Astifo v El Mining Solutions Pty Ltd
[2020] VCC 421
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03938
| SAMIH ASTIFO | Plaintiff |
| v | |
| EL MINING SOLUTIONS PTY LTD (formerly known as AGRISON PTY LTD) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2020 | |
DATE OF JUDGMENT: | 8 April 2020 | |
CASE MAY BE CITED AS: | Astifo v El Mining Solutions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 421 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – pain and suffering conceded – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries & Anor v Poljak [1992] 2 VR 129; Acir v Frosster Pty Ltd [2009] VSC 454; Vulcan Steel Pty Ltd v Fullerton [2014] VSCA 18; Richter v Driscoll [2016] VSCA 142; Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Ingram QC with | Melbourne Injury Lawyers |
| For the Defendant | Mr D McWilliams | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant between November 2012 and April 2014 (“the said period”).
2 The application is brought pursuant to s134AB(37)(a) of the Act. The relevant body function is spine.
3 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded at the commencement of the hearing.[1]
[1]Transcript (“T”) 1
4 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
7 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
8 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] and Richter v Driscoll[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3][2016] VSCA 142
11 The plaintiff relied upon two affidavits and he was cross-examined. He also relied on an affidavit sworn by his brother Rabea E-Doski on 19 February 2020. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is presently aged forty-nine, having been born in 1970 in Northern Iraq. He is married with two teenage children.
13 The plaintiff completed secondary school in Iraq and then did the equivalent of an Australian TAFE college training as a mechanic and completing a technical course in mechanical engineering. He operated his own business in Iraq before migrating to Australia.
14 The plaintiff fled Iraq as a refugee in 1999, arriving in Australia by plane. He was initially detained in a detention centre in Perth but subsequently granted Australian citizenship in 2002.
15 After his arrival, the plaintiff attended English language classes and then commenced working as a mechanic. He began operating his own motor mechanic’s business in about 2004 and in about 2008, he sold the business and purchased a tow truck. He then operated that business until 2011 when he sold the truck. He then began operating his own motor mechanic business, Motor X Pty Ltd (“the business”) operating at 1-16 Fabio Court, Campbellfield.
16 In November 2012 when operating the business, the plaintiff was approached by the defendant who offered him a position as a head mechanic. The plaintiff worked in that role until 14 April 2014. He continued to pay rent for the business property and “all his money and stuff were there.”[4]
[4]T61
17 The plaintiff’s duties with the defendant involved heavy physical manual work including lifting and manoeuvring of tyres and batteries used in tractors and loaders (“the duties”).
18 The plaintiff believed as a result of performing the duties, he suffered a spinal injury with the first record thereof being an attendance at Fawkner Medical Clinic (“the Clinic”) on 15 April 2013, when he complained of lower back pain after lifting a battery.
19 A lumbar spine x‑ray was carried out. When the plaintiff told his doctor, he wanted to put in a WorkCover claim, he was advised the Clinic would not accept WorkCover cases.
20 The plaintiff continued at work, although on 9 October 2013, he returned to the Clinic after a gearbox fell down from a forklift at work onto his left side, grazing his left elbow and causing left leg pain. He also then complained of low back pain.
21 On 17 March 2014, the plaintiff consulted Dr Alazam, at the Clinic, advising him of a flare up in low back pain. The plaintiff was referred for a lumbar CT scan which was carried out later that month.
22 The plaintiff returned to Dr Alazam on 7 April 2014. He was then sent for physiotherapy and prescribed anti-inflammatories. He was again told if he wanted to submit a WorkCover claim, he would have to go to another medical practice.
23 Accordingly, the plaintiff started to see Dr Reddy at Oak Park on 8 April 2014. He told Dr Reddy what had happened at work and all the workers saw what happened.[5] He was walking with pain around the premises before his employment was terminated.[6]
[5]T53
[6]T3
24 The plaintiff’s evidence as to when his compensation claim was submitted and when he was aware that he was being made redundant was unclear.
25 The plaintiff deposed he completed the claim form on 9 April 2014. When he submitted it on 10 April, the defendant terminated his employment with effect from 7 April.
26 In the plaintiff’s claim form signed on 21 May 2014, he set out the affected part of the body was the back and bilateral legs. He was injured following constant heavy and repetitive lifting, twisting, bending and through the course of his employment on 15 April 2013 when lifting a tractor tyre.[7]
[7]T78
27 The evidence was also unclear as to whether the plaintiff was told there was a downturn in the business before he was made redundant. He did, however, say that “they were trying to finish him” before his employment was terminated.[8] He agreed that they were trying to push him out because he had problems with his back but denied when it got to the start of April, he was told they just did not have a job for him anymore. He “did not remember it was like that.”[9]
[8]T4
[9]T7
28 The plaintiff believed the injuries to his lower back were caused by the heavy manual handling tasks which he was required to perform working with the defendant, in particular the lifting and manoeuvring of tractor tyres, batteries and other mechanical work.
29 Dr Reddy put the plaintiff off work and referred him for a lumbar MRI scan which was carried out in May 2014. A further incidental finding then made by Dr Reddy was groin pain which was subsequently diagnosed as a left inguinal hernia and surgically repaired on 28 November 2017 by Professor Thompson at the Royal Melbourne Hospital.
30 The plaintiff continued off work but his symptoms did not improve. He was trying to maintain the operation of the business but was unable to do the heavier aspects of it. He employed a mechanic to work there and was really attempting to keep the business open for his brother who was in the process of migrating from Iraq with the intention he would take over the business from him.
