Bird v FMMC Pty Ltd (T/A Paul's Poultry)
[2010] VCC 1170
•3 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-05215
Plaintiff
STEPHEN BIRD
v
FMMC PTY LTD (T/A PAUL’S POULTRY)
Defendant
---
| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27, 28 and 29 July 2010 |
| DATE OF JUDGMENT: | 3 September 2010 |
| CASE MAY BE CITED AS: | Bird v FMMC Pty Ltd (T/A Paul’s Poultry) |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1170 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity – permanent impairment of the plaintiff’s lumbar spine by reason of aggravation of pre-existing degenerative changes - contribution of work-related injury to significant weight gain and serious respiratory complications conceded by the defendant – whether pain and suffering and economic loss consequences of lower back condition achieve the “very considerable” level.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P Jewell SC with G Coldwell | Holding Redlich |
| For the Defendant | D Myers | Wisewould Mahony |
| HER HONOUR: |
Introduction
1 Between 4 April 2001 and July 2006 the plaintiff was employed in the defendant’s poultry business driving trucks and delivering chicken products to customers throughout the southern and eastern suburbs. Apparently this work involved strenuous lifting and the manual loading and unloading of trucks.[1] He was employed on a full-time basis, working Monday to Friday between 5 am and 3 pm and on Saturday mornings. He earned approximately $730 gross per week plus super.
[1] Transcript (“TN”) 85.
2 It was common ground that on 2 July 2003 the plaintiff suffered injury to his lower back whilst making a delivery to the defendant's premises. The plaintiff described this incident in paragraphs 7 and 8 of his first affidavit, sworn 29 June 2009, in the following words:
7. As I was pushing boxes of chicken with a trolley I slipped on the floor. The floor was covered with bloodied water and fat which made the floor very slippery. As I slipped I felt a severe stabbing pain in my low back. The pain then settled and I continued with my work.
8. Over the next couple of hours my low back pain worsened. I also began feeling pain and numbness in my left thigh. I reported my injury. I stopped work and went to my GP Dr Kefaladelis. I told him about my injury and also about hurting my left shoulder three weeks earlier. Dr Kefaladelis prescribed anti-inflammatories and put me off work.[2]
[2] Plaintiff’s Court Book (“PCB”) 23.
3 After convalescing for approximately eight months, in March 2004 the plaintiff returned to light duties on reduced hours. By April 2004 he had increased the hours he worked to full-time. However, in order to cope with the injury-related impairment of his lumbar spine, the plaintiff said that he restricted his lifting activities, he drove a smaller truck and he carried smaller loads.
4 In re-examination the plaintiff explained that post-injury the vehicle he drove had a lower floor. This allowed him to use a forklift and hook to move the products into and out of the van and, rather than place these at the point of delivery, he dropped boxes onto a trolley and slid them off.[3]
[3] TN 85 - 86.
5 It was common ground that the plaintiff continued working until July 2006 at which time his weight and respiratory problems, not his back condition which he agreed was "workable", required him to cease work. Nevertheless, the plaintiff said that he had kept working until 2006 despite constant back pain.[4]
[4] TN 55.
6 By originating motion the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) ("the Act") to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
7 The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of the plaintiff's lumbar spine by reason of permanent aggravation of disc disease particularly at the L4/5 and L 5/S1 levels of his lumbar spine.
8 The plaintiff was already a large man when he injured his spine, although as his counsel said, from 2001 this had not prevented employment with the defendant as a delivery driver or an active lifestyle. The defendant has conceded a causal relationship between the impairment of the plaintiff’s lumbar spine and reduction in his mobility which in turn contributed to both a weight gain of more than 50 kg and respiratory complications. Indeed, prior to undergoing laparoscopic bypass surgery in November 2009[5] the plaintiff's weight had exceeded 200 kg.
[5] For which on 30 July 2009 Dr Jakobovits recommended that the insurer accepts liability -- Defendant's Court Book ("DCB" 33a-c).
9 In early 2006 symptoms such as tiredness during the day and falling asleep at the wheel of his truck led to a referral to thoracic physician, Dr Manolitsas. This specialist's reports and the results of sleep studies (when the plaintiff's weight was documented as 180 kg) and other investigations arranged by him in May and June 2006 indicated that the plaintiff was suffering from a number of respiratory problems such that on 7 August 2006 Dr Manolitsas wrote:
I have been treating Stephen Bird regarding his respiratory condition. Mr Bird has chronic respiratory failure with hypoxaemia as well as hypercapnea. He has severe Obstructive Sleep Apnoea and will require nocturnal ventilation with Bi-PAP as treatment for this.
In view of his respiratory condition I would consider Mr Bird to be unable to work
gainfully. I expect that this will be an indefinite incapacity.[6][6] PCB 41.
10 In his report to the insurer on 23 March 2007 Dr Manolitsas explained that the plaintiff:
"... was found to have severe Obstructive Sleep Apnoea with Obesity Hypoventilation
Syndrome as well as moderately severe chronic asthma.…. With treatment there has been clinical improvement however Mr Bird is unable to work. He is certainly not suitable to work as a truck driver and even if his sleep apnoea was adequately treated, in view of his chronic airflow obstruction he is unable to work in other areas involving physical exertion. I do not expect his condition to improve sufficiently to change this situation ..."[7]
[7] PCB 42 - 43.
11 Had there been any concern about the causal link between the plaintiff's back injury and the development of obstructive sleep apnoea this was put to rest by the treating physician in his supplementary report to the plaintiff's solicitor on 20 July 2007 where he said:
"I understand from your correspondence that Stephen has put on significant weight following his back injury. Significant weight gain is definitely associated with worsening obstructive sleep apnoea and central sleep apnoea (obesity hypoventilation syndrome). I don't have details of Stephen's actual weight gain, however if this has been significant then as noted it would have contributed to his sleep apnoea and chronic respiratory failure."[8]
[8] PCB 44.
12 Relevantly thoracic and respiratory physician, Dr Trembath who on 30 October 2007 assessed the plaintiff's impairment in the context of sleep and arousal disorders also informed the insurer that the plaintiff's weight gain following injury to his lower back "would have been a significant contributing factor in the development of sleep disordered breathing" and that the sleep apnoea condition was likely to be permanent.[9]
[9] PCB 62-63
13 In these circumstances, the plaintiff submitted that impairment of his lumbar spine contributed to significant weight gain which in turn led to serious respiratory problems. His respiratory and weight problems have been improved but not resolved by treatment and by-pass surgery, the latter promoting significant weight loss such that at the date of hearing the plaintiff had reduced his weight to 137.5 kg; that is to a weight within his pre-injury weight range of about 140kg.
