Bennetts v Central Highlands Group Training Incorporated
[2009] VCC 525
•27 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
Case No. CI-08-00523
| AARON JOHN BENNETTS | Plaintiff |
| v | |
| CENTRAL HIGHLANDS GROUP TRAINING INCORPORATED | First Defendant |
| (Trading as BALLARAT GROUP TRAINING) | |
| and | |
| ALSTOM AUSTRALIA LIMITED | Second Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Third Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 15 and 16 April 2009 |
| DATE OF JUDGMENT: | 27 April 2009 |
| CASE MAY BE CITED AS: | Bennetts v Central Highlands Group Training Incorporated, Alstom Australia Limited & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0525 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the spine – worker aged under twenty-six – loss of earning capacity – pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan SC and | Heinz & Partners |
| Mr T Seccull | ||
| For the Defendants | Mr P Scanlon QC and | Herbert Geer |
| Mr I Gourlay | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment on 8 July 2003 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in Section 134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning permanent serious impairment or loss of a body function.
4 The impairment of body function relied upon is the spine.
Outline of s.134AB
(i) Apart from being a serous 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 of likely to last for the foreseeable future.
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, sub-sections 19 and 38(e) 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 cases in the range of possible impairments may be fairly described at the date of the hearing as at least “very considerable” and more than “significant” or “marked.”
(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) When a worker is aged 26 years or under at the date of injury, pursuant to Section 134AB(38)(e)(i) of the Act he must establish that at the date of the hearing he has a loss of earning capacity of forty per cent or more. Further he must establish pursuant to subsection (e)(ii) that he will after the date of the hearing continue to have a permanent loss of earning capacity which will be productive of a financial loss of forty per cent or more. Subsection (f) which relates to older workers and requires consideration of income from personal exertion in the 3 years before and 3 years after the injury does not apply.
(vii) Consideration must also be given pursuant to subsection (g) of the reasonableness of the plaintiff’s attempts to rehabilitate or retrain.
(viii) Subsection 38(h) provides that consequences which are psychologically based are to be totally disregarded in paragraph (a) cases.
(ix) I have applied the principles identified by the Court of Appeal in Barwon Spinners v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross-examined. The plaintiff also relied upon an affidavit sworn by his solicitor Graham Hills sworn on 6 April 2009 exhibiting a salary survey from Hays Resources and Mining.
6 In addition both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged twenty-five, having been born on 9 February 1984. He is single and lives at home with his mother.
8 The plaintiff completed Year Ten at St Patrick’s College, Ballarat in 1999. He left school in February 2000 to commence a trade apprenticeship as a steel fabricator for Met D Tech Fabrication. His job involved welding and general steel fabrication work.
9 The plaintiff continued that apprenticeship until the first half of 2002 when he was made redundant and his training agreement was cancelled.
10 On 13 February 2002, the plaintiff commenced an apprenticeship known as Certificate III in Engineering Fabrication with the first defendant. The first defendant placed its apprentices and trainees into various worksites operated by different companies. Such companies were known as host employers of the apprentice. The plaintiff’s initial host employer was the second defendant.
11 The plaintiff commenced permanent full-time work as an apprentice at the second defendant’s worksite (“the site”) on or about 13 May 2002. It was a large factory where rolling stock for railways and tramways were manufactured and assembled. The plaintiff was required to do general steel fabrication work and welding which involved the use of oxy-acetylene cylinders. He usually worked 38 hours per week, working either day or afternoon shift at an hourly rate of $17.62, which equated to an average gross weekly wage of $699.
12 Whilst working at the site, the plaintiff was also attending night school to gain a Department of Labour and Industry “D.L.I”) qualification to allow him to undertake specialist boilermaking sheet metal work. Had he not been injured, he intended to complete his trade apprenticeship and gain specialist employment as a qualified boilermaker/sheet metal worker.
13 On the said date, whilst working at the site, the plaintiff suffered injury when he tried to catch a full cylinder of gas which had overbalanced. He heaved the cylinder towards his right shoulder in order to steady it and prevent it falling further. He then pushed the cylinder back onto a stand whilst simultaneously moving a trolley out of the way with his legs (“the incident”).
14 Following the incident, the plaintiff was immediately aware of a burning sensation in his right shoulder and also some pain in his back. He continued working with increasing pain. He reported the incident and recorded it in the Incident Register.
15 The plaintiff then attended first aid. After finishing his day’s work he then went home and applied Deep Heat on his shoulder and spine as his pain intensified over the evening.
