Baksheev v Victorian WorkCover Authority
[2020] VCC 1861
•27 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-00614
| MICHAEL BAKSHEEV | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 September 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 27 November 2020 | |
CASE MAY BE CITED AS: | Baksheev v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1861 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – injury to the spine – pain and suffering – economic loss – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Richter v Driscoll [2016] VSCA 142; Cardiff Corporation v Hall [1911] 1 KB 1009
Judgment: Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Blanden QC with Ms N Wolski | Maurice Blackburn Lawyers |
| For the Defendant | Mr C W R Harrison QC with Mr G Coldwell | Russell Kennedy Lawyers |
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 an injury suffered by the plaintiff on 25 October 2013, while employed by Topline Plaster Products Pty Ltd (“the employer”).
2 The bodily impairment relied upon is function of the spine (“the injury”).
3 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and economic loss.
4 That the pain and suffering consequences suffered by the plaintiff as a result of the injury satisfy the test “serious injury” under the Act, was admitted by the defendant.[1] Thus, the only question for the Court was whether the plaintiff had suffered the relevant economic loss under the Act.
[1]Concession made by Senior Counsel for the defendant during defendant’s opening statement: Transcript (“T”) 15, Lines (“L”) 1-11
Relevant legal principles
5 The application for leave to bring proceedings for damages is brought pursuant to sub-paragraph (a) of the definition of “serious injury” as defined in s134AB(37) of the Act, namely:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function … .
… .”
6 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s134AB(1) of the Act, the relevant physical or psychological injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 20 October 1999.[2] As set out in s134AB(37) of the Act, the impairment of the body function must be permanent.[3]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[3]Barwon Spinners Pty Ltd & Ors v Podolak (ibid) at paragraph [33]
7 The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
8 In relation to the physical injury which relates to the impairment of a body function, by s134AB(38)(b) and (c) of the Act, it is the “consequences” of the bodily impairment which produce the “pain and suffering” or “loss of earning capacity” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative” test.
9 Section 134AB(38)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
10 Sections 134AB(e) and (f) of the Act set out the statutory formula by which the Court must measure, if relevant, the plaintiff’s loss of earning capacity prior to any grant of leave. This formula provides that the plaintiff must establish a loss of earning capacity of 40 per cent or more, as measured in accordance with the Act.
11 In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
12 In determining the application, the Court:
(a) must assess whether “the injury” is a “serious injury” as at the time the application is heard.[4] In relation to the assessment of the pain and suffering consequences of an injury, it has been held that this task is largely a question of impression or value judgment;[5]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[4]Section 134AB(38)(j) of the Act
[5]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[6]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
13 In reaching my conclusions in this matter, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[7] and Grech v Orica Australia Pty Ltd & Anor.[8]
[7](2005) 14 VR 622
[8](2006) 14 VR 602
14 The plaintiff relied upon four affidavits, and was cross-examined.
15 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[9] The defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross-examination.
[9]The plaintiff’s Court Book was marked as exhibit P1; the defendant’s Court Book was marked as exhibit D1
16 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background
17 The plaintiff was born in November 1966. He is presently fifty-three years of age. He is separated. He does not have any children. He presently lives with his parents.[10] He was educated to Year 11.[11]
[10]Ex P1, p1
[11]Ex P1, p2
18 The plaintiff started working as a plasterer when he was seventeen. He had tried to do a mechanic’s apprenticeship but that did not work out so he commenced plastering with his father.[12]
[12]Ex P1, p2
19 The plaintiff worked for the employer for about ten years. He was employed as a leading hand/foreman but did a lot of hands-on plastering work. He did high-end plastering work on prestige properties. In 2008, 2009 and 2010, the high-quality plastering work which he performed was acknowledged when the companies he worked for received an “Achievement of Excellence” Award for each of those years from the Australian Walls and Ceiling Association.[13]
[13]Ex P1, p2
20 Prior to his injury, the plaintiff enjoyed playing golf and cricket, both indoor and outdoor. He also enjoyed camping and fishing.[14]
[14]Ex P1, p2
21 The plaintiff is right-hand dominant.[15]
[15]Ex P1, p2
Prior medical history
22 In December 2014, the plaintiff had his gallbladder removed.[16] He had bilateral hernias which were operated on in September 2015.[17]
[16]Ex P1, p2
[17]Ex P1, p3
23 The plaintiff has had a heart condition and has been under the care of Dr Fernando, cardiologist. His condition has stabilised. He has been advised to improve his diet.[18]
[18]Ex P1, p3
24 The plaintiff suffers from sleep apnoea.[19] In September 2018, the plaintiff underwent surgery for this condition. His deviated septum was repaired and he also had some surgery on this throat.[20] He continues to use a CPAP machine.[21]
[19]Ex P1, p3
[20]Ex P1, p4
[21]Ex P1, p3
25 The plaintiff has high blood pressure and elevated cholesterol. He has chronic kidney disease involving protein leakage, for which he has regular check-ups, and is under the care of Dr Colin Wood, renal specialist. Surgically, he has also had his tonsils removed and had a right thumb fracture operated on in the past.[22]
[22]Ex P1, p3
The accident
26 The plaintiff described the accident in the following way:
“Throughout the course of my employment, I was required to engage in heavy lifting, repetitive bending and awkward movements in the performance of my work duties. My work also involved a lot of reaching above my head and lifting and holding heavy weights above my head.
I was working at a private home which was being built … I was fixing plasterboard and cornices with a co-worker. I had to hold the length with one hand over my head, hold the screw in my mouth and use a screw gun to attach the length to the ceiling whilst my co-worker held the other end. I did not have enough assistance and there should have been more co-workers helping us. I did this work over about three or four days. On the fourth day, I felt a lot of soreness in my arms. I then did another job in City Road, Southbank where I had to fix a bulkhead in place [which] was awkward and again required me to work overhead whilst lifting a heavy weight.
…
On the weekend, my pain increased. On the Sunday, 28 October 2013, I attended the local Superclinic and then the Dandenong Hospital.
I had an x-ray, ultrasound and then an MRI on 31 October 2013 which I am told showed a disc protrusion and annular tear at C6/7.
I was discharged with pain killing medication. I attended Dr Tracey. Normal pain killers did not relieve the pain. I was prescribed Lyrica.
I was referred to Mr Timms, neurosurgeon, on 12 December 2013. He recommended surgery. I sought a second opinion from Dr Aliashkevich, neurosurgeon, who also recommended surgery.
On 17 February 2014, Mr Timms performed an anterior cervical discectomy and fusion at the C6/7 disc space.”[23]
[23]Ex P1, pp3-5
27 The plaintiff has had physiotherapy and osteopathy treatment. He has done a swim gym program. On 16 January 2016, he had an MRI scan of his cervical spine, which he was told showed cord compression at C3-4 secondary to a disc protrusion.[24]
[24]Ex P1, p5
28 In 2016, the plaintiff was prescribed Effexor and referred to a psychologist at Psychology 4 Change.[25]
[25]Ex P1, p5
Evidence concerning the consequences of the injury
29 As set out above, the plaintiff swore four affidavits, the first on 26 September 2017, the second on 29 November 2018, the third on 17 January 2020 and the fourth on 19 August 2020.
