Benes v Visy Board Proprietary Limited and VWA
[2011] VCC 1180
•9 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01634
| TREVOR BENES | Plaintiff |
| v | |
| VISY BOARD PROPRIETARY LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 and 28 July 2011 |
| DATE OF JUDGMENT: | 9 August 2011 |
| CASE MAY BE CITED AS: | Benes v Visy Board Proprietary Limited & VWA |
| MEDIUM NEUTRAL CITATION: | [2011]VCC 1180 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC and | Maurice Blackburn |
| Mr D Purcell | ||
| For the Defendants | Mr R Gorton QC and | Thomsons Lawyers |
| Ms K Gladman | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant from approximately late 2006 until May 2007 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. Professor Teddy was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of s.134AB
(i) 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;
(ii) The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (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, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”;
(v) 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;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is presently aged thirty eight, having been born on 30 November 1972. He is married with two children aged ten and eleven. His wife works full time.
7 The plaintiff left school having failed Year 12. He then had a number of jobs working in a factory, a sand and supply business then as an unqualified bricklayer, both as an employee and in a self-employed capacity.
8 The plaintiff commenced casual employment with the first defendant in 2001. In January 2005, the plaintiff was made a full time permanent employee as a plant machinery operator. He worked a thirty five hour week and some overtime and earned about $50,000 gross per annum.
9 The plaintiff’s job with the first defendant involved working at its recycling depot at Springvale. The plaintiff was required to drive a frontend loader (“the machine”) to put rubbish into piles and load the rubbish onto a conveyor belt.
10 In late 2006, the plaintiff started having some back pain. His job involved driving the machine with solid rubber tyres over uneven ground. In late 2006, there was a problem when the seat on the machine broke. As a result, the plaintiff effectively had to operate the machine without any suspension.
11 As the machine was faulty, the plaintiff was subjected to a lot of jolting and jarring and complained in relation to the first defendant in this regard but no action was taken.
12 Eventually, by late May 2007, it reached the stage where the plaintiff had severe back pain as a result of these work activities. He submitted a WorkCover claim, which was accepted.
13 The plaintiff initially had two days off work and then returned to work on light duties and restricted hours.
14 The plaintiff attended his general practitioner Dr Gorovy. On 15 June 2007, the plaintiff underwent a CT scan of his back. Thereafter, Dr Gorovy referred him for physiotherapy with Mr Hampson.
15 Dr Gorovy certified the plaintiff as fit to perform light duties at a maximum of four hours a day. Whilst working, the plaintiff had flare ups of his pain from time to time. After working four hours a day with the first defendant, the plaintiff was in a lot of pain. He was exhausted when he arrived home and had to lie down or sit on the recliner.
16 In late June 2007, the plaintiff was referred to Dr Gassin, musculoskeletal physician, whom he saw on several occasions.
17 By late 2007, the plaintiff was taking Tramal to manage his pain. He was also taking Mobic, Nurofen and Panadol. He went off Tramal because it stopped working and then he recommenced taking it.
18 In cross examination, the plaintiff confirmed that on his return to work he had difficulty with his duties and “only on paper” he was working full time. For a few brief weeks he was paid for full time hours.
19 The plaintiff agreed later on in the return to work he was put on the sort line but there was some problem in him being provided with a chair.
20 On 7 June 2008, the plaintiff had a series of L3-L5 medial branch blocks performed by Dr Gassin which were repeated on 25 July 2008. The plaintiff did not gain any real improvement from these procedures. He returned to see Dr Gassin in August 2008, when he was advised there was nothing more that Dr Gassin could do for him.
21 Around that time the plaintiff decided to cease work. He was struggling with his back pain and work was making the situation worse.
22 In cross examination it was suggested to the plaintiff that he left work because of difficulties with the first defendant and its failure to provide suitable duties for him and assist him in his return to work. The plaintiff, whilst acknowledging that there were some problems in his relationship with the first defendant, ceased work because he could no longer physically cope with his duties.
23 The plaintiff said “yes and no” to a question that relations with the first defendant were why he stopped working. He would not have kept working if he was treated better.
24 The plaintiff’s employment was terminated in April 2009 as he was unable to perform his pre injury duties.
25 Around the time the plaintiff ceased work, the second defendant decided to cut off all treatment. The plaintiff was referred for a pain management program with Dr Tavener, which he did not undertake because the second defendant would not provide funding.
26 The plaintiff attended a Medical Panel and had his weekly payments and medical expenses reinstated, although he had trouble getting the second defendant to pay for medical treatment.
27 When he swore his first affidavit in October 2009, the plaintiff was receiving weekly payments of $475 a week and had been advised that those payments would cease in December of that year.
28 Save for a short time on Newstart payments following the termination of weekly payments, the plaintiff has not had an entitlement to any DSS benefits because of the level of his wife’s earnings.
29 Since that time the plaintiff has applied for other jobs, such as a delivery driver or sales assistant which were jobs he knew he probably could not do. He was unsuccessful in these job applications but would have tried working if he had obtained the jobs applied for.
30 The plaintiff last applied for a job in mid 2010. In cross examination he explained that there was no change in his condition at that time. He had concluded he would not apply for work because he could not do the jobs he was applying for. He is still looking for work but does not think there is any work suitable for him.
31 Dr Gorovy referred the plaintiff to Mr Williamson, orthopaedic surgeon, in early 2010. Dr Weston took over the plaintiff’s care from Dr Gorovy in May 2010 when Dr Gorovy retired. The plaintiff currently receives total incapacity certificates from Dr Weston.
32 Dr Weston referred the plaintiff to neurosurgeon, Mr Drnda, whom the plaintiff saw on one occasion on 1 November 2010. He advised the plaintiff that the pain he was experiencing in his back and down his legs was caused by disc damage in his back. Also, Mr Drnda told the plaintiff that surgery would not help and he should continue with conservative treatment; advice also given by Mr Williamson.
33 The plaintiff attended the Frankston Rehabilitation Community Centre until about April 2011. The second defendant has notified the plaintiff they will not pay for physiotherapy, hydrotherapy or the assistance of a dietician to help him lose weight.
Current Situation
34 Since he has stopped work, the plaintiff’s back pain is a bit better than when he was working on light duties. When the plaintiff’s pain is bad, he is in agony and he becomes very frustrated. He experiences pain every day which occurs for a few minutes to all day. He has to lie down from ten minutes to an hour every day and take medication.
35 The plaintiff continues to experience symptoms of severe pain and restricted back movement and is never free of back pain since suffering injury at work. There is always a level of back pain, the severity of which fluctuates and is made worse by activity.
