Bhimireddy v The Product Makers (Australia) Pty Ltd
[2021] VCC 765
•9 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03561
| ADINARAYANAREDDY BHIMIREDDY | Plaintiff |
| v | |
| THE PRODUCT MAKERS (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 May 2021 | |
DATE OF JUDGMENT: | 9 July 2021 | |
CASE MAY BE CITED AS: | Bhimireddy v The Product Makers (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 765 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – lumbar spine – whether aggravation injury – whether injury permanent – leave sought for pain and suffering and pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Johns v Oaktech Pty Ltd [2020] VSCA 10; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Judgment: Leave granted to commence a common law proceeding for pain and suffering damages. The application to bring a proceeding for loss of earnings damages is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Dimsey | Easton Legal |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HIS HONOUR:
Introduction
1The plaintiff, Mr Adinarayanareddy Bhimireddy, was born in a village in India in June 1977. He is a now married man with two small children. He completed his schooling and then obtained qualification as a toolmaker. He first worked as a toolmaker in a factory in Chennai, before migrating to Singapore. Then in 2003 he migrated to Australia, where he again obtained work in his trade as a toolmaker.
2In 2005, the plaintiff obtained work as a toolmaker with Ruhr Tooling (“Ruhr”) at a factory in Dandenong. He worked there until 2010. In approximately 2008, the plaintiff injured his back at Ruhr, although the consequences from that injury were perhaps not immediately obvious. He continued working, albeit with some back symptoms.
3During 2010, the plaintiff transferred employment to Advanced Mould Engineering, once again as a toolmaker, where he continued until approximately November 2012. During that employment he had increased symptoms in his back, which he attributed to the earlier employment with Ruhr.
4Then in January 2013, the plaintiff obtained employment with The Product Makers (Australia) Pty Ltd (“the defendant”), initially for a probation period, before he was appointed full-time in April 2013.[1]
[1]Defendant’s Court Book (“DCB”) page 190
5The plaintiff worked for the defendant in a factory which produced concentrates for use in the food industry. The plaintiff has described this work and how raw material was delivered in various-sized containers, that were then decanted and mixed according to the manufacturer’s formula. The job required him to perform a range of tasks of a manual nature, including pushing drums of product, lifting drums into a vat and decanting the finished product into drums. He had to bend, twist, reach and lift weights up to 20 kilograms.[2]
[2]DCB 123
6The plaintiff was lifting a drum of product weighing approximately 20 kilograms, on 16 October 2014, at the defendant’s factory, when he suffered further injury to his back (“the incident”).
7This is a serious injury application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The plaintiff was represented by Mr Dimsey of counsel and the defendant was represented by Mr McKenzie of counsel. The plaintiff claims to have suffered a “serious injury” because of the incident, by way of a physical injury to the lumbar spine, described as an “aggravation of degenerative lumbar spine physical disease”.[3]
[3]Transcript (“T”)1, Lines (“L”) 20ꟷ21
8The plaintiff seeks the leave of the Court to commence a common law proceeding for both pain and suffering and loss of earning capacity (pecuniary loss) damages.
9The plaintiff accepts that he had episodic and ongoing low-level back pain as a consequence of the earlier injury with Ruhr.[4] He says that after the incident he has had an increase in symptoms so as to meet the “serious injury” test.
[4]T2, L21ꟷ22
10The defendant submitted that the plaintiff has failed to discharge the onus to prove the extent of the aggravation injury and to prove that the aggravation injury is of itself serious.[5] In addition, the defendant raises issues to do with the disentanglement of any organic injury from the non-organic and submitted that the plaintiff has a residual capacity for employment so that he does not meet the statutory threshold for “serious injury”.
[5]Petkovski v Galletti [1994] 1 VR 436
11For the following reasons, leave is granted to commence a proceeding for pain and suffering damages, but leave is refused in respect to the application for pecuniary loss damages.
The credit of the Plaintiff
12The credit of the plaintiff will often be critical to the resolution of a serious injury application.[6]
[6]Johns v Oaktech Pty Ltd [2020] VSCA 10
13In this application, the defendant submitted that there is a credit issue that arises which means that the plaintiff’s evidence must be viewed with some caution before accepting his subjective complaints of pain and the like. The defendant submitted that he has not been candid about the extent of his back problems before he commenced work with the defendant.
14In considering the issue of credit, it is relevant, in my opinion, that the plaintiff was born overseas from a non-English speaking background. His English-language skills were sufficient for him to give evidence in English, although an interpreter was available and used on occasions. He speaks English with a very strong accent and his oral evidence was difficult to understand. My assessment of the plaintiff in the witness box was that he was a calm and quiet man who did his best to answer questions asked of him. Having had the benefit of seeing him in the witness box, I do not consider that any major credit issue arises. I reject the submission that the plaintiff has been dishonest or deliberately set out to mislead. Having said that, while he does set out in his affidavit,[7] the prior injury at Ruhr, I accept that the affidavit does not fully deal with that injury and symptoms consistent with some of the objective evidence. Therefore, there does need to be a consideration of his evidence in light of the objective evidence regarding that earlier injury.
[7]Plaintiff’s Court Book (“PCB”) 9
The injury with Ruhr Tooling
15The plaintiff provided a history of the injury with Ruhr in his first affidavit. He said:
“In about 2008 I injured my lower back when working with Ruhr Tooling. I don’t believe that I had any time off but I attended my general practitioner, was referred to a specialist and had physiotherapy treatment for a long period afterwards.
My back injury caused some ongoing discomfort but I was able to engage in work on a full-time basis and enjoy my interests outside of work without any limitation.”[8]
[8]PCB 9
16The plaintiff swore a second affidavit,[9] which makes no mention of the injury at Ruhr.
[9]Dated 19 April 2021 at PCB 22
17The plaintiff suffered injury at Ruhr on 3 October 2008, when moving a piece of steel. A claim for compensation was completed[10] in respect to that incident/injury, as was a claim for permanent impairment.[11]
[10]DCB 1
[11]DCB 2
18Following the injury at Ruhr, the plaintiff attended a Dr Gowri Ratnavelar, at a clinic in David Street, Dandenong. A CT scan of the lumbar spine was arranged and reported as demonstrating “mild lumbar disc degeneration”.[12]
[12]DCB 19
19By February 2011, the plaintiff had sufficient symptoms in his back to need to consult a general practitioner, Dr Sudarma Munathanthiri, at Hampton Park. A referral was then arranged to Mr Michael Khan, orthopaedic surgeon.
20Mr Khan examined the plaintiff on 16 February 2011. In a letter dated 22 February 2011, he reported back to the general practitioner, that the plaintiff had “mild stiffness and pain at the thoraco-lumbar junction of the spine and some pain in the lower lumbar region, going down to both buttocks, the left being worse than the right”[13] and that the “pain is aggravated by sitting for short periods or lifting heavy weights”.[14] Mr Khan then arranged an MRI scan. In a letter dated 23 March 2012 to the treating general practitioner, Mr Khan commented that the plaintiff had “aggravated pre-existing mild degenerative changes”[15] and that he “appears to have a genuine problem as he is unfit to perform heavy strenuous work requiring heavy lifting and excessive bending”.[16] Mr Khan reported back to the general practitioner and discharged the plaintiff from his care on 18 April 2012.[17] In that letter, he commented:
“From a clinical point of view, I consider that he is fit for work, but should avoid heavy duties, lifting unusually heavy weights and bending, twisting and turning of his spine repetitively.”[18]
[13]DCB 31
[14]DCB 31
[15]DCB 34
[16]DCB 34
[17]DCB 36
[18]DCB 36
21Dr Munathanthiri provided reports as part of the plaintiff’s WorkCover claim for the injury with Ruhr. By letter dated 23 November 2011, Dr Munathanthiri recommended ongoing physiotherapy, stretches, yoga and swimming, as those activities seemed to keep the plaintiff at work.[19] Then by report dated 21 December 2011, addressed to the plaintiff’s (then) solicitors, Dr Munathanthiri stated that there was a broad-based disc herniation in L4-5, causing impingement on the right L5 nerve root and a central small disc herniation at L2-3. She commented that the plaintiff should avoid lifting more than 5−10 kilograms at a time and placed various other restrictions for work.[20]
[19]DCB 26
[20]DCB 28
22As part of that earlier claim, the plaintiff was referred to Dr David Barton, consultant occupational physician, for medico-legal purposes. By report dated 17 August 2011,[21] Dr Barton recorded a history of the plaintiff continuing to have lower back pain “that is more severe on the left side with pain extending down the posterolateral aspect of the left buttock into the left thigh … generally worsened with bending, sitting and lifting”.[22] The plaintiff was at that time working full time, doing what Dr Barton described as “essentially normal work as a toolmaker”.[23] Dr Barton summarised the plaintiff’s condition as a “fairly long history of persisting back problems”.[24] Dr Barton concluded his report by stating that he thought the plaintiff could stay at work and that there was no reason why he could not undertake activities of daily living, regardless of treatment.[25]
[21]DCB 42
[22]DCB 44
[23]DCB 43
[24]DCB 45
[25]DCB 46
23The plaintiff also required physiotherapy treatment for the Ruhr injury. Mr Matthew Bassilios, physiotherapist, treated the plaintiff. He provided a report dated 21 October 2011,[26] in which he noted that the plaintiff was then on light duties and he recommended ongoing restrictions for work, with a need for ongoing physiotherapy.