30 In summary, the evidence he gave which is relevant to the issues in dispute between the parties at this hearing, was as follows:
Experience of pain
(a)he suffers constant pain in his neck. He would rate it at about 4 out of 10 in the morning and then it increases and remains at about a 6 out of 10 throughout the day and evening. If he aggravates his neck by moving it suddenly or incorrectly, the pain increases to 10 out of 10.[26] When this occurs, he experiences a stabbing pain in his neck. This happens up to five times a day;[27]
[26]Ex P1, pp5-6
[27]Ex P1, p19
(b)the plaintiff often aggravates his neck pain with certain movements, for example getting up and down from a chair or getting into his car. He tries to be careful with every move he makes. It is often the case that if he moves suddenly without thinking, he will aggravate his neck pain;[28]
[28]Ex P1, p6
(c)the pain radiates into his right shoulder and down his right arm.[29] In the last year or so, he has experienced painful electrical shock-type symptoms in his right index finger. This comes on at night and occurs on average three times a week;[30]
[29]Ex P1, p6
[30]Ex P1, p18
(d)the pain in his neck is an “dull ache”. When he turns his neck, the pain is like a sword going through his neck;[31]
[31]Ex P1, p6
(e)he has referred pain and numbness into his arms. He has three numb fingers in his right hand. The index finger is the numbest, followed by the middle and ring fingers;[32]
[32]Ex P1, p7
(f)the pain affects everything he does. It affects his motivation;[33]
[33]Ex P1, p9
(g)his neck pain affects his studies. He finds it difficult to sit for long periods of time. Sometimes his neck has seized up and it is hard to keep studying. He finds it difficult to keep his neck flexed for any length of time;[34]
[34]Ex P1, p9
(h)approximately two to three times a week he has to lie down for a few hours to relieve his neck pain;[35]
[35]Ex P1, p18
Medication and treatment
(i)he sees his general practitioner, Dr Ly, when he needs a prescription;[36]
[36]Ex P1, p12
(j)he continues to take medication for high blood pressure;[37]
[37]Ex P1, p14
(k)throughout 2019, he received treatment from Dr Meena Mittal of Precision Brain, Spine & Pain Centre. He underwent a further MRI scan of his cervical spine on 20 March 2019.[38] On 4 June 2019, he underwent a right C7 nerve root injection. After the right C7 nerve root injection, he only derived a very short-term and small reduction in pain, lasting approximately one hour.[39] On 18 September 2019, he underwent a bilateral C3-4, C4-5 and C5-6 medial branch block. He only derived a very short-term small reduction in pain from this treatment, lasting approximately one hour.[40] He does not want to try a spinal-cord stimulator. Dr Mittal has recommended that he undergo a pain management program;[41]
[38]Ex P1, p19
[39]Ex P1, p19
[40]Ex P1, p19
[41]Ex P1, p16
(l)he was referred by Dr Mittal to Dr Hazen Akil, treating neurosurgeon, to obtain his opinion as to further treatment options for his neck pain and related symptoms. He first saw Dr Akil on 9 July 2019. Dr Akil confirmed that the plan which Dr Mittal had put in place for the plaintiff’s ongoing treatment was reasonable. Dr Akil raised the possibility of performing a right C5-6 laminoforaminotomy. The plaintiff does not want to undergo any further surgery or neuromodulation as he had a “horrible and painful recovery” after his initial surgery. He is therefore very reluctant to undergo any further surgical procedures;[42]
[42]Ex P1, p19
(m)he was approved to attend a pain management program in March 2020. The pain management program commenced on 18 May 2020 online as a result of COVID-19. He attended online sessions three days a week, lasting one to three hours per session. He completed the pain management program on 23 July 2020. He found the program educational, but it did not result in any reduction of his pain and symptoms;[43]
[43]Ex P1, p20
(n)he currently takes 150 milligrams of Lyrica daily. He wears a Norspan 10-milligram patch which he changes once a week. He also takes Norflex SR, 100 milligrams, and Temgesic Sublingual, 200 micrograms, when required;[44]
[44]Ex P1, p20
(o)he has some follow-up appointments scheduled with the pain management team. He understands that they are essentially going to check in with him after the completion of the pain management program;[45]
[45]Ex P1, p20
Sleep
(p)his sleep has been affected by his pain. He is regularly woken with pain. If he moves when he is asleep he suffers pain. He goes to bed at around 11.00pm and remains awake until approximately 4.00am due to pain and worry.[46] It is then difficult to get back to sleep because he is in pain and finds it difficult to find a comfortable position to sleep.[47] He sleeps until midday. He awakes feeling fatigued;[48]
[46]Ex P1, p20
[47]Ex P1, p7
[48]Ex P1, p20
(q)during the day when he is resting, he tends to fall asleep;[49]
[49]Ex P1, p7
Activities of daily living
(r)his days are limited in activity and fairly dull. He watches a lot of television. He rests. He walks to the shopping centre which is close by for some exercise;[50]
[50]Ex P1, p7
(s)he lies down a lot during the day to rest his neck. Lying down is the only time he gets full relief from the pressure he feels in his neck;[51]
[51]Ex P1, p6
(t)he has some difficulty with his activities of daily living, particularly putting his pants and socks on, which requires him to bend down;[52]
[52]Ex P1, p8
(u)he is not able to do much housework or gardening. He is living with his elderly parents and relies on them to help him as opposed to him helping them. He does not assist his father with the gardening. Sometimes he sees his mother sorting his clothes and he feels guilty;[53]
[53]Ex P1, pp7-8
(v)he has difficulty driving for long distances. He usually drives locally as he has difficulty looking to his left and right and has to turn his whole shoulder around to look either way. He avoids driving in peak-hour traffic;[54]
[54]Ex P1, p6
(w)he has difficulty sitting for long periods of time. His neck gets fatigued if he sits with his arms down by his side. He tries to use his arms to support him by resting them on the armrests on the chair that he is sitting in;[55]
[55]Ex P1, p6
(x)he has difficulty standing for long periods of time and walking long distances;[56]
[56]Ex P1, p6
(y)he has difficulty raising his arms above shoulder height. He cannot hold them up as it fatigues him. He has difficulty reaching with his right arm;[57]
[57]Ex P1, p7
(z)he has weakness in his right arm and pain in his forearm. He has lost a lot of strength in his right upper limb. He cannot write for very long;[58]
[58]Ex P1, p7
(aa)he has a scar on his neck. It is sensitive when he shaves. He is self-conscious about the scar;[59]
[59]Ex P1, p7
(bb)the plaintiff used to enjoy playing golf on a fortnightly basis, which he no longer does. He struggles to play golf with his neck injury. As a result, he has lost his golf friends;[60]
(cc)he used to play indoor cricket at the Dandenong Stadium during the season. He struggles to play that sport now and has lost his friends from indoor cricket;[61]
(dd)he used to enjoy camping. He would take his tent and get away in the warmer months. He now has difficulty going camping. It causes him too much pain to set up the tent and drive all the way to Lakes Entrance or other places that he used to go. Sleeping in a tent is hard enough, let alone with his neck injury;[62]
(ee)he also used to enjoy fishing in the summer.[63] He continues to go fishing, but less frequently since his injury. He usually goes fishing with his father. They go approximately twice a month, but it depends on the weather. He bought a fishing boat in 2014. He had a number of alterations made to the boat in order to allow him to use it without aggravating his neck pain. For instance he had a bed installed in the half-cabin on the boat so he could take breaks from fishing and go and lie down to rest his neck. If the water is choppy, he avoids going out as the movement of the boat aggravates his neck pain;[64]
Effect on personal relationships and ability to socialise
(ff)he believes that his injury and the surgery following it contributed to the breakdown of his marriage. After the operation, he was bedridden for about four months. His intimate relationship was affected. He had to move with his wife into his parents due to financial difficulties. This was difficult for the plaintiff’s wife;[65]
(gg)he has become isolated as a result of his injury. He is separated from his wife, he no longer keeps in touch with his work friends and he has lost contact with his social friends from golf and cricket;[66]
[60]Ex P1, p8
[61]Ex P1, p8
[62]Ex P1, p8
[63]Ex P1, p8
[64]Ex P1, p14
[65]Ex P1, p8
[66]Ex P1, pp 8 & 9
Work capacity
(hh)he used to enjoy his work. He was proud of his craft as a plasterer. He was very skilled at his job and was considered to be elite in his field. His father was a plasterer and he was proud to continue the family tradition. He worked in top-end houses;[67]
[67]Ex P1, p9
(ii)every day is just the same and it is like groundhog day. It is very depressing. He used to enjoy going to work and the structure and routine of his work. He has worked since he was seventeen years of age and nothing else;[68]
[68]Ex P1, p9
(jj)his earnings for the financial years 2011 through to 2016 were as follows:
· 2011 $52,200
· 2012 $49,308
· 2013 $68,840
· 2014 $45,355
· 2015 $54,344
· 2016 $45,815.[69]
[69]Ex P1, pp9-10
(kk)in addition to the earnings set out above, he was also provided with a mobile phone, which was owned by the company. He was also supplied with a Nissan Navara, for which the company paid all expenses including, but not limited to, petrol, registration, insurance and maintenance;[70]
(ll)as a result of his injuries, he has been unable to return to employment since October 2013;[71]
(mm)he does not know when he will be able to return to any employment. He is unable to stand or sit for long periods of time, bend over on a repetitive basis or lift heavy weights. He is unable to hold his head in a flexed position for any length of time or on a repetitive basis. He has only ever done physical or manual-type work. He is in pain on a daily basis. He has never worked in an office and his computer skills are limited;[72]
(nn)he has obtained a Certificate IV in Building and Construction, which would enable him to work as a supervisor. However, realistically, he does not know what work this would enable him to perform, having regard to his injury and ongoing pain and dysfunction in his neck and right upper limb;[73]
(oo)he has always worked and been an industrious person. He only has experience in manual roles. He has limited computer skills and has never worked in an office-type job.[74] He types with one finger. He is able to send an email, perform a Google search, shop online and use Word in a very basic manner.[75] After a short period of sitting and typing, his neck pain is aggravated by the movement of his hands and the pressure on his neck;[76]
(pp)he has applied for many jobs without success, including with the help of the AMS Consulting Group. These have included supervisor-type roles and roles in offices and sales.[77]
(qq)he is currently in receipt of Centrelink Newstart Allowance. He has applied for numerous roles in order to comply with the Centrelink conditions. He has been unsuccessful with all of those applications;[78]
(rr)he is worried about his future. [79] He is saddened that he is no longer able to work. He has always been a hard worker. [80] He has only ever worked as a plasterer. He has always been reliant on his physical capacity for work. There is no way that he could return to work as a plasterer.[81] He does not know what work he could realistically do in the future, due to the pain and incapacity that he suffers as a result of his neck injury. He often struggles to manage his pain and, as a result, he doubts that he could reliably turn up to work on a regular basis.[82] He is in his fifties and is living with his parents. His injury has been catastrophic for him. He has lost everything;[83]
[70]Ex P1, p10
[71]Ex P1, p10
[72]Ex P1, p10
[73]Ex P1, pp10-11
[74]Ex P1, p14
[75]Ex P1, p21
[76]Ex P1, p13
[77]Ex P1, p11
[78]Ex P1, p14