16 As the plaintiff’s pain had not lessened the following morning, he notified the second defendant that he would not be coming to work. Unable to see his general practitioner, Dr Baxter, he attended an “all hours” medical clinic where he saw a Dr Brownfield, who referred him to a chiropractor Dr Fiona Dean, who adjusted his spine. X-rays were also taken.
17 In the following weeks the plaintiff saw Dr Baxter, who advised him the x-rays showed no bone damage and suggested the plaintiff undergo a CT scan. He explained to the plaintiff that the CT scan showed the plaintiff had injuries to his thoracic spine and some discs in his spine. Dr Baxter prescribed Panadeine Forte as the plaintiff was in continual extreme pain.
18 The plaintiff remained off work throughout August 2003 still in pain.
19 The plaintiff was referred to orthopaedic surgeon Mr Michael Johnson, who advised there was nothing that could be done surgically and he suggested physiotherapy. Dr David Mitchell, another orthopaedic surgeon in Ballarat to whom the plaintiff was referred, provided similar advice.
20 The plaintiff tried physiotherapy but found manipulation too painful. He tried acupuncture which gave limited reduction in swelling but only for short periods of time.
21 Following a work assessment arranged by CGU Insurance (“CGU”) in October 2003, the plaintiff attempted to return to part time work with the second defendant on 22 October 2003. At that time the plaintiff was having on average two to three chiropractic treatments a week. He was extremely stiff and suffered from constant back, shoulder and arm pain. The plaintiff attempted to continue work for approximately a month on very modified duties, but was unable to carry out any of his normal duties and occasionally he had to leave work early due to his pain.
22 The plaintiff ceased work on 21 November 2003 after discussions with the second defendant’s management who suggested the plaintiff could be at some risk on the site due to the presence of heavy machinery and the plaintiff’s inability to move at other than a slower pace. By that time, the plaintiff had completed his trade certificate.
23 In December 2003, the plaintiff attended neurologist Dr Kiers in Ballarat, to try and determine the cause of his constant arm pain. In February 2004, the plaintiff saw Fiona Pyers, an occupational therapist, who organised hydrotherapy for him, but the heat of the pool aggravated his injury and the plaintiff continued this treatment for only a month.
24 In January 2004, the plaintiff was referred by CGU to Dr Grant, a psychologist, for treatment. The plaintiff saw Dr Grant regularly for a number of years as the plaintiff was very moody and frustrated and he felt that he had no control over his injuries and their effects on his life.
25 In April 2004, the plaintiff was referred to Dr Lim at the Olympia Rehabilitation Clinic (“Olympia”). Ultimately CGU approved funding for the plaintiff’s treatment at Olympia which involved three weeks of weekly inpatient care in October 2004. The plaintiff found travelling to and from Ballarat to Olympia exhausting but he used the techniques he learned there to help him cope with the pain which was then constant.
26 The plaintiff saw Mr Torode, an orthopaedic surgeon, in October 2004. He had previously seen the plaintiff during his childhood when Mr Torode had diagnosed scoliosis.
27 In cross examination, the plaintiff said that he had undergone intermittent chiropractic treatment for scoliosis from 1996 until the time of the incident. The scoliosis did not cause him any back pain or discomfort and he had the treatment for maintenance on the advice of his doctor. He did not require any time off work because of the condition, nor did it “stop him from being normal”.
28 Before the incident, the plaintiff’s chiropractor, Dr Foote, worked basically on the plaintiff’s whole spine and directed treatment to the thoracic spine. Prior to the incident the plaintiff anticipated that future chiropractic treatment would be necessary to maintain the stability of his back. The plaintiff could not recall being prescribed any medication for his scoliosis in 2000 or before the incident.
29 In December 2004, Mr Torode sent the plaintiff for an MRI and referred him to Dr Hjorth, a neurologist, whom the plaintiff saw on 8 March 2005.
30 In late 2004, the plaintiff made enquiries as to any course of study which he could undertake that would be suitable having regard to his injuries. He made enquiries of the University of Ballarat (“the University”) in relation to a Diploma of Engineering Technology course (“the first course”) but was told by CGU that if he attended the course his payments would cease.
31 The plaintiff was eventually told by CGU that he was allowed to attend the first course which he commenced at his own expense in January 2006.
32 When he enrolled in the first course, the plaintiff thought it involved two and a half days’ tuition per week in the classroom over two years. In July 2006, the first course was modified and the tuition hours were increased and the first course was extended for an additional year.
33 The plaintiff tried to continue the first course but found the additional hours and workload too much to cope with. He was taking more pain medication and his back pain was increasing. He was unable to complete the first year of the two year course.
