Badsey v Dejay Medical and Scientific Pty Ltd
[2016] VCC 777
•9 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01769
| RICHARD BADSEY | Plaintiff |
| v | |
| DEJAY MEDICAL & SCIENTIFIC PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2016 | |
DATE OF JUDGMENT: | 9 June 2016 | |
CASE MAY BE CITED AS: | Badsey v Dejay Medical & Scientific Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 777 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – loss of earning capacity only, pain and suffering conceded
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Giankos v SPC Ardmona Operations Ltd (No 2) [2009] VCC 1461
Judgment:Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Ms A MacTiernan | Adviceline Injury Lawyers |
| For the Defendant | Ms J Forbes QC with Ms M Tait | Thomson Geer |
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, in particular on 21 March 2013 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, serious injury for pain and suffering having been conceded.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 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 the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments, … fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
15 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. 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
16 The plaintiff is almost fifty two, having been born in June 1964. He is married with two adult children.
17 In around 1983, the plaintiff finished secondary school in South Africa. He completed a Diploma in Film and Television Production in about 1988 and worked in the film and television industry in South Africa in the late 1980s.
18 In about 1992, the plaintiff obtained employment in a hardware store as a salesman, where he took up a trade as a locksmith, in which he worked for about two years.
19 In about 1994, the plaintiff started his own business as a handyman, locksmith and domestic refrigerator repairman.
20 The plaintiff had back surgery in 1998 at L5-S1 (“the 1998 operation”). He sustained an injury to his low back while assembling some play equipment for his children. He made a complete recovery from that injury.
21 After the 1998 operation, the plaintiff did not have any more problems with his legs and he did not have ongoing significant back pain.
22 In his second affidavit, the plaintiff described having attended physiotherapy at Endeavour Hills once in January 2013 for treatment of his back which had been sore from gardening. His back pain resolved and caused him no need for ongoing treatment or time off work.
23 The plaintiff went to the physiotherapist only once in January 2013 because he was stiff.[3] He explained that he only recently had remembered that attendance when something jogged his memory, thus he had not referred to it in his first affidavit.[4]
[3]Transcript (“T”) 9
[4]T11
24 In about 1999, the plaintiff migrated with his family to the United States and later that year, migrated to Australia.
25 The plaintiff worked for two years from 2000 as a console operator at Express Fuel. Whilst in that job, he was studying at Swinburne, attempting a computer technician-type course. He thought computers were the way forward and that he had some aptitude in that area but it turned out he did not.[5]
[5]T12
26 In about 2003, the plaintiff obtained work as a sales representative for a medical supply company, for which he worked for about five years.
27 In about 2007, the plaintiff commenced employment as a sales representative with Aidacare, where he worked for three years.
28 In about May 2010, the plaintiff started work as a sales representative with the defendant. His usual hours were 8.30am to 4.30pm and his duties involved promoting and selling rehabilitative equipment to prospective buyers. The role involved travelling to various rehabilitation hospitals and clinics around Melbourne, suburban areas and interstate.
29 On the said date, the plaintiff was delivering equipment, including a large dynamic walking frame weighing about 92 kilograms, to a medical facility in Geelong. Whilst attempting to unload the equipment from his van, the equipment started to topple and fall. The plaintiff pushed back against it with all his strength when he suddenly felt a sharp pain in the left side of his lower back and buttock (“the incident”).
30 By the end of the day, having completed his demonstration, the pain in the plaintiff’s lower back had intensified. The following day, he lodged an incident report as this pain persisted.
31 The plaintiff attended “Brad” at Endeavour Hills Physiotherapy on 23 March 2013. On 2 April 2013, the plaintiff consulted his general practitioner, Dr Downe, who recommended physiotherapy and that the plaintiff try anti-inflammatory medication. He also referred the plaintiff for a CT scan, which the plaintiff underwent on 15 May 2015. That scan revealed a broadbased disc bulge at L4-5 and L5-S1.
32 Following the scan, Dr Downe advised the plaintiff that he was suffering disc bulges and referred him to Mr Wilde, orthopaedic surgeon.
33 During attendances at Endeavour Hills Physiotherapy, the plaintiff underwent a number of heat therapies, hydrotherapy and massage, but that did little to alleviate his ongoing low back pain.
34 At about that time, the plaintiff began to feel depressed as a result of his workplace injury. He had been attending counselling with Mr Anderson, clinical psychologist, in 2011 with respect to his daughter’s psychiatric illness. He decided then to consult him in relation to his workplace stress.
35 The plaintiff told Mr Anderson of his feelings that the defendant’s managers were talking behind his back and considered him a deadweight. The plaintiff was extremely anxious that his employment was going to be terminated.
36 On about 9 July 2013, the plaintiff saw Mr Wilde, who sent him for an MRI scan, as physiotherapy was not working. That scan revealed a left paracentral disc protrusion at L4-5 imposing on the L5 nerve root, and also a disc protrusion at L5-S1.
37 The plaintiff saw Mr Wilde again on 24 July 2013. He confirmed the plaintiff had suffered a disc protrusion and recommended an epidural to the L4-5 level to try and reduce his lower back pain. Mr Wilde advised that if the injections failed to provide relief, the plaintiff would need to consider a microlaminectomy partial discectomy procedure.
38 In about August 2013, Dr Downe certified the plaintiff as restricted from lifting anything heavier than 8 kilograms or pushing anything heavier than 35 kilograms.
39 That month, the plaintiff approached the defendant’s manager advising he had suffered slipped discs as a result of his heavy work. The plaintiff advised that he was required to wear a back brace with an 8-kilogram lifting limit. He requested the company vehicle be fitted with an hydraulic lift. That initial request was ignored and the plaintiff had to make a further request, following which he was told it was too costly and would not be necessary once his back pain improved.
40 In September 2013, the plaintiff had an epidural injection, after which he continued to suffer intense pain and restriction in his lower back with pain going through his left leg and buttock.[6] He also attended a Dr Smith who prescribed medication.[7]
[6]T44
[7]T44
41 In October 2013, the plaintiff again saw Mr Wilde because of persisting back pain and he recommended a Cybertech back brace to assist in undertaking modified duties. On referral from Mr Wilde, the plaintiff consulted Mr Owens, a prosthetist, who fitted him with a brace in November 2013.
42 Due to his persisting back pain, the plaintiff was referred by Dr Downe to a musculoskeletal physiotherapist, Mr Jonathan Bell, whom the plaintiff saw in February 2014. He recommended exercises and hydrotherapy and regular physiotherapy. That weekly treatment was of some benefit to the plaintiff.
43 Over the following months, the plaintiff tried to work his modified duties but continued to have ongoing pain and lower back restriction and remained under Dr Downe’s care. He certified the plaintiff fit for restricted duties and recommended a back brace and avoiding heavy, strenuous work.
44 Dr Downe continued to prescribe Tramadol, Mobic and Diazepam, and recommended the plaintiff continue with physiotherapy to treat his ongoing low back pain; however, despite these treatments, lower back pain persisted.
45 The plaintiff consulted Mr Wilde in April 2014 and explained that he had tried to battle through pain at work but was no longer able to cope and was prepared to have surgery.
46 On about 30 June 2014, Mr Wilde carried out a microdiscectomy at L4-5 (“the 2014 operation”). Post-surgery, the plaintiff had eight weeks off work, returning to modified duties in September 2014.
47 Following the 2014 operation, the plaintiff began to feel particularly victimised and bullied. The plaintiff’s manager caused the him severe anxiety when he was accused of failing to help co-workers do tasks that he had been doing. Whilst on modified duties, the plaintiff remained in constant fear that the defendant would terminate his employment.
