Blackburn, Bruce v Mitre 10 Aust. Pty Ltd

[2009] VCC 1677

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

SERIOUS INJURY

Case No. CI-08-03374

BRUCE BLACKBURN	Plaintiff
v
MITRE 10 AUSTRALIA PTY LTD	Defendant

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JUDGE:	Judge Howie
WHERE HELD:	Melbourne
DATE OF HEARING:	11, 14 December 2009
DATE OF JUDGMENT:	17 December 2009
CASE MAY BE CITED AS:	Blackburn, Bruce v Mitre 10 Aust. Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1677

REASONS FOR JUDGMENT

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Catchwords: serious injury; section 134AB Accident Compensation Act 1985

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Mighell SC and Mr Carson	Maurice Blackburn
For the Defendant	Mr Smith	Thomson Playford Cutlers
HIS HONOUR:

1 By an originating motion filed on 18 August 2008 the plaintiff seeks leave pursuant to section 134AB of the Accident Compensation Act 1985 to bring proceedings to recover damages for pain and suffering and for loss of earning capacity for an injury to his lumbar spine in the course of his employment by the defendant between 20 October 1999 and May 2006. He relies upon paragraph (a) of the definition of serious injury. The body function said to be impaired is the function of the lumbar spine.

2 In order to succeed with an application pursuant to section 134AB the plaintiff must establish that he sustained an injury arising out of or in the course of, or due to the nature of, his employment by the defendant. With respect to

paragraph (a) of the definition of serious injury, for the plaintiff to establish that
his injury is a serious injury as defined, he must prove that the consequences
to him of the impairment of the function of his lumbar spine with respect to
pain and suffering and with respect to loss of earning capacity are, when
judged by comparison with other cases in the range of possible impairments
of a body function, fairly described as being more than significant or marked,
and as being at least very considerable. He must also prove that the
impairment to the body function is permanent.

3          There is no issue between the parties about the plaintiff having suffered an injury to his lumbar spine in the course of his employment. While there was no concession by the defendant that the pain and suffering consequence of the impairment may be fairly described as very considerable, no submissions

were made by the defendant that the plaintiff did not satisfy the definition with
respect to pain and suffering. The critical issue, Mr Smith, counsel for the
defendant submitted, is whether the plaintiff has a loss of earning capacity of
40% or more.

4          Insofar as the plaintiff seeks leave with respect to loss of earning capacity, in addition to establishing that the loss of earning capacity consequence is very considerable, he must also establish the matters required by paragraphs (e), (f) and (g) of subsection (38). Leave shall not be granted on the basis of loss of earning capacity unless the plaintiff establishes that (1) he has a loss of

earning capacity of 40 per centum or more, and (2) he will after the date of the
hearing continue to permanently to have a loss of earning capacity which will
be productive of financial loss of 40 per centum or more. To measure the
plaintiff’s loss of earning capacity it is necessary to compare:

• the amount of the plaintiff’s annual gross income from personal exertion which he is earning or capable of earning in suitable employment at the present time (his after injury earning capacity) with

• the amount of the plaintiff’s annual gross income from personal exertion that he was earning or was capable of earning or would have earned or would have been capable of earning during that part of the period within 3 years before and 3 years after the injury as most fairly reflects his earning capacity had the injury not occurred (his without injury income).

In both cases the income is limited to gross income from personal exertion and is to be annualised.[1]

[1] Hayhill Pty Ltd v Hodge [2006] VSCA 194 [2]

5          It is useful to set out a narrative of the plaintiff’s injury, his treatment and symptoms. He is 49 years of age, his date of birth being 1 May 1960. He was educated to the level of year 10 at secondary school. His employment has been primarily as a storeman working in warehouses. He commenced employment with the defendant in 1994, as a storeman in the factory at Hallam. Later he moved to a warehouse in Dandenong. His duties included driving a forklift.