14 On 11 May 2010 the surgeon who treated the plaintiff's morbid obesity condition over a two-year period following a referral to the surgical Weight Control Clinic at Austin Health and who performed the Laparoscopic bypass surgery, Mr Michell wrote :
"... I am unable to state to what extent your client's capacity for work has been affected by his injury in terms of his pre-injury duties and suitability for alternative employment. At the time he saw me he was disabled because of his back pain and his super obesity made finding alternative employment extremely difficult. I am optimistic, but unable to state, that his significant weight loss will improve his respiratory condition, the severity of his back pain, and consequently may allow him to undertake alternative employment. In general, patients lose weight after surgery over a period of approximately 2 years and reach a new plateau weight which is then maintained in the long-term. I would expect that we need to allow for 12 months of post-operative course to pass before reassessing his respiratory state and his functional capacity. We may see further improvement for 12 months after that.
The median weight loss after gastric bypass is approximately two thirds of excess weight. On the basis of this statistic I would estimate that Mr Bird; if he follows the
average patient after gastric bypass, would reach a weight of around 125 kg. It is
difficult to predict to what degree that would improve his symptoms."[10][10] PCB 105 - 106.
15 When Dr Manolitsas provided a supplementary report on 27 July 2010 he appears to have mistakenly believed that the plaintiff had already reduced his weight to the 125 kg estimate predicted by Mr Michell if the plaintiff's post- operative course conformed to that of the average patient after gastric bypass. Despite this misunderstanding it is clear that he also based his report on a recent sleep study report and from this, no doubt, understood that there had been a marked symptomatic improvement in the plaintiff’s condition. Relevantly, he wrote:
"Firstly with regard to his obstructive sleep apnoea, I would expect this weight loss to have a significant affect. Mr Bird remains on CPAP at 20 cms H20. He apparently feels that he is unable to sleep well at lower pressures. A CPAP review sleep study on the 27th of June confirmed excellent control of obstructive sleep apnoea with CPAP on this setting. The results are certainly dramatically better than on his implementation sleep study on the 24th of May 2006.... I expect that Mr Bird still has significant obstructive sleep apnoea although we have not repeated a diagnostic test off treatment. I have no doubt that this will be better than it was on his original sleep study in 2006. His obesity hypoventilation syndrome is certainly tied in with his obstructive sleep apnoea and although he has not had repeat arterial blood gases I expect that this would have improved with the weight loss as noted.
Mr Bird's COAD/asthma has also improved. His last lung function test on the 27th of April had shown only mild air flow obstruction ... This of course again is much better than in 2006 when he had significant air flow obstruction ... He remains on inhaled Seretide and Spiriva with as noted what appears to be reasonable control.
Finally Mr Bird previously had significant chronic hypoxemia. Again he has not had repeat arterial blood gases however I note that his oxygen saturation was normal throughout his sleep study and was noted to be 95% (within normal limits) when he was awake.
[11] PCB 56A - 56B.
respiratory disorders ..."[11] As noted the weight loss has resulted in quite marked clinical improvement of all his
16 However, by his account, rather than improve his pain levels, attempts by the plaintiff to increase his physical activity following weight loss, as for example through walking, have worsened his lower back symptoms.[12] Accordingly, for the purpose of this application despite any improvement the plaintiff submitted that his respiratory complications from his weight gain have persisted and are probably permanent consequences of the injury-related impairment of his lower back. However, irrespective of whether his improved respiratory condition is taken into account, he also submitted that permanent injury- related impairment of his lumbar spine materially contributes to both pain and suffering and loss of earning capacity consequences that meet the requirements of S134AB of the Act.
[12] TN 74.
The areas of dispute
17 The defendant conceded compensable aggravation of degenerative disease of the plaintiff’s lumbar spine. However, it contested whether when compared with other cases in the range of possible impairments, the alleged consequences were more than significant or marked, or at least very considerable.
18 To this end the defendant relied on the reports of significant improvement in the plaintiff’s respiratory symptoms commencing as early as 2007 as being indicative of better functioning and a likely work capacity even before the gastric surgery was performed in late 2009.
19 According to the defendant the results from radiology, the clinical findings and between November 2004 and 2009 the absence of any record of complaints to or evidence of treatment of back symptoms by either the plaintiff's general practitioner or treating orthopaedic surgeon, Mr Williamson, was also indicative of an aggravation injury that probably no longer materially contributed to the consequences described by the plaintiff.
20 Moreover, for the purpose of this application the defendant correctly cautioned against any aggregation of other injuries or, when determining the relevant consequences of injury to the nominated body function any inclusion of the contribution made by unrelated conditions such as an alleged injury to the cutaneous nerve of the left thigh or an earlier work-related injury to the plaintiff’s right knee. A work-related left shoulder injury suffered some weeks prior to the incident appears to have resolved with treatment, well before the plaintiff ceased his employment in 2006. Each of these conditions was mentioned in the materials before the Court.
21 Generally speaking the radiological results, the medical evidence and particularly the evidence given by orthopaedic surgeon, Mr Doig during the hearing have excluded nerve root compression or injury to the structures of the lumbar spine as a cause of the numbness and related symptoms in the plaintiff’s left thigh which he continues to attribute to his back injury.
22 Based on the evidence the likely cause of the plaintiff's reportedly at times very severe left leg symptoms which he conceded still affect his ability to walk and restrict his "abilities", ("Only when it is associated with my back") is compression of the lateral cutaneous nerve of the thigh.[13]
[13] TN 41 and 68.
23 When in July 1999 the plaintiff reported similar symptoms to neurologist, Dr Peppard, this specialist apparently told both the plaintiff and his general practitioner, that the plaintiff was suffering from meralgia paraesthetica syndrome due to compression of the lateral cutaneous nerve of the thigh. If his symptoms were not improved by weight reduction and less standing the neurologist also recommended surgical decompression of the lateral end of the inguinal ligament.
24 Whilst conceding that he vaguely recalled the name of this specialist and that the left thigh symptoms from which he currently suffered were the same as those reported to Dr Peppard in 1999 the plaintiff failed to recall (I think somewhat unconvincingly) having suffered from these symptoms or having also reported to the neurologist that he gave up his the job he was then doing because of increasing pain in the lateral aspect of his leg.