48 During that time, the plaintiff was seeing Dr Downe regularly and taking Tramadol and Meloxicam. Regular reviews continued with Mr Wilde, who had recently commenced the plaintiff on Lyrica. The plaintiff was undertaking hydrotherapy and physiotherapy a number of times a weeks and continuing with counselling.
49 In 2015, Mr Downe referred the plaintiff to Mr Goldschlager, neurosurgeon. He organised a nerve root injection but the plaintiff was mistakenly given an epidural which did not help. In May 2015, he had the nerve root injection which caused more pain.
50 Mr Goldschlager organised an upright MRI scan and recommended further back surgery thereafter but would only estimate success at 60 to 70 per cent and a 10 per cent chance of making the plaintiff’s back a lot worse. The plaintiff decided not to have surgery because of the risks involved and his earlier disappointing results. After the 2014 operation, Mr Wilde had told him that he had a 95 per cent chance of a successful outcome.
51 In his first affidavit, the plaintiff described at length the pain and suffering and loss of enjoyment of life consequences of his back condition.
52 The plaintiff referred to his ongoing difficulties with certification for modified duties from August 2013 with a return to light duties after the 2014 operation.
53 In about February 2014, the plaintiff began working in a reduced capacity for three days a week from 8.30am to 4.30pm, driving a van and undertaking deliveries and demonstrations but with lighter equipment. He also did some modifications to equipment in the workshop at the office, as well as some desk work.
54 On about 1 January 2014, the plaintiff was certified fit for modified duties by Dr Downe with restrictions of lifting only bench height items less than 10 kilograms and working three days a week wearing a back brace.
55 As of November 2014, the plaintiff had recently commenced a case manager’s course at Holmesglen (“the course”). He struggled with his studies due to his ongoing pain and depression, and his medication affected his ability to concentrate and sit exams.
56 Prior to the incident, the plaintiff was earning about $1,250 gross per week. He was given a company vehicle and mobile telephone; however, since the injury, those privileges had been taken from him and he had been forced to use his own vehicle and telephone.
57 The plaintiff believed his future earning capacity had been significantly diminished as a result of his workplace injury, and his capacity to work as a sales representative had finished as a result thereof. His prospect of maintaining his current work or finding similar work had been restricted due to his emotional state and ongoing pain.
58 In his second affidavit, the plaintiff described how, in about December 2013, the plaintiff and co-workers were requested to reduce their number of hours worked because of the defendant’s financial difficulty. The plaintiff was originally requested to reduce his days to four days per week but after a consultation with his general practitioner, it was agreed the plaintiff should reduce to three days per week because his back was not only not improving but it felt at times as if it was deteriorating.
59 The plaintiff was very concerned about the defendant’s financial position because his back injury, and the limitations it caused with respect to what he was able to do at work meant that it was going to be very difficult for him to try any find alternative employment. Had he been fit and uninjured when he received the request to reduce his working hours, the plaintiff would have left that employment because he wanted to work full time.
60 The plaintiff was disappointed with the 2014 operation and once again asked Mr Wilde if he could have a disc replacement. Mr Wilde advised against it as he did not think any further surgery would help.
61 Throughout 2014, there was often an issue as to whether the defendant was going to keep the plaintiff employed. He requested a winch for use in the van and also a hydraulic lift. There were many times that he was limited in helping co-workers assemble equipment as he could not bend and he was criticised by management in this regard.
62 As it turned out, the defendant kept the plaintiff on until 22 July 2015. When he ceased work, he was working 15 hours a week and had been working those hours since 10 March 2015. When he had attempted more hours, the plaintiff found that he was actually fatiguing and becoming more irritable at home.[8]
[8]T8
63 By late 2014, the plaintiff increased his hours to 20 hours per week and by either late January or early February 2015, he had increased his hours to 25 hours per week, but that was too much for him.
64 Although the defendant was trying to limit the amount of driving undertaken by the plaintiff, there were days when he spent many hours on the road, for example driving backwards and forwards to Bendigo. Sometimes, it was impossible to stick to the strict daily hours because the plaintiff might need medical treatment or have an examination.
65 The plaintiff’s requests for lighter work were knocked back by the defendant. Working in excess of 15 hours involved the plaintiff starting to drive out to clients to do demonstrations. Not just the driving, but getting held up at client’s premises was a problem for the plaintiff.[9]
[9]T26
66 When the plaintiff got up to 25 hours per week, approximately 50 per cent of that time was driving.[10] If not driving, it would have been work out of the office. He was able to manage light-duty office work. He was able to help assemble equipment if it was placed at a suitable height.[11]
[10]T26
[11]T27
67 The plaintiff could not say whether it would have been a problem for him doing these light duties for more than 15 hours per week. He is in pain now, and is taking medication. He does not know that he could endure longer hours with his medication and pain. People were talking about him at work behind his back because he was drowsy and that had impacted on how he managed day to day psychologically.[12]
[12]T41
68 When the plaintiff was working the 15 hours, he worked 3 hours a day for five days. He increased his hours to 21 hours one week then 25 hours, but he was in so much pain he could not continue. When driving, he might still have taken larger equipment and there was still a bit of a physical component to the work.[13]
[13]T28
69 The plaintiff thought he worked 25 hours for maybe a week or two, but he could not remember. He could recall a particular trip to Bendigo during which he was delayed. That trip “blew out his hours”.[14]
[14]T29
70 The plaintiff agreed he could have managed with shorter periods of driving within Melbourne. He confirmed that if he could have remained at 15 hours per week, he would have.[15] He agreed he told Mr Simm this was the case.[16]
[15]T29
[16]T30
71 The plaintiff agreed that over Christmas, there was a plan he would try and increase his hours to 20, and then 25 hours.[17] If there were local clients, he could do that work, as long as the equipment was not too heavy. He did not have problems driving to and from work or to activities on the weekend.[18]
[17]T31
[18]T32
72 The plaintiff continues to receive weekly payments of $817.00. At the time of the incident, he was earning $65,000, which he was earning in 2010 with the defendant. There was supposed to be a review of wages but it never happened.
73 The plaintiff was given full use of a motor vehicle that was unmarked and he had full unlimited domestic use. He was given a fully maintained vehicle and petrol card. When the plaintiff went off work for the 2014 operation, he was told to leave the vehicle at the workplace and course work.
The course
74 The plaintiff commenced a Diploma in Case Management Community Services in 2014. As at 16 March 2016, he had completed the required practical training.
75 The plaintiff took this career path after his injury. Had he not been hurt, he would have left the defendant and gone to work for another company with more scope and potential, with more administrative and less on-the-road work.[19]
[19]T25
76 The course was quite flexible. The plaintiff thought he had to complete fifteen modules, which he could do online or on campus. He could pace himself.[20] A module would be three hours over maybe six weeks.[21]
[20]T15
[21]T17
77 As of the hearing date, the plaintiff had not seen his course results. A statement of his results indicated distinctions and high distinctions in all subjects.[22]
[22]T5
The placement
78 It was quite difficult to find the required course placement because of the plaintiff’s limited work capacity. Most places required students to work every day, which the plaintiff could not do. He worked a 7-hour shift, which meant that when he came home he would often need to lie down due to increased back pain.
79 The plaintiff did his placement at DutchCare Carrum Downs, two days a week, either Tuesday and Wednesday or Wednesday and Friday, from approximately 8.30am until 4.00pm, or 4.30pm, depending on the workload. Tuesday’s hours were usually 8.30am until 3.00pm. In the case manager role, he helped people who were not residents. That role might involve running a game or an activity, and at other times, helping an aged person with support services.