6          In May 2001 he experienced back pain as a consequence of driving a forklift over uneven surfaces. He attended the factory doctor, had a week off work and returned to the Hallam warehouse on light duties. In late 2003 or 2004 he went back to the Dandenong warehouse, working initially driving a pallet truck, and then as the driver of a reach forklift. While driving this forklift he again experienced back pain, left buttock pain and left leg pain. He attended physiotherapy. He was absent from work for a period of time including the use of his long service entitlement. He returned to work on light duties, but when he resumed duties on a forklift his back, buttock and leg pain became worse. He continued to be treated by Dr Ogilvie, and by Dr Gassin, to whom he was referred in September 2005. He attempted to continue work on a part time basis, but his pain increased and he was made redundant in May 2006. He has not worked since, save for a brief period.

7 have been tendered in evidence. They do not refer to any attendance or treatment before February 2005, when Dr Ogilvie obtained a history that the plaintiff had developed back pain at that time while driving a forklift. However, the report of Ms Wraight, the physiotherapist, indicates that on 19 January 2005 the plaintiff developed a sudden onset of left buttock pain and was referred by the defendant for physiotherapy on 21 January 2005. He had physiotherapy until 13 July 2005 when he was discharged, but he returned Dr Ogilvie has been the plaintiff’s general practitioner. Five reports by him performed on 8 August 2005 showed a left paracentral disc protrusion at L4/5 causing subarticular recess stenosis and compromise to the left L5 nerve root. Ms Joanne Wraight, a musculoskeletal physiotherapist, in a five page report dated 11 November 2008, has provided a comprehensive account of the course of the plaintiff’s symptoms and treatment, and in particular physiotherapy treatment, in the years from the beginning of 2005 to November 2008.

8          The plaintiff ceased work in May 2005. In August 2005 Dr Ogilvie referred the plaintiff to Dr Gassin, a musculoskeletal physician. He had pain in the left low back and buttock and numbness in the left foot, ankle and leg. He had

experienced an exacerbation of pain in July 2005 with sharp shooting pains
down the left leg a few times each day. Dr Gassin administered a caudal
epidural injection of cortisone on 2 September 2005. Dr Gassin described the
plaintiff’s response to the injection as “moderate” and he performed another
caudal injection on 20 September 2005. The second injection did not result in
further pain relief.

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a nine day fortnight with six hour days on light duties. In January 2006 his

daily hours were reduced to four. The plaintiff had been referred by Dr Ogilvie

to Dr Gassin for management of pain in the left low back and buttock and

numbness in the left foot, ankle and lateral aspect of the left leg. He consulted

Dr Gassin on eleven occasions between 31 august 2005 and 25 July 2006.

On 21 March 2006 Dr Gassin described the plaintiff as suffering from “severe,

chronic low back and left leg pain.” In May 2006, Dr Gassin, the plaintiff’s

treating physician, referred him to Mr Pullar, a neurosurgeon, for a surgical

opinion. On 6 June 2006 Mr Pullar reported to Dr Gassin that in addition to the

left sided disc protrusion at L4/5 there was degenerative change at the L5/S1

disc. He considered the plaintiff’s ongoing pain, which radiated into the left

In December 2005 the plaintiff was assessed by KTM and returned to work on damage. He did not think that the nerve root compression would be helped by surgical intervention. Although noting that the plaintiff’s symptoms had been unresponsive to physiotherapy and nerve root sheath injections, he recommended symptomatic management and physical therapy for back management. Mr Pullar’s diagnosis was of lumbar degenerative disc disease (multiple levels) with left L5 nerve root irritation/damage.

10        Dr Gassin referred the plaintiff to an orthopaedic surgeon, Mr Johnson, for a second opinion. He saw the plaintiff on 6 July 2006. Mr Johnson diagnosed a left sided disc bulge at L4/5 causing compression of the L5 nerve root, and bilateral foraminal stenosis at the lumbo-sacral level, also compressing the L5 nerve root. He proposed conservative treatment and referred the plaintiff to a rehabilitation specialist, Dr Clayton Thomas, at the Victorian Rehabilitation Centre. Dr Thomas began his treatment of the plaintiff on 20 July 2006. He gave a prescription for Pregabalin (Lyrica) at an increasing dose and arranged a rehabilitation program with weight reduction, hydrotherapy and functional restoration. The Lyrica was for the neuropathic pain in the left leg.