31 The plaintiff had kept the business but it had not been particularly profitable and he had had to engage others to perform work in the business. Following his migration to Australia, his brother was now responsible for doing most of the work in the business.
32 The only assistance the plaintiff has had in the business was largely unpaid. Initially he had help from “Moosar” and then from a seventeen-year-old, “Matthew”. When the plaintiff said he had to employ a “mechanic” to help, he just meant someone else to help.[10] If there were heavy tasks and Mathew or Moosar were not there, the plaintiff would just leave the tasks for them. He has never employed another mechanic in the business [11] His brother is a qualified mechanic but his English is poor.[12]
[10]T14
[11]T29
[12]T18
33 The plaintiff was referred to neurosurgeon Professor Bittar who, having organised tests, referred him for a CT-guided injection performed in February 2016. Professor Bittar then operated on the plaintiff in February 2018.
34 Post-surgery, the plaintiff reported some improvement in his leg pain and range of lumbar motion; however, he developed left thigh pain and sensory disturbance as a result of the surgery. Professor Bittar arranged for further investigations and recommended conservative treatment including physiotherapy.
35 As at April 2019,[13] the plaintiff believed his work capacity was very significantly impaired. He was no longer able to perform the full duties of his trade as a motor mechanic. Although he did have reasonable spoken English language skills, his reading and writing skills in English were quite poor and his computer skills, very basic. His only vocational experience had been working as a mechanic and that type of work was no longer work which he could reasonably perform without exposing himself to risk of further spinal injury.
[13]Plaintiff’s first affidavit
36 The plaintiff is not that good at reading. He understood what was in his affidavit “but not like a hundred percent”. Some words were hard for him. He had checked with his solicitor as to what they meant.[14]
[14]T10
37 As at April 2019, the plaintiff continued to suffer fairly constant but variable levels of spinal pain and pain extending through his left buttock and through his left leg. There was some initial improvement following surgery but the symptoms had gradually returned. His ability to perform tasks placing strain on his spine such as sitting or standing for extended periods was limited. His ability to perform tasks such as lifting, twisting or turning was also severely restricted. He had difficulties with sleep and his chronically disturbed sleep patterns had left him feeling tired and lethargic.
38 The plaintiff found intimate relations tended to increase his spinal pain. Whilst he enjoyed fishing, with prolonged sitting or standing it was not as enjoyable as it used to be and he was now restricted to smaller fish in the bay having previously enjoyed big game fishing.
39 The plaintiff had difficulty driving prolonged distances. He was restricted in his capacity to play with his children. He had difficulty maintaining his garden. He was very restricted in dancing at social occasions and he was unable to sit to eat for long periods to eat a meal.
40 The plaintiff swore a further affidavit on 12 February 2020.
41 The plaintiff continues to be troubled by ongoing pain and disability particularly affecting his low back. Despite extensive treatment, he is never pain free, although the pain varies in severity from day to day on a scale of four to eight out of ten.
42 The plaintiff continues to receive conservative treatment from his general practitioner who has prescribed a variety of medications including Lyrica for neuropathic pain, Panadol, Panadeine Forte and Nurofen. The plaintiff tends to use the Panadeine Forte and Nurofen in rotation to achieve the best result.
43 Despite the plaintiff’s best efforts, he continues to suffer fairly constant variable spinal pain which extends into his left buttock and leg. There has been no real improvement since April 2019 and he is concerned the chronicity of his symptoms will be with him for the rest of his life.
44 The plaintiff’s ability to perform physical tasks continues to cause him great difficulties. He is still involved in the business but mainly on a light administrative side. He is looking to transfer 100 per cent of it to his brother who is in the process of registering an ABN and has been doing the vast bulk of the work in keeping the business running.
45 The plaintiff still attends the business premises regularly, usually about five days a week for at least eight hours.[15] He undertakes tasks involved in the running of the business. Occasionally he is responsible for heavy lifting which causes him to suffer increased levels of spinal pain. When present at the business, the plaintiff tries to limit his work to lighter tasks and some paperwork such as ordering.
[15]T12
46 Some cars need a five-minute job and some are there for a week to get parts. Maybe there would be one or two cars being worked on at a time. It “depends” whether the plaintiff can work under a car “… if he goes slowly”. Sometimes he is able to bend at the waist to wash and clean things, but with pain. Sometimes, he can sit on the front seat of a car and do work around the pedals, but it depends with the pain.
47 The pain is not there all the time. It is between 4 to 8 out of 10 and, as he told doctors, it depends on what tablets he is taking and how much sleep he had had, because some nights he never sleeps and the next day he cannot even walk. Sometimes he feels better. He tries to do work, bend, because he does not want his back to “jam”. It does not matter he has got pain; he bends because he is trying to do things. He feels much better when he is at the business than when he stays at home.[16]
[16]T20
48 The plaintiff does small jobs to survive, what he can do, he does.[17] He was able to do things in the business, small things. He took his time there and it felt like his hobby -
“I can’t run the business by myself because I can’t hold, I can’t do work, heavy things, and I had to employ other people, but I had no income to employ mechanics, proper mechanics, you know.”[18]
[17]T16
[18]T13
49 If the plaintiff told the vocational assessor in 2017[19] that he was not working, it is because what he does is not work, it is not work for him, it is not enough income for him to survive and he lets his wife work to “survive the family”.[20]
[19]Vocational Assessment Report of Michael Iacovino dated 18 September 2017
[20]T26
50 The plaintiff was taken through various histories to examiners such as Dr Aliashkevich and Dr Hayman[21] about not performing any mechanical or physical work. He explained that he could still do small things. He could work under a car on a hoist at times. It depended with the pain. It depends for how long.[22] He could not do heavy things.[23]
[21]Medical Report of Dr Brendan Hayman dated 12 October 2017
[22]T31
[23]T32
51 If the plaintiff added all the time up during the course of the day he would be working, it could be sometimes two hours, sometimes nothing. A lot of days, he was just walking and talking and “we are not at work at all.” He could not say that he was working for an hour a day. There was no way he could work eight hours a day, close to five hours a day sometimes – definitely not.