80 That was the maximum time DutchCare could offer the plaintiff and because of his working limitations, it was the only place that could accommodate him.[23] He could do a bit less than seven hours a day. It was quite tiring and he found himself having breaks. He was allowed to have the odd nap here and there, and then he would have another nap when he went home. He did not believe he could have done more hours. He could have done three days, not consecutively, with less hours.[24]
[23]T6
[24]T7
81 Even when not working consecutive days, the plaintiff still had a sleep at the end of the day. His pain caused him to lose his concentration. Giving this evidence, the plaintiff started crying.[25]
[25]T7
82 When working at DutchCare, the plaintiff took Tramadol or Mobic, and occasionally Diazepam to stop cramping. He tried to stop taking medication but as soon as he started working or doing other activities, he had to go back on it.[26]
[26]T8
83 The plaintiff confirmed he did 200 hours’ placement at DutchCare between 2 December and 16 March. He fitted in with them, and was able to attend reliably each week.[27] It was “absolutely impossible” he did more than 15 hours a week.[28]
[27]T19
[28]T50
84 The plaintiff agreed he did not tell Dr Downe of any problems during the placement, but may have discussed how he was going in passing. Other students doing the placement did it full time.[29]
[29]T20
85 In re-examination, the plaintiff confirmed he chose DutchCare as it suited them and him on limited hours.[30] The plaintiff does not believe he is capable of any type of full-time work.[31]
[30]T55
[31]T56
Work in the future
86 The plaintiff was hopeful to obtain employment utilising his new diploma. He is nearly fifty-two and understands there would be younger, fit candidates who would have no problem working in a full-time position.
87 The plaintiff does not know what the future holds. He certainly knows he could not perform his pre-injury employment or any other employment which he worked in prior to starting with the defendant.
88 Before the plaintiff stopped work with the defendant, WorkCover arranged for him to be seen by WorkAid. A consultant from there and from Rehab Management suggested the plaintiff look at doing the sort of jobs he was doing in South Africa in the 1980s and 1990s; however, that was not feasible.
89 Working as a locksmith would involve a lot of carting and carrying, bending and stretching, and the plaintiff would need retraining. Other jobs, such as assembly and handling work, were physically active. Even a console operator required a degree of physical fitness.
90 The consultants had told the plaintiff that when applying for a job, not to mention his bad back.
91 Since finishing the placement, the plaintiff has been looking for work online and QBE has helped him with a company called Workable Solutions, and he is now doing a six-week supervisory course at Chisholm TAFE to enhance his employment prospects. This course finishes at the end of the June.[32]
[32]T22
92 The plaintiff recalled a rehabilitation person from WorkCover suggesting jobs.[33] The plaintiff has had no experience in insurance and was not sure he was suited for that type of work.[34]
[33]T50
[34]T51
93 When jobs were suggested to him, the plaintiff agreed he said he would rather complete the course first. There was no point going for jobs while he still had to do the placement.[35]
[35]T51
94 The plaintiff would be happy to try to take a job, if he could, in one of the suggested fields,[36] and he would try any position.[37]
[36]T52
[37]T53
95 The plaintiff agreed that his recent qualification as a case manager does not involve hands-on caring work. It involves writing care plans and case managing aged people. He agreed the job involved a lot of the duties of a case manager and support worker described in the April 2016 Labour Market Analysis.[38] He agreed it was a varied job, and he was not sitting at a computer all day and he could change his posture.[39]
[38]T23; Defendant’s Court Book (“DCB”) 203 – 204
[39]T24
96 The plaintiff has applied for a 23-hour per week part-time job at Regis in aged care, but has not heard anything back about that job. He has not spoken to Dr Downe about it because it is so recent. Dr Downe has told him part time would be suitable.[40]
[40]T35-36
97 The plaintiff agreed a lot of the jobs in case management/support worker roles were part time. He tried to be positive. He was trying to believe there were jobs for him but, from what he had heard about injured people he was “barking up the wrong tree” and was “trying just to shut that message down.” That was the reason he was applying for jobs and he would continue to do so no matter what the outcome of his case.[41]
[41]T36
98 The plaintiff was still going to try to get work. He did not want to go on the dole. However, he would soon be fifty-two with an injury that pain medication barely helped, so he was concerned who would hire him.[42]
[42]T37
99 The plaintiff denied that he was not seeking work, or that he had just started to do so when his weekly payments ceased. He had applied for work while still on payments.[43] He has sought conciliation in relation to his entitlements to weekly payments.[44]
[43]T38
[44]T39
100 The plaintiff intended to send potential employers his résumé once he had his diploma, but he still had not graduated.[45] If he was offered work, he would ask for a chance to try a job such as the one at Regis.[46]
[45]T39
[46]T40
101 The plaintiff agreed he was interested in the case management area and he expected to enjoy that work. That role would allow him to vary his posture and it was not likely to require heavy lifting.[47] He agreed it fitted in quite nicely with the certified restrictions. He also agreed it was the work of a type that he expected to be able to maintain once he had found a job and that his hours depended on his tolerances and management of pain.[48]
[47]T45
[48]T46
102 The plaintiff agreed that, save for the time off for 2014 operation, he had been in work more often than not and that he would be attractive in that regard to a potential employer.[49]
[49]T46
103 The plaintiff has been kept on the books at DutchCare, and there is a possible prospect of work there once he is qualified. He has not followed that up yet, but he intends to do so. The plaintiff did not think they had part-time positions, but he might be able to participate in one of the lifestyle programs. DutchCare were really nice people and he would like to work there.[50] If they offered him, say, 30 hours a week, he would give it a try.[51]
[50]T46
[51]T48
104 The plaintiff manages to get by with computer use. He would agree he is at intermediate level.[52] He would not have any problems with computer use in a case management role.[53]
[52]T12
[53]T13
105 The plaintiff was surprised Dr Downe mentioned the possibility of an escalation of hours from the 15 hours currently certified.[54]
[54]T20
Activities
106 The plaintiff bought a new kayak on 25 September 2015 with peddles and a firm seat. He tries to kayak once or twice a month.
107 The plaintiff is able to go kayaking from time to time.[55] He could get the kayak off his car without hurting his back by using a mechanism that has been installed. The kayak has pedals which makes it easier to operate. He uses it in a sheltered environment like Westernport Bay.[56]
[55]T32
[56]T33
108 The plaintiff has not been snow skiing since the winter before the injury.
109 The plaintiff agreed he went to Port Arlington with his caravan during the placement.[57]
[57]T32
110 The plaintiff could think of three times he had driven to Port Arlington since the 2014 operation. He could drive for an hour-and-a-half uninterrupted but not comfortably. He moved around and squirmed and hoisted himself on the left armrest. After such a trip, he was very stiff and could not move and needed to walk around and stretch. If he sat for around 45 minutes he experiences a burning sensation in the top of his left foot.
111 The plaintiff agreed he went cycling for pleasure and during his placement he might have gone once or twice. He could manage the placement to a point where he could still enjoy his recreational activities on the weekend.[58]
[58]T34
112 Gardening is the type of activity which may cause an exacerbation and the plaintiff always has to wear a brace when gardening, or when doing any physical activity. He agreed that he cut a tree down with a chainsaw over last summer whilst he was doing the placement.[59]
[59]T48
113 The plaintiff explained he did sporting activities, such as the kayaking, on weekends, to keep his mind off his issues. It was an escape, and gave him some exercise.[60]
[60]T56
Current back condition and treatment
114 The plaintiff consistently has left leg and buttock pain. He has intermittent right leg pain. With these flare ups there is pain in the right hip and sometimes in the thigh. If he is exerting himself, the pain goes lower to the calf.
115 The plaintiff is a lot less irritable since stopping work and is better to be around. He recently received notice that WorkCover would not continue to fund the psychologist or physiotherapist treatment. He is also waiting to hear if WorkCover will fund a gym membership.