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11 program was completed. There was some improvement in his leg pain. However, he had recurrent left leg pain extending to the top of the foot, associated with some minor weakness in the left foot, and on 9 July 2007 he was referred back to Mr Johnson by Dr Ogilvie. He was reviewed again by Mr Johnson on 20 July 2007. A lumbar epidural injection was performed on 24 July 2007. This was of no benefit. When reviewed again on 17 August 2007 he was still significantly troubled with left leg pain, which was particularly a problem at night. As his symptoms had returned and he was disabled by them it was decided that surgical intervention was required. On 16 October 2007 Mr Johnson performed a left L4/5 discectomy. He was discharged from hospital on 20 October 2007 and reviewed by Mr Johnson on 29 October 2007 and 19 December 2007. The surgery had provided a moderate degree of Dr Thomas reviewed the plaintiff on 27 February 2007 when the rehabilitation further program of rehabilitation.

12        Dr Thomas reviewed the plaintiff on 12 February 2008. The operation had been moderately helpful. He was able to walk for 30 minutes without stopping and to stride out more. He had persistent back pain. He reviewed him again on 3 June 2008 when he had completed the rehabilitation program, which he found to be moderately helpful.

Mr Johnson reviewed the plaintiff on 7 April 2009. He had continuous low previous leg pain had largely disappeared, but the paraesthesia in the left foot had increased. His symptoms were worse with walking and relieved by rest. His walking was limited to 45 minutes and his sitting tolerance varies between 15 to 20 minutes. He could only stand in one spot for 5 minutes, but could drive up to 60 minutes. Mr Johnson’s opinion was that it is likely that the plaintiff’s symptoms will persist for the foreseeable future.

14 Dr Thomas reviewed the plaintiff on 5 May 2009. On that occasion, severe and occasionally he was not able to wear a closed shoe on the left foot but other times he had no difficulty. Occasionally, he would be able to walk without too much difficulty and other times walking would be prevented because of the back and leg pain.” “he reported persistent problems with his back. He reported pain in the left buttock. He reported pain in the left foot. He told me that his buttock pain was his worst pain but this was more episodic. His back pain was a constant low level ache.

15        In an affidavit sworn by the plaintiff on 16 April 2008 he deposed that he had great difficulty cleaning the house and gardening. He had owned a boat and enjoyed game fishing. He had also enjoyed playing golf. He is no longer able to enjoy these activities. In his sworn evidence the plaintiff stated that he has pain in the lower back and in the left calf and left foot. Occasionally he has

pain in the right buttock and right foot. He is never free of pain. The level of
pain varies. He can walk for periods of time between 15 minutes and an hour.
The pain is progressively worse as he walks. When the pain is really bad he
lays down. He lays down most afternoons for a period between an hour and a
few hours. He does not sleep well because of pain. He takes two Panadeine
Forte and two Indocid at night. The level of pain is not predictable. If he does
something more active involving bending or twisting the pain is worse. On bad
days, approximately once a week, he will take up to 10 or 12 Panadeine
Forte. If he sits for 45 minutes his back is sore.

16        Dr Horsley, the occupational physician who examined the plaintiff on 21 October 2009 for medico legal purposes, gave the following account of his current symptoms:

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described in medical reports as a straightforward, genuine and motivated

man. I formed a similar impression. He has an injury to his lumbar spine which

includes a left sided disc bulge at L4/5 and stenosis at L5/S1 causing

compression of the L5 nerve root, and for which surgery has given only limited

Mr Blackburn suffers from ongoing back pain which is constant in calf and into the dorsum of the right foot. [presumably left foot] He can experience a sensation of dysaesthesia as well as foot swelling. He wears runners to allow him to open up the front of the shoe. He continues to have some weakness in the left foot but it is much less marked than it was pre-operatively.