34 In February 2008, the plaintiff commenced a Bachelor of Applied Computing degree at the University (“the second course”) – a three-year degree course which involves less than 16 contact hours per week and enables him to do a lot of study and research online from home. It is a less onerous course than the first course and involves training in the development and production of computer games. Whilst this is a competitive area, the plaintiff thought this career choice was his last option.
35 In cross examination the plaintiff gave a number of different descriptions of the results he had obtained n the second course. Initially he denied his results had been quite outstanding and said that “he passed”. He agreed his results had been good but that “he had been lucky”. He then said that he had a couple of good results including some distinctions. Distinctions were indicated on his results as HD. In re-examination, the plaintiff said he had received two or three distinctions out of the 8 units he had completed.
36 The plaintiff completed the first year of the second course but had difficulty attending the contact hours towards the end of 2008, and on occasions he missed classes and he had to do the work at home.
37 The plaintiff struggles to cope with the physical demands of sitting at the computer for long periods of time. He cannot concentrate for long. If he sits for longer than 30 minutes he begins to suffer an increased back pain and he has to get up and move and stretch.
38 In cross examination, the plaintiff agreed that he spent quite a significant time at the computer at home especially with study. He could work on the computer up to 10 or 12 hours a day but not continuously.
39 The plaintiff denied that he would therefore be able to do a job such as a weighbridge operator, as he could not work for 8 hours. However, he agreed that the entering of data on the computer involved in that job would “be a piece of cake”. He mentioned that he could not do a job of this nature because he frequently had to lie down for an hour. The plaintiff agreed that he had not mentioned the need to lie down in his affidavit but said he had told doctors about it.
40 The plaintiff explained that he could not predict how his back would be from day to day and he would therefore not be reliable in turning up for work five days a week.
41 Because of his physical condition, the plaintiff has focussed on undertaking courses and he has not applied for work. He knew his physical capacity, and did not have to try work to know whether or not he could do a job. He would struggle with any job at the moment. Whilst he later agreed there were many types of jobs in the computer area he could do, the plaintiff did not think he could do those jobs for an extended period.
42 The plaintiff did not think he would be able to work in a company and he hoped to work at home. He agreed that his goal was to be a well qualified man with a degree working from home in a self paced environment – “that was what he had been left with”.
43 In cross examination, the plaintiff agreed that he had undertaken the second course with a goal and that it was a lifestyle decision to try to make a lot of money. He then said he just hoped to get employment from it. He had researched the prospects of making money and getting work in this field. He agreed that if he was self employed and designed a very successful game he would earn very substantially more then $50,000. He agreed that in any event his new career could be financially rewarding. He thought the start up wage in his new career would be $50,000 and he agreed that there would be substantial increases in this figure if he was successful.
44 In re-examination, the plaintiff said had he not been injured he would still be welding. It was his passion and the reason why he left school. He really enjoyed welding and now misses it.
45 The plaintiff was studying for the DLI certificates to enable him to work in the mining industry in Western Australia or around Australia and with this qualification he would have been able to earn between $100,000 and $120,000. In cross examination he denied this was only a recent desire on his part.
46 The plaintiff continues to see the chiropractor once every two weeks, more frequently if his pain is particularly severe. He has paid for this treatment since CGU stopped funding in 2006. It gives him temporary relief from his back pain and helps him maintain his mobility.
47 The plaintiff was under the care of Dr Baxter whom he saw at least once a month until August 2008 when Dr Vrij took over his treatment. The plaintiff is prescribed Panadeine Forte. On average he takes eight tablets a day to give him some relief from back pain. He also takes three 50 milligram tablets of Endep, a muscle relaxant, daily together with two Neurontin tablets. He takes one Temaze tablet at night to help him sleep but his sleeping pattern is still disturbed and he wakes up during the night with pain.
48 Prior to the incident, the plaintiff enjoyed riding his motorbike but as a result of the injuries he sustained he has been unable to do this and subsequently he had to sell his bike.
49 In cross examination, the plaintiff agreed this statement in his affidavit would lead a reader to believe that he had never ridden since the incident. He explained he meant that he had come to the realisation that physically he can no longer ride a bike. He has ridden a motor bike about once or twice and definitely not more than four or five times since the incident. He cannot ride continuously. He last rode a bike three months ago when he borrowed his brother in law’s bike and rode it around the lake a couple of times.
50 Before the incident, the plaintiff had been able to ride his motor bike 13 hours straight from Sydney to Ballarat. His motor bike used to be his mode of transport and he rode four to five times a week. When he has ridden since the incident he has suffered physically. He cannot ride a bike every day because of pain.