“My work is not as you are thinking, like, sorry, like, for example, if I do something to, I go … see, why, because no‑one is hurry, when the car is there, sitting there for a couple of days, maybe the job is one hour but they stay for a couple of days. Every five minute, if I do something, I go sit, have a rest. No‑one pushing me to do something, you know what I mean, yes.” [24]
[24]T33
52 The plaintiff would love to work if he could and there was a job available. All his life he has been good working with cars and he knows a lot about them.[25]
[25]T62
53 The plaintiff was cross-examined about his capacity to work as an automotive sales adviser.
54 The plaintiff explained that his English was not good to explain anything to customers. He had a problem with English and is too old to learn further.[26] He speaks three languages; Kurdish, Arabic, Syrian and all his customers speak his language. He spoke English when he worked for the defendant.
[26]T69
55 The job with the defendant was really dealing with brand new tractors.[27] It was a little bit difficult with customers “as some stuff is hard to explain to them.” He did not know, “it depended” whether he could make cost estimates for repair work.[28] He agreed he could do a range of the tasks set out in the job specification.[29]
[27]T64
[28]T65
[29]T66
56 When dealing with tractors, the plaintiff had difficulty understanding clients such as farmers and he had to get help from the boss to explain things to them.[30]
[30]T69
57 The plaintiff continues to be restricted in social, domestic and recreational activities. His sleeping difficulties continue.
58 The plaintiff limps on some days and on other days he “walks perfect.” When the weather is hotter, it is better for his pain. It depends on the day.[31]
[31]T24
59 The plaintiff is restricted in his ability to drive because he is uncomfortable sitting for long periods and has limited sitting and standing tolerances generally. This affects his social activities and he has been forced to give up big game fishing. His involvement with his children’s activities continues to be heavily restricted.
Surveillance film
60 The plaintiff was shown surveillance film taken at the business premises on 1 August 2019. The cars and vehicles shown were largely owned by himself or his family.[32]
[32]T39
61 The plaintiff was shown greasing something. He was then shown using a high-pressure hose. He agreed he was able to bend over without any problems “sometimes with pain”, but he bends. He did not say he could not bend, but he does so with pain.[33] His cousin was shown at the end of the film.[34]
[33]T40
[34]T42
62 On 6 August 2019, the plaintiff was shown at the business premises until midnight. He slept there sometimes but not overnight. He had a rest if he needed it. He had never told any doctors about having to rest at work because no one had asked him. He rested on a couch, not a proper bed. He does have to have a rest because he “cannot stay long on his leg,” he cannot sit too long and he cannot walk too long.[35]
[35]T46
63 The plaintiff’s doctors have told him to exercise and always try and walk and “not be weak with his pain.” He was taught these things in the six-week pain management program.[36]
[36]T44
64 The plaintiff was shown talking to a customer. He told him to leave his car there and he would tell his brother to do the job which was like changing a fan belt. His brother was not there often in the mornings in 2019 because he was going to language school.[37]
[37]T48
65 The plaintiff was shown lying on a trolley working under a car. He explained it was a wreck and he was taking parts from it. He agreed he used one arm to pull him down. He had to push or pull himself by hand under the car “but it was very easy”. He agreed, when he got up off the trolley, he was down on his knees in front of the car. He could get into any position but with pain. He is not saying he “could not stand on his knees”.[38]
[38]T50
66 When it was suggested to the plaintiff he was not shown limping in either film, he explained it was in the morning and he tries to walk having had tablets. His limp comes and goes.[39] He was limping “a little bit”. He did not accept he was shown walking “a hundred per cent” as it was not normal walking which he knew as he had been in the Iraq Army. He first developed a “different walk after this happened to him”. He knew because his shoes, “which always rubbed on the side which was his feet not sitting proper”.[40]
[39]T47
[40]T51
67 There was short film taken on 14, 15 and 16 January 2020. The most recent film was in March this year when for the first time, the plaintiff’s brother was shown at the business premises.[41]
[41]T60
68 The plaintiff agreed that he was shown bending in the film. When he takes Nurofen or Panadol, they help him. He might have been shown bending two or three times, but he cannot bend or lie down all day. If he took painkillers it would not make it easier to get through all the working day.[42]
[42]T70
69 In the film, the plaintiff was taking his time when he wanted to; he was not working all day:
“As now, when Her Honour said to me, don’t ask me, when you want to sit, sit, when you want to walk, like she gives me the freedom. Same thing as my business. When I want to sit, I sit. No one asks no one. But as both saw me, I am sitting or I am lying or walking, could be complying, they said to me , will be no happy.“… I am sitting or I am lying or walking, could be complying, they said to me, will be no happy.”[43]
[43]T71
70 The plaintiff was not shown undertaking full mechanical work to repair a car:
“They just show me when – a lot of time I walked with a stick from the shop. Why didn’t they record me?”[44]
[44]T78
71 The plaintiff was asked to write in his own handwriting “The huge black dog chased the tiny ginger kitten across the highway where it was run over by a semitrailer”.[45] His handwriting/printing was childlike and full of spelling mistakes.