36 Frequently the plaintiff has acute flare-ups of back pain which happen suddenly and for no readily apparent reason. Therefore he is guarded in his back movements and as much as possible, the plaintiff avoids sudden or excessive movements of his back.
37 The plaintiff has pain in both legs, worse in the left than the right, and going from the buttock into the whole of the left leg. He has episodes of pins and needles in both feet, worse in the left than the right. Also, if he sits or stands for too long or walks too far, his pain worsens. He struggles to predict and to control his back and leg symptoms.
38 Standing in one spot often increases the plaintiff’s pain which means that activities such as washing the dishes are difficult and in general, the plaintiff needs to change his posture. He can probably sit in the one spot longer than he can stand. He has a recliner chair at home which he finds is best for his back.
39 The plaintiff’s tolerance of sitting depends on what he is sitting on. He has limited tolerance sitting on a chair, such as a computer chair, but can sit for longer on his recliner chair. He can stand for fifteen minutes to an hour but it is worse if he is in the one spot.
40 The plaintiff tries to remain as active as possible but is limited in his activities because of his low back pain and leg symptoms. He finds it very difficult to cope with acute flare-ups of low back pain when they occur and the unpredictable persisting symptoms he experiences in both legs.
Medication
41 The plaintiff uses medication for pain control. He takes six to eight Panadeine Forte a day. He has tried to cope without medication but when he did, his symptoms became much worse.
42 Some time ago the plaintiff was prescribed Endone but resisted using it because he was worried about becoming addicted. Recently Dr Weston has again prescribed Endone because Panadeine Forte has not provided relief and the plaintiff has taken it on several occasions.
Mental State
43 The plaintiff remains depressed. His mood and behaviour can be unpredictable and frequently he becomes easily upset, agitated and angry. The ongoing problems he experiences with his back and legs and his inability to work really get him down and at times the plaintiff has resorted to drinking home brewed beer as a form of pain relief.
44 Drinking to excess was more of a problem in the early days after injury and the plaintiff then cut back his intake. However of more recent times, his consumption level has increased.
45 The plaintiff has been treated for depression and is currently under the care of a psychologist Dr Papasava to whom he was referred by his general practitioner. Since mid 2010, the plaintiff has continued to see Dr Papasava regularly every two to three weeks.
46 The plaintiff has not been told that his mental state affects the amount of pain that he experiences. He has been prescribed medication in relation to his depression by his general practitioner.
Activities
47 Before his injury, the plaintiff had a happy family life, was in a stable job with hours that suited him and he planned to continue working. Since injuring his back, all of the plaintiff’s plans have been destroyed.
48 As a result of his injuries, the plaintiff’s relationship with his wife and children has suffered and been placed under great strain, with ongoing tensions between them for a long time. The plaintiff’s wife has frequently slept on the couch because the plaintiff’s sleep is disturbed by pain and he struggles to get a good night’s rest. He is frequently awoken by pain and cramp like sensations in both legs, especially the left.
49 Since his injury, the plaintiff has lost a lot of physical fitness and initially put on a lot of weight. In cross examination, he denied his weight has an effect on his level of symptoms.
50 The plaintiff bought a bike to ride for exercise and also tried to be active with his children. Riding a bike is easier than going for a walk. It is something he can put up with but his back feels tight after he has ridden and riding can be very painful and make his back sore.
51 Before his injury, the plaintiff enjoyed attending music concerts. He has friends who play in bands. He no longer attends concerts as often because of the problems he has standing for extended periods of time.
52 The plaintiff still drives a car but finds driving difficult at times. He becomes sore and stiff when driving but he can bear it.
53 Before his injury, the plaintiff enjoyed four-wheel driving and went camping and fishing. Since then he has given up four-wheel driving and fishing. He has tried camping since the injury but it was just too painful.
54 The plaintiff enjoyed gardening prior to suffering injury and he still has a few vegetables and strawberries. He potters around the garden but finds he can only do a little bit at a time and he now pays for someone to mow the lawns.
55 Before suffering injury, the plaintiff enjoyed playing social golf and doing car repairs but he has now given up those hobbies.
Housework
56 As the plaintiff is not working at present he tries to help his wife by doing some housework. However, he often gets an increase in pain if he does activities such as vacuuming. The plaintiff does general cooking, most of the cleaning and a little bit of gardening. He also does most of the clothes washing.
57 In cross examination, the plaintiff agreed he was presently a “house husband” looking after his children aged ten and eleven. He denied he spent eight to ten hours a day engaging in household tasks. During the three and a half to four hours a day he spent on housework, the plaintiff broke up his day and sat down between activities.
Work in the Future
58 The plaintiff has not returned to work and is unable to do so because of persisting problems with his back and legs. He also suffers from depression, mood swings and anxiety.
59 The plaintiff has basically only ever done manual work. He has no other qualifications and has not done office work. He does not see himself as fit to do a job that would require sitting or standing for too long or heavy lifting. He would like to be at work and finds it frustrating not being able to work.
60 Ayres Management looked for work for the plaintiffs over a few months but could not find him a job. At the end of 2010 at Ayres management’s suggestion, the plaintiff did a very basic short introductory computer course funded by the second defendant but he did not learn very much about computers.
61 The plaintiff was advised by Ayres Management that when he went for an interview, he should not mention his back injury.
62 Whilst the plaintiff was on Newstart, a work placement agency had been involved in his management and it also could not find him a suitable job.
63 The plaintiff is upset he has lost his role as the breadwinner. His inability to work has placed a great deal of financial stress on him and his wife. Prior to the plaintiff’s injury both he and his wife worked full time shift work and could fit in their work duties with looking after the children and the household.
64 Prior to injury, the plaintiff and his wife had put a deposit on a block of land. Since then they have not gone ahead with their plans to build. They are now renting and have had to borrow money from family and friends to pay the rent and bills, such as car registration.
65 If he was capable, the plaintiff would like to be working. Arrangements could be made in terms of looking after the children and the housework, as was the case before the plaintiff was injured.
66 The plaintiff is depressed because he is unable to provide as a man and he has just stopped applying for jobs he thought he could not do. He had been applying for jobs because he was advised by his doctor and his wife to keep working and he was hoping to find work.
The Suggested Jobs
67 In cross examination, the plaintiff was asked about his ability to undertake the three jobs suggested by Recovre of plate room operator, a product picker and a light product assembly role in a small manufacturing company.
68 The plaintiff agreed that he would be able to do various tasks involved in these jobs and that if offered such employment he would attempt same but he did not know whether he could cope with the duties involved.