51 The plaintiff also enjoyed water skiing before the incident. He used to ski and knee board on Port Phillip Bay fortnightly to monthly all year round. He has not tried to ski since the incident as he could not cope physically as skiing requires a lot of upper body strength and is physically demanding.
52 Further, the plaintiff is no longer able to scuba dive. He would now be unable to dive because of the amount of medication he is taking. Also, for safety reasons, he would be an unreliable “buddy” if he had to help his fellow diver.
53 Whilst the plaintiff can drive, if he attempts a longer drive such as from Ballarat to Melbourne he has pain in his low back and stiffness in the spine and he has to get out and stretch and walk to enable him to continue driving.
54 The plaintiff lives with his mother, who works full time. Following the death of his father in 1997, the plaintiff carried out all heavy duties around the house to help his mother, but subsequent to the incident he has been unable to do so and she has to rely on others – a situation which upsets and frustrates him.
55 The plaintiff is limited in the work he can do around the house, previously having done gardening, mowing and general maintenance. He cannot do these tasks without experiencing increased levels of pain in his back, particularly if he is required to do physical stretching and bending.
56 The plaintiff has attempted at times to assist his mother with weekly household shopping but finds carrying heavy bags of groceries causes quite severe pain in his back so he now avoids it.
57 In cross examination, the plaintiff said that he worked on cars at home. He does not work under cars. He agreed that working under the car bonnet involved awkward movements of bending and stooping and that such a task was more onerous than working on a computer.
58 The plaintiff cannot mow the lawn for more than five minutes as he struggles with walking and picking up the catcher. He considered mowing more difficult than working on a car.
The Plaintiff’s Medical Evidence
59 The plaintiff first presented to the Ballarat and District Chiropractic Centre (“the Centre”) on 9 March 2003, complaining of having injured his middle back, right shoulder girdle and right side of his neck the previous day in the incident. He was initially seen by Dr Dean, who determined the plaintiff had an acute mechanical injury involving the lower cervical spine and mid thoracic spine.
60 The plaintiff continued to receive chiropractic treatment at the Centre every fortnight from various practitioners, keeping his headaches, arm and thoracic pain under control. As of November 2007 the plaintiff’s prognosis was said to be good but it may be limiting in terms of the lifestyle he can have.
61 Dr Redfern at the Centre most recently reported in November 2008 that the plaintiff’s previous career choice was not an option and that the plaintiff was taking control of his life and making changes that were positive. She noted pain still haunted the plaintiff every day despite being on strong drugs, and that his response to regular chiropractic care supported the plaintiff’s capacity to move, sit, concentrate and study.
62 The plaintiff first attended Dr Baxter of the Ballarat Group Practice two weeks after the incident, having already seen a chiropractor. Dr Baxter noted that the plaintiff was suffering tingling in the fingers and pain at the tip of the shoulders and elbows which Dr Baxter thought could be a fibromyalgia syndrome.
63 Dr Baxter noted an MRI showed some disc changes, including a protrusion at the C7-8 (should read T7-8) level on the right but with minimal deformity of the spinal cord. There was no abnormality on nerve conduction study, and in his view MRI findings did not correlate with the plaintiff’s pain.
64 Dr Baxter referred the plaintiff to Mr Johnson, a paediatric orthopaedic surgeon, who thought the plaintiff’s problem was one of chronic pain and suggested he see Dr Lim, a pain management specialist.
65 During the course of the Olympia program, Dr Baxter noted the plaintiff’s symptoms settled down to relate to his mid thoracic spine and rigid type posture and gait. As of October 2007, he thought the plaintiff had remained completely static in his symptomology, with no improvement.
66 Dr Baxter was at a loss to explain the plaintiff’s symptoms and their lack of change. He noted the plaintiff had not responded well to any treatment modalities. Because he did not know the basis of the plaintiff’s pain and how much of it was psychological, Dr Baxter was unable to make a prognosis. He did not think there was any known physical cause for the plaintiff’s spinal pain. It had been extensively looked at by competent people, and the wide range of initial symptoms and their narrowing had not correlated to any findings anywhere.
67 Mr Torode saw the plaintiff on referral from Dr Baxter on 25 October 2004. At that time the plaintiff complained of constant pain in his right shoulder and thoracic spine which caused him trouble sleeping.
68 Mr Torode noted the plaintiff had been previously referred to him on 5 July 2000 because of concerns with his spine. At that time Mr Torode diagnosed a mild right thoracic scoliosis. On subsequent review in December 2000 Mr Torode noted the plaintiff was close to skeletal maturity and there was only a mild curve so no further review was deemed necessary.
69 In 2004, Mr Torode concluded that the plaintiff’s symptoms had worsened considerably from 2000 and would appear to relate to the injury at work in 2003. The plaintiff’s investigations confirmed there had been slight worsening of his scoliosis.