116 The plaintiff is presently attending the five-visit Medicare Physiotherapy Program. He is a bit reluctant to attend because it still costs him $30 a visit.[61]
[61]T43
117 The plaintiff has difficulty trying getting to sleep and staying asleep.
118 The plaintiff thinks the inability to perform his normal work and the sporting activities has caused him to suffer greater anxiety and depression. He modifies his activities by “listening to his body”. He tries not to take medication. However, he occasionally takes Tramadol and/or Mobic when his back pain gets worse.
119 At the moment, the plaintiff is taking Tramadol four days a week. Although he tries not to take it, the plaintiff still takes Mobic four days a week.[62] The plaintiff agreed that he is now taking more medication when not working as he is taking Diazepam more frequently.[63]
[62]T37
[63]T38
The Plaintiff’s treaters
120 The plaintiff’s general practitioner, Dr Downe, most recently reported on 3 February 2016. He noted the presenting complaint and the plaintiff’s subsequent progress and the 2014 operation.
121 Following that procedure, there was slow and incomplete improvement and there was a further MRI scan in November 2014. Mr Wilde did not think that further surgery was likely to be of benefit. He noted that the plaintiff was keen for a further opinion from Mr Goldschlager, neurosurgeon.
122 Dr Downe noted the opinions that further surgery could be performed but the procedure was predicted to have a very significant failure rate. Therefore, there had been no further surgery.
123 Dr Downe reported the plaintiff had been little different for the past year with daily pain and stiffness in his low back.
124 Dr Downe noted that since the incident, the plaintiff had returned to pre-injury work with modification to both hours and lifting duties. This ended when his work position ceased.
125 The plaintiff had been unemployed since 22 June 2015. Dr Downe considered he remained restricted in his work capacity to 15 hours of work with lifting modifications of 5 kilograms generally or 10 kilograms of lifting at waist height. Dr Downe thought this could be escalated as tolerated when a suitable employment position was found.
126 Dr Downe noted the plaintiff still reported that limited increase in physical activity caused increased back pain. Extending his physical stamina remained a challenge to the plaintiff’s injury and Dr Downe believed QBE had appointed a case manager to assist future employment.
127 Dr Downe thought further long-term improvement was currently elusive. He also noted the plaintiff had some significant depression over the course of his condition but had responded positively to Lexapro as an antidepressant.
128 The plaintiff’s operating surgeon, Mr Wilde, most recently reported to Dr Downe in November 2014 following a recent MRI scan.
129 Mr Wilde advised the plaintiff that his pain continued to be mechanical rather than radicular and he did not think he could help with further surgery. He preferred the plaintiff battle on as best he could in the hope that in time he would stabilise.
130 Mr Wilde noted the plaintiff asked many questions about the workplace on that examination. It was clear to Mr Wilde that the plaintiff was in dispute with his employer about tasks performed on a particular machine. Mr Wilde noted the defendant was not prepared to assist the plaintiff and he suggested, perhaps, the plaintiff could request an occupational position workplace assessment through WorkCover.
131 Mr Wilde advised the plaintiff to remain as active as he could and to battle on as best he could. He thought the plaintiff saw himself as a victim which, of course, in the WorkCover setting, put him at some risk of losing his job, which would be a disaster. If pain became an issue, Mr Wilde suggested it might be worthwhile requesting review by Dr Andrew Muir or Dr Thomas at the Melbourne Pain Group.
132 Mr Bell, physiotherapist, recently reported in November 2015.
133 At that stage, the plan was for the plaintiff to have a further six-month gym membership and twelve physiotherapy sessions over the next year and then review.
134 Mr Bell noted the plaintiff had been consistently diligent with his rehabilitation. Despite showing some signs of fear avoidance, he had not let this affect the way he had applied himself to his rehabilitation. He was starting to get some lasting relief as his strength was building and it was reasonable to enable him to continue his rehabilitation.
135 Physiotherapy started at that practice on 21 January 2014 and was then monthly. Mr Bell noted that the plaintiff’s strength and endurance were continuing to improve.
136 Mr Goldschlager first saw the plaintiff on 26 March 2015, with subsequent reviews until 4 June 2015.
137 The plaintiff reported that following the nerve root injection, his pain did not improve at all and it in fact reproduced his symptoms. Mr Goldschlager felt that this result, together with the MRI findings, were suggestive that the plaintiff’s pain was likely to be coming from nerve root compression and he discussed further surgery with the plaintiff.
138 Mr Goldschlager estimated a 60 to 70 per cent chance of improving the plaintiff’s pain with further surgery, which was less than what was quoted prior to the 2014 operation.
139 The plaintiff required some time to think about further surgery and he had not seen Mr Goldschlager since.
140 Mr Goldschlager thought it was possible that the plaintiff had a left S1 radiculopathy. He understood the plaintiff did have an injury which caused an L4-5 disc prolapse, for which he had surgery.
141 The condition that he believed the plaintiff may now be suffering from was at a level below and he was also uncertain as to whether that was related to work. He was uncertain as to the plaintiff’s current capacity for work, not having seen him for six months.
Medico-legal examiners
142 The plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, in March 2016.
143 The plaintiff told Mr Simm that he suffered from constant pain, varying in intensity, which may still be severe. It was worse than it was prior to the 2014 operation and the most severe pain was around the left buttock from where the pain radiated into the left lower limb.
144 Mr Simm noted the plaintiff presented in a straightforward and co-operative manner. Neurological examination of the lower limbs showed no clear physical signs of radiculopathy and no significant difference in calf circumference.
145 Mr Simm had some difficulty establishing the exact contribution to the clinical cause of the low-back condition arising from the incident, noting the 1998 operation from which the plaintiff was said to have recovered fully and returned to full activity.
146 Mr Simm thought the mechanism of injury in the incident could certainly be responsible for causing back strain which aggravated and/or disrupted pre-existing degenerative changes at L4-5 and L5-S1.
147 Mr Simm thought that on the basis of the plaintiff’s history after the incident, he had not been capable of continuing his pre-injury duties and despite a graduated reduction in hours and the physical demands associated with his job, he was still unable to adequately cope with work and was eventually retrenched.
148 When asked specifically if he could continue with light assembly and office-based employment, with his duties at time of retrenchment, the plaintiff responded “if those duties were available in the long term [I] could have remained at work performing them”.
149 Mr Simm thought the plaintiff’s incapacity for physically demanding work and, in particular unrestricted pre-injury work, was permanent.
150 From the incident date until the present, Mr Simm thought the plaintiff was incapacitated for work involving prolonged sitting, standing, walking, driving for long, repeated lifting in excess of 5 kilograms, occasional lifting in excess of 10 kilograms, repeated and sustained forward bending and twisting movements of the trunk. He considered the plaintiff should be confined to handling these weights between knee and chest height and that these restrictions were permanent.
151 Mr Simm was not able to provide an arbitrary list of restrictions in relation to the plaintiff’s proposed employment in Community Services, but he would anticipate that the plaintiff would have trouble with unrestricted sustained postures of sitting, standing and walking, and he would need flexibility with those postures. He would also expect the plaintiff to have difficulty with physical work, such as physically assisting disabled clients, and that he should be confined to light activities that limited the use of his upper limbs to handling objects between knee and waist height.
152 In a supplementary report, Mr Simm described the diagnosis relating to the incident as persistent dysfunction of the lumbar spine as a result of unresolved aggravation of lumbar disc degeneration treated surgically. He thought the plaintiff had referred symptoms into the lower limbs without objective clinical signs of radiculopathy. He noted the symptoms from the plaintiff’s degenerative condition that were pre-existing were exacerbated by the incident and had not returned to pre-injury level.
