Bleakley v Victorian WorkCover Authority
[2018] VCC 913
•22 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00158
| NEIL BLEAKLEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15 and 18 June 2018 | |
DATE OF JUDGMENT: | 22 June 2018 | |
CASE MAY BE CITED AS: | Bleakley v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 913 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – injury to lumbar spine – pain and suffering damages and loss of earning capacity damages – whether the plaintiff is able to work in suitable employment – whether the plaintiff satisfies the threshold test for serious injury in respect of loss of earning capacity and pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB; Evidence Act 2008, s128(4)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: The application for serious injury certificate for pain and suffering damages is granted. The application for serious injury certificate for loss of earning capacity damages is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Lewis QC with Ms F C Spencer | Arnold Thomas & Becker |
| For the Defendant | Mr R H Stanley | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff brings this application by way of Originating Motion dated 17 January 2018. The plaintiff applies for leave in respect of an injury to his lower back. The injury to the plaintiff’s lower back is said to have occurred in the course of his employment with Harper & Sandilands Pty Ltd (“the employer”) and, more particularly, on 11 August 2015.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages in respect of the injury to his back. The Court is required to determine the consequences of the physical injury to the plaintiff’s back in order to be satisfied that leave is to be given in respect of pain and suffering and or loss of earning capacity.
3 The following evidence was adduced in the course of the hearing:
· The plaintiff gave evidence and was extensively cross-examined.
· The plaintiff tendered the following documents:
§ Exhibit “A”, the plaintiff’s court book (“PCB”), pages 8 to 108 inclusive;
§ Exhibit “B”, a history of surveillance undertaken by the defendant between 17 October 2017 and 8 May 2018. In total, 50.5 hours of surveillance was conducted on the plaintiff. A total of 38 minutes of film was produced.
· The defendant tendered the following documents:
§ Exhibit 1, the defendant’s court book (“DCB”), pages 1 to 62 inclusive;
§ Exhibit 2, DVD video surveillance of the plaintiff taken on 7 and 10 February 2018.
4 Mr Stanley, on behalf of the defendant, identified the issues in this application as follows:
(i) The plaintiff has to satisfy the Court that the aggravation of a pre-existing back condition satisfies the statutory test for “serious injury”;
(ii) The plaintiff has to disentangle the consequences that are caused by the physical injury from any psychiatric or psychological consequences arising from his condition;
(iii) This is a “range case”, both in respect of the loss of earning capacity certification and the pain and suffering certification;
(iv) The plaintiff’s condition is not permanent. The plaintiff has failed to undertake pain management specialty courses and consequently, the plaintiff’s condition has not stabilised;
(v) The plaintiff is required to strip out the psychological consequences from the injury to his lower back;
(vi) The plaintiff is to strip out the consequences of the abdominal complaints made by the plaintiff. By the end of the hearing, Mr Stanley abandoned this issue in the case.
5 Mr Stanley did not identify the credibility of the plaintiff as being a significant issue at the commencement of the proceedings. However, in the course of the conduct of this proceeding, the plaintiff’s credibility was clearly the most significant issue in this case. Mr Stanley submitted, ultimately, that the plaintiff’s evidence and his credibility were at the heart of the other issues in this case relating to the aggravation of his pre-existing low back complaints.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners (ibid) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked, and as being at least very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
8 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
9 The plaintiff was born in 1971. He is forty-seven years of age. The plaintiff’s living circumstances are that he shares a house with housemates and is unmarried.
10 The plaintiff was educated to Year 11 at Westernport Secondary College.[3] Upon leaving school, the plaintiff worked as a plasterer for some seven to ten years.[4] In 2010, the plaintiff was diagnosed with testicular cancer and subsequently, had surgery.
[3]PCB 8
[4]PCB 8
11 The plaintiff, after having surgery for his cancer, went to Byron Bay in New South Wales,[5] where he remained for a period of eighteen months to two years.
[5]PCB 8
12 The plaintiff then went to Queensland and worked for a very short time as a plasterer and other odd jobs and then returned to live with his parents in Hastings in 2012.
13 On his return to Hastings in 2012, the plaintiff worked during the period 2012 to 2013 in odd jobs in the Hastings’ area. He still lived with his parents at this time.[6]
[6]PCB 9
14 On 7 April 2014, he commenced employment with the employer. It was in the course of his employment with the employer at his workplace in Main Ridge that the plaintiff was injured.
15 After having some time off work from his injury, the plaintiff returned to work on light duties until May of 2016. The plaintiff was unable to continue work in that employment at that time and has been on worker’s compensation payments since that date.
Injury with the employer
16 The plaintiff was involved in heavy physical labour when he was injured at his work. He described the injury to his lower back in his affidavit dated 29 August 2017. He states as follows:
“As a result of performing this work I commenced to experience pain in my low back after about a month or so from starting work with the defendant (sic). I informed my supervisor, Andrew Sides, of my back problem and he put me onto an osteopath. I attended the osteopath but continued to work. I was also attending gym in order to maintain my back.