70 Mr Torode considered the plaintiff had intervertebral disc disease in the mid thoracic spine which would warrant further examination and observation in the future. He thought the plaintiff’s symptoms would preclude him returning to the relatively heavy work he was doing at the time of the incident.
71 The plaintiff first saw Dr Hjorth on 8 March 2005 complaining of headaches, tingling in the right arm, severe pain in the back between the shoulder blades or a bit lower, severe neck pain, pain in arms and shoulders, and tremor every now and again.
72 Dr Hjorth noted that the MRI of the thoracic spine showed an impressive T7 disc lesion which was touching the spinal cord but not really distorting it to any great degree.
73 Dr Hjorth commented that the plaintiff’s symptoms were very widespread and only a small number of these could be related to his thoracic disc. In his view the key thing was that the plaintiff suffered a quite significant injury at work and it seemed that this caused the disc prolapse at T7- 8 and was responsible for some of his present problems.
74 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff on two occasions for medico-legal purposes, initially on 7 June 2007 and most recently in November 2008.
75 On the most recent examination, the plaintiff told Mr Brearley that there had been basically no change in his physical condition and that he had discomfort or pain in the mid region of the back whenever he attempted to do any significant physical work.
76 On re-examination, Mr Brearley noted mild mid thoracic scoliosis was evident as before. The plaintiff indicated the site of his pain was just to the right of the midline, radiating towards the right shoulder. There was some limitation of flexion but some slight improvement. There was no neurological abnormality of the arms.
77 In Mr Brearley’s view there had been no significant improvement in the plaintiff’s condition and his mid and lower thoracic pain on exercise persisted. Mr Brearley considered the plaintiff remained quite unfit for any manual labour and unfit for any work which required prolonged standing or sitting as he needed to get up and walk around after sitting for an hour or so. Mr Brearley thought the plaintiff would have particular problems with the light work such as a sales representative or clerical officer because of his requirement to stand up and move around.
78 In Mr Brearley’s view there was no likelihood of any significant improvement in the foreseeable future and he thought the plaintiff’s condition had stabilised.
79 The plaintiff’s present treating doctor, Dr Vrij, became involved in the plaintiff’s care in August 2008. He did not think much had changed from when Dr Baxter reported in 2007, but he did think there had been progress made from a psychological point of view. He noted the plaintiff remained highly committed to his degree and hopeful of being employed.
80 Dr Vrij did not think it would be of benefit for the plaintiff to see psychologists and psychiatrists. He noted the plaintiff had had some setbacks as a result of external factors of an emotional nature but that he had been able to “bounce back.”
81 Dr Vrij believed the plaintiff continued to be incapacitated for his previous work and hoped that retraining would help him get employment in his new field. He considered that whether future employment was going to be full time or part time depended on the type of work the plaintiff found himself involved in.
82 Dr Vrij confirmed that like many of his colleagues he was unsure what was the basis of the plaintiff’s pain and the lack of a firm diagnosis made it impossible to come up with a prognosis.
Investigations
83 An MRI of the cervical spine taken on 23 October 2003 was normal. The MRI of the thoracic spine taken on that date showed changes of Scheuermann’s disease in the mid thoracic spine with evidence of multilevel disc degeneration, and two small disc protrusions were identified.
84 An MRI of the spine taken on 30 December 2004 demonstrated disc degeneration at thoracic discs from T6-7 to T9-10 with small central/paracentral disc protrusion at T7-8 with minor superior migration of disc fragment. This extended to but did not compress the cord. The appearances were noted to be unchanged in comparison to the previous MRI of 23 October 2003.
Vocational and Wage Evidence
85 The plaintiff relied upon an affidavit of his solicitor, Graham Hills, who exhibited a letter from the payroll administrator of Hays Resources and Mining in Perth dated 25 March 2009. The letter enclosed an extract of a salary survey and guide for 2008 in respect of the resources and mining sector. It identified a salary range for boilermaker/welders for various Australian states between a low of $60,000 per annum and a high of $125,000.
The Defendants’ Medical Evidence
86 The plaintiff was examined on a number of occasions between September 2003 and 19 March 2009 by Dr Andrew Miller, occupational health consultant.
87 At the time of the most recent examination, the plaintiff complained of variable pain in the neck and back radiating into his right shoulder at times and aggravated by sitting and standing for long periods, restricted movements of his neck and back, occasional pins and needles and numbness in the right arm, and anxiety, depression and insomnia.