69 In terms of working as a plate room operator, the plaintiff would have to see where he was sitting whilst working. He agreed overhead reaching was not a problem but he could not reach out in front of him and pick up things, even if they were light, on a repetitive basis. His ability to lift depended on the weight involved and whether he had to bend to reach it. He could probably move around three kilogram plastic tubs but would have problems picking them up from the floor.
70 In re-examination, the plaintiff said he could not do a job like that for eight hours sitting, assuming he had to turn up day after day. Even if he could sit and stand, he would have to lie down during the day and he would be too sore from the previous day’s work.
71 The plaintiff thought he could maybe do the product picker job if he could sit and stand and move around. He could do a job without heavy lifting and repeated bending.
72 The plaintiff agreed that the job of light product assembler would be suitable for him if he could sit and stand. He would not have difficulty pressing the items involved in that job but he did not know if he could do the duties all day.
Summary of Earnings
Financial Year Gross Earnings 2005 $44,726.00
2006 $46,660.00
2007 $ 48,070.00
2008 $ 35,270.00
2009 $ 32,515.00
2010 $ 12,971.00
*August 2008 ceased work
Compensation Documents
73 By letter dated 7 April 2009, the second defendant advised the plaintiff’s solicitors that the plaintiff’s claim pursuant to s.98C was accepted in relation to his lower back injury and psychological condition.
Plaintiff’s Medical Evidence
74 Dr Gorovy first saw the plaintiff on 15 June 2007. The plaintiff then complained of several months’ history of low back pain radiating to the left lateroposterior thigh, especially after prolonged standing.
75 Dr Gorovy reported in September 2008 that the plaintiff’s pain had fluctuated over time with periods of some improvement and then worsening. He also reported that the plaintiff could not tolerate analgesics because of the drowsiness.
76 Dr Gorovy considered that the plaintiff had difficulty performing modified duties as a sorter because he still needed to bend over and pass a bucket. The plaintiff apparently did not have an office chair provided for him for periods of sitting. The plaintiff had tried to return to some driving, but it aggravated his pain.
77 Dr Gorovy noted that the medial branch block did not help the plaintiff.
78 In Dr Gorovy’s view, the plaintiff had been under a considerable amount of stress and subsequently developed anxiety and depression, noting he was referred for psychological treatment.
79 As at the time of his report, Dr Gorovy thought the plaintiff seemed to have difficulties with any duties he tried to perform as well as any household duties and he noted the plaintiff had been recently referred to a pain management specialist for a second opinion.
80 Dr Gorovy then thought that the plaintiff may benefit from ongoing physiotherapy, psychological therapy and perhaps from a neurosurgical opinion.
81 Dr Haddad provided a report dated 15 June 2010, based on the clinical notes of Dr Gorovy who no longer practised at the Beach Street Family Medicine Clinic.
82 Dr Haddad reported that during the plaintiff’s time as a patient, he had
83 In Dr Haddad’s opinion, and based on the notes from the first consultation on 14 June 2005, he believed there was a strong connection between the plaintiff’s employment and the injury. He thought it appeared the plaintiff was then not fit for his pre-injury duties. He was not able to comment further on the plaintiff’s future capacity to work, whether it be light modified or pre-injury duties.
84 The plaintiff was referred to Dr Gassin, musculoskeletal physician, by Dr Gorovy for management of his persistent low back pain, seeing him eighteen times between 26 June 2007 and 12 August 2008.
85 At the time of the initial appointment, Dr Gassin recommended the plaintiff remain on modified duties, with no lifting over five kilograms, no repetitive bending or twisting movements, avoidance of vibrations and jarring movements and no sitting for more than thirty minutes at a time.
86 On 7 August 2007, the plaintiff reported there had been a significant improvement. He was coping well working four days weekly on alternative duties with a lifting restriction of five kilograms. Dr Gassin then recommended the plaintiff gradually increase his work duties and gradually return to his pre- injury duties over the following weeks.
87 Over the following months the plaintiff reported low back pain which varied in intensity, requiring some time off work and the introduction of Tramadol on 27 November.
88 On 22 January 2008, Dr Gassin requested liability be accepted for bilateral L3-L5 medial branch blocks to determine whether the plaintiff’s pain was arising from the L4-5 or L5-S1 facet joints.
89 On 13 May 2008, the plaintiff reported his pain was again increasing. He was working full time doing sorting which involved a lot of leaning forward and he told Dr Gassin he was experiencing difficulty coping with work.
90 Dr Gassin reported that the L3 to L5 medial branch blocks performed on 27 June and 25 July 2008 were negative, suggesting the plaintiff’s pain was not arising from the low lumbar facet joints.
91 At the time of examination on 12 August 2008, the plaintiff was working part time on modified duties and had discontinued all medication. He was finding the driving duties asked of him very painful.
92 Dr Gassin encouraged the plaintiff to remain at work and provided a certificate suggesting he have a ten minute break every hour while doing driving. Dr Gassin also encouraged the plaintiff to reconsider his work options. He thought the plaintiff’s symptoms were most likely discogenic in origin. He considered the onset of pain radiating down the left leg suggested the possibility of a radicular component to the plaintiff’s pain.
93 Dr Gassin thought the plaintiff’s pain had almost certainly resulted from the repetitive jarring movements caused from the broken seat. He therefore considered the plaintiff’s employment a significant contributing factor to his injury. He considered an exacerbation of pain the plaintiff suffered earlier in 2008 to be an exacerbation in his condition rather than a recurrence of pain or a new injury.
94 In Dr Gassin’s view, the plaintiff did not have a capacity for his pre-injury duties; however, he thought the plaintiff was fit for work of a non-physically demanding nature. Dr Gassin considered the plaintiff had a permanent partial incapacity for work and recommended he persevere with gym-based exercises under the supervision of a physiotherapist. He also suggested support with household duties and gardening duties would help maximise the plaintiff’s productivity at work.
95 Mr Hampson, physiotherapist, saw the plaintiff in June 2007 with central low back pain.
96 In his report dated August 2008, Mr Hampson advised that from the described mechanism of injury, the injury was directly related to the plaintiff’s work duties and that his ongoing work duties had continued to exacerbate his injury with the lack of a suitable chair to rest.
97 Mr Hampson noted a return to work plan had not been forthcoming and that there had not been a meaningful dialogue between the rehabilitation provider and the plaintiff’s doctors in regard to a safe return to work, taking into account the plaintiff’s injury.
98 Mr Hampson noted the plaintiff’s injury had continued to be aggravated by excessive standing and a return to working on the loader which caused his injury in the first place.