However, the symptoms persisted up to and including 11 August 2015, when during the course of the morning performing my normal duties making up orders with a co-worker by the name of David Watson, I experienced a significant increase in my back pain. Again, I reported this to Andrew Sides. Andrew told me to take it easy and later on that day I saw a doctor at the Rosebud Super Clinic, Dr Wong.”[7]
[7]PCB 10
17 The plaintiff described the incident to Mr Douglas Gardiner, orthopaedic surgeon, in the following terms:
“On 11 August 2015 he was lifting some wood packs with a co-worker when he leaned forward and experienced sudden stabbing pain in the middle of his low back and slightly to the left. This soon involved both buttocks and some altered sensation in his lower extremity.”[8]
[8]PCB 46
18 The plaintiff had some initial treatment in relation to his back complaint and returned to work in September 2015. He continued on light duties until May of 2016 when he ceased work altogether.[9]
[9]PCB 11
Medical treatment
19 The plaintiff initially went to see Dr Wong at the Rosebud Super Clinic.[10] Dr Wong referred the plaintiff for a CT scan which was performed on 14 August 2015.[11] The CT scan dated 14 August 2015 reports as follows:
[10]PCB 10
[11]PCB 62
“L3/4:
Mild broad based posterior disc bulge with no significant canal stenosis or neural impingement.
L4/5:
Mild broad based posterior disc bulge contacting the thecal sac causing slight indentation but no significant neural compression. There is contact made to the descending L5 nerve root to the lateral recesses without definite compression.
L5/S1:
Mild broad based posterior disc bulge contacting the descending S1 nerve roots without causing compression.
…
Conclusion:
Disc bulges in the lumbar spine with no definite neural compression.”[12]
[12]PCB 62
20 The plaintiff was then referred for an MRI scan of his lumbar spine.
21 The MRI report of 9 September 2015 states as follows:
“L4-5: Broad based disc bulge posterior annular fissuring combining with facet hypertrophy to make contact and potentially irritate the L5 nerve roots and lateral recess on either side.
L5-S1: Left paracentral disc protrusion impinging on the left S1 nerve at the lateral recess contacting but not compressing the right S1 nerve. Mild facet hypertrophy.
Conclusion:
1. Compression left S1 nerve L5-S1 lateral recess.
2. Contact but not clear compression of the L5 nerve roots on both sides at the lateral recess of L5-S1 of the S1 nerve.
… .”[13]
[13]PCB 63
22 The plaintiff was then referred to Mr John Cunningham, orthopaedic surgeon. Mr Cunningham examined the plaintiff on 8 October 2015. Mr Cunningham noted that the plaintiff had complaints of back pain prior to this injury with the employer. He noted that the work was fairly hard labour. After examining the plaintiff, Mr Cunningham stated that the pain was in the lower back but not radicular. At that time, it was Mr Cunningham’s opinion that there was no need for the plaintiff to see him again, and he did not think that the plaintiff would require surgery.[14]
[14]PCB 19-20
23 The plaintiff has subsequently had treatment from Lachlan Hough, physiotherapist, and Dr Maria Carey, an osteopath. The plaintiff is also under the care of his general practitioner, Dr Scott Fifield. The treatment from Dr Carey and Dr Fifield is ongoing.
Medical opinions
The Plaintiff’s doctors
Dr Chan Heong Wong, General Practitioner
24 Dr Wong prepared two medical reports dated 11 September 2015 and 9 February 2017.
25 In his first report dated 11 September 2015, Dr Wong noted that the plaintiff presented with lower backache. The history taken was over a period of one year, the pain in the back was getting progressively worse. The plaintiff stated the pain radiated down his left lower limb and down to his left sole. Dr Wong noted the CT scan and the MRI scan of the plaintiff’s back and diagnosed that the plaintiff was suffering from compression of a left S1 nerve.[15]
[15]PCB 18
26 In his later report dated 9 February 2017, Dr Wong diagnosed the plaintiff as suffering from low-back pain due to multi-level degenerative disc disease. Dr Wong’s opinion was that the underlying condition was aggravated by the plaintiff’s work at the time of his hard labour at his employer.
27 Dr Wong noted that the plaintiff’s condition was not stable when he last saw the plaintiff on 2 May 2016. He stated the plaintiff was in a lot of pain and discomfort. In Dr Wong’s opinion, the plaintiff’s condition was likely to deteriorate further given the nature of the work the plaintiff performed for the employer.[16]
[16]PCB 33
Dr Calan Khong, General Practitioner
28 Dr Khong prepared three reports dated 14 December 2016, 20 February 2017 and 6 March 2017.
29 The report from Dr Khong dated 14 December 2016 was a general practitioner’s questionnaire. He diagnosed the plaintiff as having intervertebral disc degeneration. Dr Khong noted at the time that the plaintiff had a limited range of movement. He stated that the plaintiff gave a history of intermittent sleep disturbance when the pain was present. In Dr Khong’s opinion, the injury to the plaintiff’s back was likely to permanently affect the plaintiff.[17]
[17]PCB 28-29
30 In his report dated 20 February 2017, Dr Khong stated the plaintiff was currently on WorkCover for a chronic back injury and remains in significant pain which impacts on his anxiety levels and mood.[18]
[18]PCB 34
31 In his final report dated 6 March 2017, Dr Khong was seeking approval for an MRI scan of the plaintiff’s neck.[19]
[19]PCB 35
Dr Scott Fifield, General Practitioner
32 Dr Fifield is the plaintiff’s current general practitioner. He prepared a report dated 18 January 2018. Dr Fifield has been the plaintiff’s general practitioner since 2 May 2017. The plaintiff had told his general practitioner that he had been looking for suitable return to work duties with the assistance of a rehabilitation provider. At the time of his attendance upon Dr Fifield, the plaintiff was not taking any painkillers and relied upon Pilates, physiotherapy and the occasional anti-inflammatory medication, together with ongoing gym work to maintain his back symptoms.