nature. It varies on the visual analogue scale from 3/10, up to 9-10 out

of ten. He experiences 9-10 out of ten discomfort with acute back

spasm which occurs infrequently. Most of the time, the discomfort is

around 5/10. He experiences chronic left leg discomfort that is

chronically located in the dorsum of the right foot. [presumably left foot]

When he walks he then experiences discomfort that radiates into the

left great toe, into the dorsum of the foot, the lateral calf and into the

buttock. If he continues to walk, he experiences considerable

discomfort in the left buttock. He is unable to put weight through the left

leg at those times. On the visual analogue scale the discomfort varies

from 4-4 out of ten, up to 7/10, but most of there time it is 4-5 out of ten.

His walking tolerance is about 45 minutes. His sitting tolerance is about restricted.

an hour although he fidgets. His static standing tolerance is 5-10

minutes. His dynamic standing tolerance is about an hour. Coughing

and sneezing greatly exacerbates his back pain, as does the cold

weather. His driving tolerance is about an hour in an automatic vehicle

with power steering. He is unable to drive a manual vehicle. He is

unable to use the clutch with his left foot and leg. He has no bowel

symptoms. In terms of bladder, he suffers from hesitancy and poor

flow. This was the reason for his recent review by his local doctor.

The credit of the plaintiff has not been challenged in this proceeding. He is which is consistently present and debilitating and subject to exacerbations in increased severity. He has had consistent treatment over a period of almost five years from Dr Ogilvie, Dr Gassin, Dr Thomas and Mr Johnson, with analgesic and anti inflammatory medication, medication for neuropathic pain, physiotherapy, rehabilitation programs and surgery. He continues to be treated with analgesic and anti inflammatory medication and physiotherapy. It is likely that his present symptoms will persist into the foreseeable future. His enjoyment of life has been significantly diminished. His ability to engage in manual tasks is significantly restricted.

18        I am satisfied that the consequences of the impairment of the plaintiff’s lumbar spine with respect to pain and suffering are, when judged by comparison with other cases in the range of possible impairments, fairly described as more

than significant or marked and at least very considerable. I am satisfied that
the impairment of the function of the plaintiff’s lumbar spine is serious and
permanent and that the injury to his lumbar spine is a serious injury.

19        The plaintiff ceased employment with the defendant in March 2006. He is a man in his 40’s who wants to work. Before being made redundant by the defendant, after periods of absence due to low back and leg pain, he returned to work, sometimes on light duties. He continued to work on a part time basis with increasing pain. He participated in retraining and rehabilitation and return to work programs. His treating doctors, Dr Ogilvie, Dr Gassin and Dr Thomas, have encouraged him to be engaged in suitable work. In March 2007 he commenced part time employment with a friend, an electrician. He completed a short course on electrical tagging, and worked testing and tagging electrical equipment. After three months he and his employer agreed that it was too taxing for him physically and the employment ceased. He has not had other employment. He has done a computer course, but not having used the knowledge has lost much of it. He has applied for five or six jobs, principally as a part time salesman with auto goods dealers, and also as a part time driver, but has not been successful. He continues to check job lists.

20        In my opinion, the plaintiff wishes to obtain part time employment, is willing to commence part time employment, but recognises that because of the injury to his back and the associated limitations, he will have difficulty obtaining a job

and difficulty carrying it out. To determine his loss of earning capacity it is
necessary to compare his earning capacity had the injury not occurred with
his present earning capacity, that is, what he is presently capable of earning in
suitable employment.

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medicine. He has been one of the plaintiff’s treating doctors. In his report

dated 8 May 2009 he expressed the opinion that the plaintiff did not have a

capacity for full time employment, but could return to work part time with

restrictions – to avoid repetitive bending an lifting and twisting below waist

height or above shoulder height; to avoid being in one posture for any

prolonged period of time. He considered that he could lift 7.5 kilograms

between waist and chest height frequently, needed to change posture

frequently, and could work up to, but not beyond, 28 hours per week.