99 Dr Nayagam saw the plaintiff on referral from Dr Gorovy in April 2010.
100 By letter dated 23 April 2010, Dr Nayagam advised Dr Gorovy that the plaintiff had a well documented disc prolapse but he really needed an updated MRI scan. Dr Nayagam suggested the plaintiff be trialled on Lyrica as well as Panadol Osteo in place of his current medication and he also sent the plaintiff for further tests.
101 Dr Nayagam thought the MRI scan showed distinct lesions at L4-5 and L5-S1 with significant disc protrusion impinging on the nerve roots, especially on the left side, which he considered was really the cause of the plaintiff’s current symptoms.
102 Dr Nayagam noted the plaintiff was unable to sit for any long period as a result of this and in reality what now was required was another neurological opinion. Dr Nayagam took the liberty of referring the plaintiff to Mr Danks.
103 At that stage, Dr Nayagam agreed with Dr Weston that the plaintiff was not able to work in any occupation or aspect at that stage until this was resolved, as he was in significant pain with any sort of activity. Dr Nayagam gave the plaintiff OxyContin and also Coloxyl with Sienna and advised he would review the plaintiff in two months. Dr Nayagam thought the plaintiff’s future capacity for work really hinged on whether the neurosurgeon felt he had something to offer the plaintiff and for the moment in his view, the plaintiff was not able to work.
104 Dr Weston at the Raymond McMahon Medical Centre first saw the plaintiff on 14 May 2010. He noted the plaintiff was then under Dr Nayagam’s care.
105 In terms of causation, Dr Weston noted it would seem the constant shaking of the back in such a tall, lean individual would lead to lower back problems. He considered the plaintiff’s future work capacity was minimal and ideally the plaintiff would be put on a pension and then be looking to treat his condition. He thought hopefully in a few years the plaintiff would get back to work but it would probably be work of a sedentary nature.
106 By report dated 12 July 2011, Dr Weston advised that the plaintiff had continued to see him monthly and that he had referred him to Mr Drnda regarding his back problem in October 2010. Mr Drnda felt the plaintiff would not benefit from surgery and his best prospects were to lose weight and strengthen his core muscles, avoiding strain on his back.
107 In a short supplementary report dated 26 July 2011, Dr Weston confirmed the plaintiff was not fit to undertake the physical work due to his back injury. Further, in Dr Weston’s view, due to the plaintiff’s poor education, it would be difficult for him to undertake sedentary type work.
108 Dr Papasava, clinical psychologist, saw the plaintiff on 29 June 2010. The plaintiff was referred to him by Dr Gorovy for management of work related anxiety and depression on 22 April 2010 and he subsequently saw the plaintiff on 26 May, 9 June and 16 June 2010.
109 Dr Papasava advised the plaintiff presented as a significantly depressed and anxious thirty seven year old who sustained injuries to his back and subsequently developed psychological sequelae.
110 Dr Papasava found the plaintiff to be suffering from a Major Depressive Disorder, a Panic Disorder with agoraphobia, a Chronic Pain Disorder associated with a general medical condition and a drug use disorder/alcohol abuse.
111 Dr Papasava did not believe the plaintiff had a capacity for work currently on the basis of his psychological condition but with appropriate treatment the plaintiff’s capacity for work on the basis of that condition should improve.
Medico-Legal Evidence
112 The plaintiff was examined for medico-legal purposes by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 9 July 2010.
113 On examination, there was restricted movement of the thoracolumbar spine. There was a flat lumbar lordosis. Straight leg raising was normal. Neurologically the plaintiff’s lower limbs were intact. He had present and symmetrical reflexes. Power and sensation was normal. There was some wasting of his left calf of less than a centimetre.
114 Dr Thomas noted the MRI findings were quite impressive. He thought the plaintiff was suffering from persistent back pain relating to his lower lumbar spine and that the MRI showed he had symptomatic pain arising from L4-5 and L5-S1.
115 Dr Thomas noted the plaintiff had a slightly left sided disc bulge at the lumbosacral level and noted the plaintiff had been referred to Mr Bittar, neurosurgeon, for consideration of surgery, however, Dr Thomas noted surgical intervention, which was likely to consist of a discectomy as a two level spinal fusion, was unpredictable with respect to determining if this would assist the plaintiff with his back pain. Dr Thomas confirmed that the plaintiff’s back injury was certainly an organic one and it was not a case in which significant psychological factors were contributing to his pain or disability. He thought the plaintiff’s injuries were consistent with the stated cause.
116 Dr Thomas thought the plaintiff’s ability to use his back vocationally had now been significantly affected. The plaintiff would be only able to work in a position that did not involve bending, lifting or twisting below waist height or above chest height. He could work lifting fifteen kilograms between waist and chest height in the vicinity of eighteen hours a week.
117 Dr Thomas thought if there was increased flexibility for the plaintiff to alter his posture to sit/stand and the like, the plaintiff’s ability to perform such lifting between waist and chest height of five kilograms could be increased further. If the work duties were lighter and the plaintiff was still not required to bend, lift and twist below waist height and above chest height, performing lifting of only a few hundred grams, then he could increase his work up to but not beyond twenty four hours a week.
118 Dr Thomas noted the plaintiff’s organic work capacity was and tended to be married with the reality of the marketplace which would make re-employment for the plaintiff extremely problematic. Dr Thomas thought the restrictions should be considered permanent. In his view the plaintiff’s prognosis long term was poor. He noted the plaintiff was a relatively young man with two young children who had now been left with significant back related disability and major vocational limitations. Dr Thomas thought surgical decompression of the lumbosacral disc was not unreasonable and he would not advocate a major spinal fusion as he did not think it would assist the plaintiff in any way.
119 Mr Drnda, consultant neurosurgeon, examined the plaintiff for medico-legal purposes in November 2010.
120 On examination, straight leg raising on both sides was not triggering sciatica but was triggering from the left side some back pain and gluteal pain. There was no neurological deficit.
121 Mr Drnda noted that the May 2010 MRI scan showed that the last three discs were degenerate with slight bulging at L3-4 and L4-5. At L5-S1 there was a little bit more bulge to the left and there was contact with the S1 nerve root. He noted that this was probably occasionally triggering the pain down the leg. He noted there was a loss of physiological lordosis.
122 Mr Drnda considered the plaintiff would not benefit significantly from surgery and he suggested weight loss and cessation of smoking and drinking.
123 Mr Drnda diagnosed advanced lumbar spondylosis with disc protrusions at L3-4, L4-5 and L5-S1. He considered there was no doubt the plaintiff’s condition was work related. He noted the plaintiff was exposed over a prolonged period of time to significant strain on his lower back and his employment was a significant contributing factor for accelerated degenerative changes in the lumbar spine.