33 Dr Fifield diagnosed the plaintiff as suffering from chronic relapsing low-back pain, likely due to degenerative lumbosacral spine disease. Dr Fifield went on to state that the nature of the plaintiff’s work as described to him was a likely significant contributor, though this was difficult to qualify retrospectively and would be more accurately assessed by the doctors who assessed and treated the plaintiff around the time of the onset to the low-back pain.[20]
[20]PCB 39
34 Dr Fifield certified the plaintiff as being fit for suitable employment. The limitations on the plaintiff’s employment are lifting, carrying or pushing or pulling up to 5 kilograms. Also, there is a limitation on his driving of up to 30 minutes.[21]
[21]PCB 60
Mr John Cunningham, Orthopaedic Surgeon
35 Mr Cunningham prepared two reports dated 8 October 2015 and 31 January 2017.
36 In his first report, Mr Cunningham stated that the pain was predominantly in the lower back but was not radicular.[22] Mr Cunningham’s advice at that time was that the plaintiff would be better off to use a lumbar support belt at work and undergo a core strengthening exercises program under the supervision of a physiotherapist.[23] Mr Cunningham’s opinion was that the plaintiff was unlikely to require surgery.
[22]PCB 19
[23]PCB 19
37 In his report dated 31 January 2017, Mr Cunningham noted that the MRI report of 9 September 2015 showed broad-based disc bulges and facet height hypotrophy at L4-5 but with no nerve compression. He diagnosed the plaintiff as suffering from L4-5 facet arthropathy.[24] Mr Cunningham thought that the plaintiff’s work was a significant contributing factor to the facet degeneration. His opinion was that the plaintiff had a capacity for sedentary employment.[25]
[24]PCB 31
[25]PCB 32
Dr Maria Carey, Osteopath
38 Dr Carey prepared a report dated 31 March 2018.
39 The plaintiff has been attending upon Dr Carey since June of 2017 in respect of his low-back pain and spasms. The plaintiff continues to be treated by Dr Carey. In his evidence, the plaintiff stated that he has short-term relief after each of the treatments from Dr Carey.
Mr Douglas Gardiner, Orthopaedic Surgeon
40 The plaintiff was examined by Mr Gardiner for medico-legal purposes. He prepared a report dated 10 April 2018.
41 Mr Gardiner took a history from the plaintiff that the plaintiff did not suffer any sleep disturbance except when there were flare-ups of pain after unusual exertions.[26] Specifically, Mr Gardiner noted that the plaintiff did not display any illness behaviour.[27] Mr Gardiner’s diagnosis of the plaintiff was as follows:
“1.Musculoligamentous low back injury causing low back pain without radicular symptoms or signs;
2.Multilevel degenerative changes in several lumbar discs with nerve root contact but no compression.”[28]
[26]PCB 47
[27]PCB 47
[28]PCB 48
42 Mr Gardiner attributed the symptoms of the plaintiff to his work with the employer. Mr Gardiner noted:
“… Mr Bleakley experienced a period of gradual increasing pain in his lumbosacral region culminating in an acute episode on 11 August 2015 which was followed by appropriate investigation and consultant with an orthopaedic spinal surgeon. No surgical treatment was reportedly indicated and has not been undertaken.
… .”[29]
[29]PCB 48
43 Mr Gardiner’s opinion in respect of the plaintiff’s prognosis was set out as follows:
“The long-term prognosis is guarded. While Mr Bleakley does not suffer from major structural abnormalities as diagnosed on his MRI scans, I consider that he will continue to suffer from the musculoligamentous injury which accompanied the possible aggravation of pre-existing lumbar spondylosis by the workplace physical stresses. If Mr Bleakley does not resume employment, I believe that his condition will remain static. … .”[30]
[30]PCB 49
44 Mr Gardiner was of the opinion that the plaintiff may benefit from a pain management consultation. In regard to the plaintiff’s condition in the future, Mr Gardiner stated as follows:
“… I believe that Mr Bleakley’s situation has stabilised as it has not undergone major alterations in its pattern of severity in the last 12 months and I do not expect it to do so in the immediate future.”[31]
[31]PCB 50
Dr Joseph Slesenger, Specialist Occupational Physician
45 Dr Slesenger examined the plaintiff for medico-legal purposes. He prepared a report dated 1 May 2018.
46 Dr Slesenger took a history from the plaintiff that he denied any prior WorkCover claims or low-back pain before commencing his employment with the employer. I note that Dr Slesenger had a copy of the plaintiff’s affidavit sworn 29 August 2017 which clearly stated the plaintiff suffered from minor backache from time to time in the past but nothing which had stopped him from working.