Dr Thomas is an experienced physician specialising in rehabilitation and pain The assessment of a capacity of 28 hours, he said, was “based on everything being ideal.” It did not take account of the plaintiff’s “fluctuating condition” or “the fact that sometimes he may not be able to work at all.” When pressed in cross examination about jobs that the plaintiff might be capable of doing, Dr Thomas acknowledged that “on a good day” he had a capacity to carry out tasks subject to restrictions, but added, “you know, we’ve got to base it on reality. I mean, he’s not going to get those jobs.” It was also his view that while the plaintiff could perform tasks “on a good week”, he could not do them on a sustained basis, “because he’s getting older and his pathology is going to get worse, and the leg pin is going to get worse.”

22        The opinion of Dr Thomas was clarified further in the following evidence: [2]

[2]             t 79-80

So I want to suggest to you it’s very difficult now in the circumstances where Mr Blackburn hasn’t attempted the sort of work which you would regard as suitable, that is, work with restrictions on lifting and work with restrictions put on postures, without having observed the benefit that he gets by way of pain management, increased functioning, increased conditioning, et cetera, it’s difficult to say precisely where the limit of his work capacity is?------

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are likely to persist, he would benefit from returning to the work force. She

described him as being “very frustrated with his current situation.” She

diagnosed his injury as aggravation of an underlying pre-existing degenerative

I think we can. We know that the MRI shows not a trivial problem. We know that it shows a significant problem. We know that the MRI shows a problem which is going to be progressive. It’s an inevitability, not just a – you know, it’s not a normal MRI by any stretch of the imagination. We know that this man was highly motivated. In the spectrum of people I see, you needed to give as much help as you possibly could because of his degree of motivation. This man, I think, would have returned to work if it was at all possible for him to return to work.

So why hasn’t he?-------

Because he was in pain. He’s 49, he’s got a bad back. He’s a manual worker. He’s got no skills which are useful to anyone.

So you’re saying there’s no employment for which he’s currently suited?-------

Not in mainstream employment, absolutely.

In any employment?-------

He won’t get a job if someone knows about his back pain. But what I would advise is don’t tell them, make sure it’s easy and see how you go, and at the very worst you just walk away. But he won’t get

employment if someone knows. Unless he’s got a specific skill that they

want, which he doesn’t, then who would take him on?

So when you say in your report that he could work up, but not beyond,

28 hours, that’s - - -?------- that’s in the ideal world.

- - - something you say is in an ideal circumstance in an unreal world?--

----- Absolutely.

23        I found the evidence of Dr Thomas both sensible are persuasive. It received substantial support from Dr Horsley, an occupational physician, who assessed the plaintiff for medico legal purposes on 21 October 2009, and who was also required to attend for cross examination.

In her report she stated that while she believed that the plaintiff’s symptoms radiculopathy. She set out a number of work restrictions necessary for him and stated:

In my opinion, Mr Blackburn has a capacity for work on a

part-time basis working 15-20 hours per week within suitable

duties within the restrictions outlined above. His

opportunities for redeployment are limited by his educational

background and his primarily manual working history

however, I believe that it would be in his best interests to

return to the workforce on a part-time basis. I believe that he

would struggle with full-time work because of the ongoing

chronic pain that exacerbates with repetitive activities. I

believe that he is permanently unfit for his role as a

storeperson. The critical physical demands of such a role are

beyond his capacity.

25        Like Dr Thomas, however, Dr Horsley qualified this opinion in her evidence. When asked whether there is employment for which the plaintiff is currently suited, she ranged over a number of possible jobs, and concluded that it is unlikely that he would obtain employment in such jobs having regard to his injury, age, work experience and skills. Nevertheless, she considered him to

have a capacity for part time work of 15-20 hours per week subject to the
restrictions that she listed. She encourages her patients to return to work. It
would be in his best interests to return to work. She considered the plaintiff to
have been well managed with a multidisciplinary approach to his
rehabilitation. He has chronic pain and will have acute flare ups. Dr Horsley
considered that he has reached maximum medical improvement, and as time
passes his stiffness and level of discomfort will probably increase.