[26]DCB 48
24The plaintiff was next seen by Associate Professor Anthony Buzzard, general surgeon. In a report dated 2 May 2012,[27] Associate Professor Buzzard noted the plaintiff’s complaints of pain in the lower back region, getting worse and that he was using Voltaren Rapid and Panadol Osteo, once or twice a week – two tablets at a time. The use of Voltaren Gel and physiotherapy was also noted, together with occasional Fennec tablets. The back pain sometimes extended to the left leg and sometimes to the left heel.[28] Associate Professor Buzzard assessed the plaintiff as having “widespread degenerative disease in the low back region” and that it was “reasonable to accept that he does still suffer from symptoms of pain in the low back region as a result of the degenerative disease which he has”.[29] Associate Professor Buzzard went on to state that he thought the plaintiff was then “capable of full work involving reasonable lifting, bending and stooping”.[30]
[27]DCB 52
[28]DCB 53
[29]DCB 54
[30]DCB 55
25The plaintiff also attended a medical panel as part of that earlier claim. By Certificate of Opinion dated 23 July 2012,[31] the Panel opined that the plaintiff had a 5 percent whole person impairment resulting from the accepted lower back injury.
[31]DCB 67
26The plaintiff had further physiotherapy treatment into 2013 with Ms Rany Louka, physiotherapist, who reported back to Dr Munathanthiri by letter dated 20 September 2013.[32]
[32]DCB 78
27The defendant tendered the clinical records of First Health Medical Centre in Hampton Park, which is the clinic at which the plaintiff consulted Dr Munathanthiri, although he also attended other doctors at that clinic. The clinical records reveal that the plaintiff attended Dr Munathanthiri with lower back pain from as far back as 23 October 2008, but in particular, on a fairly regular basis throughout 2010, 2011 and 2012 and on occasion strong painkillers, such as Panadeine Forte, were prescribed.[33] Having said that, subsequent to commencing with the defendant, the attendances on Dr Munathanthiri for lower back pain are minimal. That ties in with the plaintiff’s evidence that the job with the defendant was a lighter job[34]and that his symptoms settled.
[33]See as an example, attendance on 31 December 2012
[34]By that, lighter than his previous employment as a toolmaker and not “light duties” as such.
28An affidavit sworn 26 April 2021 was tendered into evidence from the operations manager of the defendant, Mr Gilberto Navarrete.[35] He gives evidence about the plaintiff’s return to modified duties after the incident on 16 October 2014. There is no suggestion in his affidavit that before the incident the plaintiff was not capable of full-time work and there is nothing that refutes the plaintiff’s description of the work he performed with the defendant.
[35]DCB 190
29The plaintiff was cross-examined at length about the extent of symptoms in his lower back following the injury at Ruhr. He was cross-examined with respect to the history recorded by the doctors and in the clinical records.
30In cross-examination, it was put to the plaintiff as follows:
Q:“… And then what I suggest is that leading up to 16 October 2014 you had ongoing problems with your back, would you agree with that? This is leading up to the incident on 16 October 2014. You would agree that you had ongoing problems with your back?‑‑‑
A:Yes.
Q:And when I say your back, I mean especially your low back. Do you agree with that?‑‑‑
A: Yes.
Q:And I suggest those problems meant that you had to avoid heavy lifting. Would you agree with that?‑‑‑
A: Yes.
Q:And I suggest those problems meant that you had to avoid standing for long periods?‑‑‑
A: Yeah, they suggest - yes.
Q:And I suggest those problems meant that you had to avoid standing for long periods?‑‑‑
A: Yeah, they suggest - yes.
Q:And when you say they suggest, that was advice that you had been given by who? When you say they suggest, who had given you that advice? Was that Mr Khan?‑‑‑
A:Khan and Sudarma.
Q:And Dr Sudarma ‑ ‑ ‑?‑‑‑
A:Yeah, Sudarma.
Q:‑ ‑ ‑ is your general - your family doctor?‑‑‑
A:Yes.
Q:Yes, and I suggest the - leading up to 16 October 2014, you had problems with constant bending?‑‑‑
A:Yeah, I don’t ‑ ‑ ‑
Q:Yes, and you had problems with standing - I’m sorry, with twisting?‑‑‑
A:So they suggest not to do while - yeah.
Q:And you had problems with sitting for prolonged - sitting for long times?‑‑‑
A:Yes.
Q:And you needed to have a break every couple of hours?‑‑‑
A:Yes.
Q:And you worked that into your routine, did you? You worked in a break ‑ ‑ ‑?‑‑‑
A:Yes.
Q:‑ ‑ ‑ into your routine?‑‑‑
A:Yes.
Q:And so leading up to 16 October 2014, I suggest you had - you were working with – you didn’t have a medical certificate, but you were acting on the doctor’s advice in relation to your work. Is that right?---
A:Yes.
Q:And that was advice that you’d been given by Mr Khan in 2011, is that right?---
A:Sorry, say again?
Q:This was the advice that Mr Khan gave you back in 2011 and in 2012, about avoiding heavy work. Was that the medical advice you were following?---
A:In general, yes.
Q:And I suggest that leading up to the 16th of October 2014, you were having trouble with looking after your children. What do you say?---
A:Yes.
Q:And I suggest that leading up to the 16th of October 2014, you were trouble with shaving, bathing, dressing and toileting yourself. What do you say?---
A:No.
Q:I suggest that leading up to the 16th of October 2014, you were having trouble with your sleep? You were waking up during the night with back pain?---
A: No, not much.
Q:I suggest it was the way you described it to the medical panel, waking up three times a night, and I suggest that never went away. What do you say?---
A:After I change the job I got better.
HIS HONOUR:
Q:I didn’t hear the first part, sorry. After change of job?
Mr McKENZIE:
Q:Yes, ‘After change of job I got better’. (To the witness) And I suggest that your social activities – things like playing social cricket, you never got back to playing social cricket after the injury in 2008. What do you say?---
A:Yeah, I didn’t go again.
Q:I’m saying that that was after the injury in 2008, you never went back to playing social cricket. Do you agree?---
A:Yes.
Q:And I suggest that after the injury in 2008, you gave up all sporting activities that you might’ve had. What do you say?---
A:2012 I got very bad back, so after 2013 when I get better, I start again going.
Q:You say that your back got better in 2013?---
A:Yes.
Q:Is that what you tell His Honour?---
A:Yes.
Q:I suggest that your back never got better in 2013, and that’s why you had to keep going back to the doctor, looking at those notes we were just looking at. What do you say?---
A:So I got better in 2013.”[36]
[36]T54, L20ꟷT56, L26
31In re-examination, the plaintiff was asked:
Q:“Before October 2014, what was the situation in relation to back pain at that time?‑‑‑
A:Before doing a big job, I may get some symptoms, but other than that I don’t have any trouble to stand, ah – what other job I used to do 300, 400 kg jobs I used to do - - -
Q: I’m sorry, 300 or 400, could you repeat that?---
A: Kg.
Q: Kilograms?---
A: Yeah, kilogram jobs.
Q: I take it you weren’t lifting that all at once?---
A:Yeah, I (indistinct) 20 kg drums back into the work will make – will measure all the liquids and mix it and then will pack into 20 kg.
Q: So you were managing those duties?---
A: Yes.
Q:But you had some pain, now where was the pain located, that pain that you’ve just described that would occur if you did something particularly heavy, where in the back or what other part of the body would that pain occur?---
A:Lower back.”[37]
[37]T135, L3ꟷ19
32In my assessment the plaintiff gave candid answers during his oral evidence to questions about the state of his back before commencing work with the defendant. But I accept that the detail is missing in his affidavits. In my view his oral evidence was also consistent with the medical material I have referred to and so that mitigates against drawing an adverse inference against him because of the lack of detail in his affidavits. The totality of the evidence leads to a conclusion that before commencing work with the defendant he had ongoing and fluctuating lower back pain, particularly while working as a toolmaker. At times he required general practitioner attendance, specialist referral, physiotherapy and painkillers. The objective evidence is that there was some interference with the plaintiff’s recreational activities and general activities of daily living before he commenced work with the defendant.
33However, the tendered medical records indicate that in the twelve months or so before suffering injury with the defendant the plaintiff had no real treatment for his back, which is consistent with his evidence that the symptoms improved because the job with the defendant was a somewhat lighter job than working as a toolmaker. There is no suggestion that the plaintiff did not cope with full-time employment with the defendant before the incident, consistent with the fact that the medical opinion in 2012 was that he was capable of full-time work.
34The plaintiff’s description in his affidavit of his back injury at Ruhr could have been more detailed, but it is in fact largely accurate, save that while he may have been able to engage in interests outside of work, I do not accept that his interests outside of work were “without any limitation”.[38]
[38]PCB 9
The injury suffered with the Defendant
35It is relevant, in my opinion, that at the time the plaintiff was injured on 16 October 2014, he was undertaking fairly heavy work, lifting a 20-kilogram drum of flavouring.[39] Following the incident, he attended a general practitioner described by him as “the company doctor”, being Dr Kenneth Loh at the Parkmore Medical Centre, who certified him as unfit for work and prescribed pain medication.[40]
[39]PCB 9
[40]PCB 9
36Dr Loh provided a report dated 5 January 2017[41] in which he noted the plaintiff first attended him on 20 October 2014, with a history of pain in both thoracic flanks of his body after lifting the drum. He sets out the treatment to that date, including a note that on 23 October 2014, there was a referral for physiotherapy. By 1 November 2014, pain was reported in the left lower back radiating to the back of the left knee and anterior thigh. By 13 November 2014, the lower back pain was worse and was radiating down the left leg to the left heel and there was a referral for a CT scan, as well as the prescription of Lyrica. Dr Loh records:
“A CT scan report of the lower back dated 14 November 2014 stated that there were mild broad based annular disc bulges between L2 and L5 but no central canal or exit foraminal compromise at any lumbar level.”[42]
[41]This report was tendered by the plaintiff with the leave of the Court after his case had been closed.