25 Relevantly in re-examination the plaintiff denied that he experienced problems with his left thigh whilst working with the defendant prior to the incident on 2 July 2003. [14]
[14] TN 84.
26 When during cross-examination he was questioned about the left thigh condition, apart from indicating that he too had overlooked the earlier diagnosis and correspondence from the neurologist, Dr Kefaladelis made the salient point that the symptoms in the plaintiff’s left thigh on which the specialist reported in 1999 had not prevented the plaintiff in early 2001 from taking up gainful employment with the defendant and had not been an ongoing medical issue before the incident when the plaintiff attended his clinic complaining of lower back pain and pins and needles down the lateral aspect of his left thigh.[15] That this condition was not included in the list notified by this doctor to Centrelink in a Work Ability Information report completed by him and dated 3 April 2000 has also helped me accept that his reasoning in this regard is probably correct.
[15] TN 92.
27 In any event, in this application apart from ignoring any pain and suffering and loss of earning capacity consequences arising solely from this condition, I am not also required to determine whether or not the likely left thigh condition was caused by the incident on 2 July 2003.
28 It was common ground that on 5 October 2001 the plaintiff suffered a right knee injury whilst working for the defendant which led to an arthroscopy in December 2001. However, after convalescing for 5 months the plaintiff returned to his truck driving and delivery duties.
29 So far as his right knee was concerned, during cross-examination the plaintiff agreed that this continued to be a problem to which he added that, when right knee pain flared he wore an elastic knee brace. The plaintiff also conceded that, occasionally when walking, his suffered intermittent severe pain on the inside of his right knee which prevented him from walking "for half an hour or so" and that right knee pain also caused him to limp.[16] This evidence is consistent with the plaintiff's report on 14 February 2007 to orthopaedic surgeon, Mr Brendan Dooley who, at the request of the insurer assessed the extent of the impairment of the plaintiff's right knee and relevantly opined that the plaintiff had probably made a "reasonably good recovery" from this injury.[17]
[16] TN 39.
[17] DCB 28.
30 Nevertheless, in re-examination the plaintiff explained that prior to his back injury there had been no restriction on the distance he walked. The plaintiff also gave evidence that unlike his back injury, his right knee condition had not impeded his ability to work and, other than occasionally, it had not prevented him from participating in recreational activities such as motorbike riding and surf and rock fishing.
31 In these circumstances I think it reasonable to accept that the unrelated conditions affecting the plaintiff’s left thigh and right knee probably also contribute in various ways to the plaintiff's disability and reduced mobility. This view notwithstanding, depending on the evidence, injury-related impairment of the plaintiff's lower back may also continue to make a material contribution to the consequences alleged.
32 Rather than rely on the plaintiff's memory over a more than 7 year period, where there was any inconsistency between the plaintiff’s recall and any earlier record, I have generally preferred the latter. As my discussion of the evidence has already shown I found some aspects of the plaintiff's evidence unsatisfactory. Despite this, the impression I formed when allowing for all of the evidence, was that the plaintiff had nevertheless endeavoured to explain and describe for the Court the circumstances relating to his employment, the injury and symptoms suffered and the consequences he believed were attributable to ongoing work-related impairment of his lumbar spine.
The statutory requirements
33 In accordance with the Act and case law interpreting the relevant provisions, the following considerations apply to s134AB.
34 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering and any loss of earning capacity consequences of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the lumbar spine are more than "significant" or "marked" and at least "very considerable".
35 In summary, the plaintiff is required to establish a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease; the nature of the injury; the consequences as at the date of hearing, in this case both the pain and suffering and loss of earning capacity consequences, to which compensable injury materially contributes; and that these consequences are serious in the sense that they are permanent and "very considerable".
36 Any psychological or psychiatric consequences of the plaintiff's physical injury cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury.
37 In this case, where there is pre-existing degenerative disease of the lumbar spine, I must consider what the evidence disclosed as to the prior condition of the plaintiff's spine and determine whether any additional impairment resulting from the incident on 2 July 2003 is serious and permanent.
38 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical capacity for suitable employment post-injury and his attempts to participate in rehabilitation and retraining, he has a capacity for any employment which if exercised would result in his earning more than 60% of his pre-injury earnings determined in accordance with ss134AB(38)(f) of the Act.
39 The onus rests on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment (s134AB(19)(b)).
40 As from 1 July 2010 the Act (as amended) redefines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, whether or not the suitable employment is available and is of a type or nature that is generally available in the employment market.
41 If the plaintiff satisfies the loss of earning capacity requirements in s134AB of the Act, he will be entitled to leave in respect to both these damages and pain and suffering damages without further determination of this aspect of the application.
The evidence called and tendered
42 The plaintiff deposed to the accuracy of his affidavits. The final affidavit was sworn on 13 July 2010. The plaintiff was cross-examined at length.
43 As I have already indicated Dr Kefaladelis and Mr Doig were also cross- examined at length.
44 The material tendered by the plaintiff consisted of a copy of a “Treating doctor’s report” dated 14 August 2006 to Centrelink; a copy of a sample WorkCover Certificate of Capacity dated 7 December 2007 which his treating doctor said was typical of the certificates issued by him and the conditions, including back injury which rendered the plaintiff unfit for any duties; a copy of an extract from the defendant's Registry of Injury completed by the plaintiff in relation to his left shoulder injury in June 2003, demonstrating as it did the plaintiff’s poor skills in written English; a copy of a Medical Panel certificate dated 9 February 2008 assessing the degree of permanent whole person impairment resulting from the accepted back (lower) and sleep apnoea injury as 19%; a summary of surveillance of the plaintiff undertaken on behalf of the defendant between September 2003 and July 2010 and, lastly, his Court Book from which a number of documents had been removed. The Court Book included an affidavit sworn by the plaintiff’s wife on 13 July 2010. She was not required for cross-examination.
45 The defendant tendered three films of surveillance undertaken on 20 June 2008, 3 and 9 October 2009 and 1 and 3 February 2010; a copy letter dated 19 July 1999 from Dr Peppard to the treating general practitioner; a copy Work Ability Information report, to the content of which I have already referred and its Court Book to which it added a copy of Mr Williamson's letter dated 10 March 2004, addressed to the treating doctor and from which a number of documents had been removed.