[45]T77
Lay evidence
72 The plaintiff’s brother, Rabea El-Doski, swore an affidavit on 19 February 2020.
73 Rabea was living overseas at the time but recalled the plaintiff telling him about his work and injury. Rabea moved to Australia in 2017.
74 Rabea has noticed the plaintiff continues to struggle with pain despite extensive conservative treatment including surgery. It seemed from Rabea’s observations, the plaintiff continues to be significantly disabled.
75 They have regular contact because the plaintiff comes down to the business most days. Rabea is looking to transfer the ownership of the business into his name because he is now effectively doing most of the work. The plaintiff comes down to give him an outlet but really undertakes very little of the manual work and he is becoming less and less useful in the running of the business.
76 Rabea has observed the plaintiff’s capacity to sit and stand for extended periods is quite restricted by his spinal injury. When the plaintiff is moving, he is troubled by pain and is hesitant in his movements, avoiding heavier tasks around the business which are undertaken by Rabea.
77 Rabea’s understanding is the plaintiff’s sleep is disturbed and he is often tired and worn out at work. He used to be active socially and recreationally, but those activities have been adversely impacted because reason of his pain. The plaintiff is no longer able to go big game fishing.
Medical evidence – the Plaintiff’s treaters
78 As pain and suffering has been conceded, I do not propose to deal with the medical evidence in great detail, save for the opinions of medical practitioners as to the plaintiff’s earning capacity and his prognosis.
79 In his most recent report of January 2020, the plaintiff’s general practitioner, Dr Reddy, noted the plaintiff’s long-term prognosis includes chronic low back pain, persistent L4 neuralgia with reduced physical capacity to continue with his occupation as a motor mechanic in his own business. The plaintiff is forced to employ and rely on additional workers in his business.
80 In Dr Reddy’s view, compared to his pre‑injury work capacity and capability, the plaintiff’s functional level is currently at approximately 40 to 50 per cent. Motor mechanics is the only occupation he has been trained in and it would seem that alternative duties would not be an option.
81 The plaintiff was advised to limit his lifting and carrying capacity to about 15 to 20 kilograms and on an intermittent basis and avoid repetitive bending and lifting which are inherent in his occupation. His future employment other than his own business is unlikely and he is compelled to remain in the business in order to maintain some income.
82 Dr Reddy also confirmed the plaintiff’s significant sleep disturbance. He noted at the plaintiff’s workplace, he mostly used his academic knowledge in his trade and enlisted the assistance of workers to complete his professional work. In short, the plaintiff was best advised to stay in his own current environment and maintain and continue in his own business.
83 Dr Reddy also commented that the plaintiff is a frustrated young man given the fact that his future life as a productive motor mechanic involving all the implications within that occupation has been severely curtailed.
84 The plaintiff had a CT-guided injection on 19 February 2016 to the left L5 nerve roots sheath performed by Dr Mittal.
85 On 15 February 2018, Professor Bittar undertook surgery at St Vincent’s Private Hospital involving left L4-5 decompression, partial microdiscectomy and rhizolysis demonstrates disc prolapse and partial microdiscectomy performed.
86 Nerve conduction studies conducted after the surgery carried out on 10 May 2018 demonstrated electrophysiological evidence of mild chronic denervation of the tibialis anterior on the left consistent with L5 radiculopathy.
87 In June 2018, Professor Bittar thought that the plaintiff’s lumbar spine condition had rendered him incapacitated for pre‑injury duties and that he had extremely limited capacity for suitable employment.
88 Professor Bittar then considered the plaintiff was likely to have some work capacity and could undertake very sedentary work part time, working three to four hours a day, two to three days a week. He would need to avoid prolonged sitting or standing, repetitive bending or twisting and lifting more than 6 to 8 kilograms, any pushing or pulling. He would need to be able to change postures frequently. His long-term work capacity would be best assessed once his condition had stabilised after surgery.
Medico-legal evidence
89 On re-examination in late 2019, Dr Aliashkevich, neurosurgeon, thought the plaintiff’s prognosis remained guarded. He noted the plaintiff suffered from longstanding back and left leg pain since his work-related injury and achieved only short-lasting relief after left L5 nerve root injection and partial response to L4-5 disc surgery.
90 Whilst he was not a qualified occupational specialist, Dr Aliashkevich thought, taking into account factors under s5 in terms of suitable employment and disregarding the hernia condition, the plaintiff may have reduced capacity for suitable part time non-physical employment, for example in an office. He may be suitable for retraining into alternative jobs but would require assessment by a qualified occupational specialist. He noted his view in that regard was consistent with Professor Bittar’s conclusions.
91 Dr Aliashkevich also noted the plaintiff was previously assessed by Dr Eaton, occupational specialist, who identified permanent restrictions on repetitive or sustained bending to reach below the knees, stooping, kneeling and crouching.
92 Given the persisting and longstanding character of the plaintiff’s condition with the only partial response to surgery, Dr Aliashkevich considered his current level of impairment is likely to remain permanent.
93 Dr Robyn McBeth, specialist occupational and environmental physician, examined the plaintiff in March 2019.
94 Dr McBeth reported the plaintiff advised he operated his own small mechanic business. He had returned to work with his brother in the business albeit in a limited capacity and predominantly in a support role for his brother who speaks minimal English. His brother is running the business and the plaintiff is teaching him how to do so. The plaintiff said he did not perform any mechanical type duties and his brother services the car in the workshop.
