesic medication – Dr Sullivan noted 50mg of Tapentadol twice daily – and an implanted medical device to assist with pain control. He reported that with the use of medication and the implanted spinal cord stimulator, his pain averaged approximately six out of ten on a numerical rating scale. However, without medication or the stimulation system, the pain was substantially worse.
126He considered the plaintiff also had a “post-traumatic chronic pain condition with neuropathic elements and fairly typical features of the organic process of central sensitisation.” He considered the plaintiff’s underlying chronic pain condition was permanent in nature and had a clear organic basis. It impacted his ability to perform daily tasks and there was a propensity for the plaintiff’s pain to be aggravated with fairly modest or trivial increases in activity or loading.
127The plaintiff had functional limitations, including a sitting tolerance of approximately 30 minutes, standing tolerance of approximately 15 minutes and walking tolerance of approximately 30 minutes. He could lift approximately 10 kilograms and carry approximately 5 kilograms without pain aggravation. He could drive for no longer than 60 minutes without the need to stop due to aggravation of his lower back pain.
128Dr Sullivan further noted that the plaintiff had reduced capacity for domestic chores and adopted a modified approach to arduous tasks. He also experienced adverse sleep, obtaining no more than four to five hours of broken sleep per night.
129In his 29 July 2022 report, Dr Sullivan noted that the plaintiff’s symptoms and condition remained the same. The plaintiff found relief using his spinal cord stimulator and was still taking Tapentadol 50mg once or twice per day. He reported that the medication caused cognitive crowding and sedation. He attended physiotherapy once a week, saw his clinical psychologist once every six weeks, saw his pain physician once every four to six months, and attended his general practitioner for repeat medication scripts.
130Dr Slesenger in his report dated 24 November 2021, noted that the plaintiff was experiencing residual lower back pain centred in the lower back radiating into the right thigh. The pain was constant and was of mild to moderate severity at a level of three to six out of ten. It was aggravated by activity and cold weather and was relieved by rest and medication. The plaintiff had difficulty sitting for more than 20 minutes. Taking into account the plaintiff’s history, his examination and imaging findings, Dr Slesenger accepted the plaintiff’s incapacity was driven by a physical or organic condition.
131He recommended the plaintiff not push, pull, carry or lift over 5 kilograms; that he avoids prolonged static postures; that he avoid repetitive bending or twisting and that he avoid exposure to whole body vibration for the foreseeable future.
132By his report dated 9 August 2022, Dr Slesenger identified there had been a limited increase in the plaintiff’s lower back pain to five to six out of ten. The pain was constant and radiated from the plaintiff’s lower back to his right thigh. The symptoms were aggravated by activity and the cold weather; however, he also identified that they deteriorated spontaneously.
133The plaintiff could sit for 20 to 30 minutes. He could walk and drive for about an hour. He was under the care of a pain specialist, a physiotherapist, a psychologist and his general practitioner. Dr Slesenger identified that Dr Weekes had noted that “there were other treatment options if the effects of the spinal cord stimulator were wearing off”, although at that stage there was no plan for the plaintiff to undergo further treatment.
134In relation to his activities of daily living, the plaintiff reported that he was unable to function one to two days per week. He generally spent the day indoors lying in a recumbent position, often in bed. He had residual restrictions with regard to domestic duties.
135Dr Hazem Akil provided a report dated 14 July 2022 which also noted that the plaintiff reported his pain level had dropped by 50 per cent following the implantation of the spinal cord stimulator, from a severity of ten out of ten to five to six out of ten. Upon examination, Dr Akil noted the plaintiff’s constant ongoing pain, radiating intermittently towards the hip region. The pain worsened with cold weather and also if the plaintiff was sitting or standing for longer than 20 minutes or was attempting to flex, rotate or twist his back. Further, the plaintiff could not sit or stand in a single position and had to alternate between sitting and standing. He had reduced range of motion of his lumbar spine to about 30 degrees with a reduction in extension of his lumbar spine to about 5 degrees. Based on the plaintiff’s symptoms, Dr Akil concluded the plaintiff had longstanding lumbar spondylosis, with work being the main contributing factor to the aggravation. He considered there was an organic basis for his condition.
136Dr Soliman in his second report dated 19 July 2022 noted the plaintiff was complaining of constant lower back pain of five out of ten in severity. He accepted the plaintiff had restrictions bending, pushing, pulling and lifting and was unable to perform activities of daily living in the way he had previously. Notwithstanding his opinion, the tenor of his evidence was that there had been a worsening of the plaintiff’s condition.
137The plaintiff’s evidence was also consistent with Dr Weekes’ observations that the plaintiff’s pain improved immediately following the implantation of the spinal cord stimulator, but then subsequently worsened. On 22 July 2020, the plaintiff reported about 50 per cent pain relief. He continued on Palexia and Norflex. Dr Weekes asked him to reduce his use of analgesics.
138On 13 August 2020, the plaintiff was reporting average pain scores of one to two out of ten. He had been able to discontinue taking Endone and Norflex, but otherwise continued on Palexia 150 milligrams twice a day.
139Dr Weekes asked for a weaning plan to be put in place. When Dr Weekes next reviewed the plaintiff on 11 November 2020, the plaintiff’s lower back pain scores were two to three out of ten. He had been able to reduce his Palexia use to 50 milligrams, twice a day. Dr Weekes recommended the plaintiff recommence physiotherapy.
140By 26 May 2021, the plaintiff was reporting about 80 per cent pain relief. He was continuing with intermittent Palexia IR and was contemplating returning to the workforce. However, his trajectory changed over the following year and by 16 June 2022, when Dr Weekes saw the plaintiff again, Dr Weekes reported, “he is noticing a little bit less pain relief through his stimulator, apparently obtaining 40 to 50% pain relief.” Dr Weekes suggested the plaintiff trial different programs to return to the 80 per cent improvement he had experienced after the spinal cord stimulator had been inserted. He arranged for a trial of a new spinal cord stimulator program – which was ultimately unsuccessful – to be undertaken by the spinal cord stimulator representative during that consultation. He also recommended the plaintiff see an occupational specialist.