46 Having viewed the relatively short segments of surveillance film shown for the years 2008, 2009 and 2010 which variously depicted the plaintiff driving, walking, inspecting a vehicle with his daughter's boyfriend and eating in an outdoor cafe I was not satisfied that this film demonstrated any level of activity incompatible with the plaintiff's reported restrictions due to his lower back or respiratory conditions. Moreover, I infer from the defendant's failure to rely on all of the surveillance film obtained over a nearly seven-year period that, if shown, it would not have assisted the defendant in either damaging the plaintiff's credit or contradicting his evidence about his physical activities and limitations.
The plaintiff's background and the treatment received
47 The plaintiff is 56 years of age, he is married with four adult children. He and his wife apparently foster a nine-year-old girl. The plaintiff is unemployed and receives WorkCover payments for his back injury.
48 The plaintiff, who described himself as a poor student, was educated to year 9 level before he commenced working in a carpet factory. Apart from his employment with the defendant, the plaintiff described earlier employment as a truck driver, carpenter, roof tiler and general hand in a plastics factory, although he also said that due to a downturn in the building industry he spent most of the 1990s on unemployment benefits. However, as I have already mentioned, despite being taken to Dr Peppard's letter the plaintiff was unable to recall what, if any, work he was doing prior to the specialist examination in July 1999, much less why, if he was as reported employed, he gave up employment.
49 In all the circumstances described, including being reminded of his attendance on the neurologist, I formed the view that the plaintiff's inability to recall any of these matters, including the left thigh pain which had prompted a referral to a specialist, was probably due to the plaintiff’s reluctance to accept that a condition related to his lower back injury was the likely cause of any earlier incapacity due to left thigh symptoms and of the symptoms affecting this leg following the incident on 2 July 2003.
50 Based on the evidence, the matters reported by him during a vocational assessment in February 2010 and the extract from the defendant's Register of Injury completed by the plaintiff in June 2003, I formed the view that the plaintiff's English literacy skills, particularly his ability to write and spell are lacking and that, apart from hobbies such as restoring cars or, as he expressed it at the hearing, “tinkering” with computers, the plaintiff has no special skills or training beyond the unskilled and physically demanding work performed up to the cessation of his employment with the defendant in 2006.
51 Dr Kefaladelis has been the plaintiff's treating general practitioner since 1997. On 2 July 2003 he treated the plaintiff following the lower back injury for his lower back pain and symptoms in his left thigh as well as pain in his left shoulder, the latter relating to an injury suffered in the weeks preceding the slipping incident. A number of the treating general practitioner's reports were included in the plaintiff's Court Book and the doctor was cross-examined and re-examined.
52 According to both the reports and his evidence during the hearing the treating general practitioner neither recalled having done this nor did he record any results of an examination of the plaintiff's back movements when, on 2 July 2003, the plaintiff first attended the clinic complaining of back, left thigh and left shoulder pain.
53 However, it appears that the doctor did order an ultrasound of the plaintiff's shoulder and he prescribed anti-inflammatory medication, Vioxx. When he reviewed the plaintiff on 7 July 2003 the general practitioner noted that the plaintiff reported no improvement in his back and left thigh pain. Clinical examination revealed a full and normal range of movement in the plaintiff's back which was described in the doctor’s report as, "quite free". At the time he thought that the plaintiff was suffering from muscular strain in his shoulder and from sciatic pain in his left lower limb, prompting the doctor to order an x- ray of the plaintiff’s lumbosacral spine. He also referred the plaintiff for physiotherapy with which the plaintiff persisted for about 18 months.
54 When, on 14 July 2003 he next examined the plaintiff, apart from ongoing problems with his shoulder the plaintiff continued to report symptoms the doctor thought were indicative of sciatic pain. He reached this conclusion despite a clinical examination in which the plaintiff again demonstrated a full range of movement in his lumbosacral spine and the results of the x-ray which revealed moderate narrowing of the L5/S1 disc and mild narrowing of the L4/5 disc.
55 On 3 September 2003 a CT scan of the plaintiff’s lumbar spine ordered by general practitioner, Dr Michael O'Toole who examined the plaintiff at the request of the insurer on 1 September 2003 reported:
"Slight narrowing of the L4-5 disc space is noted and there is moderate narrowing at L5-S1. Axial bone targeted images demonstrate moderate endplate irregularity and sclerosis at L5-S1. Some minor facet joint disease is noted at L4-5. No pars defects or destructive lesion evident. No paraspinal mass.
The overall size and configuration of the lumbar canal is within normal limits. No disc herniation or canal stenosis.
Conclusion: Minor degenerative changes, most pronounced at L5-
S1."[18][18] PCB 117.
56 The result of an MRI scan obtained on 9 June 2004 by treating orthopaedic surgeon, Mr Williamson who first saw the plaintiff in February 2004, similarly demonstrated degenerative disease without revealing any nerve compression which might have helped relate the left thigh symptoms to the lower back injury. In his report the radiologist wrote:
"...
At L2/3 and L3/4 there is a normal posterior disc contour with no neural impingement.
At L4/5 there is disc desiccation and loss of disc space height. There is a shallow broadbased posterior non compressive disc bulge. No neural foraminal stenosis.
At L5/S1 there is mild degenerative disc disease with loss of disc space height and end plate oedema. There is a shallow broadbased disc bulged with a annular tear. There is no central canal stenosis nor foraminal stenosis.
Degenerative changes are seen at the L3/4, L4/5 and L5/S1 facet joints.
CONCLUSION
Degenerative facet and disease as described. No neural impingement identified."[19]
[19] PCB 118.
57 In cross-examination Dr Kefaladelis agreed that between July 2003 and November 2004 he had not recorded any loss of movement in the plaintiff's spine.[20] This evidence is in keeping with the consistently good clinical signs recorded by Dr O'Toole, reported in Mr Williamson’s letters to the treating general practitioner and reported by occupational physician, Dr Poppenbeek who first examined the plaintiff at the request of the insurer on 6 February 2004 and undertook a worksite assessment on 10 February 2004. Nevertheless, during this period the plaintiff continued to complain of persistent lower back and left thigh pain.
[20] TN 99.
58 After some months the plaintiff returned to work on light duties and reduced hours. The treating general practitioner's summary in his report dated 2 March 2009 confirms that the plaintiff's attempt to return to work in the latter part of 2003 was not without problems. However, by 5 April 2004 his working hours had been increased to 8 hours per day, although as the plaintiff maintained throughout the hearing over the next two years, despite back pain he was able to continue to work for the defendant by only driving a van and by restricting his lifting in the manner I have already described.