[79]Ex P1, p9
[80]Ex P1, p21
[81]Ex P1, p21
[82]Ex P1, p14
[83]Ex P1, p9
31 Under cross-examination, the plaintiff gave the following relevant evidence:
(a)the date of 25 March 2013, which is referred to in the first paragraph of his first affidavit, is a mistake. It should have been October;[84]
[84]T17, L25-31
(b)his pain has remained the same since he swore his first affidavit in 2017. He confirmed that if he aggravates his neck by moving suddenly or incorrectly, his pain increases to 10 out of 10. He acknowledged that 10 out of 10 is generally described as the worst pain you could possibly imagine: “Yeah, it’s pretty bad … Gets me right there, yeah;”[85]
[85]T18, L8-23
(c)he has to tilt his head to get into the car and sometimes has to push his head inside the door;[86]
[86]TT18-19
(d)the pain that radiates down from his neck into his right arm is constant. It is not really in his shoulder “it’s the forearm and three fingers”;[87]
[87]T19, L24-28
(e)he confirmed that he has difficulties driving for long distances:
“Yes.Ah, driving about an hour, country road … Sealed highway … That’s easier than driving in traffic. Traffic, I have to look at the blind spot constantly which aggravates my neck.”[88]
[88]T20, L9-18
(f)he confirmed that he has difficulty sitting for longer than about forty-five minutes. After that time, he has to get up and walk around or have a lie down. If he gets up and walks around, that would be for about ten minutes. He was asked if he can then sit down again for another three-quarters of an hour and he replied: “depends on the pain, but yeah;”[89]
[89]T20, L19-30
(g)when he stands still, his neck gets more and more problematic for him. He gave as an example an attendance at a Russian Orthodox Church, where he had to stand still for twenty minutes and the pain which arose was such that he had to eventually leave the church. He said that is the only time where he really stands on the one spot for twenty minutes. He confirmed that he can walk about. He was asked whether he had any problem with walking and he replied: “Well, I have tolerance in the amount of walking I do;”[90]
[90]T21, L2-13
(h)it was suggested to him that he can walk about for a couple of hours. He did not agree with this proposition;[91]
[91]T21, L14-15
(i)he agreed that he can raise his arms above shoulder height “but without weight”;[92]
[92]T21, L16-18
(j)he said that he can lift his arms above his head but –
“… what happens is, I do that but not for too long … what I experience is tightness in the neck muscles here … so if I lift my arms up, I feel the tightness there and the longer I stay my arms are up, it gets tighter and tighter so I drop my arms.”[93]
[93]TT21-22
(k)he said that the reason his pain progresses from a 4 out of 10, getting progressively worse throughout the day, is because each of the activities that he does “add up”;[94]
[94]T22, L8-13
(l)he said that when he told Dr Entwisle that he wakes due to pain “occasionally”, that was accurate:
“… occasionally if I move I get … uncomfortable pain in my neck, it will give me a wake up … probably once a week.”[95]
[95]TT22-23
(m)he denied having lost the full and free use of his right upper limb: “That doesn’t sound right;”[96]
[96]T23, L14-28
(n)he denied that he suffers pain in his shoulder. He said that he has numbness and tingling in various fingers of his hand. He said that his right arm is weak;[97]
[97]TT24-25
(o)when he raises his arms above his shoulder height, he tries to do it quickly so as not to have his arms in the air for too long. He confirmed that he is careful for how long he keeps his arms up for:
“Well, I really don’t do it every day … if I go fishing it’s required, yes, but apart from that, I don’t really have a need to … raise my hands like that.”[98]
[98]TT25-26
(p)he confirmed that he can use his left arm with more force than his right arm. It was suggested to him that he can perform tasks with both arms in the air. He confirmed this, but said that he could do it for “maybe two minutes but that’s pushing it”;[99]
[99]TT26-27
(q)he agreed that in June or July 2014, after his surgery, he was able to do some measuring work for his old employer: “they sent drawings to me.” When asked if he was able to do those tasks, he confirmed that he was able to do that;[100]
[100]T27, L7-13
(r)he agreed that after he spoke to Mr Timms, it was obvious that he was going to have to look around for some other work. It was put to him that he was not going to stop work at forty-eight years of age and “give it away”. To this he replied that he has a very limited work capacity now. He was asked whether or not he sees himself as being on the scrap heap, to which he replied “Yes … yeah”;[101]
[101]T28, L6-8
(s)he agreed that in a 130-week vocation report dated November 2015, he had expressed interest in certain employment roles, being building supervisor, building associate, information/customer services clerk. He agreed that at that time, he was looking at those sorts of jobs and was interested in trying to perform them. He agreed that at that time, he thought he would be able to do those jobs. He qualified this answer by saying: “On the provision that I was getting better … by the time I finish my course, my injuries would’ve subsided to a point where I … could’ve done them … but it didn’t turn out that way.” He confirmed that the course he was referring to was his Certificate IV in Building. He said he would have finished that course in the middle of 2016. He said the thing that did not improve, was the pain in his neck and the pain in his arm;[102]
[102]TT28-30
(t)he agreed that the 130-week vocation report was accurate when it noted he had good verbal communication skills, good English reading and writing skills and numerical skills;[103]
[103]T31, L17-22
(u)he acknowledged that the report noted that he had adequate computer skills with a capacity to use the internet and email. However, he said that although he was aware of a word-processing package, he had no experience with such a program and no skills in spreadsheet packages. He said that his computer skills have improved “marginally” since December 2015;[104]
[104]TT31-32
(v)he said that in terms of using a computer now, he can shop online, use Google, use Microsoft Word and use the internet;[105]
[105]T32, L6-10
(w)he completed the Certificate IV in Building and Construction in June 2016. He did that course through Holmesglen TAFE. He would drive to that course, which would take about twenty minutes from his home. He would go to the course two times a week from 6.00pm to 10.00pm. He would also have about four hours of homework a week;[106]
[106]TT32-34
(x)he said he has not applied for any jobs to which that certificate applies. He said that this is because he did not think he could get that type of work. In particular, he said that the driving and also looking up while onsite would pose a difficulty for him. These are both are very important elements of that type of job;[107]
[107]TT34-35
(y)it was put to the plaintiff that he would be able to work as a production scheduler and estimator, since that job would not involve any need to look up or drive between sites. The plaintiff agreed that he may be able to do this sort of job. It was put to him that he would be able to do it full time. To this proposition, the plaintiff replied “That’s debatable”. It was put to the plaintiff that his physical tolerances are such that he would be able to work thirty hours a week in such a job, to which the plaintiff replied “I disagree”.[108]
[108]TT35-36
(z)the plaintiff was shown some surveillance footage of him shopping at Waverley Gardens Shopping Centre. He agreed that film depicted him purchasing a television and taking it home. He said that the shopping centre is a five-minute drive from his home. He agreed that he may have been at the shopping centre for a period of about two-and-a-half hours;[109]
[109]TT39-40
(aa)it was put to him that he was comfortably able to engage in a shopping trip for that amount of time. To that proposition, the plaintiff replied “I wouldn’t say comfortably, but I can do it”;[110]
[110]T40, L25-26
(bb)it was suggested to the plaintiff that there was footage of him getting into his car where he tilted his head to one side in order to get it in under the roofline. It was put to him that he was not seen pushing his head in or assisting it with his hand in anyway. To this proposition, he replied: “You probably got me on a good day;”[111]
[111]TT40-41
(cc)he agreed that there was nothing on the film which looked like he was experiencing any discomfort. He agreed that he was able to get the television out of the trolley, take it out of his car and put it in the car, and reverse that activity when he got home. He agreed that he was able to do this activity, but qualified this by saying: “After that, I did get a flare up;”[112]
[112]TT40-41
(dd)he was asked why he did not get his father to come and help him with the television, to which he replied: “I didn’t want to bother the father.” It was suggested to him that if he knew he was going to get a flare up of pain to a level of 10 out of 10, he would not have hesitated to ask for assistance. To this, he replied: “Well, I didn’t know I was going to get a flare up;”[113]
[113]TT41-42
(ee)he said the flare up after this activity happened about half-an-hour after he had unloaded the television. He said that he linked the flare up to this activity “’Cause that’s the only physical exertion I did that day”;[114]
[114]T42, L1-19
(ff)he thought that the television probably weighed about 10 kilograms. He agreed that it was a bulky and awkward item;[115]
[115]T43, L17-23
(gg)the plaintiff was shown film of he and his father going on an outing with his boat. He agreed that the outing took place on 9 February 2018. He said that he goes fishing on average about twice per month;[116]
[116]T44, L4-29
(hh)he agreed that in the film he was depicted lifting fishing rods over his head out of the boat, that he lifted a small aluminium stepladder out of the boat and that he had lifted both of those items above shoulder height. He also agreed that he was seen reaching into the boat with his right arm to take the petrol cap off. He agreed that he also replaced the fishing rods back into the boat which had required him to lift them again above shoulder height;[117]
[117]T45, L5-22
(ii)he agreed that the boat was launched at Corinella. He said that the drive from his home to Corinella is about one hour. When challenged about the timing of the outing, in that he had left home at 3.20am but had not launched the boat until 5.15am at Corinella, he explained that he stopped at the service station which was near to Corinella and had a rest by getting a coffee. He thought that this explained the discrepancy in the timing;[118]
[118]TT45-46
(jj)he agreed that when using the boat he is sitting. He said that when his neck starts to hurt, he goes down into the cabin and lies down and then gets back up to do some fishing and then might have to lie down again. He said that when he gets a bit of a pain in the neck “[he] just lie[s] down again”;[119]
[119]T46, 22-28
(kk)it was suggested to him that he was able to lift up the glass at the top of the rear door of his Landcruiser with his right arm. In response to this, he pointed out that the glass window is on gas struts “so it should lift up by itself”;[120]
[120]T47, L2-9
(ll)he agreed that he had hooked a wire from his boat onto a winch so that the boat could be pulled in off the trailer. He agreed that he had used both his right arm and his left arm to undertake that task. He expanded on this and said he tries to use his left arm to do this task but when his left arm gets tired he uses his right arm;[121]
[121]T47, L17-22
(mm)he agreed that as part of loading the boat onto the trailer, he had been involved in rolling up the canopy of the boat for transport. He agreed that his arms were above his head for this activity. He thought this had lasted for about ten seconds. He said that he tries to do it as “quick as I can”;[122]
[122]TT47-48
(nn)it was put to him that during this activity, he had his neck extended back, looking up at the canopy while he was rolling it. In response to this, the plaintiff replied that he was “probably leaning back … I’m doing it quickly so that it doesn’t hurt so much”;[123]