141The defendant suggested that the plaintiff’s evidence as to his pain and level of restriction should not be accepted because at the date of the hearing, the plaintiff had not seen an occupational specialist as suggested by Dr Weekes when he saw the plaintiff on 26 May 2021.[22] It was suggested that when he did, his pain may decrease.
[22]The parties agreed at trial that the date referred to in Dr Weekes’ report dated 18 May 2022 as the date he reviewed the plaintiff ten months following permanent implantation of neuro-spinal cord stimulator was 26 May 2021.
142As the plaintiff explained when questioned about this, requests made of the plaintiff were usually directed by Dr Weekes to the plaintiff’s general practitioner, who organised any necessary appointments:
Q:“You didn’t speak to your GP and say, ‘Can you refer me to the occupational physician at Precision, like I’ve been asked to do by Dr Weekes’?---
A:A lot of the stuff that Gavin [Dr Weekes] asks he sends to my GP, like the referrals and stuff like that, if he needs anything done for me, like physio or whatever, and that hasn’t been - that hasn’t come through.
...
Q:Did you not think that it might have been a good idea to say, ‘Hey, Doctor, have you got anything from Dr Weekes? I wouldn’t mind seeing an occupational physician’?---
A:I always ask him whether there’s anything from Gavin, my GP, and there’s usually nothing that’s come through and when I make - when I go and see Gavin, the next appointment that he makes, I just get an email saying or a text message saying your appointment is on a certain date. So I don’t make any appointments - - -
Q:This is about in 2021 he made a recommendation to you to speak to an occupational physician - - -?---
A:Yes.
Q:- - - to try and get you back in the workforce?---
A:Yes.
Q:And you sit here today and say, ‘Well, nothing has happened on that because my doctors just haven’t organised it’; is that right?---
A:Yes.”[23]
[23]T66, L27 to T67, L22
143In addition, as noted in his report, Dr Weekes had asked his occupational specialist to see the plaintiff. He did not ask the plaintiff to arrange an appointment to see the occupational specialist. I accept that the plaintiff thought he was doing the correct thing and that his doctors would arrange any necessary appointments. I do not conclude that this adversely impacted upon his credibility.
144Further, having considered the medical evidence, I am of the view that the plaintiff had a significant back injury that caused him ongoing pain. He had some initial improvement following permanent implantation of the spinal cord stimulator, but the benefit decreased as he reduced his pain medication and increased his level of activity.
145Similarly, the affidavit of the plaintiff’s wife also supported the view that the plaintiff had functional limitations and considerable back pain. The plaintiff’s wife’s affidavit, not much of which was challenged, supports the view that the plaintiff’s symptoms had worsened. She noted the plaintiff’s sleep and driving had been impacted. He was restricted in what he could do with his dogs. He could not sit for long. He no longer does the garden as much.
146Considering the medical evidence and the plaintiff’s wife’s affidavit in conjunction with the matters about which the plaintiff was cross-examined, rather than tend to a conclusion the plaintiff was not credible, I formed a different view. I determined that the plaintiff was a stoic man who had worked hard in a physically demanding job for many years. He had a substantial back injury which the defendant accepted was a serious injury. His injury had resulted in him having to cease work in May 2016.
147Despite this, the plaintiff had endeavoured to return to work, which he ultimately did on light duties in October 2016. Thereafter, he continued to work despite experiencing continued back pain necessitating medial branch blocks, radiofrequency denervation, right sacroiliac joint injections and consultations with neurosurgeons and pain specialists, until he was eventually stood down by the defendant on 20 April 2019. Even after the plaintiff had the spinal cord stimulator implanted, and he came off restricted duties, he continued to try to complete tasks – like building the fence and maintaining his home – and to believe he might one day return to work. I took the view that the plaintiff was a person who was trying to resume as normal a life as possible in the face of a painful back injury. He should not be penalised for endeavouring to do so. Although he did demonstrate some physical capacity to undertake tasks at his home, when seen in context, his physical activities did not impugn his credit.
148Even if this is not correct, simply because the plaintiff was able to perform various physical activities, does not necessarily mean I must reject his evidence and find that his pecuniary loss consequences are not serious. I will therefore proceed cautiously to assess the plaintiff’s loss of earning capacity consequences in light of all of the evidence.
Loss of earning capacity consequences
149In assessing whether the plaintiff has suffered a serious injury by reason of the loss of earning capacity consequences to him, it is necessary to consider first, whether the plaintiff has sustained a loss of earning capacity of 40 per cent or more measured in accordance with s325(2)(f) of the Act; second, whether pursuant to s325(2)(e)(ii) the plaintiff will continue permanently to have such a loss of earning capacity; and third, whether the narrative test in s325(2)(c) of the Act is met.
150In making an assessment of whether the plaintiff has sustained a loss of earning capacity of 40 per cent or more measured in accordance with s325(2)(f) of the Act, I am required to compare the gross income from personal exertion which the plaintiff is earning, or is capable of earning in suitable employment, at the date of the application, with the gross income from personal exertion that the plaintiff was earning, or was capable of earning, or would have earned, or been capable of earning, during that part of the period three years before and three years after the injury, as most fairly reflects the plaintiff’s pre-injury earning capacity.
Pre-injury earning capacity
151In assessing whether the plaintiff has sustained the required at least 40 per cent loss of earning capacity, it is convenient to start by considering the plaintiff’s pre-injury or “without injury” earning capacity. This is dealt with in s325(2)(f)(ii) of the Act.
152To determine this, the Court considers the gross income 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 three years before and three years after the injury, as most fairly reflects the worker’s earning capacity, had the injury not occurred.[24]
[24]Acir v Frosster Pty Ltd [2009] VSC 454, [165]; The Herald & Weekly Times Ltd v Jessop [2014] VSCA 292, [42]-[44]
153The parties agreed that the plaintiff’s “without injury” earning capacity was $60,108 gross per annum. This equates to a pre-injury earning capacity of $1,156 gross per week. The relevant 60 per cent figure was therefore $693.55 per week.