47 Dr Slesenger also noted the history taken by Mr John Cunningham where the plaintiff said he had a history of back pain prior to the index accident.[32]
[32]PCB 58
48 Dr Slesenger diagnosed the plaintiff as follows:
“● Lumbar spine:
o Mechanical injury to the lumbar spine.
o Aggravation of degenerative disease of the lumbar spine.
o Chronic lower back pain with radiating features, but no evidence of radiculopathy.
● Psychological impairment, although this is outside my area of expertise.”[33]
[33]PCB 59
49 Dr Slesenger was of the opinion that the plaintiff’s condition was materially contributed to by his employment with the employer.
50 Dr Slesenger’s opinion was that the plaintiff needed to have a further assessment from a pain specialist to address his current pain control and his deconditioned state. Dr Slesenger was not of the opinion that the plaintiff’s condition had stabilised, and he was unable to say what effect such treatment – ie from a pain specialist – would have on the plaintiff.[34]
[34]PCB 60
51 Finally, Dr Slesenger stated that he was unable to advise whether the restrictions for alternative duties are likely to continue into the foreseeable future as the plaintiff has not reached a position of maximum medical improvement, although he is approaching this point.[35]
[35]PCB 61
Radiological examinations
52 The most recent radiological examination of the plaintiff was conducted on 26 April 2016. An MRI scan of the plaintiff’s lumbar spine was conducted on that date. The conclusion of that study is as follows:
“L3/4 disc desiccation. No focal prolapse.
L4/5 disc desiccation. Shallow bulge. No focal prolapse. Small annular disruption posteriorly. This is less obvious than on the prior study.
L5/S1 disc desiccation. Shallow central protrusion lies between the S1 nerve roots. This is slightly smaller than previously. The neural foramina are patent. Low grade facet joint disease. No bone oedema.
Comment: Multilevel degenerative disc disease. Previously seen disc at L5/S1 actually appears smaller on the current study. The disc lies adjacent to the S1 nerve roots but no focal compression is demonstrated.”[36]
[36]PCB 64
53 It is clear from this MRI study of the plaintiff’s back that there is a physical basis for his complaints of pain arising from his low-back injury.
The Defendant’s doctors
Dr Timothy Entwisle, Psychiatrist
54 Dr Entwisle examined the plaintiff for medico-legal purposes. The plaintiff initially sought certification for serious injury on the basis of a psychological and psychiatric condition. That application was abandoned prior to these proceedings commencing before me.
55 Dr Entwisle stated:
“… Mr Bleakley’s concern about his injury was out of proportion to the injury itself. Mr Bleakley is struggling to make sense of his world and has been attending a Psychologist.”[37]
[37]DCB 5
56 Dr Entwisle’s opinion was:
“…From a psychiatric perspective the plaintiff does have a capacity for suitable duties.” [38]
[38]DCB 6
Dr Michael Baynes, Occupational Physician
57 Dr Baynes prepared two reports for medico-legal purposes dated 14 November 2017 and 17 April 2018.
58 Dr Baynes took a history from the plaintiff that he had had episodes of back pain prior to his injury with the current employer. The plaintiff had an x-ray on his back in the past. He stated that the plaintiff had approximately one week off work on occasions. The history given by the plaintiff at the time of his injury, was he had no ongoing problems. The plaintiff also told Mr Baynes that his sleep was good but he had some stiffness in the morning when he woke up.[39]
[39]DCB 8
59 In his first report, Mr Baynes stated:
“Mr Bleakley gives a history of lower back pain with some intermittent referred symptoms into the left leg. This is in association with multilevel age-related degenerative change in the lumbar spine; and in particular, a left-sided paracentral disc protrusion at L5/S1 which has decreased in size on serial MRI scans. There is no objective evidence of radiculopathy on clinical examination.”[40]
[40]DCB 9
60 Dr Baynes found that the plaintiff was not fit for pre-injury duties but was fit for alternative duties where there was no lifting greater than 10 kilograms, on an occasional basis, and no lifting greater than 5 kilograms on a repetitive basis.[41]
[41]DCB 10
61 In his later report dated 17 April 2018, Dr Baynes noted that the plaintiff was not taking any medication at that time. The plaintiff told Dr Baynes on the second review that his symptoms had improved but he still suffered from occasional flare-ups of back pain.
62 In his second report, Dr Baynes was asked to comment on the suitability of Recovre’s recommended jobs for the plaintiff. In particular, Dr Baynes’ opinion was that the plaintiff was able to perform the role of customer service ordering clerk and the role of a security officer. Dr Baynes had some reservations about the plaintiff’s capacity to carry out the medical courier role.[42] Dr Baynes’ opinion was that the plaintiff had the capacity to work in a full-time capacity but with the suitable employment restrictions.
[42]DCB 14
Mr Ian Jones, Orthopaedic Surgeon
63 The plaintiff has been examined by Mr Jones on behalf of the defendant. Mr Jones prepared three reports dated 5 December 2017, 20 December 2017 and 26 April 2018.