[123]T48, L13-19
(oo)he agreed that his father was present and would have been able to help him. It was put to him that whatever discomfort he felt while doing that activity, he was well able to cope with it. He did not agree with this proposition;[124]
[124]T48, L24-29
(pp)he was asked further questions about the event where he was putting a television into his car. Upon viewing stills of the surveillance footage, the plaintiff agreed that he had held the top of the television with his right hand and that his hand in that photograph was above shoulder height;[125]
[125]T50, L26-31
(qq)he agreed that his fishing trip constituted a twelve-hour day from when he left home to when he arrived home;[126]
[126]T51, L26-27
(rr)he agreed that he was out on the water on that day for eight-and-three-quarter hours. He agreed that it is a long day and said: “That’s why I’ve got a bed in the boat;”[127]
[127]TT51-52
(ss)the plaintiff was shown surveillance film of him working on his boat out of the water. It was suggested to him that he was working in fairly cramped conditions inside the boat. To this proposition, he replied that there was “[p]lenty of room” in the boat. He agreed he may have been using a power drill. He agreed he may have been bending over to undertake whatever task was being shown on the film. He agreed that he owns a power drill and uses it from time to time with his right hand. He agreed that he uses other power tools with his right hand despite the vibration that comes from these tools. He said he has not used any of those tools for a long time;[128]
[128]TT58-60
(tt)he was shown some surveillance film of a day when he had been to see Professor Davis for a medical appointment at rooms in Parkville. He agreed that he arrived early for the appointment and went and got a coffee and waited around. He agreed that on the film, it looked like he was walking around without any discomfort or restriction on that day. He agreed that after the medical appointment he went to the Victoria Market with his father. He agreed that he and his father spent about an hour at the market wandering around. It was put to him that he was moving about while at the market without any discomfort. He replied that he could not recall what he was feeling that day;[129]
[129]TT61-63
(uu)he was shown stills of the same surveillance footage which showed him smiling. It was put to him that it looked like he was having a pretty good time. In response to this, he replied “the father probably said something funny”. It was suggested to him that in fact he was not in any discomfort at all on this day. He replied “I don’t know”;[130]
[130]TT62-63
(vv)he agreed that on the surveillance film he was depicted as reaching up to have a look at a jacket that was for sale at the market. He agreed that he had used his right arm to undertake that manoeuvre. He said that he could not remember whether or not he was in any discomfort when examining the jacket. It was suggested to him that he looked reasonably at ease and comfortable. To this, he replied “That’s what the pictures [sic] shows, yes”. It was put to him that the picture accurately showed the state he was in that day, to which he replied “I don’t know”. He acknowledged under further questioning that there are times when he can move freely or without discomfort. He said that does not happen very often, possibly 30 per cent of the time. He said that even then, he would not say that he is in no pain, but it is just that the pain he is experiencing is not enough to cause impairment of his movements: “… the pain would be a little bit lower;”[131]
[131]TT63-65
(ww)he presently lives with his parents. He moved in with his parents very quickly after he stopped working. He agreed that he is presently on Centrelink. He said that he pays some of his parents’ utility bills. He agreed that it is a lot cheaper to live with his parents than it would be if he had to pay for his own accommodation. He acknowledged that he had received a payout on a TPD claim in the sum of about $112,000. That payment was in respect of his neck injury;[132]
[132]TT66-67
(xx)he was shown a note of his interaction with a worker at Centrelink by the name of Marie Hale.[133] He acknowledged that in the note, Ms Hale had recorded that the plaintiff was dispirited and thought that it was going to be difficult to get back into the building industry. He said that he never recalled feeling that way. It was put to him that he does not have much incentive to work if he is living at home with his parents and has had the benefit of a TPD payout. To this proposition, the plaintiff replied: “I say my [injury] is hindering my job prospects;”[134]
[133]Ex D2
[134]T67, L10-22
(yy)he agreed that he lives near Dandenong, which is a pretty big and busy commercial centre. It was suggested to him that if he wanted to, he could find some full-time work. He disagreed with this proposition;[135]
[135]TT67-68
(zz)the plaintiff was cross-examined in relation to particular suitable employment options. The first of these options was acting as a cashier at Bunnings. He agreed that he had applied to work at Bunnings in the past because he thought it would be something he would be able to do. He also thought the job would fit in with the sort of skills and knowledge he has about the building industry. When taken through the requirements of the job, the plaintiff had concerns that the cashiers stood in one place for a long time. He pointed out that he had never in the past utilised a cash register or a cordless scanner as is used in Bunnings. He did not think he would be able to engage in the crouching or bending that was required to access or tidy items under benches. It was put to him that he had been crouching into his boat on the surveillance film that was shown to him. To this, he replied: “Yeah, I had difficulty doing that … I have trouble crouching down.” It was put to the plaintiff that despite his difficulty on the surveillance film, he had been crouching in the boat for about ten minutes. In response to this proposition, the plaintiff replied that he had been sitting in the boat;[136]
[136]TT74-77
(aaa)he acknowledged that when he needs to crouch he can do it. However, he said that if he had to do it every day as part of a job, he would go “[t]erribly”. When asked what he meant by that, he replied: “… my head feels like it wants to fall off … it relates back to the neck, … it’s … pressure onto the neck;”[137]
[137]TT77-78
(bbb)he said that crouching for him is “very bad”. He said “crouching and bending gives me pain in the neck”. It was put to him again that he had been undertaking a similar movement in the boat on the surveillance film, to which he replied “I was sitting down. I wasn’t crouching in the boat;”[138]
[138]TT78-80
(ccc)when asked what the difference was with what he had been doing on the boat when he was crouching and doing it as part of a job at Bunnings, he replied: “The difference is at Bunnings you’ve got to do it all day. On a boat, I only did it for how long;”[139]
[139]TT80-81
(ddd)he was taken to a requirement in the job for squatting about once every twenty minutes. He replied that he would be unable to do this as part of a job where the requirement arose again and again throughout the day;[140]
[140]T82, L13-17
(eee)he gave similar evidence in relation to the requirement for bending at Bunnings;[141]
[141]T84, L11-15
(fff)he said that he would be prepared to give working at Bunnings a go but the particular tasks that he had pointed out would be difficult for him. It was put to him that they would “perhaps” be difficult. To this proposition, the plaintiff replied: “Not perhaps; they will be;”[142]
[142]TT85-86
(ggg)he was asked questions about working as a despatch clerk. He agreed that all the tasks that were put to him as part of cross-examination he would be able to perform;[143]
[143]TT86-90
(hhh)he agreed that it was well within his capabilities to learn how to operate a cash register at Bunnings;[144]
[144]T92, L1-5
(iii)he was asked questions about taking on a role as an estimator in construction. He agreed that he had previously taken on some estimating work in July 2014 for his previous employer. He agreed that he had ceased doing that work because there was not enough work for him. He agreed that the work he had been doing was for plaster estimation as opposed to the broad-ranging construction estimation which was a part of the proposed suitable employment about which he was then being questioned;[145]
(jjj)he agreed that he would have trouble if he had to go on building sites and inspect partially-constructed structures if he had to look up to do that. This would be a problem for his neck;[146]
(kkk)he said that it would be difficult for him to climb about unfinished structures, climb up ladders and get up scaffolds on worksites as part of being an estimator;[147]
(lll)he said the difficulty with climbing on ladders and scaffolding was caused by difficulties with neck extension, looking up;[148]
(mmm)he said that neck extension would always be a feature of climbing around an unfinished structure;[149]
(nnn)it was put to him that what the Court had seen him being able to do in the films was an accurate representation of how he is presently. To this, he replied: “It’s a representation of what I can do in a short period, but not a longer period.”[150]
[145]TT92-93
[146]T96, L24-28
[147]T96, L29-31
[148]TT97-98
[149]T98, L2-4
[150]T98, L16-27
32 Under re-examination, the plaintiff gave the following relevant evidence:
(a)he was asked what the issue was with tilting his head back to look up, to which he replied: “… my neck, it doesn’t allow me to sort of do the motion … it’s pain straight away if I try;”[151]
(b)in relation to the proposed suitable employment as a despatch clerk, the plaintiff was asked whether or not he had ever worked with computers before, to which he replied “No”. He said that the only thing he regularly did on a computer is online shopping;[152]
(c)he confirmed that if he was on a building site, he would be unable to climb about unfinished structures, ladders, scaffolding and that sort of thing on a regular basis. He also said that driving to and from building sites on a daily basis is difficult. He said the difficulty with driving would be any driving for an extended period of time. He said that the problem is “turning to view the blind spot on a regular basis which will make my neck sore”;[153]
(d)he was asked about the fact he was seen performing certain activities on the surveillance film for limited periods of time. He was asked whether or not he thought he would be able to cope performing those sorts of activities on a regular basis five days a week. He did not think he would be able to do that. He said that “to bend over and … do it twice or three times it’s different to doing it all day”;[154]
(e)he confirmed that he was presently still on medications, including Norspan patches, which last about a week; Temgesic sublingual tablets for flare ups of neck pain; Norflex, which is a muscle relaxant, and Lyrica, which is for nerve pain. He said that some of the medications have side effects, which included drowsiness and nausea. He said that when he is taking the Temgesic, the recommendation is not to operate machinery. He said he takes the Temgesic approximately once a week. He confirmed that the taking of those medications was continuing as at the date of hearing;[155]
(f)he said that there was no plan to reduce his medication in the foreseeable future;[156]
(g)he confirmed that in the past two to three years, there had been no alteration to the difficulties he experienced with his neck. He also confirmed that he continued to experience problems with his right arm and the fingers in his right hand, constituting pain in his right forearm and three fingers on his right hand being numb.[157]
[151]T104, L1-7
[152]T104, L8-24
[153]T105, L12-25
[154]TT105-106
[155]TT106-107
[156]T108, L3-6
[157]T108, L8-18
The medical evidence
33 There were numerous medical reports contained in the tendered material. Both sides filed reports from medico-legal experts. A précis of the relevant medical material as it relates to the plaintiff’s capacity for suitable employment, is set out below.