[42] PCB 224
37There were ongoing reviews on a regular basis with Dr Loh and by 7 January 2014, a trial of Prednisolone, together with hydrotherapy, chiropractic treatment and a referral for an MRI scan is recorded. On 28 January 2015, Dr Loh records discussions with a return-to-work coordinator aiming to have the plaintiff performing pre-injury duties by March 2015. At review on 5 March 2015, the plaintiff was working full‑time alternative duties. There was then a referral to a rheumatologist, Dr Mark Patrick. A nerve conduction study was noted as having been arranged by Dr Saravanan Shanmugam, and reported as normal.
38Pausing again, there was confusion, at least in my mind, when attempting to follow the chronological evidence of treatment and specialist referral after the incident. Dr Shanmugam is a general practitioner in the same clinic as Dr Munathanthiri. The clinical records reveal that from approximately August 2014, Dr Shanmugam became the plaintiff’s main general practitioner at First Health Medical Centre. At times, there is overlap between attendances at First Health Medical Centre and at Dr Loh’s clinic.
39Returning to the report from Dr Loh, a further MRI scan of 24 April 2015 is noted, as well as an isotope bone scan arranged by Dr Patrick. Dr Loh notes reviews throughout 2015 and a continuation of alternative duties. In February 2016, Dr Loh notes the plaintiff had been approved for a rehabilitation program at a pain clinic and that he also had increased pain at work. A WorkCover certificate was provided for time off work. Then on 30 March 2016, Dr Loh notes a referral to an osteopath. On 4 May 2016, Dr Loh records that the plaintiff’s pain was getting worse, the osteopath had recommended lumbar cortisone injections and the plaintiff was referred to the Melbourne Pain Clinic to assess suitability for cortisone injections. A WorkCover certificate was then provided for a couple of days off work before a return to reduced hours of work of four hours per day, five days per week. Then, on 11 May 2016, the plaintiff reported more right lower leg pain aggravated by work, and was given a certificate putting him off work.
40Next, Dr Loh records what he describes as a WorkCover conference on 17 May 2016 with the defendant’s WorkCover liaison officer in an attempt to determine what work the plaintiff could perform “in spite of his chronic pain and also to allow him to attend a pain management program that was half a day every Monday and Friday”.[43] The doctor then records further WorkCover certification and case conferences to discuss work duties. On 31 August 2016, it is recorded that there had been no improvement despite the pain management program. The plaintiff’s last attendance on Dr Loh was 22 November 2016, when he was given a referral for physiotherapy.
[43]PCB 226
41In the report of 5 January 2017, Dr Loh states:
“Adi’s diagnosis appeared to be persisting chronic pain in his thoracic flanks, lower back and lower limbs subsequent to lifting heavy drums of liquid flavour at work.
…
In my opinion, Adi does not currently have a capacity for pre-injury duties but he has a capacity for suitable duties if they do not significantly aggravate his pain. Work restrictions may include reduced days and hours of work, working at his own pace and tolerance, avoiding heavy lifting … Adi may benefit from more sedentary work that allows him to vary his posture at will.”[44]
[44]PCB 227
42The affidavit from Mr Navarrete, confirms the meeting with the plaintiff and Dr Loh and that by 25 October 2016 there were restrictions in place as to the type of work the plaintiff could perform.[45] Mr Navarrete says that the plaintiff’s hours and work capacity “started reducing into 2016” and that “his employment was terminated from 9 November 2016”.[46]
[45]DCB 191
[46]DCB 192
43Dr Shanmugam provided a report dated 3 January 2017, to the Accident Compensation Conciliation Service. There is some overlap in the reporting of Dr Shanmugam with that of Dr Loh. Dr Shanmugam makes no mention of any previous problems with the plaintiff’s back before diagnosing “Chronic L4‑5 discogenic pain with bilateral radiculopathy secondary to L4-5 disc damage with annular tear and disc bulge causing irritation to neural element. There is also L3‑4 disc bulge” and that the “disc damage and bulge is a direct consequence of heavy lifting”.[47] Dr Shanmugam also describes restrictions for work, similar to those described by Dr Loh. Also noted was a requirement for review with a neurosurgeon for epidural spinal cortisone injection and subsequently surgical intervention if all modalities fail.[48]
[47]PCB 33
[48]PCB 34
44Dr Shanmugam, in fact, arranged an MRI scan of the plaintiff’s thoracic and lumbar spine, which was performed on 12 December 2016.[49] He then arranged a referral to Mr Yagnesh Vellore, neurosurgeon and spine surgeon. By letter dated 21 December 2016, Mr Vellore reported back to Dr Shanmugam.[50] In that reporting letter, he describes the history provided to him of the onset of symptoms with the defendant, the relevant radiology and a referral for an L4-5 epidural.
[49]PCB 35
[50]PCB 36
45Mr Vellore reported back once more to Dr Shanmugam by letter dated 26 April 2017[51] that the epidural had provided “very transient relief” and that conservative therapy had failed. Mr Vellore reported that one option would be to perform an artificial disc replacement at L4-5 and the other option would be to perform an anterior lumbar interbody fusion.
[51]PCB 48
46Pausing here, the referral for an epidural and the discussion about either disc replacement or lumbar fusion is, in my view, a significant escalation of treatment and treatment options when compared to the situation before the incident.
47The plaintiff obtained a further neurosurgery opinion from Dr David Oehme who also noted back pain and some bilateral leg pain. His opinion was that the plaintiff should pursue pain management strategies and that there was no role for surgery.[52]
[52]PCB 64
48Mr Vellore provided a report dated 11 December 2017.[53] In that report, he records that WorkCover had rejected his request for surgery. He said that the plaintiff did not have the capacity for pre-injury duties due to significant amounts of pain and that:
“Capacity for any form of employment will be restricted by his ability to perform heavy lifting, bending, twisting, pushing and pulling which are likely to exacerbate his condition and symptoms”.[54]
[53]PCB 69
[54]PCB 69
49Pausing yet again, as already commented on, one of the difficulties in this application is trying to piece together the evidence and follow the chronology of treatment in circumstances where there has been overlap between general practitioners and overlap between specialists.
50The plaintiff attended Dr Kenneth Shum, consultant in rehabilitation and pain medicine, on 12 October 2015, at the referral of Dr Loh. Dr Shum took a history of the incident lifting the drum with the defendant. He then arranged for occupational therapy and physiotherapy to assist with pain management, work, ergonomics and the like.[55] Dr Shum wrote again to Dr Loh on 15 December 2015, recording ongoing pain with a standing tolerance of ten to fifteen minutes, and there was a discussion about pain management.[56] On 11 April 2016, Dr Shum reported back to Dr Loh, that there had been a pain management assessment and a discussion about alternative duties in job retraining. At that stage, the plaintiff was struggling with work at times, reporting stress and increased pain following lifting duties.[57]
[55]PCB 26ꟷ27
[56]PCB 28
[57]PCB 29
51Dr Shum then wrote a referral to Dr Sri Vadasseri, psychiatrist, at the Melbourne Pain Group, by letter dated 5 July 2016.[58] Dr Shum reported again to Dr Loh by letter dated 17 October 2016, stating that the plaintiff’s pain remained more or less the same, with his main complaints of pain in the lower limb below the knee, left greater than the right, and ongoing use of medication.[59] Dr Shum then provided a detailed report dated 20 February 2017 to the Accident Compensation Conciliation Service.[60] In that report he concludes that the plaintiff had a chronic pain syndrome. He stated that the plaintiff did not have any current capacity for pre‑injury employment and placed restrictions on his current capacity for suitable duties.[61]
[58]PCB 30
[59]PCB 31
[60]PCB 39
[61]PCB 40ꟷ41
52Dr Shum provided a report to the plaintiff’s solicitors dated 25 June 2018.[62] In that report, he repeated his diagnosis of a chronic pain syndrome. He says:
“… This was at first culminated in low back pain, left great than right leg pain extending below the knee, left rib pain, and later psychological and mood maladjustment with anxiety and depression … .”[63] (sic)
[62]PCB 73
[63]PCB 73
53Dr Shum goes on to say the plaintiff was unfit for his pre-injury duties, but:
“… is suitable for alternative employment to his labour role if appropriately trained for his chosen occupation. I anticipate that this would be limited to non-heavy labour roles. Adi would need to be assessed over time to evaluate the specific impact of his working role and workload on his condition.”[64]
[64]PCB 74
54The most recent comprehensive report from Dr Shum is dated 31 March 2021.[65] In that report he repeats his diagnosis of a chronic pain syndrome. He notes a referral in July 2017 for a trial ketamine infusion and that there was ongoing treatment with Dr Vadasseri. He otherwise repeats his opinions regarding work capacity.[66]
[65]PCB 99
[66]PCB 101
55For completeness, I note that by letter dated 23 March 2018, Dr Shum reported back to Dr Loh, in which he states: “I believe he has fibromyalgia now”.[67] Although it appears that by that stage Dr Loh was no longer treating the plaintiff.