95 The plaintiff advised he is a licensed vehicle tester which involves inspecting the roadworthiness of vehicles and currently he inspects one or two vehicles a month. He advised he also performed administrative duties and requires frequent changes of posture and regular breaks to manage his pain. He works a total of thirty minutes a day in the business workshop, which is interspersed with coffee breaks and frequently altering his posture from sitting to standing and walking around the workshop.
96 In Dr McBeth’s clinical opinion, it is very unlikely the plaintiff will ever be fit to return to the pre-injury heavy vehicle mechanic service manager role based on the nature and extent of the severity of traumatic lumbar spine injury and hernia injuries and residual lumbar pain and functional limitations. She thought it unlikely he would ever return to his pre-injury level of function required to safely and efficiently perform the inherent requirements of his physically demanding pre‑injury role. Further, it is likely he would be at risk of re-injury, exacerbation or aggravation of his lumbar spine and hernia conditions if he were to return to his physically demanding pre‑injury duties.
97 Dr McBeth also thought the plaintiff’s capacity for work had been affected by his injury in terms of suitability for alternative employment to a very significant extent.
98 In her view, the plaintiff would need to alter his posture as often as required according to his level of pain, self-paced work duties to be performed between shoulder and waist height; no manual handling which includes lifting, carrying, pushing pulling or moving a load greater than 5 kilograms; no repetitive over-reaching and manual handling which includes lifting, carrying, pushing, pulling or moving a load; no bending, stooping, squatting, kneeling and rotation of his spine; sitting, standing and walking would need to be within his tolerance level but no longer than thirty minutes; no driving duties; no climbing steps, stairs or ladders; avoid walking up or down inclines on a repetitive basis, provision of an ergonomic workstation; provision for rest breaks when required to assist with pain management; and reduced work hours.
99 Dr McBeth thought the plaintiff’s ability to retrain or be rehabilitated for suitable employment was significantly affected. She was of the view that he was unsuitable for the jobs suggested in 2015 of spare parts interpreter, sales assistant, rental salesperson, despatch logistics clerk.
100 Dr McBeth was not provided with the more recent vocational assessment where the job of automotive service adviser was suggested.
101 Dr McBeth concluded the plaintiff’s injury and level of impairment, specifically his functional limitation, was likely to last and not mend or repair to any significant extent for the foreseeable future.
102 Dr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff earlier this year.
103 Dr Kossmann thought the plaintiff cannot return to work as a mechanic. He will not be able to work in any physically demanding work or work where he has to walk long distances on uneven ground; walk upstairs and downstairs, inclines and declines; kneel or squat; or carry heavier items weighing more than 5 kilograms.
104 Dr Kossmann noted the plaintiff was a trained mechanic and had no other qualifications. Since he would not be able to return to physical work in that role, Dr Kossmann believed he should undergo a vocational assessment to find out which work he may benefit best, subject to the suggested restrictions; however, he thought the plaintiff was at risk of never returning to any employment in the future.
105 Dr Kossmann thought the plaintiff’s prognosis regarding his lumbar spine was poor and that he would continue to suffer from pain for which he would require further treatment with pain medication and anti-inflammatories.
Vocational evidence
106 Glen Dwyer, occupational therapist at Evidex, prepared a vocational assessment report in March 2020.
107 Mr Dwyer noted that the CoWork report incorrectly stated no minimal education or formal education was required for the occupation of automotive service adviser (ANZSCO-1499).
108 According to information in the ANZSCO, this occupation requires qualifications commensurate with AQF associate degree, advanced diploma or diploma (ANZSCO Skill Level 2) which the plaintiff does not possess. This occupation is largely customer service oriented and is sedentary in nature involving prolonged sitting which is unsuitable for the plaintiff. Further, any requirement to inspect customer vehicles necessitating bending and twisting would likely fall outside his functional capacity.
109 Mr Dwyer concluded that the plaintiff was suited to light part-time work in his own business, performing light mechanic duties when he felt able to do so, as an automotive spare parts interpreter and as a control room monitor(security) for a maximum of four hours per day, three (non-consecutive) days per week.
The Defendant’s medical evidence
110 Dr Dominic Yong, occupational physician, saw the plaintiff in early 2020.
111 The plaintiff told Dr Yong that his daily routine was to wake up and go to his shop. He goes and has a coffee and can stay for a few hours or for the whole day. He said he felt more relaxed in that environment and he talks to his brother or his cousins. Occasionally, he would do an easy job such as changing a globe but otherwise not work in the business.
112 Dr Yong considered the prognosis was not unreasonable assuming the plaintiff was able to participate in a graduated activity-based recovery program whilst avoiding aggravating factors.
113 Dr Yong thought the plaintiff had a capacity to perform tasks within the following restrictions: avoid repeated bending and twisting of the back; avoid repeated firm pushing and pulling tasks; avoid lifting more than 5 kilograms on a repeated basis; vary posture regularly between sitting, standing and walking and reduction in work hours.
114 Dr Yong thought the plaintiff’s pre‑injury role would exceed the recommended restrictions.
115 Dr Yong was provided with a number of vocational assessments suggesting suitable employment for the plaintiff.
116 In terms of the automotive service adviser role, Dr Yong noted the duties described by Ms Ross.[46]
[46]See paragraph [135] of my judgment
117 Dr Yong thought that minimal manual handling would be expected in this role. The job complied with the recommended restrictions and thus would be considered suitable for the plaintiff to perform.