154I accept that these figures most fairly reflect what the plaintiff was earning, or was capable of earning, or would have earned, or been capable of earning, during that part of the period three years before and three years after the injury had the injury not occurred
After injury earning capacity
155Next, it is necessary to consider the plaintiff’s after-injury or “with injury” earnings. This is dealt with in s325(2)(f)(i) of the Act. It is necessary to consider the amount the plaintiff was earning, whether in suitable employment or not, or the amount he is capable of earning in suitable employment as at the date of the application, whichever is greater.
156If the plaintiff’s “with injury” earning capacity is less than $693.55 per week – which, put another way, represents a loss of earning capacity of more than 40 per cent compared to his $1,156 per week pre-injury earning capacity – then the plaintiff will be entitled to a certificate in respect of loss of earning capacity.
What amount was the plaintiff earning at the date of the hearing?
157At the date of the hearing the plaintiff was not working and had no earnings.
Did the plaintiff have a capacity to return to his pre-injury employment?
158The defendant suggested that the plaintiff had a capacity to return to full-time work. This submission was based in part, on the opinion of the plaintiff’s general practitioner who noted the benefit received by the plaintiff because the spinal cord stimulator had been implanted.
159Having considered the submissions made by the defendant, I do not accept the plaintiff had a capacity to return to his pre-injury employment in either a full-time or a part-time capacity. In my view the medico-legal opinions support the position that the plaintiff had no realistic capacity to return to his pre-injury duties.
160In his report dated 27 October 2021, Professor Bittar opined that the plaintiff “is incapacitated for his pre-injury duties as a result of his work-related lumbar spine condition.”
161Similarly, Dr Akil in his report dated 14 July 2022 did not consider the plaintiff as suitable to return to his pre-injury work as a butcher.
162In his first report dated 24 November 2021, Dr Slesenger was of the opinion the plaintiff could not return to his pre-injury duties.
163In his second report dated 9 August 2022, Dr Slesenger said he remained of the opinion the plaintiff could not return to his pre-injury role. He opined that the prognosis for the plaintiff must be guarded given the length of the plaintiff’s impairment and disability, his poor response to treatment, the degenerative nature of his underlying condition and deteriorating symptoms since the spinal cord stimulator had been inserted.
164The defendant was critical of Dr Slesenger’s opinion. It was suggested he was not provided with a complete history from the plaintiff. I note however, that Dr Slesenger was provided with multiple prior reports from various doctors, including Dr Soliman, which outlined the plaintiff’s history. Dr Slesenger also examined the plaintiff in person on 24 November 2021 and made comprehensive observations about his physical capacity in his report dated 24 November 2021. Similarly, he examined the plaintiff via a telehealth consultation on 25 July 2022. Both of Dr Slesenger’s reports noted the limits of the plaintiff’s capacity to perform activities of daily living and to undertake sports and hobbies. In my view, Dr Slesenger was capable of forming an opinion of the plaintiff’s capacity based on the material provided to him.
165Dr Sam Soliman provided two reports dated 27 July 2021 and 19 July 2022. In his first report, Dr Soliman noted the plaintiff’s clinical history and that he was taking Palexia 50 milligrams IR as needed around three times per week. He also considered the opinion of the plaintiff’s pain specialist Dr Weekes that the plaintiff’s condition had improved to around 80 per cent. Dr Soliman’s opinion was the plaintiff was unfit to return to his pre-injury duties as a butcher.
166Mr Hartley noted the plaintiff wanted to work and would enter the workforce if he could. However, the implications of his work-related back injury and its sequelae of chronic pain, poor sleep, physical dysfunction, the need for opioid analgesia and a permanent spinal cord stimulator implant, meant he was a very disadvantaged job seeker. His medically recommended restrictions, postural limitations, incomplete education and qualifications rendered him unsuitable for each of the occupations in his pre-injury work history including retail butcher, meat works labourer, meat works butcher and civil construction (pipe laying) labouring. He was also precluded from safely and reliably using his industrial licences, an HR truck licence and backhoe ticket, due to his medically recommended physical and postural restrictions and lack of recent relevant experience.
167To the extent that the plaintiff’s general practitioner, Dr Kulatunge’s report of 4 May 2022 suggested some improvement in the plaintiff’s condition after implantation of the spinal cord stimulator, in my view this did not assist the defendant. The report stated that “following the permanent implantation of the neuro-spinal cord stimulator [the plaintiff’s] pain level has reduced and is still in the process of reducing his pain medication. His current medications are Palexia SR 50 mg daily and Panadine [sic] Forty [sic] 500mg:30mg 1 tab daily PRN. He is still being seen Dr Gavin Weekes”. However, it also stated the plaintiff “is suffering from chronic back pain and his prognosis is uncertain.” It did not suggest the plaintiff could return to full-time work. It did not state the plaintiff could return to his pre-injury duties. Further, to the extent Dr Kulatunge believed the plaintiff would be able to return to part-time work, his opinion was that it would only be for a “few hours with some restrictions” and “he will not be able to return to his pre-injury duties.”
168Similarly, the fact that Dr Weekes was not asked to provide an opinion as to the plaintiff’s work capacity is not determinative. Dr Weekes is a pain specialist rather than an occupational specialist. In circumstances where evidence has been tendered from an occupational specialist, I prefer that evidence.
169Finally, having considered the opinions of Professor Bittar, Dr Akil, and Dr Sullivan, I am satisfied that the plaintiff will experience significant pain and restrictions with respect to a variety of physical activities over the long term. He is unable to perform the tasks involved with his pre-injury employment.
170For each of the above reasons, I find the plaintiff had no capacity to return to his pre-injury employment.
Did the plaintiff have a capacity to work in suitable employment and if so, in what roles?