124 The plaintiff was examined for medico-legal purposes by Professor Teddy on 6 October 2010.
125 On examination, straight leg raising was to ninety degrees bilaterally. Power, sensation and reflexes in the lower limbs were normal, with down going plantar responses. There was limited flexion but the remainder of back movements were full and not seemingly painful.
126 Professor Teddy thought the plaintiff had back and left lower limb pain that was almost certainly related to the marked degenerative changes at L4-5 and L5-S1. In his view, the plaintiff’s back pain was presumably discogenic, related to facet arthropathy at the two affected levels. Although the plaintiff described full length left sided leg pain, Professor Teddy noted there was no objective evidence of nerve root tension or irritation on clinical examination and the plaintiff had normal lower limb neurology.
127 Professor Teddy considered the plaintiff’s injury appeared organic in nature and he did not appear to be indulging in pain related behaviour.
128 Professor Teddy thought the plaintiff was not capable of engaging in either his previous occupation or any form of work that involved repeated bending, lifting and twisting below waist height. He noted he agreed with Dr Thomas’ reports and the restrictions suggested and that such restrictions would effectively preclude the plaintiff from any reasonable form of employment.
129 Professor Teddy thought the plaintiff’s restriction most likely should be considered permanent, although that would depend on the outcome of any treatment that may be proposed by the neurosurgeon he had recently seen.
130 As it had been three years since the onset of back problems and there had been no significant improvement in the interim despite good medical management, Professor Teddy thought the prognosis was not good.
131 Professor Teddy thought there were two broad forms of treatment that may be considered when the plaintiff obtained further neurosurgical opinion. These would take the form of nerve root compression (the plaintiff had some evidence of radiological nerve root compression although this was not evident clinically) combined either with spinal fusion at L4-5 and L5-S1 or disc arthroplasty. Professor Teddy considered the alternative may be some form of neuromodulation, spinal cord stimulation or peripheral nerve field stimulation to be considered sequentially if one or the other failed.
132 Whatever form of surgical treatment may be considered or undertaken, Professor Teddy thought the plaintiff would continue to suffer similar symptoms to those which he currently experienced, even if a degree of improvement was effected.
133 In examination-in-chief, Professor Teddy agreed that the fact that the plaintiff needed to lie down for ten minutes to half an hour every day would affect his capacity to undertake work on a reliable basis.
134 In cross-examination, Professor Teddy explained that where the problem was overridingly one of back pain as opposed to nerve compression/neurological abnormality, most forms of spinal fixative surgery were not terribly useful in an adult male.
135 Professor Teddy confirmed there was no objective evidence of nerve root tension or irritation on clinical examination but said the plaintiff still may have a problem standing for too long, as was demonstrated on clinical examination after twenty minutes.
136 Professor Teddy explained that the absence of wasting did not mean that the plaintiff could not have severe pain.
137 Professor Teddy confirmed that the plaintiff was capable of activities provided they did not involve repeated bending, lifting and twisting below waist height. Further, the plaintiff would have a great problem standing for any length of time.
138 Professor Teddy was cross examined about the three jobs suggested by Recovre. He thought the plaintiff could do the duties of a plate room operator in terms of twisting and bending and lifting but the one question would be whether the plaintiff would be capable of standing for that length of time. It would depend on how frequently the plaintiff had to rest and whether he could continue doing the tasks involved on a chronic basis over many hours and on the repeated basis all week. Professor Teddy simply did not know whether the plaintiff could do the job which allowed him sit and stand and he could not absolutely say the plaintiff would be incapable of doing it. He would advise the plaintiff to try.
139 In terms of the product picking job, Professor Teddy thought standing would be the problem with a person with degenerative disease, placing more strain on the joints at the back of the spine. He also thought there was little doubt that prolonged periods of sitting and standing would probably lead to increased back pain. He did not know what the plaintiff’s long term capabilities were and all he could say is that the plaintiff could try the various activities and see how they went.
140 In terms of the light product assembly work, Professor Teddy thought there was no particular problem with weight. Twisting, turning and stooping appeared not to be such a problem, but again there were duties involving sitting and standing. This would be a job which would be suitable for him to try, but if Professor Teddy had to say on balance it was whether or not the plaintiff would succeed in getting back to work in those spheres, he would have considered it less than likely, but then said he was not a rehabilitation expert.
141 Professor Teddy agreed, in terms of lifting and twisting and constant stooping, the suggested job probably satisfied Dr Thomas’ requirements.
142 Professor Teddy agreed with Mr Kierce’s view as to the plaintiff’s capacity and also that he could not see any problems with the plaintiff working as a clerk with computer training provided he was able to move around. He thought the plaintiff probably could try office work where he could sit and stand as he wished.
143 Professor Teddy did not think it likely the plaintiff’s symptoms would diminish in the future, whether or not he had surgery.
144 In re-examination, having been told of the plaintiff’s medication intake, and his need to lie down daily, Professor Teddy thought the plaintiff could attempt the jobs suggested on a part time basis.
Investigations
145 Dr Gorovy organised a CT scan of the plaintiff’s lumbosacral spine on 15 June 2007. It was reported there was significant posterior disc bulging present at the three lower lumbar levels and there was no evidence of canal stenosis.
146 At L5-S1 there was a mild broad based posterior disc bulge flattening the anterior spinal theca. There were minimal bilateral facet joint degenerative changes at L4-5 and L5-S1.
147 Dr Nayagam organised an MRI scan of the plaintiff’s lumbosacral spine on 23 May 2010. It was reported there was no significant neural compromise at any level.
148 At L4-5 and L5-S1 there was mild, central to paracentral disc protrusion, in lower aspects of both left-sided neural foramina. There was encroachment on the L5 and S1 nerve roots in the subarticular recesses, mainly on the left, no nerve root compression but narrowing of both left sided neural foramina with no intraforaminal L4 or L5 nerve root compression.
Vocational Evidence
149 Ms Angel, Human Resource Consultant with Flexi Personnel, carried out an employment assessment of the plaintiff in 2010.
150 Ms Angel concluded that according to the medical reports, the plaintiff had suffered significant injury and consequently suffered with pain and restriction which would prevent him from returning to his pre-injury physical type work or any work on an unrestricted basis.