59 When in February 2004 Dr Poppenbeek assessed the plaintiff and his worksite, the left shoulder condition, which the doctor thought was caused by an acute strain and the plaintiff's lower back condition were not stabilised. He thought that both conditions continued to contribute to the plaintiff’s reduced and restricted work capacity.
60 On 5 February 2004, the day prior to this doctor's assessment, the plaintiff received a cortisone injection which he reported had led to significant improvement in the shoulder pain. Even if at that time the doctor was correct in his understanding that shoulder, not lower back symptoms were more problematic for the plaintiff, following the injection these symptoms subsided and, as subsequently reported by the treating general practitioner, by July/August 2004 the shoulder condition had resolved. The same cannot be said about the plaintiff's lower back condition which, Dr Poppenbeek attributed to aggravation of pre-existing lumbar spine degenerative change particularly at the lumbo-sacral level.[21]
[21] DCB 16.
61 Apparently in May 2004 the plaintiff told his treating general practitioner that inactivity over the period of his WorkCover injury had led to a 30 kg gain in his weight. In cross-examination the plaintiff agreed that, despite this, he continued working. He attributed his failure to pursue a referral to a physician specialising in treating excessive weight gain to his inability to pay for this treatment.
62 In July 2004 Mr Williamson reviewed the plaintiff's condition after which he reported to the general practitioner that the plaintiff had said that he had: "little
in the way of low back pain at the present time and described no new lower limb pain, paraesthesia or weakness or disturbance of bladder or bowel
control or sensation ..."[22] In cross-examination the plaintiff sought to limit the ambit of this statement to the date on which he saw the surgeon because, according to the plaintiff, after he returned to full-time work he "had a fair amount of pain."[23]
[22] PCB 56G.
[23] TN 46 and 47.
63 I was not persuaded that the report made to the surgeon only referred to the date of examination. In reaching this conclusion I had regard to the whole of the report including the clinical findings and the encouragement the surgeon said he gave to the plaintiff to "continue with his normal activities, including work-related duties as comfort permits".[24]I also took into account the treating general practitioner’s notes for August 2004. Amongst other things, these indicated that the plaintiff had left him with the impression that his back felt "okay" and, as he also explained in re-examination, the general practitioner thought that the plaintiff was coping with his back problem.[25]
[24] PCB 56G.
[25] TN 114.
64 These matters notwithstanding I think that any fair summary of the medical evidence during the period until November 2004 demonstrates that the plaintiff continued to report and received treatment (albeit conservative treatment) for lower back pain. However, by November 2004, despite the plaintiff having physiotherapy twice weekly and his reservations about acceding to a request he thought had come from the insurer, the treating general practitioner provided a release certificate in which he stated that the injury had resolved.
65 In cross-examination the plaintiff agreed that he had not returned for review of his back condition by his treating orthopaedic surgeon or any other treating surgeon, that he had not used prescription medication, that he only took the occasional Panadol or Panadeine and that he ceased physiotherapy in 2005 (because it was not helping him), although he also said that to this day he persisted with some of the back strengthening exercises recommended by the physiotherapist.
66 As we know from the treatment history noted and reported by the treating general practitioner, the plaintiff did not seek further treatment for his back condition until early 2010, rather once this emerged the focus of his medical care shifted to treatment of his excessive weight gain and to the significant respiratory complications. As it turned out these probably were, as his doctor said, life threatening conditions.
67 These matters notwithstanding, the plaintiff has satisfied me that his back injury probably was, as he claimed, symptomatic throughout. In reaching this conclusion I took into account amongst other things, the treating general practitioner's report to Centrelink on 14 August 2006 in which he identified two conditions, chronic respiratory failure with obstructive sleep apnoea and obesity. This report recorded a history of back injury "some 3 yrs ago" and with respect to the obesity condition described the plaintiffs "current symptoms" as "Tiredness", "Back Pain", "Knee Pain". [26]
[26] Exhibit P2.
68 I also had regard to:
•
Dr Kefaladelis' evidence that since 2006 he has provided certificates of capacity, all of which he said were very similar to the certificate dated 7 December 2007. This was tendered at hearing as being typical of the certificates regularly provided by the doctor during this period. The certificate also refers to back injury which, notwithstanding the failure to detail this in the notes he kept, the doctor affirmed was one of a number of chronic and ongoing medical issues;
•
the report of rheumatologist, Dr Thevathasan who at the request of the insurer conducted an Independent Impairment Assessment on 28 February 2007. Amongst other things, he was told that the plaintiff’s situation was much the same following the workplace accident, although probably a little better since he ceased work and that he could "do most things
but would pay for it considerably afterwards so he avoided
doing certain tasks ...". He concluded that the plaintiff was suffering from muscular pain secondary to minor Lumbar Spondylosis and Disc Degeneration; [27]
[27] PCB 69.
•
the report of Dr Poppenbeek after he re-examined the plaintiff in August 2008. Amongst other things, during this examination the plaintiff is reported to have said that his back problem wakes him up 3 to 4 times each night, he described central lower back pain with no radiation, he stated that he had not resumed work because of back pain and shortness of breath on exertion and he complained that his back pain had not changed since he ceased work. On examination the plaintiff demonstrated restricted lumbar movement.[28] Having accepted that the workplace accident in 2003 probably aggravated pre- existing lumbar spine disc degenerative disease Dr Poppenbeek obviously felt that his respiratory problem was the main reason for the plaintiff's total incapacity for all work requiring physical activity and that his lumbar spine pain was a lesser issue. However, in view of his acceptance of the history the plaintiff gave of ongoing lower back pain, I am unable to accept as soundly based, Dr Poppenbeek's conclusion that the work contribution to the plaintiff's back aggravation had probably resolved. [29] As it turns out this conclusion is at odds with the opinions of orthopaedic surgeons, Mr Jones who examined the plaintiff in 2010 at the request of the defendant's solicitors[30] and Mr Doig who submitted his medico-legal report to the plaintiff's solicitors in 2010[31] and was cross-examined at some length; and
•
the fact that the materials contained numerous reports from treating and medico-legal specialists who were given to understand that the plaintiff suffered from back pain and that his lower back injury was a cause of substantial weight gain which by 2009 had exceeded 200 kg. In addition to the treating specialists mentioned earlier in this judgment, these specialists include Dr Trembath and Austin Health Respiratory Registrar, Dr Zubrinich and Respiratory and Sleep Physician, Dr Antoniades, the latter of whom reported the results of their testing to Dr Manolitsas in 2006 and 2007 respectively.