171“Suitable employment” is defined in s5 of the Act and referred to in Barwon Spinners[25] and Richter v Driscoll.[26]The definition looks to work for which the worker is currently suited. Age, education, and experience are among the matters relevant, as are the nature and extent of the worker’s incapacity and pre-injury employment. Employment is also not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence.
[25](Supra)
[26](Supra)
172The defendant tendered an “Earnings in suitable employment summary”.[27] In that document the defendant suggested that the roles of butcher, sales assistant and sales representative constituted suitable employment for the plaintiff. In closing submissions, the defendant indicated that it did not persist with the suggestion that the plaintiff could go back and work as a butcher. Therefore, the only roles the defendant contended could constitute suitable employment for the plaintiff were as a sales assistant or a sales representative. It is consequently necessary to consider whether the roles of sales assistant and sales representative are “suitable employment” for the plaintiff.
[27]Exhibit 2
173In the 130 Week Vocational Assessment Report of Recovre dated 20 July 2018, Ms French, the vocational consultant, opined that based on the plaintiff’s education, work history, knowledge in the meat industry and transferable skills, the suitable employment options available to the plaintiff included butcher, sales assistant, meat inspector, polytechnic teacher (butchery) and sales representative (grocery/meat).
174The role of butcher was considered by Recovre to be achievable for the plaintiff because at the time of the report, he was working within the role with the objective of a gradual increase in his hours to full-time. It was noted that the plaintiff wanted to remain working as a butcher and enjoyed the role. However, the physical demands of the role were also noted to be medium to heavy. It was also noted that standing was constantly required, walking was occasionally required, squatting or crouching may be required and there was frequent stretching up and across and twisting of the body or neck. Repetitive movements were constantly required. There were job vacancies in Leongatha, Warragul and Morwell with average weekly earnings for full-time workers of $1,079 per week. The role would need to be monitored by the plaintiff’s general practitioner.
175The role of meat inspector had light to medium physical demands. However, it required constant standing and walking, often on wet concrete floors. Stretching up, reaching across and bending were occasionally necessary as was driving. The mental skills required for the job included an understanding of animal biology/health, food safety and hygiene knowledge, computing and report writing skills, knowledge of relevant laws and regulations and decision making and communication. There was one job available in Warragul with full-time weekly earnings of $1,395 per week. The role would need to be discussed with the plaintiff’s general practitioner prior to commencement.
176To work as a polytechnic teacher the physical demands are mostly light to medium, although there is occasional heavy lifting. The role involves frequent sitting. Lifting, carrying, pulling, bending, squatting or crouching and stretching and twisting are required only on an occasional basis. Teachers frequently use office and teaching equipment such as computers, videos, and whiteboards. There is a high level of cognitive functioning required to perform the role. Some driving may be required. No vacancies were identified and Recovre detailed that the role would need to be discussed with the plaintiff’s general practitioner prior to commencement.
177The sales assistant role had sedentary to medium work demands. It required frequent standing at a sales counter, some walking, bending, squatting or crouching movements for lifting products, and occasional stretching and/or twisting movements. The role also required communication, memory, recording and calculating skills. There were jobs available in Wonthaggi, Warragul and Morwell. The average full-time weekly earnings were $850 per week. Recovre considered the plaintiff’s general practitioner would agree with this role because the plaintiff’s current role largely incorporated the required tasks.
178The final role of sales representative (grocery/meat) had sedentary to light physical demands. It required the plaintiff to sit, stand and walk frequently. There were some repetitive movements required when driving and using a computer. Stretching, twisting, climbing and lifting were not necessary and bending, squatting and crouching were unlikely to be needed in most situations. The role would require the use of electronic and other equipment including computers, photocopiers, scanners and other office equipment. There were two jobs available in Warragul and one job in Morwell. The average full-time earnings were $1,200 per week. Recovre detailed that the role would need to be discussed with the plaintiff’s general practitioner prior to commencement.
179Ms French concluded her assessment report by noting that having regard to the nature of the plaintiff’s incapacity, the nature of his pre-injury employment, his age, education, skills and work experience, place of residence, plan prepared as part of a return-to-work planning process, and any occupational rehabilitation service provided to him, the suitable employment options available to the plaintiff included butcher, sales assistant, meat inspector, polytechnic teacher (butchery) and sales representative (grocery/meat).
180In his report dated 27 October 2021, Professor Bittar considered the plaintiff did not have any realistic capacity to procure and maintain suitable employment in the open labour market on a reliable and consistent basis taking into account his age, education, training skills and work experience, as well as the nature and severity of his work-related lumbar spine condition. After noting he would defer to the opinion of an occupational physician, Professor Bittar opined that taking into account the permanent restrictions on the plaintiff, in theory he could work up to 12 hours per week in a sedentary role where he could avoid bending, twisting, heavy lifting and could change postures frequently as required.
181Dr Akil in his report dated 14 July 2022 noted that the plaintiff could not drive long distances, with his sitting tolerance less than 20 minutes. He slept only three to four hours a night and was dependent on sleeping tablets to enable him to sleep. Taking into consideration his age, education to Year 10, his skills and work experience as a lifelong butcher, his place of residence in Gippsland, as well as medical information and occupational rehabilitation services, Dr Akil did not consider the plaintiff suitable to return to any type of employment on a permanent, sustained and reliable basis.
182In his 27 October 2021 report, Dr Sullivan noted that whilst the plaintiff was volunteering at his friend’s butcher’s shop, that role required significant accommodation for his chronic pain condition. He highlighted that even when accommodation was made, the plaintiff could sustain no more than approximately 10 hours work per week in that role. He considered the plaintiff’s capacity to return to alternate duties or modified hours to be permanently impaired.
183In his subsequent report dated 29 July 2022, Dr Sullivan concluded that the plaintiff was not suitable for stable employment. He opined that the plaintiff would have a maximum capacity of eight to twelve hours of very light or sedentary work per week. The plaintiff had significant permanent functional restrictions, including no bending, lifting and maintaining static postures for longer than 15 minutes. The plaintiff’s chronic pain would continue for the foreseeable future, and he would require ongoing utilisation of medication, physiotherapy, clinical psychology and a spinal cord stimulation system.