151 As a recruiter, Ms Angel believed the plaintiff’s work capacity had been severely affected by his injuries and as a consequence she would be reluctant to hire him because of his incapacity for complete full unrestricted duties and also due to the risk of him aggravating his existing physical injury or sustaining a new injury, which would lead to high absenteeism and lost production. She considered, as a recruiter, that the plaintiff’s medicated state would dramatically discount him from working around or operating machinery due to his self reported negative side effects the strong medication had on his memory and concentration.
152 Ms Angel relied upon reports from Dr Gassin, Dr Nayagam and Dr Thomas.
153 As Ms Angel concluded, the plaintiff’s transferrable skills were dependent on his physical activity. He was no longer able to function in his pre-injury vocation or physical work. The plaintiff would find it extremely difficult to find suitable alternative employment, particularly when competing against other able bodied applicants.
154 Ms Angel noted the plaintiff proved that he was now not able to perform even modified duties due to his disabilities when he had to cease work in 2008. In her opinion, even work of the lightest kind required punctuality, regular attendance and a consistent capacity to productively fulfil any position. In his current state she did not believe the plaintiff would meet those criteria.
155 Ms Angel discussed with the plaintiff whether he had any alternative job options he felt he could manage. The plaintiff said that he did not currently, in that ideally he would like to work at home so he could lie down during the day. He could not do anything constant that caused him pain.
156 Ms Angel thought that the plaintiff would struggle to handle the rigours of a structured retraining program. She believed his pain, need to lie down during the day and highly medicated state and work restrictions as set out in his medical reports, affected his capacity to productively perform office duties or even light factory process bench type work for the amount of time normally required in the workforce.
157 However, if the plaintiff were able to find suitable light employment and he was paid under the current Manufacturing and Associated Industries and Occupations Award 2010 as a C13 – process worker performing light bench- factory type work - he would receive an hourly rate of $15.43 gross.
158 Adding 4 per cent as per the Visy Paper Agreement with the AWU from a base salary of $46,66.00 in the financial year 2005-2006, the figure for 2009- 2010 would be $54,585.60.
159 A vocational assessment report was provided by Katrine Greene on 4 November 2010.
160 Ms Greene had available to her various investigation and reports from Dr Thomas, Dr Gassin, Dr Gorovy, Mr Hampson, Dr Nayagam.
161 Ms Greene provided an estimate of the plaintiff’s capacity to undertake a number of jobs based on his vocational training, work history, transferable skills, age, education, English language skills and physical and emotional status.
162 Ms Greene described the duties involved in the jobs of frontend loader operator, labourer (general), delivery driver, product assembler, factory process worker, forklift driver, bricklayer, labourer, construction and building, sales representative, retail sales assistant and store person, order picker assembler. She concluded, taking into account the physical demands of those jobs and in reviewing the medical opinions provided, and given the plaintiff’s current physical tolerances from a physical perspective due to his back injury, those occupations were not suitable employment for him within the foreseeable future.
The Defendant’s Medical Evidence
163 Mr Buzzard examined the plaintiff in November 2007.
164 In that report Mr Buzzard noted there appeared to be animosity between the plaintiff and the first defendant but it would appear reasonable to accept there was specific trauma to the plaintiff’s low back in the circumstances alleged with an aggravation of pre-existing degenerative disease.
165 However, Mr Buzzard thought the numbness involving the whole of the left leg was indicative of a functional overlay as against a physically based problem and that the CT scan did not show any evidence of any nerve root involvement.
166 Mr Buzzard then thought the plaintiff should have a graduated return to forklift driving, but that it was not appropriate for him to be standing in a forward flexed position lifting things from a line. Mr Buzzard thought the plaintiff’s condition had not fully resolved, albeit that it was substantially resolving, and his condition was still materially contributing to his employment capacity and need for treatment.
167 Dr Barton, occupational physician, examined the plaintiff in June 2008, at which time the plaintiff was undertaking alternative duties for four hours a day, five days a week.
168 On examination, Dr Barton did not believe the plaintiff’s condition was a simply physical one. Accepting the plaintiff’s history as to the nature of his work, Dr Barton thought it possible that the plaintiff’s work had led to a soft tissue injury or a temporary exacerbation of minor pre-existing radiological findings.
169 In Dr Barton’s view, the plaintiff had a capacity to undertake fulltime work and from a physical perspective he could not see any reason why the plaintiff could not go back to driving, presuming the vehicle was ergonomically sound.
170 Dr Clark saw the plaintiff on 6 August 2008
171 The plaintiff told Dr Clark he was working about four hours a day on the frontend loader and working on the recycling line for the remainder of the shift. The plaintiff expected to increase his hours of work as a loader operator soon.
172 Dr Clark considered the plaintiff was fit for pre-injury duties as a loader operator. He considered any exacerbation which occurred at work had resolved and at that stage was not a material contributor to the plaintiff’s current condition.
173 Mr Leitl, orthopaedic surgeon, carried out an AMA assessment of the plaintiff in March 2009. He thought the plaintiff had aggravation of a lumbar degenerative condition and objective clinical findings were an asymmetric loss of lumbar spine movement but without evidence of radiculopathy.
174 Dr Fraser, rheumatologist, examined the plaintiff in July 2009.
175 Dr Fraser was not convinced there was any ongoing work related injury in the plaintiff’s case. He considered the plaintiff may have sustained soft tissue strains and/or aggravation of pre-existing degenerative changes in his lumbosacral spine. However, he believed that any such work related aggravation had now ceased and that non organic factors were mainly responsible for the plaintiff’s ongoing symptoms.
176 Dr Fraser regarded the degenerative changes as a disease rather than an injury and that the lumbar spondylosis was due to constitutional factors and the plaintiff’s employment only caused temporary symptomatic aggravation. Dr Fraser thought the plaintiff had a current work capacity, including his pre- injury employment.
177 Dr Gorovy, the plaintiff’s general practitioner, provided a report to QBE on 3 August 2009.
178 Dr Gorovy advised that the plaintiff had tried different modified duties without success. He had difficulties performing modified duties as a sorter because he still needed to bend over and pass the bucket. The plaintiff tried to return to some driving work but the constant bouncing aggravated his pain. Dr Gorovy also noted the plaintiff could not tolerate high dosages of analgesics due to drowsiness.
179 Dr Gorovy then did not think the plaintiff would be able to return to his pre- injury duties. He thought the plaintiff should be able to do some sort of non-physical office duties. He understood the plaintiff had undergone a rehabilitation specialist assessment. Dr Gorovy thought the suggested computer course seemed to be a good option for the plaintiff.
180 Mr Kierce, orthopaedic surgeon, examined the plaintiff in July 2009.
181 On examination there was some restriction of lumbar movement but there were no neurological signs in the lower limbs with normal power and sensation and the quadriceps, ankle and plantar reflexes were normal and reactive.