118 Dr Yong thought suitable employment would involve initially working reduced hours such as four hour shifts for four days a week. This can increase on a graduated basis aiming to return to pre‑injury hours over an approximate six month period.
119 Mr Graeme Brazenor, neurosurgeon, saw the plaintiff in November 2019.
120 Mr Brazenor noted the plaintiff now ran his own automotive business doing light mechanical work on vehicles but most of the work was done by his brother who was also a qualified mechanic and who the plaintiff assisted to come out from Iraq. The plaintiff attended his own workshop and sometimes helped in a minor way and volunteered and that was good for his brain and his attitude. Mr Brazenor congratulated him on his common sense in perceiving that.
121 Mr Brazenor advised that for his confident assessment of the plaintiff’s contemporary status, he required further scanning.
122 Mr Brazenor concluded that one thing was crystal clear was that as a result of the work-related injury in March 2014, the plaintiff can never work again as a vehicle mechanic, in any activity that requires bending at the waist or lifting of weights in excess of 5 kilograms.
123 The effects of the work-related injury will not cease completely, insofar as because of the injury, the plaintiff will be forever prohibited from doing hands on work as a mechanic which involves any bending at the waist or heavy lifting.
124 Dr Graeme Doig, general orthopaedic surgeon, examined the plaintiff and carried out an AMA assessment in February 2019.
125 Dr Doig thought the prognosis must be guarded. The plaintiff will have a 10 kilogram lifting, pushing and pulling restriction with limited bending and twisting through the spine. He will require breaks from prolonged sitting standing and driving.
126 Mr Buzzard examined the plaintiff in February 2019.
127 So far as the plaintiff’s employment capacity was concerned, Mr Buzzard thought he was at least capable of work involving the lifting of weights no greater than 10 kilograms. He did not think there were any other restrictions and drew the reader’s attention to the difficulty he had experienced in obtaining a clear history in this regard, despite the presence of a professionally qualified interpreter. In his view, the plaintiff’s condition was stable.
Vocational evidence
128 Holly Ross, occupational therapist from CoWork Pty Ltd, provided a vocational assessment and labour market analysis report in November 2019.
129 Ms Ross concluded the following jobs were likely to be a good fit for the plaintiff in terms of his functional capacity and alignment with his transferrable skills set – automotive product tester examiner, automotive spare parts interpreter, automotive service adviser and control room monitor security.
130 In cross-examination, only one job was suggested as appropriate for the plaintiff, namely automotive service adviser.
131 The CoWork documents set out the closest ANZSCO classification was service manager.
132 The purpose of job was in an automotive dealership and the occupation involved scheduling customer automotive services and repairs.
133 Ms Ross stated that no minimum education or formal qualifications are required for this occupation – prior work experience in the automotive repair industry – technical knowledge is valued. She noted the plaintiff’s extensive experience in the automotive industry is likely to make him a competitive candidate to potential employers.
134 The annual income for this role was $94,224, with average weekly earnings of $1,812. The median age for the occupation was forty-six.
135 Typical duties were:
· explain to customers what kind of repairs or servicing their car needs, and make cost estimates for the work
· track repair status and fill out reports detailing the time spent on repairs and expenses for parts
· provide customer service and schedule service appointments
· ask owners questions and perform visual inspection of cars to determine the cause of the problems.
136 The physical demands of the job were assessed as varying. Depending on the goods, location of the business and size of organisation, a service adviser may be required to physically check cars, however, from Ms Ross’ research, checking stock and parts levels was nearly always computerised. The job required good customer service manner and an ability to solve purchase and service issues for the business and with customers.
137 Two jobs were suggested in this field.
138 There was an automotive service manager and service adviser at Mantello Motor Group. “Skills and experience” detailed the ideal candidate would, inter alia, possess good computer skills with IT systems and possess excellent communication skills.
139 A senior service adviser role at South Morang Hyundai would have strong communication skills and be confident with computer systems. The candidate would need to demonstrate a minimum of two years’ experience as a service adviser and excellent communication skills.
140 The application form would include questions, inter alia: “How would you rate your English language skills?”
Business financial details
141 In the financial year ending 30 June 2012, sales for the business were $31,380. The rent was $14,400. The following financial year, sales were $18,310 with rent as the previous year.[47]
[47]T67 - The plaintiff agreed with the accuracy of these figures
Overview
142 Pain and suffering having been conceded in this matter, the issue is only whether the plaintiff has suffered the requisite loss of 40 per cent.
Credit
143 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[48]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[48](2010) 31 VR 1 at paragraph [12]
144 Counsel for the defendant submitted there was an inconsistency in the plaintiff’s evidence between what he told doctors and what was involved in the business. The fact that the plaintiff attended five days a week, eight hours a day, should cause some concern in receiving him as a forthright and acceptable and reliable witness.[49] Further, in his first affidavit, he gave no detail of what he did in the business.[50] It was also submitted his evidence about having to rest on a bed at the business was unsatisfactory.[51]
[49]T82
[50]T85
[51]T84
145 There was also the plaintiff’s evidence about his ambulation, being shown walking normally on the film, not shown limping and even in his evidence he said sometimes he “walked perfect”, explaining he knew how to walk properly after his time in the Iraqi Army. It was submitted when he is not confronted with examinations by doctors and when he believes he is not under observation, the plaintiff walks normally.[52]
[52]T83
146 It was submitted the plaintiff’s brother’s description of the plaintiff’s level of immobility was exaggerated. Further, the plaintiff did not say his was a “good and bad day” scenario.[53]
[53]T90
147 Generally, in terms of credit, it was submitted the plaintiff was “over‑egging the pudding”. He was trying to set the bar very high and say, “Look, okay, sure I’ve got this other business, but it’s not profitable and I can’t really do that much so I’ve had to employ other people and I'm really looking to pass it on to my brother”.[54]
[54]T88
148 In response, counsel for the plaintiff submitted the plaintiff’s credit should be viewed against the background of the significant objective medical evidence which cannot be disputed.[55]
[55]T98
149 While there was criticism of the plaintiff’s evidence about his ambulation, it was submitted by counsel there was nothing in the video showing any prolonged period of walking.