184Dr Slesenger in his first report dated 24 November 2021, opined that taking into account the plaintiff’s permanent restrictions with respect to his back injury, the plaintiff was unlikely to be able to return to work in a role for which he had suitable training and experience on a consistent and reliable basis. Although at that time the plaintiff was volunteering at a butcher’s shop, Dr Slesenger noted he was not performing the full range of activities that would be required of a worker in that role. Additionally, he had only recently commenced the role and was able to pace himself and rest regularly – 15 minutes per hour. Further, his symptoms were variable, and he was unable, at times, to put on his shoes and socks. All of these matters he considered were likely to impact the plaintiff’s ability to attend to any role on a consistent and reliable basis.
185In his subsequent report dated 9 August 2022, Dr Slesenger opined the plaintiff was not likely to be able to return to work performing suitable alternative duties on a consistent and reliable basis given his current symptoms, his functional limitations, his past employment history, his driving capacity, his residential location (Korumburra), his literacy and computer skills, his qualifications and the variable, and at times unpredictable, nature of his symptoms.
186In his second report dated 19 July 2022, Dr Soliman noted the plaintiff’s long history of chronic pain and the implantation of a spinal cord stimulator. He also referred to Dr Slesenger’s recommendation that the plaintiff should not push, pull, carry or lift anything over five kilograms and that he should avoid prolonged static postures, repetitive bending or twisting and exposure to whole body vibration. His opinion was the plaintiff was fit to work full normal hours in alternative suitable duties with no repetitive bending, twisting and lifting over 10 kilograms. He could perform all jobs which had been suggested as suitable in the Recovre 130-week vocational assessment save for butcher. This was despite the fact he noted the plaintiff had not worked since 2019, he did not know what work to look for, was complaining of constant lower back pain of five out of ten severity, worse with sitting for too long, and had limitations with standing, driving and sitting with tolerances for standing of only two hours, of driving of only two hours, and of sitting of only two to three hours with a need to stand after 20 to 30 minutes. His lumbar spine flexion was down to knee level. Extension and lateral flexion were 20 degrees. His straight leg raise test was 30 degrees on both sides. He was able to walk on tip toes and heels and he was able to squat.
187The plaintiff was cross-examined about his attendances upon Dr Soliman and his pain and level of restriction. He agreed that a year after the insertion of the spinal cord stimulator, his pain level had improved to two to three out of ten and he was around sixty-five per cent better. But he maintained he had intermittent lower back pain around five times a day which was worse with cold weather and if he did too much. The pain could last for one hour or the whole day. The plaintiff was undertaking Pilates and trying to use resistance to increase his strength. He had no numbness or tingling and was able to kneel and squat but felt weaker.
188The plaintiff disagreed in cross-examination that he could walk without limit. He said he could walk for about one kilometre. Similarly, although Dr Soliman reported the plaintiff was able to drive for two hours, the plaintiff denied he told Dr Soliman that. He said he could only drive for one hour maximum. He accepted he drove to the appointment with Dr Soliman but said he stopped on the way. Similarly, the plaintiff’s evidence was he could not sit for two to three hours as reported by Dr Soliman. He needed to get up and move around after about 10 minutes.
189Mr Hartley in his report dated 3 August 2022, considered the opinions of the various medico-legal experts as to the plaintiff’s capacity for work and provided his opinion as to what, if any, roles were suitable employment for the plaintiff.
190Mr Hartley noted the plaintiff had informed the Medical Panel on 5 February 2019 that he had been able to return to restricted duties working 16 hours per week as a butcher with modifications including physical restrictions of not lifting over 10 kilograms of weight. He was stood down in 2019 and officially terminated in September 2020. Since that time for a few months from late 2021 until February 2022, the plaintiff had “worked” on an unpaid basis for five to 12 hours per week helping a friend at his butcher’s shop.
191Mr Hartley noted that Dr Soliman had opined the plaintiff could return to full-time work in the roles suggested by Recovre save for the role of butcher. Mr Hartley opined that Dr Soliman’s opinion provided a more optimistic view of the plaintiff’s residual capacity than other medical experts. Professor Bittar had opined that he doubted the plaintiff would be able to procure employment in the open labour market, but in theory thought the plaintiff could work up to 12 hours per week in a very sedentary role where he could avoid bending, twisting, heavy lifting and could change postures frequently as required. Dr Sullivan considered the plaintiff could not return to his pre-injury employment as a Coles’ worker or butcher. Dr Slesenger considered the plaintiff had permanent restrictions with respect to his back and was unlikely to be able to return to work in a role for which he had suitable training and experience on a consistent and reliable basis. His symptoms were aggravated by activity, cold weather and deteriorated spontaneously. The plaintiff could only sit for 20 to 30 minutes. He could walk and drive for about an hour. He was under the care of a pain specialist, a physiotherapist, a psychologist and his general practitioner.
192Mr Hartley opined that the plaintiff had very limited skills to participate in the workplace. He had an incomplete secondary education and had not returned to TAFE study since 1989. He had “average to lower range” foundation skills in literacy, learning and numeracy; however, those skills were likely not up to the average or higher level compared to those who had completed Year 12 or worked in formal or academic forms of employment. Similarly, the plaintiff did not possess the level of digital literacy required to undertake online study.
193Mr Hartley noted the plaintiff demonstrated manual-practical learning abilities, technical skills related to butchery, use of knives and related equipment, as well as some technological aptitude in his youth, which had been unused for employment purposes. He demonstrated sound personality-related employability skills; however, he had outdated industrial licensing skills and lacked work-specific skills.