153 Mr Simm thought it was not possible to determine with certainty whether the symptoms related to investigation findings of pathology at L4-5 and L5-S1. The presence of this pathology on imaging in association with the symptoms suggested, but did not confirm a relationship. He noted surgery at L4-5 was unsuccessful. The changes on the investigations did not represent damage and almost certainly had no relationship to the physical injuries sustained at work. The changes were constitutional degenerative changes. These changes compromised the lumbar spine and predisposed those levels to injury, but whether that was precisely what occurred could not be established.
154 Mr Simm concluded the plaintiff’s history indicated that the incident was a significant contributing factor to his symptoms related to the L5 nerve root.
155 Dr David Middleton, occupational health and rehabilitation consultant, examined the plaintiff in May 2016.
156 Dr Middleton noted the plaintiff’s progress at work after the 2014 operation, initially working 10 hours a week building up to 20 hours per week, after which he commenced performing some small demonstrations which included driving to see customers.
157 On his return to work in January 2015, the plaintiff started to gradually expand the nature of his work to include larger equipment and longer trips increasing to 25 hours per week. After one or two weeks, he felt unable to maintain that level of activity and his hours were reduced to 15 hours per week and he was handling smaller equipment.
158 The plaintiff requested the defendant purchase some lifting equipment but it refused. Between April and July 2015, the plaintiff was placed back in the office performing some assembly of equipment in the warehouse. On 22 July 2015 his employment was terminated.
159 The plaintiff commenced a Diploma in Case Management Community Services in 2014 and finished it in March 2016.
160 The plaintiff complained his main pain was in the lower back, radiating into the left buttock. There is a similar pain down the back of the left thigh to the dorsum of the left foot.
161 Dr Middleton thought that as a result of the incident, there was derangement of the plaintiff’s L4-5 and L5-S1 discs. Due to constant pain, the plaintiff had developed significant depression.
162 Dr Middleton considered that the plaintiff’s back injury from the incident had rendered him incapacitated in relation to any activity and/or employment requiring prolonged sitting, standing, walking, squatting, lifting in excess of 5 or 10 kilograms repetitively and prolonged forward flexion.
163 Dr Middleton thought that on a permanent basis, the plaintiff no longer had the safe physical capacity to undertake pre-injury duties as a sales representative selling rehabilitation equipment or modified duties on a full-time or part-time basis.
164 Dr Middleton considered that the plaintiff was limited to part-time work and should avoid operating machinery that avoided the availability to undertake rest breaks and operate in a self-paced manner.
165 Having been out of the workplace for about eighteen months,[64] Dr Middleton thought any attempted return to work for the plaintiff, would require a graduated return to work plan commencing on two to three hours in any one day, two to three non-consecutive days in any one week. Those hours needed to be monitored and increased in accordance with ensuring that the plaintiff’s symptoms and pain remained manageable and did not impinge on his non work time.
[64]Employment was in fact terminated on 22 July 2015
166 Dr Middleton also thought the plaintiff no longer had a reliable capacity and any employer would need to accept that his attendance at work could not be relied upon. He considered it best if the plaintiff could attend work to a maximum of fifteen hours a week.
167 Dr Middleton thought it important to recognise the plaintiff could never be regarded as being work shy and had been proactive in obtaining retraining. In theory, he had some capacity to perform sedentary work. He noted no assessment of the physical requirements of the inherent work of the proposed suitable work options had been undertaken, and the fact the plaintiff’s physical capacity was significant and not necessarily reliable and that the training provided by WorkCover had been inadequate. The plaintiff’s capacity to procure and maintain such employment, in Dr Middleton’s opinion, was negligible.
168 Taking into account all aspects of the definitions of “suitable employment”, “current work capacity” and “no current work capacity,” and noting the significantly physical nature of work as a personal carer, Dr Middleton thought the plaintiff did not have the safe physical capacity to undertake such work either full or part time.
169 Dr Middleton noted that work as a community support worker had a wide spectrum of physical requirements but there were some areas that were not reliant upon an excellent physical capacity. The issue then became the plaintiff’s reliability in attending to such work and the physical restrictions that needed to apply for such work to be suitable.
170 Dr Middleton thought the plaintiff did not have the capacity to undertake work of more than fifteen hours per week and that an employer would have to be extremely supportive of the plaintiff’s injuries to provide him with a reasonable prospect of gaining paid employment as a community support worker and should also be subject to him gaining commercial levels of computer skills.
171 Professor Love examined the plaintiff on the defendant’s behalf on 10 February 2015.
172 Professor Love thought the decompressive procedure of the nerve root in the 2014 operation had not brought about sufficient symptomatic improvement and that repeat surgery was indicated. He considered it was reasonable to accept that the incident was the cause of the plaintiff’s current condition.
173 Professor Love thought the plaintiff could not return to work in his pre-injury duties. He needed to remain on modified duties and with the avoidance of repeated bending or stooping, heavy lifting or prolonged standing
Vocational evidence
174 Ms Anna Webster, recruiter from Employment Professionals, provided a report in April 2016 advising as to the entry level earnings and the skills required in the suggested jobs of sales representative, retail customer service officer, locksmith, car rental officer and insurance agent.
The Defendant’s medical evidence
Pre 2014 operation
175 Dr George Wilson, occupational health physician, examined the plaintiff in February 2014 and carried out a worksite assessment on 26 February that year.
176 Dr Wilson noted the plaintiff had been working full as a sales representative and developed lower back pain as a result of heavy lifting on 29 March 2013. The plaintiff had seen an orthopaedic surgeon and had a lumbar epidural in September 2013 without significant effect. Dr Wilson noted the MRI scan showed left paracentral disc protrusion at L4-5 impinging on the left L5 nerve root.
177 Fusion surgery had been discussed with an orthopaedic surgeon, but the plaintiff was not keen to go ahead as he had had previous lumbar surgery in 1998.
178 The plaintiff had been working eight hours a day, as the defendant had cut everyone back to four days a week due to a decline in work volume. The plaintiff subsequently reduced his hours to three days a week due to ongoing lumbar symptoms.
179 The plaintiff told Dr Wilson he was managing reasonably well at work as long as he wore his external lumbar brace and was careful in his actions.
180 At that stage, there was a current return to work program on 10 February 2014. The plaintiff was doing office duties, including administration and computer-based duties, and he was doing small equipment repair jobs in the workshop. He was also doing small equipment deliveries, driving a small van, which he could drive for half an hour without a particular problem.
181 The plaintiff advised he was able to manage his current working hours of Monday, Wednesday and Thursday from 8.30am to 4.30pm. He was hopeful, after the assessment at Melbourne Spinal Clinic, there may be some other interventional procedures to reduce his pain, noting he was not keen at all to have a fusion operation.
182 Dr Wilson noted the extra day was too much for the plaintiff’s symptoms and he needed extra time, both to attend his therapies, and also have some rest between his work days.
183 Dr Wilson thought the plaintiff was, then, not able to increase his hours, and depending on the spinal assessment, he may be offered further treatments of benefit.
184 Dr Wilson noted that Ms Stephens, the defendant’s Victorian state manager, thought the plaintiff was currently working at his capacity and did not want him to exceed his current physical workload in the event he aggravated his back.
185 Considering it was then almost a year since the plaintiff had been having ongoing lower back pain, Dr Wilson thought it may be that he would not return to his full pre-injury duties, but that remained to be seen. He thought the plaintiff was then doing the best he could and the current return to work program was appropriate.
186 In a subsequent report of May 2014, Dr Wilson agreed that an L4 microdiscectomy was reasonable surgery. It would reasonably be expected, post operatively, the plaintiff would be expected to return to work two months later and then proceed to sedentary duties on restricted hours.