[67]PCB 83
56Dr Mano Thevathasan, rheumatologist, had in fact consulted with the plaintiff on 1 February 2017, at the request of Dr Shanmugam. This is yet another example of an overlap with treaters. In a report dated 16 August 2017,[68] Dr Thevathasan notes that he had seen the plaintiff:
“… for purposes of trying to sort out his disability and he told me that his problem was that he could not stand for more than 15 minutes and therefore work was a real problem for him. After prolonged standing, he would get pain down his left leg which ‘felt like broken glass’ and it was also starting to go down his right leg.”[69]
[68]PCB 66
[69]PCB 66
57Dr Thevathasan did not obtain a history of the earlier back injury. He describes a review attendance on 29 March 2017, when standing still caused pain in both legs. He thought the plaintiff “might have a surgically correctable cause for his symptoms” and that “therefore I referred him to Mr David Oehme, Spinal Surgeon/Neurosurgeon”.[70] In summary, Dr Thevathasan said:
“… I must agree with Dr Shanmugam’s excellent assessment that this is a complex series of problems. The first is I do believe he has Disc Disease caused by his work but although this is present, a Chronic Pain Syndrome associated with a possible Mood Disorder may well be aggravating his symptoms and disabling him … .”[71]
[70]PCB 67
[71]PCB 67
58He went on to say:
“As far as medical treatment is concerned, unlike the opinion of Dr Oehme, I believe that Mr Bhimireddy may require further injections into his spine, in particular, possible foraminal injections but I am not terribly optimistic about it making a material difference at this stage … .”[72]
And:
“With all this involved, the chances of him returning to his previous job is minimal. He may eventually be able to do computing work or a sedentary job once his pain level has subsided to allow him to concentrate more effectively … .”[73]
[72]PCB 67
[73]PCB 68
59As already mentioned, the plaintiff was referred to Dr Vadasseri, consultant psychiatrist. In a report dated 4 May 2017,[74] Dr Vadasseri diagnosed chronic pain since work-related injury and chronic adjustment disorder with depressed and anxious mood in the context of ongoing pain and physical limitations. He said: “His chronic pain and its impact on his mental state is related to his employment”.[75]
[74]PCB 53
[75]PCB 55
60The plaintiff also attended a clinical psychologist, Mr Hugh Perera. By report dated 26 July 2017,[76] Mr Perera diagnosed an adjustment disorder with low mood. He opined that the plaintiff would benefit from ongoing psychological and psychiatric intervention, but he would not require more than eight months of psychological intervention, provided that his back injury was also being treated simultaneously.[77]
[76]PCB 58
[77]PCB 59
61Completing this somewhat lengthy discussion of the evidence of treating practitioners is a return to Dr Munathanthiri. She provided a further report dated 10 January 2021.[78] In that report, she says that the plaintiff’s condition “seems to have stabilised prior to 2014 especially after changing work places in March 2010”.[79] In respect to the injuries suffered in 2014, she said:
“With regard to the injury suffered in 2014, the sudden stress put on the back by the lifting of a 20 kg weight ( ie : a bucket full of liquid ) to shoulder height & pouring it into a drum could have easily aggravated the damage on the already stressed back.”[80]
[78]PCB 92
[79]PCB 92
[80]PCB 93
62A review of the relevant clinical records of First Health Medical Centre confirms that Dr Shanmugam took over the management of the plaintiff’s back injury from Dr Munathanthiri in March 2015 and remained the regular general practitioner at the clinic through until June 2019. The clinical notes indicate that the plaintiff returned to see Dr Munathanthiri on 8 June 2019 and thereafter attended her on several occasions throughout 2019 and into 2020.
63The defendant made application to cross-examine Dr Munathanthiri on the basis that the medical reports from her were difficult to reconcile, in that what was reported in 2021 seemed to have little regard to what was reported in 2011 through to 2013, particularly the 2011 reports.[81] On that basis, leave was given to cross-examine Dr Munathanthiri. In cross-examination, she was taken to her earlier reports and asked to confirm that the plaintiff’s clinical situation in 2011/2012 was as recorded on those reports. She was taken to the assessment by Mr Khan and asked questions as follows:
[81]T7, L13ꟷ18
Q:“Now, I take it you saw that report when it came in?---
A: Yes, yes, I saw that report.
Q: And I take it you agreed with Mr Khan’s assessment?---
A: Yes. Yes.
Q:And so, is it fair to say that the situation at that time was that the patient had ongoing low back problems?---
A:Yes.
Q:And those ongoing low back problems restricted him in terms of the work he could do, you’d agree with that?---
A:Yes.
Q:And I suggest that never changed. After 24 April 2012, that situation continued, would you agree with that?---
A:Yes, yes.”[82]
[82]T83, L20ꟷ31
64Further in cross-examination, it was suggested to her that her clinical note of 13 October 2014, in which it was recorded that the plaintiff was offered a psychological referral, was because the work-related anxiety issues at that time related to problems with his back. She agreed with that.[83] It was further put to her that a diagnosis of a broad-based disc herniation at L4-5 was her view of her patient’s condition in 2011. She said “Yes, correct”.[84] It was further put to her as it was still her opinion of her patient’s condition right now.[85] She said:
“Yeah, current condition is – now it’s 2021, it would have – because he was continuing to work, it would have progressed slowly I would say when with the physiotherapy and everything, so it would have progressed slowly, it may – it may be a bit worse – worse, but if he’s getting the physiotherapy, if he’s being supported at work and all it may not progress that – that quickly.”[86]
[83]T92, L29ꟷ31
[84]T95, L17ꟷ19
[85]T95, L29
[86]T95, L28ꟷT96, L4
65In re-examination, Dr Munathanthiri was asked about her clinical note for 28 August 2014 and the fact that there was nothing in that note to suggest that the work-related anxiety related to the plaintiff’s back condition. She agreed, “No, there’s nothing written there, no”.[87]
[87]T100, L25ꟷ26
66Next in re-examination, Dr Munathanthiri was asked questions about the plaintiff’s back as at October 2014. She was asked:
Q: “So if he was coping with his duties as at 2014 - - -?---
A: Yes, yes.
Q:- - - you regarded that as being a stable situation?---
A:Yeah, I think stable means he’s – it’s not moving up or down. He’s in a certain area around – he can do certain duties, not do too much, like heavy lifting. But it’s stable, it’s not – not getting any worse or any better.”[88]
[88]T102, L17ꟷT103, L2
67In respect to the 2014 incident, Dr Munathanthiri said:
Q: …“
A:- - - the 2014 incident was quite a major incident because he had to climb to a height and then he had to raise a bucket to more than his – to shoulder height and pour it down to a container so I think that – that according to what he told me if it was a taller ladder and he – he could have poured it, he didn’t have to raise it to the shoulder level, it may be – may have been a lot easier on his back and this since he was doing that he heard a crack in his back which could be soft tissue damage, and that after that he – the condition worsened quite a bit, I think, that’s what I believe, yes.
MR DIMSEY:
Q: And did the condition remain stable after 2014?---
A: No, I think the stabilised injury was aggravated when he did this – when he walked up the ladder and he had to do this heavy lifting and pouring it down – down into – into a container, it – the injury – the back was aggravated definitely.
Q: And was there an alteration in his capacity for work after the incident?
---
A: Yes, yes, yeah, yeah, now the stabilised that’s exactly what happen, now it’s not stabilised, now it’s in a mobile up and down stage so he had gone down since – since this happen.
Q: And subsequent to that injury, has Dr Shanmugan become his main treating practitioner?---
A: Yes – yeah, because he came to me only to – for the report I think, after – after this injury happen, yeah, Shanmugan must – would have been treating him throughout I think.
Q: And is Dr Shanmugan in a better position than you because of his ongoing care of Mr Bhimireddy?---
A: Correct, correct, of course, yeah.
Q: To give an opinion in relation to his capacity for work?---
A: Yes, I can agree with that, yeah.”[89]
[89]T103, L30ꟷT104, L30
68Dr Munathanthiri gave contradictory answers at times regarding the nature of the plaintiff’s back injury before the incident with the defendant in October 2014. But, the thrust of her evidence was that the plaintiff had a stable condition affecting his lumbar spine before the incident, whereas since the incident, described by her as a major incident, his condition worsened “quite a bit”. That accords with her report of 10 January 2021 where she stated that the plaintiff’s condition “seemed to have stabilised prior to 2014”.[90]
[90]PCB 92
69The defendant’s primary submission on compensable injury is that the plaintiff suffered a temporary flare-up only of a pre-existing condition whilst working for the defendant.[91]
[91]T144
70Having spent some time considering the evidence from the treating practitioners, I pause to express my conclusion that the evidence from treating practitioners instead supports the conclusion that the plaintiff suffered an aggravation of his pre-existing back condition because of the incident and that such aggravation continues. That is also consistent with the plaintiff’s oral evidence and also with the affidavit from the employer, noting that at no time after the incident was the plaintiff deemed by the defendant to be capable of his pre‑injury employment, which of itself suggests that any aggravation was not short lived or temporary.
71The issue then becomes whether such aggravation has, of itself, produced “serious” consequences, but before dealing with that topic it is both necessary and convenient to deal with the medico-legal material relevant to this issue of causation and/or aggravation.
The evidence in medico-legal reports
72Starting with the medico-legal evidence obtained on behalf of the plaintiff, Mr Douglas Gardiner, orthopaedic surgeon, examined the plaintiff and provided a report dated 10 April 2018.[92] He obtained a brief history of the earlier injury at Ruhr, but was not provided with any of the radiology relevant to that injury. He then obtained a history of the injury with the defendant and the plaintiff’s progress since then. He was provided with the more recent radiology, and then, in a section of his report headed “Analysis, discussion and conclusion”, he said:
“Mr Bhimi Reddy has been engaged in quite physically demanding work since he began his career as a tool maker and has a history of previous mild but allegedly resolved back pain.