[28] See DCB 22- 25 generally.
[29] DCB 26.
[30] DCB 51.
[31] PCB 102.
69 More recently, in the five weeks preceding the hearing date, the plaintiff has resumed physiotherapy treatment, having on 22 February 2010 reported to the general practitioner more severe back pain and sciatica, with pain radiating to his left lateral thigh for the treatment of which he was self medicating with Panadeine and ibuprofen.[32] These matters prompted the general practitioner to order a further CT scan of the plaintiff's lumbar spine. According to the doctor's final report dated 5 June 2010, when offered a choice of treatments the plaintiff opted to try physiotherapy first in preference to facet joint injections, the latter of which the doctor thought would only provide temporary relief from the pain he attributed to widespread arthritis.
[32] PCB 39 and TN 52 - 53,
70 The result of the scan obtained on 25 February 2010 was reproduced in the general practitioner's report as follows:
"…
The scout views show normal alignment in both planes. Bone targeted images show no focal osseous lesion nor pars defects. Degenerative osteophytic bridging bone across the lumbosacral disc anteriorly laterally on the right side is noted.
At the L1/2, L2/3 and L3/4 levels, the canal diameters, lateral recesses and exit foramina are normal. There is no annular bulge nor disc protrusion or extrusion.
At L4/5 there is degenerative facet joint arthrosis. There is minor diffuse annular bulge and this does not impinge on the thecal sac. Canal diameters and exit foramina are normal.
At L5/S1 is advanced degenerative disc narrowing. There is some minor annular bulge that does not impinge on neural tissue. Bilateral facet arthropathy is present with arthrotic spurring projecting into the spinal canal consequent to the arthrosis. The lateral recesses and exit foramina are normal.
Prevertebral soft tissues are within normal limits. ..."[33]
[33] PCB 39 -40.
71 I will say more about the impact of the further radiological evidence when I discuss the most recent medico-legal evidence and in particular Mr Doig's evidence at hearing.
72 A bundle of reports from Austin Health respiratory specialists and from Dr Manolitsas made during the period September 2006 to September 2009 were tendered by the defendant.[34] These reports show that from shortly after this commenced, the plaintiff had a good clinical response to CPAP therapy, such that his respiratory condition stabilised and by 21 August 2007 Respiratory Resident, Dr Magness understood that all of the plaintiff’s symptoms had "completely resolved and that he couldn't be happier".[35]
[34] DCB 73-90. See also PCB 78-80.
[35] DCB 79.
73 In cross-examination the plaintiff agreed that all of his symptoms were controlled by the CPAP therapy. Nevertheless, as Dr Kefaladelis said in cross-examination, apart from the plaintiff’s other medical issues, at no stage was it indicated to him that any of the treating specialists thought that the plaintiff was fit to resume duties as a driver or in any other capacity.[36]
[36] TN105.
74 In any event, it is evident from the reports from treating specialist, Dr Manolitsas and in particular his report to the insurer dated 23 March 2007 that in his opinion, despite his clinical improvement, the plaintiff was "... certainly
not suitable to work as a truck driver and even if his sleep apnoea was adequately treated, in view of his chronic airflow obstruction he is unable to work in other areas involving physical exertion. I do not expect his condition
to improve sufficiently to change the situation. ..."[37]
[37] PCB 43.
75 Notably the nightly airflow pressure required as part of the plaintiff's ongoing therapy has remained the same as before his surgery, his weight loss and the marked clinical improvement in all of his respiratory disorders.[38] In accordance with the submission made on his behalf, this evidence indicated to me that the sleep apnoea condition probably does permanently preclude a return to work as a commercial driver or to work involving physical exertion.
[38] PCB 56B.
The current treating and medico-legal evidence concerning the back condition
76 I have already mentioned Mr Jones' reports submitted to the defendant's solicitors on 28 June and 15 July 2010. He clearly felt that the aggravation injury was probably both significant and ongoing, that further weight reduction was unlikely to result in significant change in the plaintiff's lower back condition, that this condition was permanent, that the right knee symptoms caused the plaintiff's limp and that the plaintiff may have a residual capacity to undertake sedentary employment where he was not required to stand or walk for long distances.
77 Whilst copies of these were not made available to me, I note that Mr Jones rejected as unsuitable a number of jobs described in material sent to him, although he to this he added his opinion that the plaintiff "may have the
capacity to undertake the duties of Product of (sic) Assembler provided this was done in a seated position and there is no requirement to lift, bend or carry weights over 5 kg. I'm not sure of the impact that his current and ongoing problem of sleep apnoea would have on his work capacity. It would appear as though he still requires the use of a sleep apnoea machine to assist him to
sleep at night."[39]
[39] DCB 39.
78 It is evident from the his observations set out above that Mr Jones was not in a position to determine the extent, if any, of the contribution made by the plaintiff's ongoing sleep apnoea condition to his physical incapacity for work.
79 When Mr Doig examined the plaintiff in May 2010 the plaintiff reported ongoing lower back pain, for the treatment of which he took an occasional Panadeine, and his belief that his back condition was worsening. Based on the history he received, the clinical examination and the early CT and MRI scans Mr Doig concluded that the plaintiff's work had been a significant contributing factor to his current condition, that is disc degeneration at L4-5 and to a lesser extent at L5-S1 levels. At the same time Mr Doig expressed his view that the plaintiff's condition required reassessment by a treating orthopaedic surgeon and reimaging.
80 Whilst he understood from the plaintiff that the major reason for the plaintiff ceasing work in 2006 was his sleep apnoea condition caused by weight gain following his back injury, Mr Doig nonetheless believed that currently the plaintiff's capacity for full duties was significantly affected by his back pain. He also thought it unlikely that the plaintiff would return to work in the foreseeable future.
81 In this application I have benefited from hearing cross-examination and re- examination of this specialist. For instance, in cross-examination Mr Doig explained that he had recommended reassessment and reimaging to determine if there was some means of helping the plaintiff so far as his lower back pain was concerned.
82 Mr Doig was shown the up-to-date CT scan result reproduced in Dr Kefaladelis' report to the plaintiff's solicitors on 5 June 2010 when he also noted that the plaintiff had preferred resumption of physiotherapy to facet joint injections for treatment of his lower back symptoms.