26        Professor Teddy, neurosurgeon, assessed the plaintiff for medico legal purposes on 21 August 2009. He expressed the opinion that he “would be better employed in a part time capacity between 24 and 30 hours per week.” In evidence in chief he stated that this capacity would be for a good week, but with chronic back pain and neuropathic pain in the left leg and foot, the plaintiff’s condition would fluctuate, and there would be times when he would need to rest, or lie down, or take a break.

27        Mr C Jones, orthopaedic surgeon, assessed the plaintiff for medico legal purposes on 20 February 2008 and 6 November 2008. His opinion was as follows: “I believe he does have a work capacity of sorts. Lifting would have to be limited to five kilograms, and bending curtailed. Considering his previous work experience, is difficult for him to find a long term job under these circumstances.”

28        Mr M Dooley, orthopaedic surgeon, assessed the plaintiff for medico legal purposes on 4 December 2008. He considered the plaintiff to be “capable of light physical work and clerical duties.” Presented with employment options referred to in the Recovre analysis, he stated that the plaintiff would be capable of carrying out the duties required in the employment from a “theoretical orthopaedic viewpoint.”

29        The plaintiff’s after injury earning capacity is determined by the gross income he is earning or is capable of earning in suitable employment. “Suitable employment” is defined as –

employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following –

(a)	the nature of the worker’s incapacity and pre-injury employment;
(b)	the worker’s age, education, skills and work experience;
(c)	the worker’s place of residence;
(d)	the details given in medical information including the medical certificate supplied by the worker;
(e)	the worker’s return to work plan, if any;
(f)	if any occupational rehabilitation services are being provided to or for the worker,

30        In my opinion, despite the plaintiff’s desire to work, and the opinion of treating doctors such as Dr Thomas that it would be in his best interests to work, and despite the theoretical assessments of his capacity, having regard to his

incapacity, age, education, skills and work experience, there is no
employment in work for which he is currently suited.

31        This is the view that the human resources consultant Ms Angel expressed in her report dated 2 April 2009. In a comprehensive report Ms Angel concluded that the plaintiff had no transferable skills that he was currently capable of performing and that he was not capable of re-entering the workforce in any worthwhile capacity in his current state. I do not understand that plaintiff’s level of disability to have improved since the making of that report.

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plaintiff on 21 May 2009 and identified three positions which were considered

suitable for the plaintiff, namely information centre specialist, receptionist/

Recovre conducted an employment capacity analyses with respect to the these positions, and having regard to the medical evidence, particularly that of Dr Thomas, I do not consider the plaintiff to be capable of doing these jobs and therefore suited for employment in them.

33 assessment report with respect to the plaintiff on 1 April 2009. She analysed

Another vocational consultant, Katrine Green, provided a vocational regard to his education, work history and transferable skills, namely, storeperson/warehouse assistant, forklift driver, delivery driver, hand packer, retail sales assistant and receiving and despatch clerk. She concluded with respect to each of these occupations that due to the plaintiff’s back injury it was not suitable employment for him.

34        I am satisfied that the loss of earning capacity consequence of the function of the plaintiff’s lumbar spine can be fairly described as being very considerable. I am satisfied the plaintiff has no capacity to engage in suitable employment. I am therefore satisfied that he has established that he has a loss of earning

capacity of 40 per centum or more and he will continue to permanently have a
loss of earning capacity which will be productive of financial loss of 40 per
centum or more. I am also satisfied that the plaintiff does not have a capacity
for any alternative employment or further or additional employment which, if
exercised, would result in him earning more than 60 per centum of his without
injury income.

35        Accordingly, leave is granted to the plaintiff to commence proceedings to recover damages with respect to pain and suffering and loss of earning capacity for the injury to his lumbar spine arising out of or in the course of, or due to the nature of, his employment by the defendant between 20 October 1999 and May 2006.