187 As per the worksite assessment, Dr Wilson thought the plaintiff could certainly go to office duties, initially, and then move to small equipment repair, and then smaller equipment deliveries. He suggested a review six to eight weeks post surgery.
Post 2014 operation
188 Dr David Barton, consultant occupational physician, saw the plaintiff on 7 October 2014 and conducted a worksite assessment a week later. He last saw the plaintiff on 9 February 2015.
189 At the time of the first examination, the plaintiff was working three hours a day, three days a week, doing a series of lighter duties. His hours increased to 25 hours of work per week spread over five days, but had recently reduced to 4 hours of work a day, doing lighter duties because of increasing symptoms.
190 The plaintiff complained of lower back pain extending towards the left side and down the left leg.
191 Dr Barton then believed the plaintiff would graduate back to the duties reviewed during the worksite assessment. Depending on his progress, he may then be able to graduate back to more normal work.
192 Dr Barton had some reservations about the plaintiff’s presentation. He noted that the plaintiff had back surgery, although the surgeon appeared somewhat reluctant to think the operation helped. Unfortunately that had proved to be the case.
193 On re-examination in February 2015, the plaintiff was now reporting some right sided symptoms, which Dr Barton thought did not fit with a straightforward problem. There were now more features indicative of a degree of illness behaviour, in particular, the increasing symptoms with axial loading, the discrepancy between the plaintiff’s limited straight leg raising and postures noted at other times, the non-anatomical sensory changes and the global weakness throughout the leg.
194 Dr Barton thought the suggestion of injections at a pain clinic was contraindicated. That sort of treatment had not gained acceptance in the wider medical community and with the degree of illness behaviour present, he believed it was specifically contraindicated in this case. He thought the plaintiff needed more appropriate reassurance and encouragement to increase his level of physical activity to exercise and get back to more normal duties and hours.
195 On most recent examination on 10 May 2016, the plaintiff described constant lower back pain that extended towards both sides.
196 The plaintiff had been seen by a neurosurgeon who felt he might benefit from an operation at L5-S1. A nerve root block, had no effect on the plaintiff’s symptoms.
197 On examination, Dr Barton confirmed there was still a degree of illness behaviour apparent.
198 Dr Barton concluded that, in as much as surgery was accepted as part of the plaintiff’s claim, that it would be reasonable to conclude this was a work injury. He commented, however, it was difficult to account for the plaintiff’s more generalised symptoms. He noted physically, the plaintiff appeared to have recovered from the 2014 operation, as there was no objective evidence of any ongoing radiculopathy or neurological compromise.
199 Dr Barton thought the plaintiff appeared to have some minor radiological findings at L5-S1, but those could be considered of questionable relevance as they did not correlate with any physical examination findings. Dr Barton did not think it was a new injury, simply a radiological finding since undergoing spinal surgery at L4-5.
200 Dr Barton did not think the symptoms fitted well with any particular problem at L4-5 or L5-S1. He noted the objective evidence was lacking and there were features of overlay, which he believed undermined the plaintiff’s claim for disabling symptoms.
201 Dr Barton thought physically, the prognosis was very poor, but he doubted the plaintiff was going to report any improvement or any particular recovery. Dr Barton doubted any further surgery would make any difference as features of overlay were usually poor prognostic indicators of any treatment making any further difference.
202 Physically, Dr Barton questioned whether the underlying problem has had much of an effect on anything. He believed most of the plaintiff’s problems related to his attitude to his problem, the illness behaviour and features of overlay.
203 From a simple, physical point of view, Dr Barton could see no particular reason why the plaintiff could not get back into either pre-injury work or a similar role. Some minor weight lifting limits and avoidance of awkward or constrained postures would be appropriate during the early stages, and then a graduated return over several weeks appeared to be the norm.
204 Dr Barton did not believe there was a permanent incapacity, and thought the plaintiff was fit to participate in rehabilitation, retraining and job seeking.
205 Dr Barton could not see any reason why the plaintiff could not do other case management type work given his recent diploma. He thought the plaintiff was fit on a full-time basis to undertake the jobs nominated in the labour market analysis of April 2016.
206 Dr Barton believed the major contributor to the plaintiff’s current incapacity was his attitude to his problem and his illness behaviour. Had the injury not occurred, Dr Barton could see no reason why the plaintiff would not have been able to continue working.
207 Dr Barton did not believe the radiological findings at L5-S1 had any clinical significance.
208 Dr Sam Soliman, occupational medicine consultant, examined the plaintiff on 23 November 2015 and provided a supplementary report in May 2016. The purpose of the examination was to provide advice on the plaintiff’s entitlement to payments and medical services.
209 The plaintiff then reported constant lower back pain, 5 out of 10 in severity, which could flare to 8 out of 10. He was taking Tramal and Mobic when needed, which was rarely.
210 The plaintiff told Dr Soliman of the resolution of a disc bulge in 1998, after six months. Otherwise, Dr Soliman did not have any details of this injury.
211 Dr Soliman noted the findings following the upright MRI scan.
212 On neurological examination, the lower limbs showed normal reflexes, but reduced sensation across the left side S1 dermatome.
213 Dr Soliman thought the plaintiff suffered from chronic lower back pain secondary to disc protrusion at L4-5 and L5-S1, which may have been caused by heavy lifting at work.
214 Dr Soliman noted the plaintiff still has ongoing lower back pain to which employment remained a contributing factor.
215 Dr Soliman considered that the plaintiff would not be able to return to pre-injury duties, but he could return to alternative duties. He considered the plaintiff had a current work capacity for alternative duties, where he was able to sit and stand as tolerated, and there was no bending or lifting below waist height, with the maximum lifting of five kilograms at waist height.
216 Dr Soliman thought the plaintiff had the capacity to participate in a return to work program and vocational assessment, noting he was not having any treatment, and no specific treatment was required apart from pain management and regular self exercise, unless the plaintiff decided to have surgery.
217 Dr Soliman considered it highly unlikely the plaintiff’s current L5-S1 discogenic pain was related to his L4-5 compensable surgery, noting Professor Goldschlager was of the same view.
218 Dr Soliman thought the plaintiff’s pre-existing L5-S1 condition would naturally deteriorate with age and time and cause intermittent symptoms flare up.
219 It was difficult to estimate an exact timeframe at which the plaintiff would have ceased work because of his pre-existing back condition but, in general, Dr Soliman noted if someone had a pre-existing back condition or had surgery in the past, it was highly unlikely they could continue doing work which required manual activities in their fifties.
220 In terms of the L4-5 injury, Dr Soliman thought the plaintiff was fit to participate in rehabilitation and job seeking. He was fit to work full hours on alternative duties where he was able to sit and stand as tolerated, there was no bending or lifting below waist height, with maximum lifting of five kilograms at waist height.
221 Given the plaintiff’s recent diploma, Dr Soliman thought the jobs suggested in the April 2016 market analysis were suitable and reasonable employment for him, and he was fit to work full hours on alternative duties.
222 Dr Alan Jager, psychiatrist, examined the plaintiff in December 2015. He diagnosed a Chronic Adjustment Disorder with Anxiety and Depressed Mood and thought monthly psychological counselling was reasonable and appropriate. He considered the plaintiff could return to work within his physical restrictions. There were no psychiatric restrictions and the plaintiff did not require psychiatric review.
223 The plaintiff was examined by Mr Ian Jones, orthopaedic surgeon, on 9 February 2016.
224 Mr Jones noted, despite ongoing symptoms, the plaintiff returned to work on restricted duties and hours. Some limited road trips were also undertaken.