83 Having read the result of the CT scan Mr Doig rejected counsel's suggestion that this revealed only minor degenerative changes, rather he noted, amongst other things, that there was evidence of significant arthritis in the facet joints at L4/5 and L5/S1. However, he agreed that facet joint injections could result in some improvement in pain.[40]
[40] TN131.
84 Nevertheless, having also compared the CT scan results for September 2003 and February 2010 in re-examination Mr Doig clarified these responses by explaining that there were two likely causes of the plaintiff's pain. One was the disc problem shown in the initial films which gave rise to pain and disability. However, he also felt that at that time the plaintiff's pain and disability may have been partially due to facet joint injury which was now manifest because of the extent to which the facet joint arthrosis had progressed in the seven years between the scans. In other words, Mr Doig believed that the plaintiff's lower back problems were multifactorial in that they were caused by both facet joint and disc degeneration.
85 Accordingly, based on the up-to-date medical assessments I accept as likely the plaintiff’s claim that, rather improve following his recent weight loss, his lower back pain has been worsened by his attempts to increase his physical activities.
86 Relevantly, Mr Doig also thought it unlikely that any potential response to facet joint injections as a treatment would make a difference to the plaintiff's physical work capacity. In other words even if the plaintiff underwent this treatment Mr Doig’s assessment of his work capacity in May this year was unchanged.[41]
[41] TN131.
Compensable injury
87 In this application there is evidence of pre-existing degenerative changes in the plaintiff's lumbar spine. To the extent that this is directly addressed, or can be inferred from the reports made, the evidence of the treating and medico-legal specialists (including the general practitioner) has satisfied me that the plaintiff suffered compensable injury as a result of the incident on 2 July 2003; that is aggravation of pre-existing degenerative changes in his lumbar spine. His employment with the defendant was a significant contributing factor to this injury and injury-related impairment is probably permanent (that is permanent in the sense that it is likely to last into the foreseeable future) and to continue to produce pain and suffering and pecuniary loss consequences. This is in addition to any specific consequences arising from or contribution made by the plaintiff's other medical conditions to pain and suffering and pecuniary loss consequences.
88 On one view of this case the plaintiff's permanent, albeit improved respiratory condition, is a consequence of the lower back injury. This condition clearly makes a significant contribution to his loss of earning capacity and arguably renders him totally and permanently incapacitated for all employment to which he is suited by education and experience. However, if considered in isolation, based on all of the evidence and particularly the most recent orthopaedic medical evidence it is likely that the symptoms of the plaintiff's work-related lower back injury also deprive him of any meaningful physical work capacity for the foreseeable future.
89 I now turn to consider the loss of earning capacity claim which the plaintiff must establish in accordance with the requirements of s134AB of the Act.
Loss of earning capacity consequence under paragraph (a) of the definition of serious injury
90 In relation to his loss of earning capacity claim, in addition to the narrative requirements of loss of any capacity under paragraphs s134AB(38)(e), (f) and (g) of the Act (as amended), the plaintiff was required to prove that at the date of hearing his loss, as measured by reference to the statutory formula, is 40 per centum or more, and, after the date of hearing, a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.
91 The loss of earning capacity is measured by comparing the income the plaintiff is earning or capable of earning in suitable employment at the date of hearing ("the after-injury earnings") and the income that the plaintiff 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 his earning capacity had the injury not occurred ("the without-injury earnings").
92 The income compared is gross income from personal exertion, expressed at an annual rate.
93 A statement of calculation of the plaintiff's loss of earning capacity was submitted to the Court. The plaintiff was unemployed for long periods prior to commencing work with the defendant on 4 April 2001. His gross annual income from personal exertion was $36,333 in 2002 and $38,263 in 2003, that is approximately $733 per week in the year he suffered injury to his lower back. I was told that after returning to work from approximately March 2004 until his respiratory condition caused him to cease all work from July 2006, the plaintiff's gross annual income, including workers compensation payments was $30,749 in 2004, $33,503 in 2005 and $32,170 in 2006.
94 Allowing for the uncontested submissions made on his behalf I have proceeded on the basis that for the purpose of s134AB(38)(f) the plaintiff's gross income as at 30 June 2003, $38,263 (approximately $733 per week) represents his without injury earnings because it probably most fairly reflects his earning capacity had the lower back injury not occurred.
95 Notwithstanding his claimed total incapacity, the plaintiff also submitted that any residual earning capacity exercised by him in suitable employment would not produce more than 60% of his without injury earnings, namely a sum of $22,957.80 or approximately $440 gross per week.
96 As from 1 July 2010 the following definition of "suitable employment" was substituted by the amended Act:
“suitable employment, in relation to a worker, means employment in work for which
the worker is currently suited –
(a) having regard to –
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of
capacity supplied by the worker, and(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence and
(v) any plan or document prepared as part of the return to work planning
process; and
(vi) any occupational rehabilitation services that are being, or have been,
provided to or for the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and (ii) the work or the employment is of a type or nature that is generally available in the employment market.”
97 Allowing for the second reading speech, it is clear that Parliament[42] has moved to abrogate the effect of the decision in Smorgon Tube Mills v Majkic, which held that in determining what the worker was capable of earning in "suitable employment", regard was to be had to the realities of the labour market, and loss of earning capacity was to be determined having regard to work that was "generally available in the employment market."[43]
[42] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2009, page 4625, Mr Holding, Minister for Workcover.
[43] Smorgon Tube Mills v Majkic (2008) 21 VR 193,196.
98 In this case, I must consider the possibility of employment following the plaintiff's injury by reference to the plaintiff's physical capacity for employment and with due regard to the various factors on which the definition of "suitable employment" elaborates. The ultimate concern is whether the plaintiff has a physical capacity for work which, if exercised, would result in him exceeding the statutory threshold of 60% of gross income earned from personal exertion.
99 As I have mentioned, the onus is on the plaintiff to establish that, after appropriate rehabilitation or retraining, injury-related impairment of his lower back permanently restricts his employment options. The determination of this issue also takes into account, the reasonableness of his attempts, if any, to participate in rehabilitation or retraining and he must prove any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
100 As I have already noted, the plaintiff has not worked since July 2006. I was told that he continues to receive workers compensation payments from the defendant at the rate applicable for a worker who has no current work capacity (that is likely to continue indefinitely).