The work that he performed for Product Makers Pty Ltd from January 2013 was such that he worked in a physically compromised posture. It is reported that the ladders were too short for the larger tanks and that excessive twisting and lifting forces were required to hold and pour the contents of 20kg containers above shoulder height into the waiting tanks. The history of the twisting and lifting injury as described by Mr Bhimi Reddy is quite consistent with this manoeuvre, and the injury sustained. Mr Bhimi Reddy has undergone a whole array of conservative management including pain relief and multiple medications. He also has had an epidural injection at the L4-5 level, all of which appear to have provided him no relief.
He has sought neurosurgical advice and I understand that Mr Vellore has examined Mr Bhimi Reddy and his radiology and suggests that the main cause of his pain is an annular disruption of the L4-5 disc which would be best treated with a disc replacement procedure.”[93]
[92]PCB 110
[93]PCB 114
73Mr Gardiner was then asked to answer questions relevant to the plaintiff’s back condition. The questions and his answers are as follows:
“1.What is the nature of our client’s condition?
i)Musculoligamentous injury to the lumbosacral spinal region;
ii)L3-4 and L4-5 disc degeneration;
iii)Annular tear at the L2-3, L3-4 and L4-5 levels with central disc bulging at all of these levels;
iv)Anxiety and depression as suggested in the psychology reports and confirmed by Mr Bhimi Reddy.
2. Is it related to his work?
The particularly traumatic episode that is related to Mr Bhimi Reddy’s work injury is the overriding cause of his current situation. The action of lifting a heavy container above shoulder level into a tank on a short ladder is a dangerous situation and an ‘accident waiting to happen’. I consider that Mr Bhimi Reddy’s current injuries are quite consistent with the incident in the workplace and this type of activity on many previous occasions.
3. Is he unable to perform his pre-injury duties?
Mr Bhimi Reddy suffers from significant lumbar disc disruption and is unable to perform his pre-injury duties as a result of pain in his back, interscapular region, neck and lower extremities.
4. Is his incapacity related to his work injury?
The incapacity suffered by Mr Bhimi Reddy is structurally and chronologically related to the incident at work and the same activity undertaken on many previous occasions.
5. Is he suitable for any type of employment?
Mr Bhimi Reddy is theoretically suited for part-time work in an office environment, which is ergonomically arranged and he is able to change position at regular intervals. This, I say again, is in theory as he was allowed for some months to undertake a sedentary position at his place of employment, but he was unable to tolerate the prolonged periods of sitting and standing required. I do not believe that he is suited for any employment for which he is reasonably qualified.”[94]
[94]PCB 115
74Mr Gardiner re-assessed the plaintiff and provided a report dated 6 October 2020[95] in which he repeats the history and previous opinions expressed by him, as well as the plaintiff’s current complaints. On that occasion he was provided with fifty-three separate medical reports or enclosures as set out by him in his report.[96] Having considered that material he was then again asked to answer specific questions, including what I consider to be an inappropriate question of a medical expert, namely whether the plaintiff has suffered a “serious injury” as defined in the Act, which of course is a legal question and not a medical one. Nevertheless, as part of answering that question, Mr Gardiner said:
“[H]e sustained a specific injury as described in detail in my report and that the radiological examinations indicate that he suffers from an annular tear at several levels in the lumbar spine as well as an aggravation of L3-4 and L4-5 disc degeneration and musculoligamentous injury to the lumbosacral region.”[97]
[95]PCB 117
[96]PCB 121 and 122
[97]PCB 123
75In his supplementary report, Mr Gardiner went on to describe the prognosis as poor. He discussed the prospect of a disc replacement procedure. He opined that the plaintiff was unfit “to undertake his pre-accident employment or some other form of work, for the reasons related to the history, examination and radiological evidence described.”[98]
[98]PCB 124
76The totality of the reporting from Mr Gardiner supports a conclusion that the incident caused the plaintiff to aggravate the underlying degenerative change, together with musculoligamentous injury and injury to L3‑4 and L4‑5.
77Next, the plaintiff was examined by Dr Dion Suyapto, who then provided a report dated 1 March 2021.[99] Dr Suyapto was provided with a number of relevant clinical records and medical reports in respect to the plaintiff as set out in his report.[100] He did obtain a history of the previous injury at Ruhr. In respect to that injury he recorded that:
“Mr Bhimi Reddy reported a history of lower back injury in 2008 while pushing a trolley at work. At the time, he reported working as a toolmaker. He reported that he was managed with physiotherapy and medication. He reported that the pain settled after he changed his job, although reported that up to the time that he changed his job, he was doing normal duties. He reported that he had ongoing physiotherapy until 2012.”[101]
[99]PCB 126
[100]PCB 126–127
[101]PCB 128
78Dr Suyapto conducted a clinical examination and took a history of the injury with the defendant. He too was asked questions including the inappropriate question about “serious injury”. It is difficult to discern a diagnosis from Dr Suyapto’s report, perhaps because of the nature of the questions asked of him. Perhaps not surprisingly, he stated that he had difficulty as to whether the plaintiff can be classified as seriously injured pursuant to the definition in s325 of the Act, but he did say that:
“It is my opinion for his lower back injury noting the disc injury and noting the recommendation of surgery, which was rejected, that he does suffer from pain and suffering with loss of earning capacity”,
And that:
“The prognosis is poor.”[102]
[102]PCB 131
79In respect to work capacity, Dr Suyapto said that the plaintiff “does not have the capacity to undertake his pre-accident employment” but that “…He may be able to return to some other form of work that does not involve any lifting, bending, twisting or prolonged static posture.”[103]
[103]PCB 131
80As mentioned, it is hard to extract a diagnosis from Dr Suyapto’s report but he does refer to a disc injury and so he appears to accept there is a persisting physical injury to the spine.
81For completeness, Dr Suyapto provided a further report dated 9 April 2021.[104] In that report he was provided with further medical reports and simply commented that he maintained his opinion from his earlier report.
[104]PCB 135
82Turning next to the medico-legal reports obtained at the request of the defendant, the plaintiff was examined by Dr Sam Soliman, occupational medicine consultant, on 7 September 2016. Dr Soliman produced a report dated 9 September 2016[105] in which he recorded a history of a work-related back injury in 2008 with Ruhr and physiotherapy for one year, and then light duties for two years.[106] He obtained a history of the injury with the defendant and treatment thereafter, including physiotherapy and a pain management program at Vic Rehab. At that time, the plaintiff was complaining of lower back pain, constant left buttock, thigh, calf pain, and pain into the ankle, as well as right calf and buttock pain.[107] Dr Soliman recorded a worksite assessment which he performed at the defendant’s factory on 8 September 2016. The plaintiff did not attend that assessment. Dr Soliman’s assessment was that the plaintiff had a longstanding intermittent lower back condition since 2008 and that “…It appears that Mr Bhimireddy had another flareup in 2014 after lifting at work”.[108] Dr Soliman then said:
“Employment may have temporarily exacerbated his longstanding minor degenerative condition in 2014, however this has now ceased after resting and working minimal hours of extremely light duties for 2 years. Employment is no longer a materially contributing factor to his current described pain.
I believe Mr Bhimireddy’s current pain is related more to his underlying minor degenerative back condition. Mr Bhimireddy presented with obvious functional overlay and I believe he has more capacity than he is stating.”[109]
[105]DCB 79
[106]DCB 81
[107]DCB 80
[108]DCB 84
[109]DCB 84
83Pausing, Dr Soliman’s opinion is not particularly compelling. Firstly, he described the plaintiff as a pleasant man and his clinical examination does not record any obvious “functional overlay”. It is not obvious why Dr Soliman would then go on to say that the plaintiff presented with “obvious functional overlay” when there is no description of that anywhere in his report. Secondly, I cannot understand his reasoning that employment may have temporarily exacerbated a longstanding minor degenerative condition in 2014 which is no longer (that is, in 2016) a materially contributing factor to the plaintiff’s current description of pain. There is no path of reasoning to explain when and how the aggravation ceased in circumstances where the pain is reported by the plaintiff as having been ongoing since the incident, or why, having ‘rested’ for two years, the underlying condition would have become painful?
84In any event, Dr Soliman re-examined the plaintiff on 17 October 2017 and produced another report.[110] In that report, he sets out the progress since his earlier examination of the plaintiff. Dr Soliman described the plaintiff once again as a pleasant man. He then repeats his earlier opinion, namely that employment is no longer a materially contributing factor and that the plaintiff may have temporarily exacerbated his pre-existing condition in the incident, but the exacerbation had resolved.[111] Once again, Dr Soliman recorded that the plaintiff presented with a degree of functional overlay and strong disability belief. He said:
“The matter is complicated further with the involvement of a third party, compensable scheme and the current legal process.”[112]
[110]DCB 87
[111]DCB 93
[112]DCB 93
85Once again, I cannot understand what “functional overlay” Dr Soliman is referring to, as it is not described in his further report. Further, it is unclear what he means when he says the matter is complicated by the involvement of a third party, compensable scheme and current legal process. They are unexplained and unnecessary comments that inevitably lead to a conclusion that Dr Soliman has ventured outside his field of expertise and, unfortunately, has become an advocate, and that impacts the weight I attach to his reports.