The Plaintiff’s medical evidence
34 The plaintiff relied upon a report dated 24 August 2018 from Dr Trung Ly, general practitioner. In that report it was noted that the plaintiff had been Dr Ly’s patient over several years and had consulted him as his general practitioner over this time. Dr Ly noted that the plaintiff had worked as a plasterer with the employer for many years. He noted that the plaintiff had complained of neck and right arm pain in 2013, and was subsequently shown, on an MRI scan dated 31 October 2013, to have a C6‑7 focal disc protrusion with annular tear, producing mild spinal canal stenosis with mild flattening of the anterior aspect of the spinal cord. Dr Ly noted that the plaintiff underwent surgery at the C6‑7 level with Mr Craig Timms. Following the surgery, the plaintiff continued to have symptoms, and a post-surgical MRI scan dated 15 January 2016 showed anterior cord compression at C3‑4, secondary to a shallow left lateral disc protrusion.[158]
[158]Ex P1, p30
35 Dr Ly diagnosed the plaintiff as suffering from a C6‑7 focal disc protrusion with annular tear effacing the anterior thecal sac, mildly flattening the anterior aspect of the spinal cord. In addition, Dr Ly noted that there were mild intravertebral degenerative changes at C3‑4, C4‑5 and C5‑6, but no high grade foraminal narrowing or other further canal stenosis. He also noted that in 2016, the plaintiff showed symptoms of depression. Dr Ly said that the plaintiff’s medications have included Lyrica, Panadeine Forte and Brufen. He said that for the plaintiff’s depression, a referral had been made for psychological counselling and an anti-depressant had been prescribed. Dr Ly noted that while it is difficult to categorically relate a cause to the plaintiff’s injury, it was fair to presume that his job, which involves much neck movement, and the increased usage of the plaintiff’s neck over time, posed mechanical stress on the cervical disc and predisposed the plaintiff to a disc prolapse.
36 Dr Ly noted that following the surgery performed by Mr Timms, Mr Timms stated on 27 March 2015 that, in his opinion, the plaintiff would be incapacitated with regard to his plastering duties. Dr Ly said:
“It is also my opinion that … [the plaintiff] is not expected to return to his pre‑injury duties. The barriers are ongoing neck pain post-surgery and further findings of anterior cord compression at C3/4 secondary to a shallow left lateral disc protrusion as mentioned above.”[159]
[159]Ex P1, pp30-32
37 In a report dated 7 September 2020, Dr Ly observed that over the years, the plaintiff had –
“… continued to complain of neck and right arm pain. He has found it necessary to stay on Norspan 10mg weekly patch, Lyrica 75mg bd and Buprenorphine sublingual tablets as required.
His neck pain and right arm pain has become chronic pain and has failed to significantly improve.”[160]
[160]Ex P1, pp42-43
38 A report dated 30 July 2018 was provided by Mr Craig Timms, neurosurgeon, in relation to his treatment of the plaintiff. Mr Timms noted that the plaintiff presented in his rooms on 12 December 2013, where he reported that he was working as a plasterer, lifting plasterboard in a commercial setting, when on 25 October 2013, he developed pain in his neck and down his right arm. He had pain into his right shoulder and shoulder-blade. The symptoms worsened over the next few days, and the pain spread down into his right arm. He noted that the plaintiff said that the symptoms did not improve, and he was found to have weakness and loss of reflexes. Given the symptoms, it was recommended that the plaintiff have further investigations of his cervical spine. Upon examination, Mr Timms noted that the plaintiff suffered from tenderness in his neck with decreased range of movement. Formal strength testing revealed weakness in the right upper limb of grade 4/5. Mr Timms noted decreased sensation in the right upper limb in the C6 and C7 distribution. He noted that there was decreased reflex in the triceps appreciated on the right upper limb.
39 Mr Timms recorded that the plaintiff underwent a surgical procedure at the Epworth Hospital on 17 February 2014, being a discectomy and fusion with partial vertebrectomy at the level of C6‑7. During the surgery, a large disc protrusion displacing the neural structures on the right was found and retrieved. Mr Timms reviewed the plaintiff on several occasions following the surgery, and noted that while the plaintiff felt that he had improved somewhat, he remained incapacitated, with persistent neck range of movement restrictions and symptoms down his right arm. He remained incapacitated with regard to return to work as a plasterer. Mr Timms was of the view that the plaintiff’s condition had stabilised.[161]
[161]Ex P1, pp27-28
40 A report from Dr Meena Mittal, pain physician and specialist anaesthetist, dated 12 August 2020, was included in the Plaintiff’s Court Book. Dr Mittal noted that the plaintiff had been referred by his general practitioner for further management of chronic neck pain and right upper limb pain that was in the context of a C6‑7 fusion performed in 2014. Dr Mittal ordered a repeat MRI scan of the cervical spine, which was dated 20 March 2019. Dr Mittal noted that the MRI indicated that the C6 and C7 fusion was intact. He noted that the plaintiff continues to have right C7 nerve root dysfunction, which explains his right upper limb pain. He also noted that there appeared, on the MRI, to be bilateral C4 nerve root mild compression secondary to left paracentral disc protrusion at C3‑4. There was also an element of minor impingement of bilateral C6 nerve roots as a result of disc extension at C5‑6.[162]
[162]Ex P1, p36
41 Dr Mittal noted that on 18 March 2020, the plaintiff was on Norspan, 10 milligrams weekly, sublingual buprenorphine, 0.2 milligrams once or twice a day (main side-effects included drowsiness and dizziness), and pregabalin, 75 milligrams bd. The plaintiff was referred to a pain management program, which was completed in mid-August 2020. Dr Mittal noted that the plaintiff reported that he had some benefit and learnt some strategies, particularly with regard to sleep, mood management, pacing and boom bust phenomena, as a result of that program. Dr Mittal attempted to wean the plaintiff off Norspan, but, unfortunately, the plaintiff had a significant exacerbation of pain as a result of the reduction. The plaintiff has returned to taking the 10-milligram Norspan dose.[163]
[163]Ex P1, p38
42 In Dr Mittal’s opinion, the plaintiff’s prognosis is guarded. Dr Mittal thought that the plaintiff would continue to suffer from some degree of pain well into the foreseeable future. He thought that the plaintiff continued to have refractory right C7 radicular pain, as well as chronic neck pain. In this context, Dr Mittal was of the opinion that it would be very difficult for the plaintiff to be able to maintain work in a reliable and consistent fashion. He thought that this matter required further assessment, and suggested an assessment by an occupational rehabilitation expert.[164]
[164]Ex P1, p39
43 The plaintiff was examined for medico-legal purposes by Dr Joseph Slesenger, specialist occupational physician. In a report dated 10 September 2018, Dr Slesenger noted that despite the treatment which the plaintiff had received, he had ongoing severe pain in the neck up to a level of 9 out of 10, with severe restriction to his range of movements. The plaintiff reported that the pain was aggravated by activity, cold weather, and can deteriorate spontaneously. It was said that the pain radiates into the right upper limb including the shoulder, arm, forearm and hand, and there is tingling in the middle three fingers of the right hand. The plaintiff advised Dr Slesenger that on two or three occasions a week, he is required to lie down for a few hours during the course of the day to relieve his symptoms. Dr Slesenger noted that these episodes are “usually unpredictable”.[165]
[165]Ex P1, p53
44 Dr Slesenger was satisfied that the plaintiff’s diagnosis was one of mechanical injury to the cervical spine in the form of aggravation of degenerative disease for which the plaintiff had undergone surgery in the form of an anterior cervical discectomy and fusion with partial vertebrectomy at the level of C6‑7. He noted that the plaintiff continued to suffer from chronic cervical spinal pain with right limb radiating features and evidence of radiculopathy. He was satisfied that the occupational exposure which the plaintiff had with his employer was causal with regard to his cervical spine injury. In support of this, he noted the repetitive nature of the job demands, the length of the occupational exposures, the manual handling and postural demands. He also noted in particular, the sustained neck extension and repetitive lifting tasks which were associated with the pre-injury role.[166]
[166]Ex P1, p60
45 Dr Slesenger was of the opinion that the plaintiff should avoid:
“● Over shoulder reaching.