182 Mr Kierce thought the investigations showed only minimal facet joint degenerative change in the lumbar spine. He diagnosed work related aggravation of lumbar spondylosis. In his opinion there was no doubt as to the relationship between the plaintiff’s back condition and his work.
183 Mr Kierce considered none of the plaintiff’s current symptoms were due to functional overlay exaggeration, psychological or psychosomatic factors, even though the plaintiff admitted to being depressed.
184 Mr Kierce concluded the plaintiff’s employment was a significant contributing factor to the aggravation of the lumbar spondylosis. Mr Kierce thought the plaintiff had a current work capacity but that he was not fit for his pre-injury employment and never would be.
185 Mr Kierce considered the plaintiff was fit for suitable employment which did not involve prolonged or frequent bending, lifting of weights greater than fifteen kilograms, the use of heavy jarring implements or the driving of machinery which gave rise to vibrations.
186 Mr Kierce thought the suggestions made by Ayres Management that the plaintiff could work as a sales assistant, spare parts interpreter clerk with computer training seemed sensible. He thought the plaintiff would also be fit for work which involved some driving provided it was not over rough roads and not for long periods of time.
187 Mr Kierce thought the plaintiff probably was not taking analgesics regularly enough. He thought the plaintiff needed to lose weight and suggested referral to a personal trainer. In Mr Kierce’s view, the plaintiff’s prognosis was that if he lost weight, got himself fit and was involved in suitable employment, he should be relatively pain free.
188 Mr Kierce was later provided with reports from Dr Fraser, Dr Douglas and the NES vocational report prepared by Ayres Management.
189 Mr Kierce confirmed it was his definite opinion, based on a reasonable degree of medical certainty, the plaintiff’s condition was still work related when he saw him in July 2009. His physical examination had also demonstrated abnormalities that were organic, such as the plaintiff’s lumbar scoliosis, convex to the left, well localised tenderness over the joint between the fourth and fifth lumbar vertebrae, with limitation of flexion, lateral flexion movements and rotation of the plaintiff’s thoraco lumbar spine to the left. Further axial compression of the spine had not increased the plaintiff’s back pain.
190 Mr Kierce advised that those findings together with the abnormalities noted on the June 2007 CT scan were consistent with a significant work related injury. From a physical perspective he thought the plaintiff definitely had a capacity for jobs identified in the vocational assessment.
191 Mr Kierce re-examined the plaintiff in May 2011. The plaintiff then told him that his back condition had not improved since the earlier examination.
192 Mr Kierce thought the plaintiff was still suffering from work related lumbar spondylosis and that he had no radiculopathy. He considered the plaintiff’s condition had stayed much the same since the earlier examination.
193 Mr Kierce advised that his findings on examination together with review of the radiological investigations indicated findings significantly abnormal compared to a worker of similar gender and work background. He diagnosed work related lumbar spondylosis with resultant L4-5 and L5-S1 disc protrusions.
194 In his view, the plaintiff’s prognosis was that he would continue to suffer with low back and left leg pain for the foreseeable future.
195 Mr Kierce thought the plaintiff may get some relief from his left leg pain from caudal epidural injections with steroid and local anaesthetic, perhaps once a month for the next three months. Otherwise, what the plaintiff mainly needed was to lose weight and get fit under supervision of a personal trainer or physiotherapist.
196 Mr Kierce thought the aggravation of lumbar spondylosis had not ceased. He considered the plaintiff had a current work capacity but not for pre-injury employment. He confirmed the restrictions and what would be involved with suitable employment.
197 Mr Kierce concluded the plaintiff’s symptoms were definitely coloured by his obvious lack of motivation and general depression because of his inability to carry out jobs as he was able to prior to his back injury.
198 The defendant relied upon a report dated 26 June 2010 provided by Mr Williamson, orthopaedic surgeon following an examination of the plaintiff on 12 April 2010.
199 On examination, there was a restricted range of lumbosacral motion. There was no tenderness or paravertebral muscle spasm. Straight leg raising was to 90 degrees bilaterally. The sciatic and femoral nerve stretch tests were negative. Neurological examination of the lower limbs was normal. There was no wasting of the thighs or calves and the peripheral pulses were present.
200 Mr Williamson saw the June 2007 CT scan.
201 Mr Williamson reassured the plaintiff there was no indication for further investigations with a view to surgery. He considered the plaintiff would be best managed in the context of a multidisciplinary pain management and rehabilitation clinic. He considered once the plaintiff’s pain was better controlled he could undergo an active exercise program with a view to improving low back function. Thereafter, he thought the plaintiff should undergo a functional capacity assessment and vocational assessment with a view to possibly returning to the workplace.
202 In summary, Mr Williamson considered that the plaintiff presented with persistent low back and left lower limb pain. Investigations revealed minor degenerative changes at the L4-5 and L5-S1 intervertebral discs and suggested a central or left-sided L5-S1 disc prolapse. Mr Williamson considered it likely that the onset of the plaintiff’s symptoms was associated with the central and left-sided L5-S1 disc prolapse and hence considered the prolapse to be a work related injury. Mr Williamson noted persistent low back pain and restricted range of movement but there were no verifiable or objective radiculopathy.
203 Mr Williamson considered the plaintiff to have a current work capacity or he did not foresee him having the capacity to return to pre-injury duties in the foreseeable future.
204 Mr Williamson, however, considered the plaintiff had the capacity to perform light manual or sedentary duties that did not involve standing for more than thirty minutes, lifting weights of more that fifteen kilograms or repetitive bending and twisting. He thought the plaintiff’s work initially contributed to the onset and persistence of his current low back and left lower limb symptoms.
205 Mr Williamson considered the plaintiff’s prognosis to be good given that he did not have a serious underlying cause for his symptoms. Whilst the plaintiff’s pain and function may improve as the result of a multidisciplinary pain management and rehabilitation program, Mr Williamson considered it likely that the plaintiff would have some degree of permanent impairment as a result of the 2007 symptoms. He did not foresee the need for future spine surgery, but if the plaintiff required such surgery in the future, Mr Williamson felt it more likely that such a need would arise as a result of progressive age related degenerative changes rather than the injury.
206 Dr Stern, psychiatrist, examined the plaintiff on 10 March 2009.
207 Dr Stern diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood related to the work injury and continuing pain. He thought the plaintiff required continuing psychological treatment, but that from a psychiatric aspect alone he was fit for all work.