86The plaintiff was examined by Mr David Brownbill, consultant neurosurgeon, on 29 May 2018. In a report of that date,[113] Dr Brownbill sets out the history of injury with the defendant, as well as the earlier injury in 2008. In respect to that earlier injury, he notes as follows:
“In 2008 he injured his back whilst pushing a steel plate at work. He did not take any time off. He noted fluctuating low back pain with initially some mild leg pain which resolved. He received several lumbar spine scans and saw specialists. This pain gradually improved and then resolved. There was no ongoing pain, no activity restriction and no ongoing medication. In 2013 he sustained some pain in the right side of the chest at work and took one day off, following which he received treatment for five sessions of physiotherapy. He made a full recovery without any ongoing pain. In 2012, he was given medication for tuberculosis”.[114]
[113]DCB 94
[114]DCB 95
87Mr Brownbill’s description of the 2008 injury and the events thereafter accords with the objective medical records. Mr Brownbill then discussed the progress since the injury with the defendant, reviewed various documentation and then provided comment. He commented that:
“I consider that on probability this man sustained some aggravation of the described pre-existing lumbar spine degenerative changes in that incident”,
But that:
“I am unable to explain from a physical neurosurgical point of view a basis for his described ongoing unremitting severe leg pain for nearly four years”,
And further that:
“It would prudent for him to avoid heavy lifting or forced spinal mobility however from a physical neurosurgical point of view I consider he would be capable of work, domestic and social activities otherwise.”[115]
[115]DCB 98
88Mr Roy Carey, consultant orthopaedic surgeon, examined the plaintiff on 24 July 2019 and provided a report[116] mostly directed towards an impairment assessment in respect to the injury with the defendant, described in his report as aggravation of lumbar spine. Mr Carey had available documents in respect to the Ruhr injury, including the Medical Panel opinion of 25 July 2012. Mr Carey found the plaintiff to be a pleasant and straightforward witness, although his affect seemed somewhat flattened. He opined that the plaintiff had ongoing back and bilateral lower limb symptoms in the absence of radiculopathy and said that “his injury at work continues to materially contribute to his current situation”.[117] Mr Carey said, in respect to diagnosis:
“…ongoing low back and lower limb symptoms, likely due to aggravation of pre-existing lower lumbar disc degeneration. The prognosis is for continued discomfort into the foreseeable future. He is not likely to suffer injury/harm by engaging in appropriate occupational and daily living activities. The presentation is consistent with the workplace injury as described and subsequent treatment.”[118]
[116]DCB 101
[117]DCB 104
[118]DCB 105
89The plaintiff was then examined by Mr Patrick Lo, neurosurgeon, via Telehealth conference on 3 June 2020. By report dated 6 June 2020,[119] Mr Lo set out his review of documentation, examination findings and his opinion.
[119]DCB 107
90Mr Lo had a history of the injury at Ruhr, including that the plaintiff had seen his local doctor who referred him to a physiotherapist as well as a specialist and then gradually, he improved. He was able to return to his work, but altered his job to a flavour compounder on or around January 2013. Mr Lo then had a history of the incident with the defendant.
91Mr Lo was then asked a number of questions, which he relevantly answered as follows:
Q:“Your findings on examination and review of the radiological and other investigations. Please compare the findings to a worker of a similar age, gender and work background.
A:I did not carry out a physical examination on the subject owing to the COVID‑19 pandemic. However, I was able to review the radiological imaging and there is only evidence of mild disc degenerative disease at the L3/4 and L4/5 levels consistent with an individual with similar age, gender and work background, in my opinion.
Q:Your diagnosis?
A:In my opinion and on balance, the subject has sustained a back injury that is largely musculoskeletal in nature without any neural compressive pathologies.
Q:The prognosis and need for further treatment?
A:The subject continues to suffer from back pain and will likely require ongoing pain management. A re-referral to a pain management specialist as well as a dedicated functional restoration program may be necessary to aid the subject.
Q:If you consider any of the claimed injuries were an aggravation of a pre-existing condition, have the effects of the aggravation now ceased?
A:In my opinion and on balance, there is (1) underlying degenerative spinal disease and (2) history of a previous back injury. The current injury dated 16 October 2014 did, to a degree, aggravate these previous conditions but, in my opinion, these effects of aggravation have now ceased. That is, the current clinical picture has now reverted to pre-injury state, in my opinion.
…
Q:Whether you consider the worker’s employment was a significant contributing factor to the onset of her alleged condition?
A:In my opinion and on balance, the worker’s employment was a significant contributing factor to the onset of his alleged condition.
Q:Whether you consider the worker’s employment is now materially contributing to any incapacity or impairment. Please state the reasons for your conclusion.
A:In my opinion and on balance, the subject has reverted to his pre-injury clinical state and as such, the employment is no longer materially contributed to any incapacity or impairment. The injurious event has ceased and the current symptom complex is likely a musculoskeletal issue with chronic pain syndrome overlay, in my opinion.”
92Mr Lo was then asked to provide a supplementary report to comment upon jobs set out in a vocational assessment report.[120] Essentially he stated that a consideration of work should begin with a trial period, and then if the plaintiff could tolerate such a trial, then “a fulltime role may be feasible”.[121]
[120]DCB 116
[121]DCB 117
93Mr Lo then was then provided with radiological reports dating back to 2018 and asked for a supplementary report. In a supplementary report of 21 March 2021,[122] he was again asked a number of questions. Relevantly, he answered those questions as follows:
Q:“What is your diagnosis of the worker’s lumbar spine prior to 16 October 2014, based on the enclosed radiological reports?
A:Having duly considered all of the information presented with the radiological investigative findings, I remain of the opinion that the subject suffered a back injury that is largely musculoskeletal. The degree of degeneration is not inconsistent with his age and this remains so as of my assessment of this gentleman. The radiological reports confirm such minor degenerative changes that are consistent with age prior to 16 October 2014. The subject had undergone chiropractic and physiotherapy treatment which are largely for a musculoskeletal spinal issue rather than structural deformities, in my opinion.
Q:How do the radiological reports from before, and after, 16 October 2014 differ, if at all in what they show of his lumbar pathology?
A:In my opinion and on balance, given all of the current documents as well as the previous information relating to the most recent back injury, I am of the opinion that the lumbar pathology remains unchanged and the reports are identical in describing a mild degenerative lumbar spinal condition consistent with age. Once again, in my opinion, the subject’s current issues relate to largely musculoskeletal pathologies.
Q:Noting the pre-16 October 2014 chiropractic and physiotherapy treatment, and Mr Khan’s recommended work restrictions as at 24 April 2012, do you have any reason to change your opinion that the worker’s clinical picture (when you examined him via telehealth in June 2020) had reverted to its pre-injury state?
A:In my opinion and on balance, noting all of the stated treatment as well as the investigations, I have no reason to change my opinion that the subject’s clinical picture had reverted to its pre-injury state, namely, that as per report in various radiological findings dating 2008 to 2016.
Q:In your opinion, would the worker be in the same or similar position now as he would have been had the alleged aggravation of 16 October 2014 not have occurred?
A:In my opinion and on balance, given that the degenerative changes are mild and consistent with age, the subject would be in the same or similar position now as he would have been had the alleged aggravation of 16 October 2014 not have occurred. This is purely based on the skeletal structure and the neurological structure. However, he does have musculoskeletal symptoms that have certainly been aggravated by the event on or around 16 October 2014. I am only making comments regarding the neurological and skeletal/structural pathologies.”
[122]DCB 118
94Next, Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff on 10 June 2020. He then produced a report dated 12 August 2020.[123] In that report, he did obtain a past history of low back pain “resulting in ongoing intermittent mild lower back pain”.[124] Dr Slesenger also obtained a history of the injury with the defendant, the treatment and events subsequently. He reviewed various documents and investigations and was then asked specific questions. In respect to diagnosis and prognosis, he said:
[123]DCB 121
[124]DCB 125
Q:“Your diagnosis?
A:● Lumbar spine:
o Mechanical injury to the lumbar spine.
o Aggravation of pre-existing degenerative disease of the lumbar spine.
o Chronic lower back pain with radiating features, but no confirmed evidence of radiculopathy.
● Psychological impairment, although this is outside my area of expertise.
Q:The prognosis and need for further treatment?
A:The prognosis must be guarded given the length of Mr Bhimireddy’s impairment and disability, his limited response to treatment to date and the comprehensive nature of the treatment received. In addition, I also note a number of other negative prognostic factors, including the degenerative nature of the underlying condition, his psychological comorbidity, as well as his current job detachment.
Q:If you consider any of the claimed injuries were an aggravation of a pre-existing condition, have the effects of the aggravation now ceased?
A:I am of the opinion that Mr Bhimireddy suffered an aggravation of degenerative disease of the lumbar spine and the aggravation has not yet ceased.”[125]
[125] DCB 131-134 inclusive
95In respect to work capacity, Dr Slesenger said:
Q:“Do you consider the worker has a current work capacity for pre-injury employment (whether with or without restrictions/modifications)? If yes, for how many hours per week? If not, why the pre-injury role is unsuitable, and is his incapacity for his pre-injury role ‘permanent’ meaning ‘likely to last for, during or through the foreseeable future’?
A:I am of the opinion that Mr Bhimireddy cannot return to his pre-injury role. In support of this, I note the manual handling and the postural demands associated with his pre-injury role. These lie outside his current capacity limits.
Q:Does the worker have a capacity for suitable employment (and, if so, what type of work and with what restrictions)?
(i) If yes:
·Why the role is suitable and within the worker’s capabilities?
·Does he have the capacity to undertake the role full-time? If not, for how many hours per week? Can his hours be increased over time?
(ii) If not:
·Why the role may be unsuitable.
·If the role is unsuitable, is his incapacity for the role ‘permanent’ meaning ‘likely to last for, during or through the foreseeable future’?
A:I am of the opinion that Mr Bhimireddy retains capacity for suitable employment and I recommend that he returns to work with restrictions, namely:
- no push, pull, carry or lift over 7.5 kg on a regular basis and 15 kg on an occasional basis;
- avoid exposure to whole body vibration;
- avoid repetitive twisting;
- avoid prolonged static postures.