64 After examining the plaintiff and taking note of the CT scans and MRI reports, Mr Jones concluded:
“This patient presents with complaints of lumbar back pain and stiffness, with x-rays revealing degenerative changes affecting the lower three discs in the lumbar spine and possibly some evidence of an L5-S[1] disc disruption.”[43]
[43]DCB 21
65 Mr Jones went on to state his opinion as follows:
“The patient’s level of incapacity and pain in his back seems somewhat disproportionate to the pathology existing in his lumbar spine. His ability to undertake the high demand gym exercises he is performing seems somewhat in contrast to his limited physical complaints and apparent inability to work. I am unable to comment on his reported psychological condition.
…
… I believe Mr Bleakley would have the capacity to undertake physical work on a full time basis, excluding repeated bending and lifting from a flexed position.”[44]
[44]DCB 22
66 In his report dated 20 December 2017, Mr Jones was asked to give an opinion about whether the plaintiff’s capacity to engage in activities of daily living were affected. Mr Jones was of the view that the plaintiff was able to play the drums as long as he could limit the amount of time he spent in a seated position. His opinion was that surfing was an activity that had the capacity to aggravate the plaintiff’s back symptoms, as would riding the bike. Mr Jones stated that the plaintiff had decided not to engage in these activities because of his fear of injuring his back rather than his inability to be able to perform these activities.[45]
[45]DCB 24
67 In his final very brief report dated 26 April 2018, Mr Jones stated that, after reviewing the Recovre’ report dated 20 December 2017, he was of the opinion the plaintiff was capable of performing the positions of medical courier, sales assistant and security building concierge.[46]
[46]DCB 25
The credit of the Plaintiff
68 Mr Stanley, on behalf of the defendant, submitted that the credit of the plaintiff was the central issue in this case, because the plaintiff’s claims for symptoms and injury relied upon his credibility and accuracy.
69 The first issue Mr Stanley directed the Court to was the evidence of the plaintiff in relation to education.
70 The plaintiff was cross-examined about a history he gave to Dr Entwisle concerning his education and his interest in education.[47] In particular, the plaintiff was cross-examined about his university studies in relation to psychology at the Macquarie University. The plaintiff gave evidence that he was enrolled at open university and had done the preliminary units before embarking upon a course in psychology.
[47]Transcript (“T”) 18-24
71 The plaintiff had told Dr Entwisle:
“… He has good computer skills and good English language skills. He advises that he enjoys studying and intends to go back to university to study psychology. He has undertaken a few units of study at Macquarie University.”[48]
[48]DCB 9
72 Mr Stanley relied upon that history given the plaintiff to Dr Entwisle and his answers in cross-examination on the topic of education to attack the credibility of the plaintiff.
73 The following exchange took place between Mr Stanley and the plaintiff:
Q:“But he’s saying as at November you were advising you enjoy study and ‘intends to go back to university to study psychology’?---
A:At the time, yes, I was very inspired that that’s what I could do.
Q:Were you making any inroads as to where you were going to study psychology in November last year?---
A:I’ve decided not to study psychology.
Q:So you were keen to study psychology, he’s right when he says that, in November last year?---
A:He is right to say that if – November, I can’t remember the date but, yes, I’d agree with that.
Q:He’s right to say as at November 2017 you would have been telling him that you enjoy studying?---
A:I thought I did at the time, yes.
Q:And that’s enjoying study after you’d had the experience of studying in those units at the start of 2017?---
A:Sorry, could you repeat the question?
Q:Yes. The statement that you make, ‘I enjoy studying’ is with the benefit of knowing about studying because you’d done studying in February that year?---
A:I see where you’re coming from. Yes, look studying in my own way has been enjoyable over the years but once I got into cracking with academic writing et cetera, et cetera, it was not so enjoyable.
Q:I suggest that’s not really what’s playing out in that conversation with you and the doctor in November, ‘I enjoy studying, I did some units earlier this year, I’m going to go and do psychology’ and what you’re telling us now is really just a gloss?---
A:Look, again I don’t have his question that he asked me there so it’s really hard to – you’re asking, why would he say that? I can’t answer that.
Q:I suggest you’ve got no difficulty studying with respect to any back condition?---
A:I would disagree with that.
Q:I suggest to you, you’ve got the smarts to study?---
A:I’d like to think I’m smart enough to be able to learn, correct, yes.
Q:I suggest that in the future you probably will go back to study, maybe psychology, maybe something else of interest?---
A:No, I’ve lowered my goals a little bit. I don’t think that’s really for me. I think a lot of people who are struggling with their health may think they can become a psychologist but it’s the wrong reasons for studying I think. It took me a while to realise that.”[49]
[49]T91, L4 – T92, L16
74 The next topic of the plaintiff’s credibility arose out of the evidence in relation to medication. The plaintiff, in his affidavit, stated that he took painkillers in the form of Nurofen and Nurofen Gel in order to ameliorate the pain symptoms. He stated that he took the painkillers when the pain was particularly bad, often at night, to help him get to sleep.[50]
[50]PCB 15
75 The plaintiff also gave evidence that he ceased taking Nurofen medication because it was upsetting his abdominal and bowel systems. In his evidence, the plaintiff stated that he had recommenced taking Nurofen and that he had also been prescribed Tramadol to deal with his back complaint. The mention of Tramadol came out in answer to a question from Mr Stanley.