● Sustained forward reaching.
● Repetitive neck tasks.
● Prolonged static neck postures.
● Extremes of neck rotation or flexion/extension.
● Push, pull, carry or lift over 5 kg.”[167]
[167]Ex P1, p60
46 Dr Slesenger was of the view that the plaintiff was likely to be left with –
“… residual impairment and disability that is likely to impact negatively on his long-term capacity for employment and whilst there are opportunities for further intervention, I anticipate that the opportunities, at this late stage, are limited.
I am of the opinion that … [the plaintiff] cannot return to his pre-injury duties and in support of this, I note the manual handling and postural requirements.
...
With regard to alternative duties, I note … [the plaintiff’s] age (51), his past occupational experience, his current symptoms, his functional limitations, the variable and unpredictable nature of his symptoms (and associated disability). I also note his limited computer skills and I am of the opinion that he is unlikely to be able to return to work on a consistent and reliable basis, in a role for which he has suitable training and experience.”[168]
[168]Ex P1, pp60-61
47 The plaintiff was examined for medico-legal purposes by Mr Kevin Sui, neurosurgeon, on 2 November 2018. In a report of the same date, Mr Siu noted that following the plaintiff’s surgery:
“His pain increased after a few months and it is now back 7/10.
The thing that annoys him is when he turns his head suddenly, he will suffer a stabbing pain in the neck. This can happen up to 5 times per day.
He is on heavy medication and although he gets pain relief with Lyrica it affected his memory and he could not finish a sentence. He consulted his GP and the dose of Lyrica was reduced and that means that his pain level has increased significantly.
...
I asked him about surveillance and he confirmed that he brought himself a television and he was filmed loading it into his car however he indicated that he can do that but with some difficulty and discomfort.”[169]
[169]Ex P1, pp63-64
48 Dr Siu noted that on examination, the plaintiff was unable to extend his neck, that rotation and lateral flexion caused significant discomfort, and that lateral flexion was quite limited. He noted that the other positive finding is that the right triceps jerk was significantly depressed when compared to the rest. Dr Siu said “It was barely discernible”.[170] Dr Siu noted that in the right forearm, the plaintiff appreciated the pin-prick test more on the ulnar aspect. Similarly, in the fingers of the right hand, the plaintiff appreciated the pin-prick test less in the index, middle and ring fingers, although Dr Siu noted that this suggested C6 nerve root involvement, but the definite depressed right triceps jerk suggested a C7 nerve root involvement.[171]
[170]Ex P1, p64
[171]Ex P1, p64
49 Dr Siu noted that in the result, following surgery, the plaintiff did not experience the improvement that he was hoping for, and he is now left with significant incapacity to the extent that he cannot return to work nor is likely to be able to return to work, considering that he is fifty-one years of age, has been a plasterer all of his working life, and is presently very dependent on Centrelink payments.[172] Dr Siu considered that the plaintiff had no realistic capacity for work. He thought that the plaintiff should see an occupational physician. He thought the occupational physician would be more able to predict accurately the plaintiff’s chances of returning to gainful employment. He thought, overall, that the plaintiff’s prognosis was poor.[173]
[172]Ex P1, p65
[173]Ex P1, p66
50 The plaintiff relied upon a report from Dr Roy Carey, orthopaedic surgeon, which was provided to the defendant on 12 April 2017. In that report, Dr Carey noted the plaintiff seemed to be “a pleasant, direct and stoic fellow”.[174] Dr Carey diagnosed the plaintiff as suffering from the symptoms of a cervical disc herniation which occurred in October 2013 and which was subsequently observed to be at C6‑7 on imaging. Dr Carey noted that the herniation was treated surgically on 17 February 2014, with significant but not complete improvement. He said that the plaintiff continues to have neck and right upper limb symptoms, and evidence of a continuing right C7 radiculopathy.[175] Dr Carey’s view was that the plaintiff’s prognosis –
“… is for continued discomfort into the foreseeable future. He is not likely to suffer injury/by engaging in appropriate occupational and daily living activities. The presentation is consistent with the workplace injury as described and subsequent treatment. The condition is now stable and is unlikely to change substantially ... .”[176]
[174]Ex P1, p117
[175]Ex P1, pp118-119
[176]Ex P1, p119
51 Overall, Dr Carey noted that the plaintiff was a pleasant and genuine witness to his complaints with “no evidence of embellishment”.[177]
[177]Ex P1, p121
The Defendant’s medical evidence
52 The Defendant’s Court Book contained four reports from Dr Peter Boys, consultant orthopaedic surgeon, in relation to the plaintiff’s condition. The most recent of those reports was dated 17 February 2015. In that report, Dr Boys noted that the plaintiff continued to experience –
“… basal neck pain extending into both trapezii. He relates a constant aching sensation of the right forearm. He relates persistent numbness of the right index, middle and ring fingers. He relates no recent improvement of sensory symptoms. He continues to relate some temperature hypersensitivity. He is conscious of limitation of movement of the neck.”[178]
[178]Ex D1, p42
53 Dr Boys was of the opinion that the plaintiff experienced chronic neck pain with ongoing right brachialgia and evidence of right C7 sensory radiculopathy at the time of the examination. He noted that the plaintiff had undergone a C6‑7 cervical fusion. He was of the view that the plaintiff’s employment would be considered to be contributory to his current presentation. He thought that the plaintiff could not return to pre-injury hours and duties of employment as a plasterer. He thought that the plaintiff did have a current work capacity for alternative employment, but thought that the plaintiff’s condition would preclude any consideration of a return to work in employment which required loaded overhead use of the upper limbs and any overhead duties. He thought that the plaintiff would be capable of moderately heavy employment with lifting performed at or below chest level.[179]
[179]Ex D1, p44-46
54 The plaintiff was examined for medico-legal purposes on 10 November 2015 by Dr Matthew Hope, Consultant Orthopaedic Surgeon. In a report dated 18 November 2015, Dr Hope thought that the plaintiff could not return to his pre-injury duties. He thought that the plaintiff would be suitable for full-time hours carrying out alternative duties that avoid working overhead, avoid heavy lifting and he would be suitable for a sedentary or supervisory role.[180] In a supplementary report dated 16 December 2015, Dr Hope said that in terms of alternative employment:
“The [plaintiff] has had a cervical spine fusion at a single level with some restriction in neck extension which may cause limitation with building inspection in terms of looking to elevated regions…The next role of inquiry/customer service clerk would be appropriate. The next role of stock clerk would be appropriate…The next role is sales assistant. This role has greater physical loading including stacking and handling goods and therefore would be less suitable…”[181]
[180]Ex D1, p57
[181]Ex D1, p62
55 The plaintiff was examined for medico-legal purpose by Dr David Barton, Consultant Occupational Physician on 7 December 2017 and via a telehealth consultation on 25 August 2020. Dr Barton produced three reports in relation to the plaintiff, the most recent dated 26 August 2020. In that report, Dr Barton observed:
“…When I saw the [plaintiff] previously I felt he had some residual symptoms and soft signs following neck surgery … He presented then in a reasonably straightforward manner and I felt that he really should have been able to return to some form of suitable work. Unfortunately he appears to have become somewhat entrenched in the sick role.