225 The plaintiff gradually increased his number of hours to 25 per week, but this led to an increase in symptoms and had to be reduced to 10 hours per week. Eventually, on 22 July 2015, he was retrenched, and had not worked since. He then had undertaken study.
226 On examination, the plaintiff described a constant discomfort in his lower back. There was a constant cold sensation in the left leg.
227 Mr Jones noted, in the short term, the plaintiff was likely to experience ongoing symptoms of back pain and neurological symptoms involving the left lower limb. He noted the plaintiff was currently considering further surgery.
228 Mr Jones thought the incident could have caused or aggravated a disc prolapse at either L4-5 or L5-S1, and could well be responsible for disc protrusions at the L4-5 or, more recently, as disclosed in the post-surgical MRI scan and the MRI scan of 1 April 2015.
229 Mr Jones believed employment with the defendant had been a significant contributing factor. He considered the proposed surgery at L5-S1 had some chance of improving the plaintiff’s left leg pain, and was reasonable.
230 Mr Jones thought the back injury suffered by the plaintiff had significantly impacted on his day-to-day activities and enjoyment of life, noting the plaintiff denied any residual effects of the 1998 condition.
231 Mr Jones thought the plaintiff did not have a capacity to undertake his pre-employment duties and was unlikely to ever return to physical employment. He considered the plaintiff was not fit for any work which required repeated bending or lifting and he had a permanent incapacity for physical employment.
232 In a supplementary report, Mr Jones noted that given Mr Wilde’s diagnosis and his 2014 operation, he believed it more likely than not that the incident injury was the basis of the plaintiff’s back symptoms at that time. It was not possible to confirm whether all, or some, of his lumbar back symptoms and left leg complaints related to the effects of the incident injury, or the long term results of previous back injury and surgery in 1998.
233 Mr Jones believed the plaintiff was capable of undertaking rehabilitation retraining and job seeking, and believed him to be fit for full-time light work in modified duties. He thought the plaintiff, on a full-time basis, would be capable of the positions of case manager, support worker, community work, case worker, care and protection worker and care coordinator.
234 Mr Jones believed the plaintiff suffered an L4-5 disc injury as a result of the incident, from which he had not recovered. The plaintiff’s back symptoms could be either from L4-5 or L5-S1 levels. In the left leg, the x-rays were more suggestive of pathology at L5-S1 level as being responsible for left leg pain.
235 On the available information, Mr Jones thought the most likely major contributing factor to the plaintiff’s incapacity related to the effects of the progressive degenerative effects at the L5-S1 level.
236 In a medical certificate of 8 February 2016, Dr Downe certified the plaintiff fit for modified duties for 15 hours a week, with duties such as office work or limited bending and minimal lifting from ground level with maximum weight, 5 kilograms, or lifting 10 kilograms from waist height.
237 Dr Downe completed a General Practitioner Standard Report for WorkSafe Victoria on 8 March 2016. In that report, he repeated the details of his most recent certificate, noting the plaintiff’s 15 hours could be increased as tolerated. He considered the plaintiff had a good capacity to learn additional skill sets with retraining.
238 An undated résumé of the plaintiff was tendered by the defendant but not referred to in address.
Vocational documents
239 An NES Job Seeker Plan of 25 August 2014 set out suitable employment option goals as sales representative – pharmaceutical or insurance, retail, customer service officer, locksmith allied work and car rental officer.
240 A Joint Return to Work Job Seeker Plan dated 9 December 2015 set out the plaintiff was currently fit for work for 15 hours per week.
Certificates
241 On 24 December 2014, Dr Downe certified the plaintiff fit for modified duties as per the return to work plan of hours. He recommend the plaintiff remain at 20 hours for the weeks starting 12, 19 and 26 January 2015 and trial week starting 2 February 2015 at 25 hours per week.
242 In his certificate of 13 February 2015, Dr Downe noted an ongoing trial of 25 hours per week to 1 March 2015. His certificate of 18 February 2015 set out a reduction in hours starting 19 February 2015 to 20 hours per week. There was a further reduction to 15 hours modified duties per week on 10 March 2015.
Overview
243 There was some focus in recent medical reports obtained by the defendant on the involvement of the L5-S1 level in the plaintiff’s present condition, in light of surgery at that level in the 1998 operation. However, this issue was not raised by counsel for the defendant in addresses save for commenting that Mr Jones opined as to the plaintiff’s work capacity on the basis of his lumbar condition as a whole, not confining himself to the L4-5 level.[65]
[65]T80
244 Counsel for the plaintiff submitted Dr Soliman, in expressing his view as to the plaintiff’s current work capacity, had answered the wrong question, not addressing the plaintiff’s back condition as a whole.[66]
[66]T84
245 Pain and suffering was conceded by the defendant on the basis of an injury to L4-5 in the incident, and surgery at that level; however, in terms of loss of earning capacity, counsel for the defendant submitted the plaintiff had a residual capacity and does not suffer the requisite loss.[67]
[67]T3
246 It was submitted the 15 hours was an arbitrary figure and a “bit artificial.”[68] Not only does the plaintiff have a residual capacity, but it is one exercisable in the labour market, predominantly in the role for which he has retrained. Further, those skills extend to a number of sedentary jobs, such as sales and insurance, which have a similar earning range.[69] In those circumstances, the plaintiff could not establish the requisite loss if working full time or working substantial hours on a part time basis.
[68]T67
[69]T62
247 The parties agreed the “without injury” figure was $65,000, or slightly below $1,300 per week.[70]
[70]T57
248 It was submitted on the plaintiff’s behalf that his maximum capacity is fifteen hours per week and on that basis, he has suffered the requisite loss, not having the capacity to earn in excess of $780 per week on a permanent basis.[71]
[71]T3, T37
249 Pain and suffering having been conceded, there was no suggestion that the plaintiff’s lumbar condition lacks a substantial organic basis.[72]
[72]Meadows v Lichmore Pty Ltd [2013] VSCA 201
250 As there was no evidence of any ongoing lumbar problems pre incident relating to the 1998 injury, it was not submitted that this is an aggravation case where the principles in Petkovski v Galletti[73] apply.
[73][1994] 1 VR 436
Credit
251 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[74]
“… 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.”
[74](2010) 31 VR 1 at paragraph [12]
252 As I indicated to the parties, I found the plaintiff to be a very credible, stoic witness, who was obviously in extreme discomfort while giving evidence, frequently needing to stand up and stretch in the witness box.[75]
[75]T18 – early in cross-examination, the plaintiff asked if he could stand
253 Counsel for the plaintiff endorsed my comments as to the plaintiff’s credit, stoicism and difficulties with pain and concentration.[76]
[76]T81
254 As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[77] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[77][2008] VSCA 260 at paragraph [4]
255 In response to my comment that there had been no attack on the plaintiff’s credit and that given his obvious physical discomfort and inability to sit for long in the witness box, he would be hard pressed to work more than 15 hours per week,[78] counsel for the defendant submitted giving evidence was a stressful situation and that the whole of the plaintiff’s evidence had to be considered, not just his demeanour in court.[79]
[78]T63
[79]T64
256 Whilst counsel for the defendant submitted there was very little mention in the plaintiff’s affidavits of him struggling with the placement and having the level of incapacity that he described in the witness box,[80] in my view, he conceded a significant level of activity in his affidavits which adds strength to his evidence overall, as his counsel submitted.[81]
[80]T65
[81]T81
Loss of earning capacity
257 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).
258 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.
259 The former must be calculated by reference to the six year period specified in s134AB(38)(f).
260 “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.
261 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.