I recommend that he commences work 4 hours a day, 4 days a week, increasing to pre-injury hours over 6-8 weeks.
Q:Does the worker have a capacity for suitable employment (and, if so, what type of work and with what restrictions)?
(i) If yes:
·Why the role is suitable and within the worker’s capabilities.
·Does he have the capacity to undertake the role full-time? If not, for how many hours per-week? Can his hours be increased over time?
(ii) If not:
·Why the role may be unsuitable.
·If the role is unsuitable, is his incapacity for the role ‘permanent’ meaning ‘likely to last for, during or through the foreseeable future’.
A:I am of the opinion that Mr Bhimireddy retains capacity for suitable employment and I recommend that he returns to work with restrictions, namely:
- no push, pull, carry or lift over 7.5 kg on a regular basis and 15 kg on an occasional basis;
- avoid exposure to whole body vibration;
- avoid repetitive (sic) or twisting;
- avoid prolonged static postures.
I recommended that he commences work 4 hours a day, 4 days a week, increasing to pre-injury hours over 6-8 weeks.
Q:Whether you consider the worker’s employment was a significant contributing factor to the onset of his alleged condition?
A:This is a difficult question to answer as there appears to be a long history of lower back pain pre-dating the index accident, which had resulted in chronic symptoms and these are likely to have been variable and unpredictable regardless of the index accident. Taking the evidence as a whole, I am satisfied that Mr Bhimireddy’s employment and the injury under consideration was a contributory factor to the aggravation of his symptoms and the onset of his current conduction, and is a partial cause of his overall impairment and disability.
Q:Whether you consider the worker’s employment is now materially contributing to any incapacity or impairment? Please state the reasons for your conclusion.
A:I am of the opinion that Mr Bhimireddy’s employment is a contributing factor and continues to contribute to his incapacity. However, I also note a significant past history and in addition, I also note evidence of inconsistency on examination (the inconsistencies are identified above).
Q:Whether you consider that the worker’s current level of impairment will continue into the foreseeable future?
A:I am of the opinion that Mr Bhimireddy has reached a position of maximum medical improvement and does not anticipate a significant alteration in his presentation into the foreseeable future.”[126]
[126] DCB 133-135 inclusive
96Finally, Dr Slesenger was asked to comment upon jobs as set out in the Recovre vocational assessment report. In summary, he opined that the plaintiff could return to work as a community guide/welfare support worker, payroll clerk or warehouse clerk within the restrictions outlined in his report.[127]
[127]DCB 136‑138 inclusive
Conclusion as to injury suffered with the Defendant
97The preponderance of medical opinion, and in particular the opinion from the treating practitioners, tends to a conclusion that in the incident the plaintiff suffered injury by way of the aggravation of underlying degenerative change in the lumbar spine, in particular at L3‑4 and L4‑5. Prior to the incident the plaintiff had been symptomatic after the injury at Ruhr, but the whole of the evidence again tends to a conclusion that the earlier injury had essentially settled down, or, in the words of the treating general practitioner, was a stable situation which did not prevent the plaintiff from performing full-time manual work for the defendant and produced only minimal interference otherwise for the plaintiff’s day-to-day activities and recreational interests. While there are some references to a psychological response, or functional overlay, on balance the injury identified is an organic injury to the spine and so I do not consider this to be a case where ‘disentangling’ is a relevant issue.
98In contrast since the incident the plaintiff has been plagued with ongoing significant low back pain. He has required considerable conservative treatment as set out, and there has been the discussion of major spinal surgery including disc replacement.
99Bearing in mind that the onus is on the plaintiff to prove the extent of any aggravation, and that any aggravation is of itself a “serious injury”, I am satisfied that the plaintiff has discharged that onus. On my assessment, having considered the whole of the evidence, the predominant cause of the plaintiff’s ongoing impairment and impairment consequences, and in particular his inability to return to his pre-injury employment, is as a consequence of the aggravation injury suffered with the defendant.
But is the injury serious? Loss of earnings consequences
100The next question to be answered is whether the injury so identified is in fact a “serious injury” either in respect of pain and suffering consequences, or loss of earning capacity consequences.
101Dealing first with the loss of earning capacity consequences, the medical evidence is that the plaintiff cannot return to his pre-injury employment with the defendant, or as a toolmaker, and in this proceeding the defendant did not seriously suggest otherwise.
102The inability to return to pre-injury employment is, in my view, a “very considerable” loss of earning capacity consequence for the purposes of s325(2)(c)(ii) of the Act, and therefore the plaintiff satisfies that part of the statutory provision.
103The remaining and only issue in dispute is whether the plaintiff suffers the requisite 40 per cent loss of earning capacity as per the statutory formula contained in s325(2)(e), (f) and (g) of the Act.
104To satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the worker is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b) the gross income that the worker was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).
105The first step is to determine what were the plaintiff’s “without injury earnings”? When he commenced with the defendant he was paid $759.62 gross per week, together with overtime of $37.68 which, in combination, equates to gross annual earnings of $41,459.60.[128] It is likely that there would have been incremental pay rises and some increase to the level of “without injury earnings” in the relevant three-year period post-injury. Helpfully, the first step was made easier as the parties agreed that the plaintiff’s “without injury earnings” were at a level that means the relevant 60 per cent figure is $501.50 per week.
[128]DCB 11
106Accordingly, if the plaintiff “with injury” is capable of earning more than $501.50 gross per week, then the claim for pecuniary loss serious injury must fail. The resolution of this issue requires an assessment of what is the plaintiff’s current physical capacity for employment (including how many hours per week, if any, he can currently work), and the relevant rate of pay for any residual capacity for “suitable employment”.
107The defendant provided a Statement of Calculations. The defendant relies upon jobs said to be “suitable employment” as set out in a vocational assessment report prepared by Ms Larissa Griffiths, physiotherapist/injury management consultant, and Ms Jeanette Ash, occupational therapist/injury management consultant, as set out in the report from Recovre (the “Recovre report”) dated 5 June 2020.[129]
[129]DCB 158
108The defendant submitted that the plaintiff is capable of working in suitable employment as set out in the Recovre report, namely community guide/welfare support worker,[130] payroll clerk.[131] or warehouse clerk.[132] Any of those jobs on a full-time basis would exceed the 60 per cent threshold of $501.50 gross per week.
[130]DCB 166
[131]DCB 170
[132]DCB 164
109In addition, the defendant noted that, based on the 60 per cent threshold of $501.50 per week, the threshold would be exceeded if the plaintiff was now capable of working:
(a) 21.7 hours per week as a community guide/welfare support worker (low rate of pay);
(b) 16.9 hours per week as a community guide/welfare support worker (high rate of pay);
(c) 16.31 hours per week as a payroll clerk (low rate of pay);
(d) 13.09 hours per week as a payroll clerk (high rate of pay);
(e) 16.52 hours per week as a warehouse clerk.
110The plaintiff’s submissions were made on the basis that he now has no capacity for suitable employment and, as such, his “after injury earnings” should be zero. The plaintiff did not suggest that he has a capacity for part-time work. His counsel confirmed that, in response to a question from me, the case in respect to work capacity is really “all duck or no dinner”, and that his case is that he is unfit now for any suitable employment.[133]
[133]T195, L12-18
The plaintiff’s evidence about work capacity
111In his first affidavit, the plaintiff said, regarding work capacity/financial consequences, that:
“29.Between the date of my injury in October 2014 and November 2016 I was provided with light duties which were mostly desk work. I have been unable to work since November 2016.
30.I do not think that I will be able to return to any work which involves any significant amount of physical work. I also struggle with standing or sitting for extended periods.
31.I have tried to retrain for work which is less physical and which I would hope to be able to manage. I did a Certificate IV in Bookkeeping and applied for many jobs but have not been able to secure any employment. I am currently doing a Diploma in Community Service but I am finding the content hard to manage because of problems with concentration. The course will take a long time for me to complete.
32.I want to work and need to contribute financially but I am pessimistic about my ability to find work that I can manage with my limited English skills and with my physical limitations.[134]
[134]PCB 12-13
112In his further affidavit he said, regarding financial consequences, that:
“16.I completed my Diploma in Community Service recently but I don't think that I'll be able to handle the physical and mental aspects of any job. I have been looking for jobs online but I am very low in confidence and I find that I get stressed and develop headaches if I need to concentrate.
17.I am not hopeful about my chances of finding work as a result of my physical injury and as a result of my mental injury and loss of confidence.”[135]
[135]PCB 24
113It is immediately noticeable that this is not an application in which a manual worker – in this case a toolmaker by trade – claims to have lost the capacity for manual work and to have no capacity to retrain into sedentary work. Quite evidently, the plaintiff has in fact completed training for sedentary work, including a Certificate IV in Bookkeeping and Diploma in Community Service. He is obviously a man with sufficient education and intelligence to have achieved those qualifications.
114Perhaps not surprisingly, the defendant relies on the fact that the plaintiff has achieved further educational qualification since the injury as evidence that he has a residual capacity for employment.
115As discussed with counsel, this is not an application in which the plaintiff submits that he does not have the intellectual capacity for suitable employment. Rather, this is an application that turns solely on his residual physical capacity, that is whether he is now fit for sedentary work.
116The plaintiff was cross-examined about his further qualifications and residual capacity for employment. In cross-examination, the plaintiff gave evidence that he had applied for more than 50 jobs since achieving his Certificate IV in Bookkeeping, having started applying for jobs in 2017. He was asked questions about applying for jobs and whether he would accept a job if offered to him. His evidence was as follows:
“And when was your most recent application for a bookkeeping job?---Don't remember.