88 On examination, Dr Miller noted that the plaintiff moved freely and was in no apparent discomfort. Some movements of the back were restricted. Dr Miller concluded that the plaintiff’s condition remained relatively unchanged symptomatically and objectively since 20 May 2008.
89 In his view, the plaintiff had a mild disability of the neck and back due to local discomfort and some limitation of movement; however, there was no firm evidence of spinal nerve root involvement. He considered the underlying pathology appeared to be an aggravation of degenerative changes in the axial spine. He considered the plaintiff’s employment with the first defendant was still materially contributing to the injury and the plaintiff’s ongoing partial incapacity. He thought the plaintiff’s condition had stabilised and that treatment should be directed at maintaining strength and flexibility of the plaintiff’s neck and back and reducing pain with a self-managed exercise program and analgesic and anti-inflammatory medication as required.
90 In Dr Miller’s view the plaintiff remained incapacitated for a full range of his pre-injury duties but he was capable of working avoiding lifting in excess of 7 kilograms, avoiding extreme movements of his neck or back, avoiding forceful pushing or pulling activities, and avoiding prolonged static postures such as sitting or standing in the same position for more than one hour at a time.
91 Dr Miller considered the plaintiff was capable of continuing the computer degree course and eventually undertaking employment in that field. In his view, of course the plaintiff would be unable to gain employment in jobs that involved physically demanding work, such as his pre-injury job or similar work.
92 The plaintiff was examined on a number of occasions by Dr Timothy Wood, sports and musculoskeletal physician, initially in 2004 and most recently on 20 August 2008.
93 When seen on 20 August 2008, the plaintiff complained of right sided pain from his neck centred around the right shoulder blade with periodic radiation down his right arm. The pain was constant in nature and made worse by the plaintiff’s sustained use of the right arm or prolonged sitting, for example at a computer.
94 Given he had seen him some time ago and the plaintiff’s condition had not really changed, Dr Wood thought on balance it would appear there was a low probability of the plaintiff’s condition significantly improving in the short or long term and it was therefore likely the plaintiff would be left with a chronic pain in the area.
95 Dr Wood noted the plaintiff was able to undertake most activities of normal daily living but he was unable to sit for long periods at the computer or perform any activities for a sustained period of time before pain intervened. The plaintiff told him that he still tried to walk but only apparently for fifteen minutes a day.
96 Dr Wood noted that the plaintiff continued to report widespread pain through the base of his neck and right periscapular region in particular. The plaintiff occasionally had symptoms and pain down the right arm which affected his ability to do sustained activities. He noted the plaintiff had had very little adequate pain relief from his medication and his sleep was still disturbed but despite this, the plaintiff was coping with his course.
97 Dr Wood suggested some new treatment options which could include the possibility of another supervised gym membership for three to six months with or without the use of anabolic steroids. Trigger point injections could also be considered.
98 Having read the vocational assessment from Co Work Pty Ltd of August 2008, Dr Wood noted the physical requirements of a job as a CNC operator prevented the plaintiff from spending prolonged periods of time either sitting or standing. Dr Wood’s main concern with the job of a sales assistant was the constant standing required and the likely aggravation of the plaintiff’s symptoms.
99 In his view, for the plaintiff to work as a technical support officer, one would have to be certain that the ergonomic setup of his work station was optimal and it was possible for the plaintiff to take regular breaks.
100 Dr Wood thought the industrial hirer controller role appeared to be a good mix between standing, sitting and various light physical tasks, but he had a minor concern there would be the possibility of the plaintiff having to assist customers in lifting potentially heavy hire equipment, but he noted other workers could help the plaintiff in such tasks.
101 Dr Wood concluded overall he had concern about the plaintiff working as a sales assistant and technical support officer but certainly the other two positions suggested fitted in with the appropriate medical restrictions. In his view, it remained to be seen whether the plaintiff could undertake these options on a part-time basis while he finished the course.
102 Mr Michael Polke, orthopaedic surgeon, examined the plaintiff in June 2008. In his view the plaintiff suffered from a soft tissue strain of the neck caused by the incident. He thought the plaintiff’s prognosis was fairly good in the long- term and that his symptoms would abate with time. He considered the plaintiff’s injuries did not affect his daily activities.
103 In his view, the plaintiff had no capacity for his heavy pre-injury employment duties and he would not recommend he return to that kind of heavy work in the future. Mr Polke considered appropriate restrictions included avoiding heavy lifting, repeated bending and twisting of the plaintiff’s neck and thoracic spine.