76 On the second day of the hearing, the plaintiff brought a blister pack with Tramadol contained in it. Mr Stanley called for the plaintiff to bring with him the packet in which the prescribed medications were contained to court, on the third day of the hearing. The plaintiff brought to Court a packet with Tramadol, 50 milligrams, prescribed by a doctor during the course of the intervening weekend.
77 The factual position was that the plaintiff had Tramadol medication with him on the Friday and subsequently bought a pack with a prescription dated 16 June 2018, which was the Saturday, to Court on 18 June 2018. I accept the plaintiff’s evidence that he had been prescribed Tramadol by his usual general practitioner, Dr Fifield, prior to the Court case starting. I also accept that the plaintiff went to his general practitioner on the Saturday intervening in this case, to obtain a further prescription of that medication. On that occasion, Dr Fifield was not present at the medical clinic and he obtained that prescription from another doctor at the same clinic. Further, I accept that the plaintiff is now taking Tramadol in order to deal with his pain symptoms emanating from his lower back injury.
78 The plaintiff was also attacked on the basis of his evidence relating to cannabis use. I note here that during the course of the case, I gave the plaintiff a certificate under s128(4) of the Evidence Act 2008 in relation to self incrimination. It initially appeared that the plaintiff misunderstood the effect of the certificate under the Evidence Act in relation to self incrimination. A short break was taken in the course of the hearing and his counsel explained the effect of that certificate to him further.
79 In relation to the evidence of cannabis use, the plaintiff gave evidence that he had daily use of cannabis in November 2014.[51] In later cross-examination, the plaintiff was asked this question:
Q:“What that doctor noted was, ‘We discussed the impact of marijuana on mood and anxiety’. Page 48. I think you’d accepted that by that stage when you were seeing a doctor in November 2014 that you were using cannabis daily?---
A:I can’t remember how often I was using back at that time, no.”[52]
[51]T37
[52]T55, L10-15
80 Further into the cross-examination, the plaintiff was asked the following questions in relation to his cannabis use:
Q:“But the cannabis definitely had been a feature of your life before this injury?---
A:I have used cannabis before, yes.
Q:And a feature of your life?---
A:I wouldn’t say a feature of my life, no.
Q:But you would associate yourself back in the years before injury as being a heavy user of cannabis?---
A:I wouldn’t say heavy, no.
Q:Would you describe yourself as being a moderate user?---
A:I don't really know what moderate is, a weekend thing for me, recreation.
Q:I suggest to you that the doctor who saw you in November 2014 obviously spoke with you and has recorded it correctly that you were using cannabis daily at that time?---
A:There's been periods where I’ve used too much, correct.”[53]
[53]T62, L5-18
81 I accept that the plaintiff’s evidence in relation to his cannabis use over the years has not been entirely consistent in this hearing. Nevertheless, I do not accept that this destroys the plaintiff’s credibility as was urged upon me by Mr Stanley. I understood the cross-examination of the plaintiff in relation to cannabis was directed to whether his cannabis use interfered with his motivation for trying to regain employment.
82 The plaintiff was cross-examined concerning the history he gave to Mr Jones, orthopaedic surgeon, where he confirmed that he was able to manage a 60-kilogram bench press and undertake lunges when he was examined on 5 December 2017. The plaintiff was cross-examined in relation to this history, and the evidence was as follows:
Q:“Now, did you tell the doctor in December last year when you saw him that you were able to manage 60-kilogram bench presses?‑‑‑
A:My memory of that conversation was how strong I was before this occurred. I don’t know how it's got in there like that.
Q:So are you suggesting that you might have told the doctor I once was able to bench press 60 kilograms?‑‑‑
A:Correct, yeah.
Q:Do you bench press 60 kilograms now?‑‑‑
A:I don’t bench press anymore.
Q:Were you in December last year?‑‑‑
A:I can’t remember if bench press is part of the program that they gave me at that particular time.
Q:So you work to a program at the gym?‑‑‑
A:Correct.”[54]
[54]T69, L16-29
83 Mr Stanley submitted that this was a change of evidence by the plaintiff. I do not accept that the plaintiff has changed his position in relation to bench pressing from the time when he was examined by Mr Ian Jones until the time he gave evidence in this hearing. At the time of the examination by Mr Jones, the plaintiff was not engaging in any strengthening program at the gymnasium. He was later cross-examined about a completely different set of exercises which had nothing to do with lifting or bench pressing 60 kilograms of the time of seeing Mr Jones.
84 In the course of the plaintiff’s cross-examination in respect of his Anytime Fitness program, the plaintiff was challenged about his answers in respect to what the exercises involving the word “prone” meant. The cross-examination was as follows:
Q:“Every second day, down to Anytime Fitness and pick up this document and go through it according to it?‑‑‑
A:Correct.
Q:And what we see there is ten reps, three sets of?‑‑‑
A:Yep.
Q:Prone - prune?‑‑‑
A:The first two, I don’t remember what they are. I really don’t remember those two. Occasionally I had to ask them again which one was, but those two, I don’t remember exactly what they ‑ ‑ ‑
Q:You’ve got plenty of experience, Mr Bleakley?‑‑‑
A:Yeah, a lot’s changed since - I was more into bodybuilding than this stuff.