Last year? Year before?---By end of 2018 my situation getting worse so I couldn't be able to concentrate much and I feel I am not fit.
So, you stopped applying for bookkeeping jobs in 2018?---I think so but I'm not remembering.
If you'd been given – if you'd been successful in getting a bookkeeping job, if someone said come on in and start work as a bookkeeper, you would've started work as a bookkeeper, wouldn't you?---Yes, at least I could try.
And you'd see how you went, is that right? You'd see how you'd go?---Yes.
And I suggest to you that until you actually try work as a bookkeeper you can't tell His Honour that you can't do the work as a bookkeeper, what do you say?---I didn't get the opportunity.
And it's that if someone gave you the opportunity, you'd try it and see how you went?---Yes, I could try.
And you could be working as a bookkeeper right now, couldn't you?---I tried many jobs but (indistinct) full time but I don't have the capacity for full time. That is one of the things I couldn't able to move forward so my physical ability not good.
So, you've applied for jobs as a bookkeeper - - -?---Yes.
But they've all been for full time positions, is that the situation?---Yes. I apply for part time but I have not succeeded.
So, you have applied for part time jobs you just haven't been lucky enough to get an employer to offer it to you, is that right?---Sorry, pardon?
So, you have applied for part time work as a bookkeeper?---Yes.
But you haven't had any one offer it to you?---Yes.
And if you got an offer to do part time work as a bookkeeper tomorrow, you'd start, wouldn't you?---Yes, at least I try.
And I suggest to you that there's no reason why you couldn't do part time bookkeeping tomorrow, what do you say?---Currently I don't have that much capacity. Maybe at least a couple of hours maybe I can try but I can't guarantee I can be able to sit there two hours and able to concentrate. I don't have the capacity.
You haven't put it to the test though yet have you in terms of sitting there working, working and seeing how you go?---Yes, I don't know.”[136]
[136] T65, L18-31-T66, L1-31
117He was next asked questions about his qualification in community service as follows:
“And I suggest to you that if you start part time there's no reason you couldn't build up to full time within a short period, what do you say?---If my health is good, I like to do.
In your 2021 affidavit you've told us about having completed a diploma in community service recently?---Yes.
Have you applied for any work using your diploma of community service?---No.
I suggest that there's no reason why you couldn't apply for work in community service and see how you go. What do you say?---That one I supposed to finish in 2018. Because of my health condition, I prolong, prolong, prolong and finish in 2021. So I finish (indistinct) it takes so much time. But I don't have the capacity to go. I can't able to stand, I can't able to sit long time, and I am unable to focus. I feel I am not fit.
You've told us this morning about the qualification you have – a Certificate IV in disability care. Have you applied for work in disability care?---Yes.
When was the first application, roughly?---2017.
When was the last application, roughly?---Would've been 2017 only. But I stop because I didn't want to work for the disability, and I struggle in that place – look after yourself first before doing (indistinct), then I stop (indistinct). I don't have the capacity.
You did some voluntary work – where did you do the voluntary work?---(indistinct), one place, day centre. It's a day centre, yeah.
And why did you stop?---I am not fit.
Why aren't you fit?---The same thing. I can't able to stand, I can't able to focus, and (indistinct).”[137]
[137]T67, L1-31
118The plaintiff was cross-examined about his education, training and language skills.[138] He accepted those skills were good and, as I have already mentioned, this is not really a case about his intellectual capacity, but rather his physical capacity post-injury.
[138]T73-74
119Later in cross-examination, the plaintiff was asked whether he was still trying to find work now, and he said “Yeah, I want to try”.[139]
[139]T125, L19-20
120The plaintiff was cross-examined about his tolerances for sitting and standing.[140] It was then put to him that working in a “desk job” would be suitable employment for him. In answer he replied:
“Yeah, I try with The Product Makers, but not the full concentration. They are – they’re what I push myself to do the job by taking the breaks, but they're not giving me the job a long time to – when there is more expectation, I don't have the capacity if they already learn to do this one then I don't have the capacity.”[141]
[140]T126
[141]T127, L2-8
121Turning next to the medical evidence. I have already dealt in some detail with much of the medical evidence, including opinions about work capacity and there is no need to repeat those opinions. Broadly, the medical opinion falls into two categories, namely some doctors opine that there is a residual physical capacity for work and some say there is not.
122Relevant to the issue of work capacity, Dr Munathanthri was cross-examined about what physical restrictions the plaintiff now has for work, and whether she had discussed a return to work with him. She said:
“Yeah, he came to me - I think in December he contacted me over the phone and he requested me to write a report, so I had quite a few long discussions with him, and then only I wrote the report. Yeah, I don't know whether he wanted Dr Shanmugan to write a report too or whether I was the only practitioner writing the report. I have no idea.”[142]
[142]T97, L16-22
123In cross-examination, she was then taken to the report from Dr Slesenger and taken to his opinion regarding current work capacity. She was asked whether she agreed with Dr Slesenger’s restrictions, and said:
“Yes, yeah, yeah. I think - yeah, I think I agree most of them, but maybe not the 15 kilograms on an occasional basis, and then the rate of increase - I recommend that he commence work four hours a day, four days a week. That's all right. Increasing to pre-injury over six to eight weeks, that we'll have to monitor how he is performing, and you know when he knows that people are being supportive and trying to help him, he will perform better, I believe. So we - I think increasing to pre-injury over six to eight weeks may need to be a bit more longer, but otherwise overall, I don't mind this, others I think I agree with. And the 15 kilos also. I'm not sure whether he can do that or he have to check but, you know, we'll have to be supportive to him and then it will work out by itself, I think.
Instead of six to eight weeks, what would you suggest?---Yes.
You weren't happy with the six to eight weeks, what would you suggest? Ten to 12? 12 to 16?---Maybe a bit longer but he may be able to perform in six to eight weeks but I don't think we should put a limit. Maybe, yes, I think maybe 12 weeks at this stage and if he can't get to that then maybe a bit longer depending – I think we may just have to wait and see how when he's performing but 12 weeks with the – yes, with the restriction. Maybe we can prolong it if he's finding it hard, yes.
And a sedentary type job is the sort of work you'd suggest for the patient, is that right?---Say that again.
A sedentary job or a job that involves mainly sitting?---Yes, yes, I would very much like if he can have a sedentary job at the beginning, yes, yes.”[143]
[143]T98, L19-T99, L18
124In re-examination, Dr Munathanthri was asked whether, subsequent to injury with the defendant, had Dr Shanmugan become the main treating practitioner. She said:
“Yes – yeah, because he came to me only to – for the report I think, after – after this injury happen, yeah, Shanmugan must – would have been treating him throughout I think.
And is Dr Shanmugan in a better position than you because of his ongoing care of Mr Bhimireddy?---Correct, correct, of course, yeah.”[144]
[144]T104, L24-30
125Earlier in these reasons I mentioned the contradictory answers given by Dr Munathanthiri relevant to the issue of injury suffered with the defendant. Some of her answers during cross-examination relevant to the topic of work capacity were also hard to follow. But, broadly, as I understood her evidence, she seemed to accept the plaintiff’s current work capacity to be as set out in the opinion of Dr Slesenger, who of course is an example of one of the medico-legal examiners who considers the plaintiff to have residual work capacity.
126The plaintiff is still able to engage in a range of day-to-day activity, including teaching yoga and being active at his local religious temple. Whilst those activities are unpaid, they do equate, in my view, to a capacity for light work, at least on a part-time basis, remembering that the plaintiff does have a qualification for sedentary work.
127Further, the plaintiff’s own evidence tends to the conclusion that he does not consider himself unemployable, as evidenced by the fact that he continues to apply for work. As mentioned earlier in these reasons, during cross-examination the plaintiff agreed that if he was offered sedentary employment then he would give it a go.
128Taking the evidence as a whole, I am not satisfied that the plaintiff has no “with injury” earning capacity. He has an appropriate qualification for sedentary employment. He has what might be considered to be a “light work” back, but it is not a back injury that, on my assessment, precludes him from any employment.
129Doing the best I can, based on a large body of written and oral evidence, I conclude that the plaintiff is fit for light work on at least a part-time basis of approximately 50 per cent of a full work capacity, or say 20 hours per week. I express that conclusion based on the whole of the evidence, even if no medical examiner expresses that precise opinion.[145]
[145]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at 67-68
130Therefore, for the reasons set out, the plaintiff has failed to satisfy the statutory formula. In circumstances where I have concluded that he has at least a residual capacity for 20 hours of light work, bearing in mind that he accepts he has the intellectual capacity to undertake the jobs identified by the defendant, then this part of the application fails.
Pain and suffering consequences
131Turning next and finally to the issue of pain and suffering “serious injury”, in my view this aspect of the application is made out. Once again, I have already dealt in detail with the relevant medical evidence.
132The relevant medical evidence tends to the conclusion that before the injury with the defendant the plaintiff was largely asymptomatic. He was able to engage in full and unrestricted manual work. He has ongoing, fluctuating pain since the incident and an inability to return to his pre‑injury employment, or to similar manual work, and that is a relevant pain and suffering consequence. He has required considerable ongoing conservative treatment and specialist referral, with the use of painkilling medication. There is now a suggestion of future treatment by way of major spine surgery. I accept that he is restricted for day-to-day activity as set out in his affidavits. He is still a relatively young man, and when all of that evidence is taken in combination together with the medical evidence as discussed, in my view, that produces a “very considerable” pain and suffering consequence.
Summary
133Accordingly, leave shall be granted to the plaintiff to commence a proceeding for pain and suffering damages. The application to bring a proceeding for loss of earnings damages is dismissed.
134I shall hear from the parties as to the question of costs.
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