194He was 55 years old and was considered a “Senior Job Seeker”, which was a barrier to successful redeployment. His rural place of residence meant many jobs were not suitable. Similarly, due to his injury and sitting/driving restrictions, the plaintiff was precluded from travelling to larger regional population centres where there are higher prospects of employment. Further, the implications of his work-related back injury and its sequelae of chronic pain, poor sleep, physical dysfunction, the need for opioid analgesia and a permanent spinal cord stimulator implant, meant he was a very disadvantaged job seeker. His medically recommended restrictions and postural limitations rendered him unsuitable for each of the occupations in his pre-injury work history.
195Mr Hartley considered the employment options which had been put forward by Ms Leanne French in the Recovre Report completed on 23 July 2018 and the views expressed by Professor Bittar, Dr Sullivan, Dr Slesenger and Dr Soliman about those roles.
196In respect of the sales assistant (butchery-delicatessen) role, Mr Hartley considered that although the plaintiff had worked in a voluntary butchery role he did not, and could not, fulfil all of the inherent physical requirements of the job. This was consistent with Dr Slesenger’s opinion. Further, there were no vacancies for butchery sales’ assistants within a reasonable travelling distance from Korumburra.
197The suggested role as a sales representative-meat/food products was also not considered to be suitable employment. The plaintiff had limited sales’ experience related to outdated commercial butchery work and customer interactions during his apprenticeship and about three months as a volunteer. He would be unable to manage the prolonged and frequent driving required to visit clients – even accepting Dr Soliman’s account of the plaintiff’s driving ability as opposed to the plaintiff’s evidence in cross-examination. He also lacked formal qualifications. In addition, there were no food or meat-related sales’ representative roles available regionally.
198In addition to the opinions of Mr Hartley and Ms French, with a view to ascertaining whether there were any roles which might constitute suitable employment for the plaintiff, including roles of sales assistant or sales representative, I have considered the plaintiff’s evidence when he was cross-examined, with respect to the work he has done since he was injured in May 2016.
199The plaintiff described the work he did with the defendant following his injury when he returned to work on restrictions, as “light work.” He said it did not amount to a real job. He had weight restrictions when lifting. He worked 16 hours per week[28] and he was given breaks every ten minutes as detailed in his certificates of capacity.
[28]Exhibit A
200The plaintiff also described the work he did volunteering at his friend’s butcher’s shop in Korumburra. He did not get paid or receive any free meat. He said he was mostly serving at the counter and doing some very light butcher work. He was able to sit and stand as he needed in contrast to what would be required in a commercial role of that type. He was able to display goods for sale in the meat counters. He greeted customers and explained to them the product range, how to cook products and also the prices. He processed sales, took products from the trays – which required him to bend slightly – placed them into bags and handed them to customers. He accepted payments, mainly using the card machine for which he had received training. He did not do any invoicing; he was not responsible for stock inventory and he did not do any deliveries.
201In re-examination, the plaintiff said the butcher made an allowance for his injury because he was only able to do about five to ten per cent of the tasks a butcher normally would do. The plaintiff said he could not make sausages, mince or rissoles. He could not break up carcasses. He struggled with the work, but he did it to help his friend, who had a terminal illness, when he had medical appointments. He did not get paid or receive free meat and his back symptoms worsened because it was a heavy and labour-intensive job.
202The plaintiff said he would have continued to assist his friend with that job, if he was needed and if his injury had not got worse. That butcher’s shop has now closed.
203As already detailed, the plaintiff also provided some limited assistance to his father with some short-term plumbing work.
204Since the plaintiff assisted his friend in the butcher’s shop and his father with the plumbing work, the plaintiff’s pain has worsened. In June 2022, when the plaintiff consulted Dr Weekes, his pain was described as being 50 to 60 per cent better than what it had been before the spinal cord stimulator was implanted. He was taking a lot of medications then which he had subsequently reduced because his general practitioner and specialist had not wanted him to become addicted to painkillers. At the hearing, his description of his pain was that it was only 30 to 40 per cent better than it had been. He said he had no capacity to do any work now, even limited hours. He did not accept his ability to work had increased.
205Having considered the plaintiff’s evidence about the requirements of the roles he has applied for and the tasks required for each of the sales’ assistant and sales’ representative roles, I have formed the view the plaintiff is unlikely to be able to meet the demands of either of these roles. Both roles require frequent sitting and standing. Even if I accept Dr Soliman’s reports in preference to the plaintiff’s evidence in cross-examination (which I do not do), I have concluded that the plaintiff’s physical injury is such that he would be unable to sit or stand for the lengthy periods of time required to perform those roles.
206Further, in relation to the sales’ assistant role, because this may require up to a medium ability to lift, pull or carry, the plaintiff is unlikely to be able to perform the requirements of that role.
207Additionally, in my view, even if there were roles available, the plaintiff does not possess the education, mental or technical skills required for the sales’ representative role.
208For each of those reasons I find that the roles of sales’ assistant and sales’ representative are not “suitable employment” for the plaintiff.
If the plaintiff had capacity to work in suitable employment, were the plaintiff’s attempts to participate in rehabilitation or re-training reasonable?
209At trial, the plaintiff was also cross-examined about the jobs he had applied for. His evidence was that he had applied for about twenty jobs in 2022, through three job agencies in Leongatha. He had a job interview with Tradelink, a plumbing supplies company in Leongatha, for a role as a delivery driver and storeman. The plaintiff did not think he had capacity for the job as it required a lot of standing and heavy lifting, noting that Tradelink sold hot-water services and tanks. He explained he had applied for the job however, because he had to apply for eight to ten jobs a month to receive Centrelink payments.
210Similarly, he said he had unsuccessfully applied for jobs as a school crossing supervisor, at a bakery at Korumburra, as a counter assistant and at the hospital as a cleaner. He said that no-one would employ him. He considered this was because of his back injury. In any event, he did not think he had capacity to do those jobs.