Q:You were a fitness teacher yourself, a personal assistant?‑‑‑
A:A long time ago, yeah.
Q:A fitness assistant?‑‑‑
A:A personal trainer, yeah.
Q:A personal trainer?‑‑‑
A:Yep.
Q:Are you telling me you don’t know an entry that you were given by Shannon that stayed on your fitness routine document for several months last year?‑‑‑
A:I don’t remember them, no.
Q:All right. So we’ll go through it. You don’t know what prune or prone Ws (sic) are?‑‑‑
A:The first two, I can’t remember exactly what they were. I can guess, which are ‑ ‑ ‑
Q:Well, have a guess. What do you think it might be?‑‑‑
A:I’m wondering if they were the ones where you have the elastic cables from the - from a frame and pull yourself up, I think. I don’t know.”[55]
[55]T71, L12 – T72, L5
85 Mr Stanley submitted that these answers by the plaintiff are not feasible. At the time this cross-examination was taking place, it was unclear to all present, including the Court, whether the words appearing on the fitness program were prune or prone. Further, the words prune or prone were only accompanied by letters after it, not a further descriptive word to assist in making sense of the excuse. I do not accept that the plaintiff was obfuscating or attempting to minimise his capacity to do exercise by giving these answers.
86 Throughout the course of the plaintiff’s attendance upon the medical practitioners for the purposes of this application, the plaintiff has given a reasonably consistent history of having prior back complaints before the subject injury. The plaintiff has been consistent with his complaints of sharp pain at the time of the injury and the subsequent history of pain and stiffness in his low back. The symptoms are supported in part by the radiological examinations of the plaintiff which occurred subsequent to his injury. If the plaintiff was truly lacking in credibility why is his evidence the only source of a history of a prior x-ray being taken of the plaintiff’s back? I find that the plaintiff’s histories to the doctors is consistent and consistent with his evidence in this Court.
87 Finally, the plaintiff was subjected to surveillance by the defendant’s insurers. In total the plaintiff was surveilled for a period of eight separate days between 17 October 2017 and 8 May 2018. A total of 50.5 hours of surveillance was conducted on the plaintiff. A total of 38 minutes of video footage was taken of the plaintiff. In the course of this hearing, a short film of the plaintiff covering 7 and 10 February 2018 was shown in Court. The film shown of the plaintiff walking in various locations and on one occasion, moving into a slow jog to cross a roadway. To my observation, in the course of the plaintiff’s walking, I was of the view that the plaintiff seemed to be favouring his right leg. I asked him during the course of evidence whether or not he had a right hip difficulty. He denied he had any right hip difficulty and did not even acknowledge that he was in part favouring his right side in the course of his walking. He said that was just normal.
88 There was nothing displayed in the video surveillance film showed to the Court that would support an attack on the plaintiff’s credibility.
89 The Court of Appeal in Church v Echuca Regional Health,[56] has clearly given direction to courts of first instance that they are to be careful in assessing the impact of DVD surveillance film on the credibility of a plaintiff. In this case, there is no basis for attacking the plaintiff’s credibility and indeed, to my observation of his walking, there is some support for his walk being altered. I am not making the finding that his walk is altered as a result of the injury to his low back. The fact that the plaintiff can get into a canter to cross the road before oncoming traffic does not amount to a basis for attacking the plaintiff’s credibility.
[56](2008) 20 VR 566
90 Finally, I have had the advantage of observing the plaintiff in the witness box. He was cross-examined over two separate days during the course of this proceeding. Mr Entwisle, psychiatrist, assessed the plaintiff in the following terms:
“… Mr Bleakley impressed as an unusual man with an obsessive and anxious personality style. … .”[57]
[57]DCB 5
91 Whilst the plaintiff may have an unusual or awkward manner in the way in which he presents himself, I find that he was doing the best he could to tell the truth in this case and I accept that he did tell the truth. Further, I also accept that he is a person of stoic disposition and only resorts to medication when the pain levels for him become intolerable.
Disentangling the psychiatric impact on the physical injury
92 I find in this case that the plaintiff’s symptoms and complaints in relation to his low-back pain have an organic basis. I rely upon the opinions of the orthopaedic surgeons, Mr Gardiner, Mr Cunningham and Mr Jones, and the occupational physician, Mr Baynes, who accept that the radiological examinations in respect of the two MRI scans and the CT scan of the plaintiff’s back support an organic basis for the plaintiff’s pain symptoms. Mr Jones, and the other examining doctors, have found the plaintiff is stiff in the back. Further, I find that the consequences arising from the low-back injury, which I will deal with later on in these Reasons, are to the level of being more than significant or marked and at least very considerable for the plaintiff.
93 I accept the plaintiff’s description in relation to the interplay between his depression and anxiety cycles with his physical pain. In the course of his evidence, the plaintiff stated as follows:
Q:“He’s saying there that your anxiety, in his opinion, was impacting – it appeared to impact upon your experience of pain. Now, do you feel that?---
A:Um, no, I don’t, what the – what I understand about the pain/depression cycle is that they feed each other and it's a little bit confusing but I get the consensus I think, of it, but, um, if you’re anxious you can experience pain beyond, but – but also if you’re experiencing chronic pain it can also cause you anxiety, they kind of feed each other and you have to try and break the cycle, that's my understanding of it.”[58]
[58]T42, L9-19
94 I accept the plaintiff’s explanation about the cyclical nature of his mental state with his physical pain. Nevertheless, I find that the plaintiff has an organic basis for his pain experience and that the psychological aspects of his pain experience are minimal.