262 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. See Barwon Spinners Pty Ltd & Ors v Podolak.[82]
[82](supra) at paragraph [70]
263 The without injury earnings figure having been agreed, the issue in this case is whether the plaintiff has a capacity to earn in excess of $780 per week.
264 I accept the plaintiff continues to suffer significant constant left buttock and left leg pain and intermittent right leg pain. He regularly takes strong painkilling medication in the form of Tramadol, and also takes Mobic. Surgery has been suggested but the plaintiff is reluctant to undergo any further surgical procedure given the lack of improvement following the 2014 operation.
265 The plaintiff does not believe he has the capacity to work full time and considered he was fit to work in the recent placement for only 15 hours per week. This was the level he was able to work at the time his employment was terminated in July 2015.
266 The plaintiff had difficulty working 15 hours per week in office and lighter duties before his employment was terminated. As he readily conceded, had his employment not been terminated, he would have continued working on this basis. I am not satisfied however, that he could have increased his hours in these duties on a consistent, ongoing basis.
267 Pre termination of his employment and post the 2014 operation, the plaintiff had not demonstrated any capacity to do these light duties for more than 15 hours per week. He had particular difficulty with extra hours that required more driving and carrying out demonstrations. There were only a couple of weeks where he worked 20 hours and the one week of 25 hours was too much for the plaintiff and his hours were again reduced to 15 per week.
268 I accept that having graduated from the course, the plaintiff would return to work if he was physically capable of doing so. As his counsel submitted, the plaintiff had done everything right,[83] having battled on at work for two years following his injury. Both pre and post the 2014 operation, he tried to increase his hours but was unable to do so on any sort of consistent basis without an increase in his back pain.
[83]T81
269 After his employment was terminated, the plaintiff commenced the course with a view to working in a different, lighter field, but had problems with the study and also later with the placement, although a reliable attendee.[84]
[84]T69
270 The plaintiff took up the 15 hours available at DutchCare consistent with his physical capacity. He sought that level of hours when others in the course did the placement full time because that was what he could cope with. Whether working consecutive days or having a rest in between, the plaintiff was fatigued at work and when he got home. He required a nap during the day at DutchCare and he needed medication to keep going.
271 Clearly, the circumstances of a course placement differ greatly from those involved in paid employment where the plaintiff would not be able to lie down during the day if he was fatigued.
272 I do not accept there was some inconsistency between the plaintiff’s evidence of tiredness following a day at DutchCare and then doing physical activities on the weekend.[85]
[85]T69
273 As the plaintiff explained, weekend activities were an “escape,” a chance to take his mind off things. The activities were not overly strenuous and were just for relaxation.[86]
[86]T90
274 Counsel for the defendant submitted those examiners who thought the plaintiff had a limited work capacity ignored the fact he was studying a number of hours a week while working.[87]
[87]T75
275 In my view, study at the plaintiff’s own pace at home is not the same as being reliable at turning up to a workplace on a consistent basis. At times, the plaintiff studied on his computer in bed at home. The ability to study is not an indication of work capacity.[88]
[88]T88-89
276 Whilst the plaintiff would readily try a range of jobs suggested on a part-time basis, in my view, he would not be a reliable worker who would be able to attend on a regular, consistent basis because of his serious back condition and the need for ongoing painkilling medication which affects his ability to concentrate, as was apparent in the witness box.
277 As counsel for the plaintiff submitted, reliability is essential and the plaintiff is not reliable.[89]
[89]T90
278 I accept that Dr Downe is in a strong position to assess the plaintiff’s work tolerances as his treater.[90] For some time he has certified the plaintiff fit for modified duties for 15 hours per week. Whilst Dr Downe thought these hours could be escalated, he thought that would be on the basis of the plaintiff’s tolerance when a suitable position was found.
[90]T87
279 Further, Dr Downe thought further long-term improvement was currently elusive and that extending the plaintiff’s physical stamina remained a challenge.
280 In my view, 15 hours is about the plaintiff’s limit, not the starting point, as counsel for the defendant submitted.[91]
[91]T71, T80
281 Insofar as the medical opinion was concerned in this case, counsel for the plaintiff submitted focus should be on the views of occupational therapists as the Court stated in Giankos v SPC Ardmona Operations Ltd (No 2): [92]
“Expert opinion evidence must relate to matters which are wholly or substantially within the expert’s field of expertise. It follows that medical opinions about the suitability of particular employment for an injured worker should focus on the physical restrictions which a particular impairment imposes, rather than on whether the injured person is able to do a particular job. There is a danger that medico-legal experts will stray beyond their field of expertise, and give unqualified opinions about the jobs which can or cannot be done by the worker. Except where a medical practitioner has specialist occupational health and safety qualifications or experience, a medical opinion as to the work which an injured worker can perform may fall outside the doctor’s area of expertise.”
[92][2009] VCC 1461 at paragraph [96]
282 Accordingly, counsel for the plaintiff relied heavily on the view of occupational physician, Dr Middleton, who thought it best if the plaintiff could attend work to a maximum of 15 hours a week.
283 Understandably, Dr Middleton noted the plaintiff could never be regarded as workshy and had been proactive in undertaking and completing retraining. However, he considered the plaintiff no longer had a reliable capacity to attend work and carry out his work duties. Whilst the plaintiff had some capacity for suitable employment, his capacity to procure and maintain such employment was negligible.
284 Although Dr Middleton in expressing his views focussed to some degree on the case manager work being physical, which is not the case, his comments apply equally to a lighter role in terms of the plaintiff’s reliability to attend a workplace.
285 Whilst Dr Barton is also an occupational physician, his view is of little assistance. Having diagnosed illness behaviour, he thought, from a simple, physical point of view, there was no particular reason why the plaintiff could not get back into either pre-injury work or a similar role with some minor restrictions early on.[93]
[93]T85
286 This diagnosis and view as to work capacity is not shared by any other medical practitioner in this case.
287 Addressing the L4-5 injury only and ignoring the involvement of L5-S1 in the plaintiff’s present condition, Dr Soliman concluded the plaintiff was fit for full time restricted duties, including those suggested in the 2016 market analysis report.[94]
[94]T85
288 Orthopaedic surgeon, Mr Simm considered the plaintiff was fit for light duties with significant restrictions but did not specify whether a graduated return to work was appropriate or the number of hours he thought the plaintiff could work.[95] Fellow orthopaedic surgeon, Mr Jones had a similar view as to the plaintiff’s capacity but considered he was fit for full time light work in modified duties.
[95]See paragraph [150] of this judgment
289 Mr Goldschlager, who reported as the plaintiff’s treater, did not express a view as to his work capacity, stating he was uncertain in this regard not having seen the plaintiff since mid-2015.
290 As counsel for the plaintiff submitted, Workable did not discuss the hours or requirements of the jobs suggested,[96] it simply provided an analysis of what sort of work the plaintiff might be able to do within accepted limitations, and set out a number of possibilities.[97] There was no analysis of any of the physical demands of the suggested jobs, like driving, or going up and down stairs, or prolonged posture.[98]
[96]T90
[97]T87
[98]T87
291 Taking into account all the evidence, I am not satisfied that the plaintiff would be able to work on a consistent basis in excess of 20 hours per week in the suggested jobs of case manager, support worker and case worker. These three positions attract a weekly wage of $1,192.00 or $31.30 per hour.
292 Working 15 hours per week, the plaintiff would earn $469.50 per week. Working 20 hours, he would earn $626.00 per week – both below the $780.00 threshold. Even working 24 hours, the plaintiff would still suffer the requisite loss ($751.00).
293 Accordingly, I am satisfied that the plaintiff has suffered a loss of earning capacity of 40 per cent or more.
294 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
295 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or further retraining that would be appropriate to be undertaken by him 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).
296 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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