208 Dr Douglas, psychiatrist, examined the plaintiff in June 2009.
209 Dr Douglas thought as an adjustment to the pain and disability, the plaintiff had an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought the plaintiff’s psychiatric symptoms were real but not sufficient to prevent him returning to work.
210 Dr Douglas was subsequently provided with reports from Dr Fraser, Mr Kierce and the NES vocational report.
211 Dr Douglas thought the work options outlined of sales assistant, sales representative, light process worker and general clerk were appropriate and that the plaintiff had a capacity to carry out jobs identified from a psychiatric point of view.
Vocational Evidence
212 Occupational therapist, Janette Ash, and Robyn Willett, Employment Placement Consultant from Recovre, carried out an employment capacity analysis report in June 2011.
213 Essentially three jobs were identified as suitable for plaintiff; namely:
(1) plate room operator in a paper bag manufacturing and printing business
($18.44 per hour);(2) product picker in a kitchen products distributing warehouse and
showroom; and(3) light product assembly role within a small manufacturing company. 214 It was concluded the plaintiff had a capacity for suitable employment. It was noted that medical opinions from Professor Teddy and Mr Drnda, whilst guarded in their view regarding the plaintiff’s capacity for suitable employment, with noted restrictions conceded, the plaintiff had a capacity in relation thereto.
215 The restrictions imposed could be best summarised as no repeated bending, lifting and twisting below the waist level or above chest height, no lifting of weights greater than five kilograms and no use of heavy jarring implements such as picks, shovels and crowbars, or the driving of machinery which would give rise to the vibration.
216 Based on the plaintiff’s work history, transferrable skills and physical tolerances, it was concluded he was ideally suited for positions of a store person, general clerk, elementary level process worker and product assembler.
Overview
217 Whilst serious injury in relation to pain and suffering was not formally conceded by counsel for the defendants, no submissions were made in that regard.
218 I accept that the plaintiff has a serious injury on the narrative test in relation to his lumbar spine impairment. His condition has been diagnosed as aggravation of lumbar spondylosis with disc protrusions at L3-4, L4-5 and L5- S1 without neurological compromise.
219 Since the incident, the plaintiff has suffered continuing lower back and leg pain, particularly left sided. His movements are restricted and on a daily basis he needs to lie down and rest because of his pain. His sleep has also been significantly affected.
220 The plaintiff has required ongoing treatment, including medial branch blocks which have been not succeeded in reducing his pain to any significant degree. He continues to take six to eight Panadeine Forte per day for pain relief.
221 I accept that as a result of his back condition, the plaintiff whose employment history is one of manual work, is no longer capable of engaging in heavy unrestricted physical work – a view supported by all doctors who have expressed an opinion in this case.
222 The plaintiff’s ability to enjoy his domestic and social life is also restricted by his back condition. He can no longer attend concerts because he is unable to stand for prolonged periods. He has lost fitness and has had to give up social golf. He is unable to undertake car repairs and he finds driving difficult. His ability to engage in gardening activities is limited.
223 In my view, the plaintiff was a genuine witness who did not overstate the level of his pain and disability. His credit was not really attacked and there was no surveillance or other evidence challenging his evidence as to his back condition.
224 Therefore, I accept that the plaintiff has an ongoing lumbar spine problem which is likely to last for the foreseeable future.
225 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 forty per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 226 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. 227 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
228 “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.
229 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.
230 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.
231 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect. See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
232 As at the date of hearing the plaintiff’s earnings from personal exertion are nil.
233 In terms of the “without injury” earnings figures, counsel for the defendants conceded $55,000 was the appropriate figure. Counsel for the plaintiff did not disagree with this figure.
234 Sixty per cent of that figure is $33,000 or $ $634 per week.
235 Counsel for the plaintiff submitted that the plaintiff had no capacity for suitable employment (based on the reports from Ms Greene and Flexi Personnel and also the plaintiff’s current general practitioner, Dr Weston), but conceded that at best the plaintiff could work twenty four hours a weeks on the very modified duties, as suggested by rehabilitation expert Dr Thomas and by Professor Teddy.
236 As Professor Teddy confirmed in his viva voce evidence whilst he would suggest the plaintiff try the duties suggested, this trial should be on a part time basis and on balance “it was less likely than likely” whether the plaintiff succeeded or not in getting back to work in these spheres.
237 Working twenty four hours at $14.55, which counsel for the plaintiff submitted was the appropriate wage rate, the plaintiff would still suffer the requisite loss.
238 Counsel for the defendants submitted that the plaintiff had a capacity to work on a full time basis in sedentary or light manual work as supported by Mr Williamson and Mr Kierce in jobs such as those suggested in the Recovre report.
239 I do not accept this submission. The plaintiff’s physical difficulties even with lighter duties were evident on his return to work with the first defendant and his inability to continue working on a restricted basis after late 2008.
240 Further, I do not accept that the plaintiff has made a choice to be a house husband supported by his wife who works full time.
241 Clearly this is not the case. I accept that the plaintiff, a relatively young man at thirty- even, who has worked all his life in manual work, would prefer to be in the workforce for personal and financial reasons but is unable to do so due to his back condition.
242 Whilst the plaintiff has taken steps to obtain alternative employment since leaving the first defendant’s employ, I accept he has done so under sufferance with pressure from his wife and financial pressure to return to the workforce when he himself did not consider he had the capacity to perform the jobs applied for.
243 I accept that the plaintiff is a motivated young man who is keen to return to work but does not have the capacity to do so. He has problems with prolonged standing and sitting and is significantly restricted in the weights he can lift and the bending he can undertake.
244 In addition to pain and the abovementioned problems, a further significant problem preventing a return to work on anything more than the lightest duties for a few hours a day is that due to his level of pain, the plaintiff has to lie down every day and rest.
245 In such circumstances the plaintiff would be an unreliable employee, and would not be able to work on a consistent full time basis.
246 The plaintiff has only very limited computer training and he does not have any clerical skills or experience. I accept that he would also have a problem with more sedentary work involving prolonged sitting.
247 The jobs suggested by Recovre, whilst on the face of it appear suitable for the plaintiff, involve sitting and standing and lifting weights in excess of those suggested by Dr Thomas when he referred to a capacity for twenty four hours work per week. In my view, the plaintiff does not have the capacity to attend work day in day out on a regular basis and at most would only be capable of the lightest type of work for a couple of days a week.
248 In such circumstances I am satisfied that the plaintiff has suffered the requisite loss of earning capacity of forty per cent. As that situation has persisted for nearly three years and there has been no improvement in his condition, I am satisfied that this loss is permanent.
249 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
250 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of forty 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 s.134AB(38)(g).
251 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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