211Having considered the plaintiff’s evidence, I accept that he made reasonable attempts to obtain alternate employment. His evidence is consistent with the medical evidence and also reflects his physical incapacity. Dr Slesenger in his report dated 9 August 2022 noted the plaintiff had stopped working at the butcher’s shop because the employer became ill and the shop closed. Applications for alternate employment had been unsuccessful. Similarly, Dr Soliman noted the plaintiff had applied for a few jobs but had been unsuccessful and was registered with a job agency. Ms French further recounted the plaintiff’s work capacity and functional limitations and noted that the plaintiff was very motivated to return to his pre-injury hours; however, his lack of confidence in his ability to return to normal duties, pain and stress levels were barriers to returning to work.
212I am satisfied that the plaintiff’s attempts to obtain alternate employment and/or re-train in other jobs were reasonable given all the circumstances.
If the plaintiff had capacity to work in suitable employment as either a sales assistant or a sales representative, what was the applicable hourly rate at which he could earn?
213If contrary to my finding, working as a sales’ assistant or a sales’ representative were considered to be “suitable employment” for the plaintiff, to determine whether the plaintiff has suffered the requisite at least 40 per cent loss of earning capacity, it is necessary to consider at what rate the plaintiff would have earned in suitable employment and how many hours per week the plaintiff would have had capacity to work.
214For each of the “suitable employment” options identified by Recovre in its report dated 20 July 2018, Flexi Personnel, in its Earnings Report with respect to the plaintiff dated 8 September 2022, identified the applicable hourly rate at which the plaintiff would have capacity to earn based on the relevant Award, calculated on a permanent full-time or part-time basis, and exclusive of any applicable penalty rates and allowances.
215For the role of Sales’ Assistant (Butchery) the applicable hourly rate was $23.29 gross per hour. For the Sales’ Representative (Grocery/Meat) role the applicable hourly rate was $22.36 gross per hour (probationary traveller) and $24.84 gross per hour (commercial traveller).
216At trial the parties agreed[29] that for the sales’ assistant role, the applicable hourly rate at which the plaintiff could earn was $23.09.[30] To earn 60 per cent of his pre-injury weekly earnings, the plaintiff therefore had to work 30.04 hours per week.
[29]Exhibit F
[30]Exhibit 2
217There was a difference between the parties as to the applicable hourly rate at which the plaintiff could earn for the sales’ representative role. The defendant argued the applicable hourly rate was $30.08.[31] That figure was calculated based on average weekly earnings of “around” $1,200 per week comprising “on average” 39.9 hours per week. Assuming an applicable hourly rate of $30.08 per hour, to earn 60 per cent of his pre-injury weekly earnings, the defendant contended the plaintiff would have to work 23.06 hours per week.
[31]Ibid
218The plaintiff submitted that the applicable hourly rate was $24.84 which was the amount Flexi Personnel had suggested was applicable for a commercial, as opposed to a probationary, adult traveller.
219I prefer the figures put forward by the plaintiff principally because the Flexi Personnel report suggests a definite applicable hourly rate for a sales representative whereas the hourly-rate figure put forward by the defendant was calculated based on approximate weekly earnings and on average hours per week. In that sense, the applicable rate at which the plaintiff could earn proposed by the defendant was less certain than the figures put forward by the plaintiff.
220I find the applicable hourly rate at which the plaintiff could earn as a sales representative was $24.84.
221At that hourly rate, to earn 60 per cent of his pre-injury weekly earnings, the plaintiff would have to work for 27.9 hours per week.
If the plaintiff is able to work in suitable employment as either a sales assistant or a sales representative, how many hours per week does he have a capacity to work?
222Although my principal finding is that the roles of sales assistant and sales representative are not “suitable employment” for the plaintiff, I have also considered the number of hours the plaintiff might potentially have worked as a sales assistant or a sales representative in the event I am incorrect.
223Soon after the plaintiff had the spinal cord stimulator implanted, Professor Bittar in his report dated 27 October 2021 considered that in theory the plaintiff could work up to 12 hours per week in a sedentary role where he could avoid bending, twisting, heavy lifting and could change postures frequently as required.
224In his report of the same day, Dr Sullivan noted that whilst the plaintiff was able to volunteer at his friend’s butcher’s shop, that role required significant accommodation for his chronic pain condition. Even when adjustments were made, his view was the plaintiff could sustain no more than approximately 10 hours per week in that role.
225By the end of 2021 when the plaintiff was working on an unpaid basis helping a friend at his butcher’s shop, he was only capable of working for five to 12 hours per week.
226When Dr Sullivan prepared a further report dated 29 July 2022, Dr Sullivan’s view remained largely unchanged. He remained of the view the plaintiff was not suitable for stable employment and would have a maximum capacity of eight to 12 hours of very light, or sedentary, work per week. He had significant permanent functional restrictions, including no bending, lifting and maintaining static postures for longer than 15 minutes.
227Dr Soliman’s opinion was the plaintiff was unfit to return to his pre-injury duties as a butcher, but he was fit to work full normal hours in alternative suitable duties with no repetitive bending, twisting and lifting over 10 kilograms. As Mr Hartley identified, that view was considerably more optimistic than the balance of the medical opinions.
228In my view, although the plaintiff derived some initial benefit from the implantation of the permanent spinal cord stimulator, over time the plaintiff’s pain increased. I have considered the expert opinions and the requirements of roles such as a sales’ assistant and sales’ representative. I have taken account of the plaintiff’s age, his limited experience working as either a sales’ assistant or a sales’ representative, the nature of his incapacity, the location of available jobs, his poor sleep, physical dysfunction, the need for opioid analgesia and a permanent spinal cord stimulator implant, as well as medically recommended restrictions and postural limitations. Having considered the totality of the evidence, I have concluded that even if sales’ assistant or sales’ representative roles did constitute suitable employment, the plaintiff does not have a capacity to work in such roles for more than 12 hours per week.
229I do not consider the plaintiff would be capable of working at least 27.9 hours per week as a sales representative or 30.04 per week as a sales assistant.