I note that you have included some surveillance material from November 2017 ... [which shows] that [the plaintiff] gets around and does a variety of simple physical activities without much difficulty. I acknowledge that this video is now three years old albeit his condition has not changed since then…”[182]
[182]Ex D1, pp84-85
56 Dr Barton accepted that by reason of his spinal injuries, the plaintiff would be unable to perform his pre-injury plastering work. He reviewed the vocational assessment report on which the defendant relies and thought that the plaintiff would be able to do the jobs referred to therein “on a full-time and sustained basis with sufficient motivation as a well as being allowed a brief period to physically readapt to working.”[183]
[183]Ex D1, p86
57 The plaintiff was examined for medico-legal purposes by Dr Timothy Entwisle, consultant psychiatrist. In a report dated 8 December 2017, Dr Entwisle diagnosed the plaintiff as suffering from an Adjustment Disorder with Depressed Mood of mild severity which was secondary to pain and incapacity.[184]
[184]Ex D1, p76
58 The plaintiff was examined by Professor Stephen Davis, neurologist. In a report dated 22 December 2017, Professor Davis noted that upon examination, the plaintiff was “quite pleasant and there was no evidence of any functional elaboration during the examination”.[185] Professor Davis thought that the plaintiff had –
“… developed the onset of right scapular pain which was consistent with referred pain from the cervical spine on the day in which he was performing this heavy overhead lifting and he then developed severe neck pain the following day, with brachial neuralgia in the right arm.”[186]
[185]Ex D1, p91
[186]Ex D1, p91
59 Professor Davis thought the diagnosis was a cervical disc prolapse at C6‑7, compressing the right C7 nerve root, with an absent right triceps reflex. He thought that the plaintiff had appropriately had a “discectomy and fusion by an expert neurosurgeon”.[187] He noted that the plaintiff had, at that time –
“… an absent or extremely minimal right triceps reflex, normal in the left arm and residual symptoms in the neck and right arm although substantially improved from his pre-injury status.”[188]
[187]Ex D1, p91
[188]Ex D1, p91
60 Professor Davis said that while there have been some psychological symptoms as well, he thought that this was a clear-cut “organic problem” and that the plaintiff’s recovery, which he estimates to be around 50 per cent, would be compatible with the natural history of this condition.[189]
[189]Ex D1, p91
61 The plaintiff was examined for medico-legal purposes by Dr Graeme Brazenor, neurosurgeon, on 9 November 2018. In a report of the same date, Dr Brazenor expressed the view that the plaintiff had suffered a –
“… de novo right-sided disc protrusion at C6/7 in the course of his plasterer duties on 25 October 2013.”[190]
[190]Ex D1, p108
62 Dr Brazenor was of the view that the injury had “been successfully treated by surgery”.[191] On this basis, Dr Brazenor expressed the view that the plaintiff could “now ... have at most only mild residual neck discomfort from time to time, if he has any at all”.[192] He thought that the plaintiff would never again do heavy bending and lifting, any job involving a persistent chin dropped position such as a production line or at a bench looking down. Similarly, Dr Brazenor expressed reservations about the plaintiff’s ability to drive, because of the necessity for full neck rotation for safety reasons.[193]
[191]Ex D1, p108
[192]Ex D1, p108
[193]Ex D1, p110
63 Dr Brazenor said:
“So far as employment I believe that … [the plaintiff] is fit for full-time employment to normal retiring age ... however ... I think there are very few occupations that … [the plaintiff] could do. I have noted the suggested suitable employment options in the vocational assessment report dated 20 February 2018 ... and I believe that … [the plaintiff] could do all of those full-time until normal retiring age, with the possible exception of order clerk and dispatch clerk, as his neck will not permit him to do picking and packing. Neither will it permit him to return to work as plasterer or mechanic.”[194]
[194]Ex D1, p108
Expert evidence in relation to suitable employment
64 The defendant relied upon a vocational assessment report dated 20 February 2018 from Recovre. In that report, the assessors relied upon the reports of Dr Timothy Entwisle, dated 8 December 2017, Dr David Barton, dated 11 December 2017 and Professor Stephen Davis, dated 22 December 2017. The assessors did not make any reference to any of the plaintiff’s medical reports concerning current work potential.[195] Based on that report, the defendant submitted that the plaintiff had the capacity to engage in the following roles:
[195]Ex D1, p151
(a) security officer - gatehouse control;
(b) order clerk;
(c) cashier;
(d) despatch clerk; and
(e) estimator.[196]
[196]Ex D1, p52
65 The role of security officer - gatehouse control required a worker to have completed Certificates II and III in Security Operations. The tasks described in the vocational assessment report included lengthy periods of standing, with some option to sit for “at least brief periods … if required”.[197] Walking is required “frequently” across the workday to and from vehicles that are entering or exiting the site. It was said that workers also walk in the vicinity of 2 kilometres per patrol period on each shift. It was noted that basic computer skills, including email management and simple data entry into predetermined data fields or predesigned Excel spreadsheets, is required.[198] The relevant wage was said to be approximately $21.15 per hour, or $803.80 per week.[199]
[197]Ex D1, pp161-162
[198]Ex D1, pp162-163
[199]Ex D1, p154
66 In relation to customer service/order clerk, it was noted that sitting is typical for the task, though standing to greet customers is “feasible”.[200] The report said that workers spend –
“… the bulk of their work day completing data entry type tasks alongside customer service activities. Workers monitor email traffic and respond accordingly as well as ordering related data entry using in-house databases and systems.”[201]
[200]Ex D1, p165
[201]Ex D1, p166
67 It was noted that some incidental bending may arise when retrieving items under a workbench.[202] It was noted that workers must have –
“… excellent customer service skills, a friendly disposition and ability to guide customers to make appropriate choices. Workers must have basic computer skills including mouse use, elementary keyboard skills, basic email management and basic data entry skills, or an aptitude to learn these with on the job training.”[203]
[202]Ex D1, p167
[203]Ex D1, p168
68 The wage for customer service/order clerk was said to be $23.89 per hour, or $907.82 per week.[204]
[204]Ex D1, p164
69 In relation to a title of cashier, it was noted that duties are performed in a standing position. It was said that a “perching stool can be added to the work area in the event that a worker has physical requirements for brief postural breaks”.[205] Crouching and bending is required as part of the job and arise approximately once per twenty minutes during a typical work day. Squatting and kneeling are also required as part of the typical duties of the job.[206] In addition, forward reaching is required throughout the workday when demonstrating products and passing goods to customers.[207] The wage was said to be $23.12 per hour, or $878.65 per week.[208]
[205]Ex D1, p170
[206]Ex D1, p172
[207]Ex D1, p173
[208]Ex D1, p169
70 In relation to the duties of despatch clerk, it was noted that computer-based tasks occupy 90 per cent of the workday and the work is typically completed while seated. Mouse clicking is used “extensively”.[209] Some bending is required in order to access folders of documents throughout the day.[210] It was noted that some bending may be required as part of the usual workday.[211] The base wage was said to be $27.83 per hour, or $1,057.69 per week.[212]
[209]Ex D1, p176
[210]Ex D1, p177
[211]Ex D1, p179
[212]Ex D1, p174
71 In relation to the role of estimator (construction), it was noted that standing and walking was frequently required when making site visits and it may also be necessary to climb about unfinished structures on ladders or scaffold. It was noted that sitting is frequently required at an office desk or computer workstation to enter data, complete calculations or reports. It was noted that bending, crouching, squatting, crouching or kneeling may be necessary. It was noted that repetitive movements are frequent for data access and report writing via the use of a computer. It was noted that a vehicle would need to be driven between worksite visits. It was noted that the mental skills necessary include evaluation, calculation and organisational skills.[213] The wage was said to be $42.37 per hour, or $1,610 per week.[214]
[213]Ex D1, p180
[214]Ex D1, p181
72 It was acknowledged by Senior Counsel for the plaintiff that if the Court concluded that the plaintiff had the capacity to perform any of these roles on a full-time basis, then the plaintiff could not succeed in his application in respect of loss of earnings.[215]
[215]T111, L1-5
73 The plaintiff relied upon a report from Dr James Rowe, specialist occupational physician, dated 9 September 2020. Dr Rowe noted that he was unable to physically examine the plaintiff, as his consultation was conducted via Telehealth. Notwithstanding this, Dr Rowe said that the information which he obtained from the plaintiff during the Telehealth consultation, together with the medical reports and radiology which were forwarded for his review, had been enough to provide him with the information he needed to prepare a report which he believed was satisfactory.[216]
[216]Ex P1, p109
74 Dr Rowe thought that the plaintiff would have permanent restrictions in relation to the use of his neck and right arm/shoulder, including activities involving lifting and carrying, forward reaching, repetitive or forceful use of the right arm, use of the right arm above shoulder height, use of tools or equipment requiring strong grip in the right hand, prolonged sitting, standing or walking, repetitive or sudden head movements, particularly to the right side, and prolonged driving or operating heavy equipment. In light of these restrictions, Dr Rowe was of the opinion that the plaintiff would be unable to perform his pre-injury duties in a safe, reliable and consistent manner without risk to himself or others.[217]
[217]Ex P1, p110
75 Dr Rowe was asked to comment on the vocational assessment reports that had been provided in relation to the plaintiff and, in particular, to consider the description of the positions identified as possible options for a return to work for the plaintiff. Dr Rowe was of the view that the plaintiff could not transition to any of the suggested positions successfully, in light of the many and severe restrictions on his activities that would need to be accommodated. He continued:
“… [The plaintiff] is aged 53 years. He has worked as a plasterer for his entire working life and has no experience in an office based or sedentary environment. He cannot use his dominant arm or hand in a repetitive or forceful manner and is not fit for any job that is physical in nature.
The Vocational Assessments are adequate as a generic guide to duties required, but there are inherent dangers in applying a job description to a particular workplace and expecting that it will be a perfect fit.
I do understand that it is possible to identify particular tasks within any job description and suggest that an individual is able to perform them. However there is much more to regular employment than the performance of one or two tasks within the duty statement.