104 In Mr Polke’s view, the plaintiff had a capacity for suitable employment provided he worked within the restrictions suggested. Having been provided with the vocational assessments, he thought the plaintiff could do the jobs suggested as long as he conformed to the restrictions of avoiding lifting in excess of 7 kilograms, avoiding extreme movements of his neck and spine and forceful pushing and pulling activities, and avoiding prolonged static posture. He noted, however, the psychiatrist’s opinion that the plaintiff suffered from an adjustment disorder with depression, anxiety, and fear about the future, and that further issues, such as that the plaintiff was preoccupied with his back pain and lacked motivation and enthusiasm, also had to be considered.
Vocational Evidence
105 A vocational assessment was carried out by the Victorian WorkCover Authority in April 2008. The jobs of retail sales assistant, sales representative, cashier, call centre operator, clerical officer local government, and information technology administrator were suggested as appropriate for the plaintiff.
106 An assessment of the plaintiff’s occupational capacity was carried out on 27 August 2008 by Co Work Pty Ltd. It was concluded that the plaintiff’s trade skills together with his computer skills satisfied the prerequisites for work as a CNC programmer. It was Co Work’s opinion that the plaintiff was employable in a diverse range of areas, and although future training would enhance his earnings the plaintiff had a current ability to gain suitable employment.
Credibility
107 Whilst the plaintiff’s credibility was put in issue by counsel for the defendants in relation to a number of matters and the plaintiff did understate the level of his academic success, I accept that the plaintiff is a genuine motivated man, evidenced by his attempt to return to his trade and successfully complete his certificate, and his endeavours thereafter at his own expense to qualify in another field when it became apparent his trade was beyond him physically.
108 I accept the plaintiff’s explanation as to his affidavit evidence in relation to his motorbike riding.
109 Further, no medical practitioners commented as to any inconsistencies on examination or that the plaintiff was exaggerating his symptoms.
110 There was neither video surveillance of the plaintiff nor any other evidence suggesting a level of activity inconsistent with his evidence as to his pain and disability.
111 In these circumstances, I do not accept that the plaintiff’s credit has been successfully attacked to any relevant degree.
Findings
112 In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2002 incident is serious and permanent.
113 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
114 In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.
115 In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172, provided the plaintiff establishes that the subject compensable injury in 2002 materially contributes to his impairment and its consequences, and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
116 Whichever approach is followed, the plaintiff, to reach the threshold of “serious injury”, is required to establish the aggravation from the 2002 incident is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).
117 Prior to the incident, the plaintiff was working full time in the final year of his four-year apprenticeship. He was also engaged in additional study and enjoyed participating in a number of vigorous sporting activities. He had not required any time off work because of his scoliosis.
118 Having made a diagnosis of scoliosis in July 2000, in December 2000, Mr Torode discharged the plaintiff without the need for further review. Whilst the plaintiff continued to undergo maintenance chiropractic treatment from Dr Foote, I accept that neither his work nor his leisure activities were affected by his scoliosis prior to the incident.
119 I accept the submission of counsel for the plaintiff that there is a stark contrast between the plaintiff’s lifestyle and level of activity before and after the incident.
120 I find the plaintiff suffered a compensable injury to his spine on the said date.
121 I find that the plaintiff’s impairment is organically based and that he has suffered an aggravation of a degenerative condition of his spine.
122 It is the impairment not the injury which is the relevant consideration. Therefore the absence of nerve root compression and the difficulty various doctors have encountered forming a diagnosis are not of great weight in circumstances where there is a compensable injury and all doctors accept the genuineness of the plaintiff’s complaints.
123 It is now nearly six years since the incident. Since that time the plaintiff has continued to suffer back pain. I find that the impairment to the plaintiff’s spine is permanent, in the sense that it is likely to last for the foreseeable future.
124 Section 134AB(37) defines “serious injury” as a permanent serious impairment or loss of body function.
125 To satisfy the test under the Act the impairment in relation to each of pain and suffering and loss of earning capacity must have consequences that, when judged by comparison with other cases in the range of possible impairments, which may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
126 The statutory test requires a judgment based on an evaluation of all the evidence.
127 The term “serious” requires the impairment and its consequences to this particular plaintiff to be reviewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA at para 29.
128 I accept the plaintiff’s evidence as to the level of his pain and incapacity in the performance of his pre injury work, his study, domestic and social activities.
129 I accept that in addition to suffering chronic back pain since the incident, the plaintiff’s sleep pattern continues to be disturbed by pain. The plaintiff has required strong medication for pain relief and he has continues to undergo chiropractic treatment.
130 A most significant consequence for the plaintiff is his inability to return to full time unrestricted manual work as a boilermaker or in a similar job.
131 Boilermaking was a passion for the plaintiff, a trade he left school to undertake. He envisaged a long term career in the trade, and in addition to his apprenticeship enrolled in further trade subjects to increase his skills and earning capacity.