Conclusion on whether the plaintiff has suffered a loss of earning capacity of more than 40 per cent
230Finally, it is necessary to compare the after-injury earnings with the pre-injury earnings to assess whether a loss of earning capacity of at least 40 per cent has been sustained.
231The plaintiff tendered a document titled “Plaintiff’s calculation of pecuniary loss.”[32] I have considered that document which sets out, amongst other things, calculations in relation to the suitable employment options identified by the defendant.
[32]Exhibit F
232I have found the plaintiff has no capacity to work in his pre-injury employment or in suitable employment as either a sales’ assistant or sales’ representative. However, even if I am wrong and the plaintiff has a retained capacity to work in either of those roles, I have concluded the highest number of hours he would be capable of working would be 12 hours per week.
233If he worked 12 hours per week as a sales’ assistant at a rate of $23.09 per hour the plaintiff would have a capacity to earn $277.08. That amount is less than the relevant 60 per cent figure of $693.55 per week.
234Similarly, if the plaintiff worked 12 hours per week as a sales’ representative at a rate of $24.84, he would earn $298.08. That amount is also less than the relevant 60 per cent figure.
235Consequently, I find for both roles the defendant put forward as suitable employment, the plaintiff would suffer a more than 40 per cent loss of earning capacity.
236In all the circumstances, I find that the plaintiff has sustained a loss of earning capacity of more than 40 per cent and therefore satisfies the test in s325(2)(e)(i), as measured by s325(2)(f).
Is the loss of earning capacity permanent?
237At the trial, it was suggested to the plaintiff that the pecuniary loss consequences of his injury were not permanent. He could have made an earlier appointment with Dr Weekes with a view to adjusting the spinal cord stimulator to get a better outcome than what he then had.
238In cross-examination, the plaintiff acknowledged he might have contacted Dr Weekes earlier and said he had been busy in the last six months with doctors’ and barristers’ appointments. He explained he intended to discuss adjusting the spinal cord stimulator with Dr Weekes when he returned to see him in November 2022. He disagreed it would make a difference to whether he was able to get a job. He thought, it may increase his capacity for work in the short-term, but his injury had worsened and it would always be with him.
239In my view, the plaintiff has a serious injury to his spine. He has had a spinal cord stimulator implanted. The medical opinions demonstrate the effect of the spinal cord stimulator is diminishing. An attempt was made by the spinal cord stimulator representative to adjust the spinal cord stimulator to improve the plaintiff’s pain levels, but that was unsuccessful. Further, even if adjustment of the spinal cord stimulator had been successful, Dr Sullivan’s evidence was it would need to be replaced eventually and pulsed generator replacements could be expected to occur every five to eight years.
240In any event, it would be incorrect to speculate that returning to see Dr Weekes would alter the plaintiff’s outcome, given the preponderance of medical opinion.
241In his first report dated 27 October 2021, Dr Sullivan concluded that the plaintiff’s condition was stable and permanent. He had a post-traumatic chronic pain condition with neuropathic elements. The chronic pain was of a debilitating nature and he considered it would affect the plaintiff’s low back into the foreseeable future. He opined that the plaintiff would have lifelong restrictions and could not return to his pre-injury employment or stable paid employment in the foreseeable future.
242Dr Sullivan opined that the plaintiff would require ongoing input and assistance from his interdisciplinary care team, including his clinical psychologist, physiotherapist and specialist pain medicine physician. He concluded that the plaintiff would require surgical intervention for revision and replacements every five to seven years.
243In his second report dated 29 July 2022, Dr Sullivan opined the plaintiff’s “prognosis is poor. His chronic pain condition will continue into the foreseeable future. … [the plaintiff] has functional restrictions that have been previously documented and noted in the report above. Such restrictions can be considered permanent. … I believe overall the realistic prospects of [the plaintiff] finding such work in a stable and settled fashion are negligible now and into the foreseeable future.”
244Dr Slesenger noted in his first report dated 24 November 2021, that the plaintiff’s symptoms had improved following the implantation of the spinal cord stimulator. Nevertheless, he was cautious as to whether the improvement was likely to be sustained. He considered the plaintiff’s prognosis to be guarded given the length of his impairment disability and the degenerative nature of the underlying condition. He recommended that be addressed by a pain specialist.
245In his report dated 9 August 2022, Dr Slesenger identified there had been a limited increase in the plaintiff’s lower back pain up to five to six out of ten. The pain was constant. The symptoms were aggravated by activity and the cold weather and deteriorated spontaneously. He opined that there would not be a change in the plaintiff’s condition in the foreseeable future and the plaintiff could not return to his pre-injury role or work performing suitable alternative duties on a consistent and reliable basis.
246Professor Bittar’s prognosis was that the plaintiff would most likely continue to experience significant pain and restrictions of a variety of physical activities in the long term.
247In his report dated 14 July 2022, Dr Akil considered the plaintiff’s prognosis to be poor. He opined that the plaintiff would suffer the consequences of his injury into the foreseeable future.
248Having considered the nature of the plaintiff’s injury, as well as the various medical opinions, I am satisfied the plaintiff has sustained loss of earning capacity consequences which are permanent. The realistic prospects the plaintiff will find work in a stable and settled way are negligible and will remain so into the foreseeable future.
Narrative test
249I am also required to consider whether the plaintiff’s loss of earning capacity consequences satisfy the narrative test and are, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as “being more than significant or marked”, and as being “at least very considerable”.[33]
[33]Section 325(2)(c) of the Act
250The plaintiff’s loss of earning capacity consequences, in my view, satisfy the narrative test. The plaintiff is unable to work in either his pre-injury employment or in suitable employment. Loss of his career which he had enjoyed for many years, and his ability to earn an income, are very serious consequences. When judged in comparison with other cases in the range of possible impairments or losses of body function, I consider the plaintiff’s loss of earning capacity consequences to be “more than ‘significant or marked’ and ‘at least very considerable’”.
Conclusion
251I will grant the plaintiff leave to commence proceedings to recover damages for pain and suffering and pecuniary loss.
252I will hear argument with respect to costs.
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