150 From early on in the proceeding, the plaintiff has sworn he has spent extended periods of time in the business. There was no vehicle under repair at all and it was submitted that the video was consistent with the plaintiff’s affidavit. His explanation for attending the business on such an extended basis should be accepted - better to be there than sitting at home achieving nothing. Whilst at the workplace, he is happier. Any work being done there is negligible. The use of the word “workplace” was not particularly accurate.[56]
[56]T99
151 Generally, I found the plaintiff to be a credible witness who continues to suffer significant pain and restriction despite lumbar surgery two years ago.
152 Whilst there was film of the plaintiff at the business premises, in my view, he was not shown engaged in any particularly heavy work, although working under a car on one occasion was an activity I would have anticipated he could readily perform. Otherwise, he was not lifting engines or doing any other heavy or repetitive tasks.[57]
[57]T91
153 I accept the plaintiff’s explanation that while he attends the business every day, he does so to take his mind off his injuries. He does small jobs around the place and is able to do those at his own pace, a situation which would not be available when in paid employment.
154 As I commented during the hearing, the business was not a very profitable or sophisticated one. Further, it might be a language issue when the plaintiff deposed to employing a “mechanic” to assist him in the business, rather than a deliberate attempt to mislead and inflate the situation.[58]
[58]T89
Loss of earning capacity
155 Having satisfied the narrative requirements, to obtain leave in relation to loss of earning capacity the plaintiff must also establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
156 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
157 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
158 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
159 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
160 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[59]
[59]Barwon Spinners Pty Ltd v Podolak (supra)
161 It was agreed between the parties, the 60 per cent threshold was $1,397.[60]
[60]T82
162 Counsel for the defendant submitted that given the plaintiff’s involvement and his attendance at the business tinkering, and doing other things, there is no reason why he ought not be able to reliably attend another job.[61]
[61]T85
163 Dr Yong accepted the suitability of the spare parts supervisor role. He supported the physical aspects of the job, which involved minimal manual handling; however, it was conceded he did not address the computer work involved in the role.[62]
[62]T94
164 It was submitted the plaintiff’s general practitioner does not really think the plaintiff does not have a work capacity. Generally, Professor Bittar and Dr Aliashkevich consider the plaintiff has a residual capacity;[63] however, counsel conceded a high earning plaintiff was a difficult scenario.[64]
[63]T93
[64]T94
165 It was submitted, despite any inadequacies in English, the plaintiff is quite capable of retraining. He was a man who had been able to start a business and keep it going, albeit not profitably. The business appeared to be solvent despite the plaintiff’s injury. It was submitted if the plaintiff applied himself, he could work to a sufficient level that would disentitle him to a certificate for economic loss if he took up the suggested job.[65]
[65]T96
166 The plaintiff is in attendance at the workplace every day. The question was posed - “Why can’t he go and work as a supervisor or a service manager where there would be minimal physical involvement?” While that job might require some degree of mental aptitude, it is certainly not suggested the plaintiff is unintelligent. His general practitioner described him as intelligent and Dr Aliashkevich shared a similar view.[66]
[66]T96
167 Further, the plaintiff still has an obligation to engage in suitable retraining.[67] He is a relatively young man who has a capacity to do something. Even with some training, it was submitted he could achieve the type of vocational outcome suggested by CoWork.[68]
[67]T86
[68]T87
168 While the plaintiff may have learned little in the computer course, if he wanted to return to work, he had to train. It was not enough for him to say he did not really understand anything. If he wanted to get back to work, “get out there and retrain and do it. If he is genuine about getting back into the workplace, go out and get educated.”[69]
[69]T97
169 In response, counsel for the plaintiff submitted an important concession made by the defendant was that the plaintiff’s lumbar spine impairment was serious under the statutory codification in Humphries & Anor v Poljak.[70]
[70]Supra
170 Further, there was very strong objective evidence in terms of the plaintiff’s injury.
171 On multiple scans, extensive pathology was shown at L4-5 and L5-S1. The plaintiff had a CT-guided cortisone injection without relief. In February 2018, he had a left L4 decompression microdiscectomy and rhizolysis with persisting symptoms thereafter. That led to nerve conduction studies being performed which demonstrated chronic denervation of the tibialis anterior on the left side consistent with L4-5 radiculopathy.