132 The plaintiff’s inability to return to his chosen trade is supported on medical grounds by all medical practitioners in this case.
133 Further, the plaintiff is a very young man. In what should be the very best years of his life, he can no longer engage in waterskiing and scuba diving, sports he previously enjoyed. He can no longer ride his motorbike to any extent and is unable to use it as a form of transport.
134 Taking into account all the evidence, I accept that the impairment to the plaintiff’s spine is serious and permanent.
135 I am of the view that the plaintiff suffered a serious injury to his spine in the incident. When judged by comparison with other cases in the range of possible impairments, the impairment to his spine may be fairly described as more than significant or marked and as being at least very considerable.
136 Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
Loss of Earning Capacity
137 As the plaintiff worker was aged under twenty-six at the time of injury, special statutory requirements apply.
138 Firstly, the plaintiff must establish a loss of earning capacity of 40 per cent at the time of the hearing. He has done so, as at present the plaintiff’s gross earnings from personal exertion are nil.
139 Further, the plaintiff must establish that he has a loss of earning capacity of 40 per cent or more and that it is likely to continue permanently.
140 Under subsection (38) the onus is squarely on the plaintiff to establish the loss of earnings and to the requisite threshold. The onus is not discharged by a rejection of the defendants’ calculations or even of their witnesses altogether on this topic – see Barwon Spinners at para 70.
141 At the time of the incident the plaintiff was earning $669 per week or $34,500 per annum as a fourth-year apprentice.
142 Counsel for the plaintiff relied upon material exhibited to Mr Hill’s affidavit, suggesting the plaintiff, if he presently worked in his trade as a boilermaker, had a capacity to earn between $60,000 and $125,000 per year.
143 Save for the plaintiff’s evidence that he would start on a salary of $50,000 in his new career, an amount which he agreed could significantly increase subject to his success, there was no evidence as to what the plaintiff could expect to earn as a computer games designer.
144 Counsel for the defendants submitted that as the plaintiff clearly bore the onus, the failure to provide any such evidence was crucial, and on that basis the plaintiff’s application must fail.
145 In response, counsel for the plaintiff made reference to the Second Reading Speech on the Accident Compensation (Common and Benefits) Bill, which he submitted supported the view that in the case of a worker under twenty-six common law principles applied, and that the Court “need not slavishly follow an arithmetical approach.”
146 In the Legislative Assembly on 23 May 2000, The Honourable M M Gould, Minister assisting the Minister for WorkCover, said:
“The three year pre and post injury period does not apply in the case of a worker referred to in Section 5A(7) of the Act or a worker under the age of twenty-six at the date of injury. The Government recognises that apprentices and workers undergoing training for the purposes of being qualified and in general terms workers under the age of twenty-six should not be subject to a six year period of inquiry of earnings or earning capacity. In the case of such workers the Court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common law position prevails.”
147 I accept that the rationale for the insertion of this section was not to disadvantage young workers in assessing an “after injury” earnings figure against their “without injury” earnings. This case is one in point where the plaintiff was engaged in an apprenticeship at the time of the injury and was earning only $34,000 at that time. If the plaintiff’s “without injury” earnings were assessed in the usual manner applied to older workers, the plaintiff would fail in his claim for loss of earning capacity if his “after injury” earnings exceeded $20,400 – an unfair situation when the likelihood was that when qualified he would have had the capacity to earn far in excess of what the plaintiff was earning at the date of injury.
148 However, I do not accept that the reference to common law principles in the Second Reading Speech extends to the approach suggested by counsel for the plaintiff.
149 It was submitted that the plaintiff’s earning capacity was a capital asset, and, with his inability to do manual work, the plaintiff had lost at least half of that asset compared to what he was trying to develop in his new career. It was submitted that looking at the issue globally, this was a fair and reasonable assessment of the plaintiff’s earning capacity, and that it was not crucial to the success of his application that the plaintiff provide further evidence of his residual earning capacity.
150 I do not accept that the plaintiff has discharged the necessary onus in the absence of this evidence. Whilst a different, less rigid test applies to younger workers, there needs to be some wage figures against which to assess the requisite loss. I cannot speculate in the manner suggested by counsel for the plaintiff, particularly when the plaintiff’s own evidence is that the starting wage in his new career is $50,000, a figure which he agreed could increase significantly depending on his success.
151 I am not satisfied that the plaintiff, having undertaken retraining in this field, will have a permanent loss of earning capacity of 40 per cent or more.
152 Accordingly, I dismiss the plaintiff’s application in relation to loss of earning capacity.
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