An employee must be able to get to work on a consistent, reliable and permanent basis and to perform all aspects of their job without risk to themselves or others and be able to cope with unexpected occurrences with a high degree of reliability. To put them in a situation where that may not be the case, is unfair and potentially dangerous not only to themselves but to any potential employer.
In my opinion none of the identified positions are a realistic option for … [the plaintiff]. I am of the view that he is totally and permanently incapacitated for employment and this is likely to be a permanent situation. Even the least physically demanding o[f] them … involves long periods of standing which he certainly could not manage.
…
I do not proffer that … [the plaintiff] has any realistic capacity for employment whether on a full-time or part-time basis. Treatment has not been successful or helpful in restoring him to any level of capacity that would lead to employment, either full or part-time .”[218]
[218]Ex P1, p111
The issues
The Plaintiff’s credit
76 As has been set out above, the plaintiff was challenged in relation to the consequences of his injuries, the manner in which those consequences affect his day-to-day activities and by extrapolation, his ability to obtain suitable employment.
77 For instance as has been set out above, the plaintiff was taken to numerous videoclips of his daily activities, including walking around for lengthy periods of time, reaching above shoulder height to inspect items at the Victoria Market, purchasing and loading a television into his car and unloading the same item at the other end of the trip, going fishing with his father and working on his boat.[219] In addition, it was suggested to the plaintiff that he has no motivation to seek work, since he presently lives with his parents and in approximately 2016, had received a TPD payment in the order of $112,000 in respect of his injuries.
[219]I note that the defendant admitted that a total of 132.5 hours of surveillance was taken of the plaintiff over nine days between 21 November 2017 and 26 May 2020, with a total of 2 hours and 57 minutes of video footage being obtained during that time (T109, L20-24). Approximately 1.5 hours of video footage was played to the Court (T110, L3-14)
78 In respect of each of these matters, the plaintiff gave cogent and consistent explanations. He agreed that he was able to purchase the television on the day in question and load it into his car, but said that he did those things “with difficulty”. He said he had difficulty unloading the car at the other end. He said that the purchase of the television was spontaneous, and that engaging in this activity had brought on a “flare up” of his pain. No evidence was led by the defendant to suggest that the plaintiff was not telling the truth about this issue. I accept the plaintiff’s evidence in relation to this matter.
79 As to his ability to go fishing, the plaintiff conceded that he was able to reach above his head in order to roll up an awning on the boat but said that he did this as “quickly as possible” in order to minimise his discomfort. He was challenged on the length of time that he was out on the water in the boat. The plaintiff pointed out that when he suffers discomfort while fishing, he goes and lies down on a bed which he has had installed in his boat. He was challenged about his ability to perform maintenance work on the boat. He denied that he was squatting, kneeling or bending while carrying out this work and said that he was in fact sitting. He said that there was plenty of room in the boat to undertake that activity. Once again, no evidence was led that demonstrated that the explanations which the plaintiff gave were incorrect. I accept the plaintiff’s evidence in relation to this matter.
80 As to the suggestion that by reason of his personal circumstances, including the receipt of a TPD payment in 2016, the plaintiff is not motivated to obtain alternative employment, I note that the plaintiff has attempted to retrain through study and has applied for numerous jobs. The plaintiff rejected this suggestion made under cross-examination. I accept the plaintiff’s evidence in relation to this matter.
81 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an honest and co-operative witness who was doing his best at all times to give accurate responses to the questions asked of him. During cross-examination, the plaintiff gave his evidence openly and without embellishment. He made concessions when necessary, many of which were adverse to his own interests.
82 Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
83 After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the medical records, I consider that he is a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or to exaggerate his symptoms in any way.
Stoic Plaintiff
84 I also formed the view that the plaintiff is extremely stoic in relation to his condition. Despite great difficulty, the plaintiff has applied for many jobs and attempted to retrain in the form of obtaining a Certificate IV in Building and Construction. He said that he did this course because he was hopeful that his condition would improve enough to allow him to return to work, but that this had never happened.
85 I note that in his evidence, the plaintiff said, in relation to a number of the roles proposed by the defendant, that he would be prepared to “give it a go”, particularly in relation to a role as a cashier at Bunnings. However, upon a closer analysis, the evidence demonstrated that many of the tasks which that role involved, were in fact unsuitable for the plaintiff. Despite this, he continued to maintain that he would be prepared to try such a job. He qualified his answers by saying that he was not sure how he would go performing those tasks on a day-to-day basis. Nevertheless, I formed the view that this evidence was further evidence of the plaintiff’s persistent stoicism in relation to his injuries.
Compensable injury
86 Having considered all of the evidence in this matter, I am satisfied to the requisite standard that as a result of his employment with the employer, the plaintiff suffered an injury at the C6-7 level of his cervical spine in the form of a large disc protrusion displacing the neural structures on the right, which was surgically treated with a discectomy and fusion with partial vertebrectomy at the level of C6-7.
Is the compensable injury permanent for the purposes of the Act?
87 On the basis of the evidence of Mr Timms,[220] Dr Mittal,[221] Dr Ly,[222] Dr Slesenger,[223] Mr Sui[224] and Dr Rowe,[225] I am satisfied to the requisite standard that the plaintiff’s injury is likely to last for the foreseeable future and is therefore permanent for the purposes of the Act.
[220]Ex P1, p29
[221]Ex P1, p39
[222]Ex P1, 42
[223]Ex P1, p61
[224]Ex P1, p66
[225]Ex P1, p111
Is the Plaintiff capable of engaging in suitable employment?
88 In assessing whether the plaintiff is fit to engage in the roles proffered by the defendant as constituting “suitable employment”, I have had regard to the judgment of the Court of Appeal in Richter v Driscoll.[226] In that case, the Court held that in assessing whether a plaintiff is fit to engage in “suitable employment,” the Court is –
“… required to consider whether the entirety of the [plaintiff’s] relevant personal circumstances—that is, her injury-caused incapacity and other relevant personal circumstances … meant that she would likely be unsuccessful in obtaining employment because she had nothing ‘merchantable’ to sell. The entirety of the worker’s relevant personal circumstances, in a case such as the present, would readily be understood to have a compounding effect.”
[226][2016] VSCA 142 at paragraph [106] (citing Cardiff Corporation v Hall [1911] 1 KB 1009, at 1020 and 1027)
89 I note that many of the reports relied upon by the defendant are not relevant to the plaintiff’s current presentation, being a number of years old. In addition, to the extent that each of the experts on whom the defendant relies has opined that the plaintiff has a capacity for some suitable employment, none considered whether, by reason of his personal circumstances, the plaintiff would be able to engage in such employment on a consistent and reliable basis.
90 For that reason, I prefer the opinion of Dr Rowe, which is dated 9 September 2020 and squarely grapples with the matters outline in Richter, viz:
“… it is possible to identify particular tasks within any job description and suggest that an individual is able to perform them. However there is much more to regular employment than the performance of one or two tasks within the duty statement.
An employee must be able to get to work on a consistent, reliable and permanent basis and to perform all aspects of their job without risk to themselves or others and be able to cope with unexpected occurrences with a high degree of reliability. To put them in a situation where that may not be the case, is unfair and potentially dangerous not only to themselves but to any potential employer.
In my opinion none of the identified positions are a realistic option for … [the plaintiff] … Even the least physically demanding o[f] them … involves long periods of standing which he certainly could not manage.
… Treatment has not been successful or helpful in restoring him to any level of capacity that would lead to employment, either full or part-time.”
91 Further, the totality of the evidence satisfies me, and I find, that the plaintiff has difficulty with prolonged standing, prolonged sitting, bending, squatting and crouching, neck extension and driving. In addition, the use of a computer aggravates his pain and he has difficulty writing for too long. When he makes a sudden movement with his neck, he experiences very strong, stabbing pain. As set out above, each one of the roles proffered by the defendant involves (or may involve) one or more of these activities.
92 In addition, the evidence satisfies me, and I find, that the plaintiff has regularly interrupted sleep and takes some medication, which causes drowsiness. As a result, the plaintiff awakes fatigued and often falls asleep when he is resting during the day due to his pain. The pain he experiences affects his motivation. The only time that the pressure in his neck is fully alleviated, is when the plaintiff lies down. He struggles to get out of bed before 12 noon. Given this, I am satisfied that by reason of his personal circumstances, particularly the restrictions which the plaintiff suffers because of his pain, he is not presently “merchantable” as a prospective employee.
93 Taking into account each of the matters set out above, the weight of the evidence satisfies me that the consequences of the injury to the plaintiff’s spine have resulted in the plaintiff being unfit for both his pre-injury duties, as well for any of the roles proffered by the defendant as constituting “suitable employment”.
94 I am also required to consider issues of retraining and rehabilitation pursuant to s134AB(38)(g) of the Act.
95 In light of my findings as to the plaintiff’s impairment and his present incapacity for employment, and taking into account the evidence of the outcome of the retraining attempts that have already been undertaken by him, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the fact 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) of the Act.
96 In light of the foregoing, I am satisfied that the consequences of the injury to the plaintiff’s spine in the incident, are “serious” for the purposes of the Act.
Conclusion
97 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity in respect of an injury to his spine that he suffered as a result of the incident on 25 October 2013.
98 I shall hear the parties on the question of costs.
- - -
0
7
0