172 It was submitted these objective matters had nothing to do with the plaintiff’s credit at all and can be demonstrated as a matter of pure medicine.[71]
[71]T98
173 There was also the requirement for significant ongoing medication with Dr Reddy continuing to prescribe Lyrica for neuropathic pain. The plaintiff also took Panadol, Panadeine Forte and Nurofen. Further, the heavy nature of the work performed whilst in the defendant’s employ was demonstrated by his need for hernia surgery.[72]
[72]T98
174 As J Forrest J stated in Acir v Frosster,[73] when considering this type of application, one should look at the realities of the labour market. The point was also made by the Court of Appeal in Vulcan Steel Pty Ltd v Fullerton[74] where the Court said the possibility of realistic suitable employment within the respondent’s physical capacities was at best theoretical and at the worst, when one considered all the evidence properly, wholly unrealistic. It was submitted the situation in this case is similar.[75]
[73][2009] VSC 54 at paragraph [188]
[74][2014] VSCA 18 at paragraph [25]
[75]T100
175 Counsel also relied on Richter v Driscoll,[76] where the Court held that all aspects of suitable employment definition are to be brought into account. One of these is the nature of the incapacity, in this case significant spinal injury.
[76][2016] VSCA 142
176 Having summarised the plaintiff’s subsequent medical history leading to the surgery, it was submitted that from the outset the plaintiff had sought treatment, his employment had been terminated because he had put in a claim and he was never certified to return to work after that date.[77]
[77]T101
177 The plaintiff’s whole life has been as a mechanic. Forty-nine years of age might be relatively young or old, but he is a migrant from Iraq and it is clear from the handwritten document that his English language skills are more apparent than real. He speaks with an accent that at times is difficult to understand. He has poor literacy in terms of his ability to write in English. He has very poor computer skills which was a further burden for him in terms of looking for alternate work.[78]
[78]T101
178 The plaintiff did in fact undertake rehabilitation and did a two-week course but it was really just a certificate. His English language skills are obviously deficient.[79]
[79]T101
179 It was submitted the plaintiff’s capacity to retrain is negligible. Even after all these years in Australia, his English language skills are poor. He is nearly fifty and to begin a new working life at that age is “an attempt really to slot him into the mechanism of the Act – really putting a square into a round hole – it is not going to work”.[80]
[80]T102
180 Another relevant factor was the plaintiff having surgery. In Ryan v The Grange at Wodonga Pty Ltd,[81] the Court emphasised that any return to work program should not be one which would expose a worker to the prospect of further injury or re-injury. Given the plaintiff has persisting neuropathy down his left leg post-surgery, this is a concern in the present case.[82]
[81][2015] VSCA 17 at paragraphs [69]-[72] and also at paragraph [110]
[82]T102
181 It is not in issue that the plaintiff is unable to return to his trade as a motor mechanic. Further, there are very significant restrictions on any light work he is able to perform as Dr Reddy, Professor Bittar, Dr Aliashkevich, Mr Kossmann and Dr McBeth opined.[83] Vocational assessor, Mr Dwyer, concluded the plaintiff was able to do four hours a day three non-consecutive days a week in light work in the business and the suggested role.[84]
[83]T103 – T104
[84]T104
182 Further, while Dr Yong thought the spare parts supervisor role was suitable, he did not comment on computer duties at all and he thought the plaintiff only has capacity for reduced working hours- starting at 16 hours per week “aiming” for pre-injury hours in six months. It was also submitted Dr Yong’s description of the plaintiff’s “social history” was a very good description of the plaintiff’s activities at the business.[85]
[85]T105
183 Further, the CoWork report was deficient as it did not mention the qualifications required for the suggested job.[86]
[86]T104
184 It was also submitted the two examples of the job of automotive service adviser suggested by CoWork required excellent communication skills and asked the plaintiff to rate his English language skills.[87]
[87]T106
185 Finally, on the hours the plaintiff is said to be able to work, even on the defendant’s best case, even if he had half time capacity and “no one really” considers this is the case, his earnings would total $906 - half of $1,812, thus falling below the requisite $1,397.
186 Given my findings as to the plaintiff’s credit, in particular his minimal activity in the business, a very small operation which is not profitable, and taking into account his high “without injury” earnings, I am satisfied he has suffered the requisite loss. In my view, he does not have the capacity to earn in excess of $1,300 per week on a permanent basis.
187 The plaintiff has not been in paid employment since his job was terminated by the defendant in April 2014. Thereafter, his back condition deteriorated to the point he required surgery in February 2018.
188 While there has been some improvement post surgery, subsequent investigations confirm ongoing problems[88] and the need for further treatment. The plaintiff continues to experience significant spinal pain, requiring high level medication. His level of pain and restriction has been acknowledged by the defendant in conceding pain and suffering.
[88]Nerve Conduction Studies referred to by Professor Bittar
189 Taking into account all the evidence, I am not satisfied the suggested job of automotive sales advisor is suitable for the plaintiff. The limited involvement of the plaintiff in the business is not one which would qualify him for this role. He would not be physically or vocationally capable of doing the role suggested to the extent that he would not suffer the requisite loss.
190 The plaintiff does limited tasks in his own business because he can do them at his own pace - this would not be the case when employed. He would not be able to rest and have a coffee, as is now the situation. He would have to be able to attend work reliably and consistently.
191 Dr Yong, while supporting the supervisor job, was cautious as to the hours he thought the plaintiff could work, suggesting he start at only 16 hours per week and “aim” for pre-injury hours.
192 Further, the role does have some computer tasks which the plaintiff is ill equipped to perform.
193 In my view, the plaintiff’s English skills, both verbal and written, are not of the level he could perform the requisite duties with communications skills emphasised in the job descriptions.
194 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
195 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
196 As the plaintiff’s symptoms have continued despite surgery, I am satisfied that his lumbar impairment is permanent.
197 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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