101 In this application the plaintiff submitted that due to his injury he has no current earning capacity and that he has no capacity for suitable employment. In this regard he relied on particularly the recent medical opinion of Mr Doig and Mr Jones and on the detailed report prepared by Ms Schneider following vocational assessment by her on 24 and 25 February 2010. According to Ms Schnieder’s report her assessment was spread over two days apparently because the plaintiff was fatigued and had breathing problems following his journey from Mornington to Melbourne on the first day.
The vocational material
102 I have already mentioned earlier in this judgment matters relating to the plaintiff's education and employment history. Apart from discussion of the plaintiff's background and injury history the vocational assessment report contained under various headings very detailed summaries of information relevant to the plaintiff's earning capacity and his capacity to participate in rehabilitation or retraining. These included:
• the plaintiff's report concerning pain. For instance, he reported that on a normal day his back pain was "between 3 and 4. It's there all the time. Most of the time I just tried to ignore it." If he aggravated his lower back he apparently also said that his pain escalated to "11 or 12 out of 10. It doesn't happen all that often because I don't let it get to that stage. It’s like a knife going into my back and will last for minutes and it can take up to an
hour or more to go back to a lesser state (6 or 7)" after which the plaintiff
said that he avoided activity for the rest of the day; [44]
[44] PCB 84.
•
the plaintiff's report concerning his sleep patterns. For instance, the plaintiff confirmed that he cannot sleep without his CPAP machine which is set "at max 20", although the plaintiff also explained that pain now only wakes him during the night "once or twice a month"; [45]
•
the plaintiff’s summary of his current medication and treatment. For instance, consistent with the evidence he gave at hearing the plaintiff apparently told Ms Schneider that he rarely takes medication for pain in his lower back, although when he had persistent pain lasting longer than a day he said he took 6 to 8 Ibuprofen tablets a day probably every eight weeks or more - "if my back is playing up I'm better off not doing any activity in
[45] PCB 84.
taking the tablets to knock it on the head. It doesn't take much to
aggravate my back". [46] At hearing the plaintiff also mentioned occasional
use of Panadeine or Panadol to treat back pain• the plaintiff’s report on his physical tolerances. For instance, he said that he could sit for only 2 to 3 hours in a comfortable armchair or with half- hour breaks and a lumbar cushion on a hard kitchen chair, stand in one spot for five minutes, ascend and descend stairs more easily since losing weight, walk on a level surface for 150 m before pain started, although at the date of hearing he also said that his tolerance for walking had increased to 200 m before he needed to rest and that normally he could lift only a light grocery bag in each hand to take inside. However he could lift a 10 kg slab of beer but could not carry it, whereas the heaviest item he had lifted in the last 3 1/2 years was a 7 1/2 kg box of soft drinks which he could carry across the room but no further;[47] • the plaintiff's report on his driving capacity. In this regard the plaintiff said that he could drive his automatic vehicle with power steering for about "an hour and a half, max probably", although he also said that he developed increased back and left leg pain while driving; [48] • the plaintiff's report on his activities which included doing the dishes and washing laundry which is folded by his wife when dry.[49] Consistent with her uncontested affidavit evidence his wife apparently does most of the household jobs. Indeed, she corroborated the plaintiff's evidence that he was severely restricted in his mobility and in the level of his domestic, social and sporting activities – “things have changed dramatically since his work accident”; [50] and • Ms Schneider’s account of what she euphemistically called "Vocational Opinions". These consisted of summaries of a range of mainly treating medical opinion obtained up to about March 2009.[51] However, notwithstanding the absence of any current medical opinion particularly since the plaintiff underwent surgery in November 2009, Ms Schneider's conclusion that the plaintiff is probably permanently unfit to return to his pre-injury work or alternative work is nevertheless reflected in the most recent treating and medico-legal opinions I have summarised within this judgment.
[46] PCB 85.
[47] PCB 85-86.
[48] PCB 86.
[49] PCB 87-88.
[50] PCB 31.
[51] PCB 91-93.
103 In her wide ranging and somewhat unstructured discussion of the plaintiff's work capacity and employment limitations Ms Schneider considered the plaintiff's capacity to perform a range of possible occupational pursuits having regard to factors such as his medical conditions, his education, experience, literacy and work history. She concluded (in all the circumstances I think correctly) that:
"... based on the medical information available, his lack of educational attainment that has ill-equipped him for alternative work, a dearth of usable transferable work skills and his lack of suitability for vocational retraining due to his learning disability, back pain and his limited postural and functional capacity coupled with severe Obstructive Sleep Apnoea, I am convinced that 56-year-old Australian, Mr. Stephen Bird has 'no current work capacity' for casual, part-time, full-time or self- employment. Moreover, I suspect that he will most likely remain very considerably disadvantaged and unemployable for the indefinite future."[52]
[52] PCB 97.
104 In deciding this application I have endeavoured to separate any physical restrictions specifically arising from unrelated medical conditions[53] from those restrictions to which impairment of his lower back materially contributes (whether alone or in combination with any restrictions caused by his respiratory impairment). In summary, based on all the evidence, I think it reasonable to accept that:
[53] As for example the likely impact on his mobility of the unrelated conditions affecting his right knee and left thigh.
(a)
the plaintiff's poor literacy skills and education, his lack of specialist work skills and his physical limitations particularly due to his lower back and respiratory problems when combined with his age probably preclude any formal occupational retraining;
(b)
putting to one side any of the consequences of any other conditions as at the date of hearing, impairment of the plaintiff’s lower back has probably deprived him of any current capacity to return to his pre-injury employment as a commercial delivery driver;
(c) his education, experience and work history probably only qualify the
plaintiff for unskilled and semi-skilled occupations; and
(d) putting to one side the plaintiff's respiratory condition, by reason of his lower back injury the plaintiff is currently and probably permanently unfit to work in or retrain for any form of employment. 105 Accordingly, the plaintiff has proved an inability to be retrained; he has satisfied me that he has a permanent loss of capacity of 40% or more[54] and, that when judged by comparison with other cases in the range of possible losses of body function, the loss of earning capacity consequence flowing from the aggravation injury to his lower back is probably permanent and is fairly described as being at least very considerable..
[54] s134AB(38)(i) and (ii).
Orders 106 In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect of pain and suffering and pecuniary loss damages for injury suffered by him in the course of his employment with the defendant on 2 July 2003. I will hear from the parties as to the making of appropriate orders.
0
1
0