95 The finding that the symptoms and complaints made by the plaintiff have an organic basis and are to such an extent that the Court is not required to disentangle the alleged psychological impact of the plaintiff’s experience of pain and other symptoms.[59]
[59]Meadows v Lichmore Pty Ltd [2013] VSCA 201
The consequences of the injuries to the Plaintiff’s lower back
Pain
96 The plaintiff relied on two affidavits sworn on 29 August 2017 and 30 May 2018. The plaintiff, in his second affidavit, stated that he continues to have ongoing pain in his low back which radiates down into his buttocks and sometimes radiates down his legs.[60] The plaintiff, in his evidence and in his history to doctors, conceded that he had had pain in his low back off and on in the past. I accept the plaintiff’s evidence, that he suffers pain in his lower back as a result of the injury at work, in this proceeding. I accept that the level of pain that the plaintiff suffers is markedly more severe than his intermittent back pain prior to the injury in this case.
[60]PCB 14
Medication
97 The plaintiff is a person of stoic disposition. Nevertheless, he has a need to take Nurofen and use Nurofen Gel on a regular basis to ameliorate his pain symptoms. His evidence was that due to an irritable bowel complaint, that he ceased taking Nurofen for a period of six months to assist with the symptoms in relation to his bowel and abdomen.
98 I accept that the plaintiff has a need to take pain-relief medications of Nurofen, which is an over-the-counter medication, on a reasonably regular basis to ameliorate the more severe bouts of pain to his lower back. I also accept that the plaintiff is appropriately prescribed Tramadol to deal with his low-back symptoms. The plaintiff is not regularly using Tramadol but he will have a need, and has had need, for anti-inflammatory medications over the course of his rehabilitation since the injury in this proceeding. I find that the need for the plaintiff to take pain-relief medication and anti-inflammatory medication is a very considerable consequence for him, and that the need for his medication will be permanent into the future. This requirement for the plaintiff to take medication of this nature is a change from his pre-existing position where he had experienced pain off and on in his low back.
Sport and drum playing
99 The plaintiff gave evidence that he has ceased playing the drums. The reason he has ceased playing the drums is that he is unable to sit in a fixed position for a long period of time and exert the energy and movements required for the drum playing. His evidence is that he has tried to use the drums but no longer does. He had even purchased a set of electric drums in the time since his injury but has not used them to any great extent. The significance of this inability of the plaintiff to play drums is because he comes from a family of musicians and that he has in the past written music and played in bands. The fact that the plaintiff can no longer enjoy the pastime of playing music in the form of a drum set is a very considerable consequence for him.
100 The plaintiff also gave evidence that he no longer engages in surfing or riding a bike.[61] Prior to the plaintiff’s employment with the employer, he had travelled to Byron Bay in Northern New South Wales. Part of the purpose of his trip to Byron Bay was to engage in surfing. Indeed, one of the exhibits referred to in the course of cross-examination was a picture of the plaintiff carrying a surfboard outside a surfboard shop. The plaintiff does not engage in surfing now due to his low-back injury. Whilst Mr Jones states that that is a choice made by the plaintiff out of fear rather than his inability to surf, the fact that the plaintiff is too afraid or unable to bring himself to surf is a clear indication of how seriously he considers his low-back condition. The plaintiff also has given up bike riding for the same reason. I accept that the plaintiff’s inability to surf or ride a bike is a very considerable consequence for him, arising out of his low-back injury with the employer.
[61]PCB 12
Sleep
101 The plaintiff, in his evidence, stated that he can get a full eight-hours of sleep.[62] In his history to Mr Gardiner, orthopaedic surgeon, he stated that his sleep was affected if he overexerted himself on any given day.[63] The plaintiff had also made complaint to his general practitioner, Dr Khong, that he had intermittent sleep disturbance when the pain was present in his low back.[64] It is clear from the evidence in this case that the plaintiff has had some sleep disturbance as a result of the injury to his low back. However, based on his evidence that he can now get eight hours of sleep, I do not consider that the intermittent sleep disturbance due to his pain is a considerable consequence for him.
[62]T81
[63]PCB 47
[64]PCB 28
Work
102 The plaintiff stated that he missed being able to work as a plasterer as a result of the low-back injury. The plaintiff returned to Victoria in 2012. He did not immediately return to the plastering trade. His explanation for this was that his ute and tools had been stolen and that he was unable to equip himself with trade tools to engage in plastering. The plaintiff then commenced employment with the employer.
103 In the course of his evidence, the plaintiff stated that he did not have a “passion” for plastering. I accept that to be the case. The plaintiff however did state that he now was unable to work for himself as a result of the injury to his low back. It was his loss of being self-employed that he described as his concern arising from his low back. I accept the plaintiff’s evidence in relation to his concern that he has lost his ability to be self employed as a tradesman or in some other capacity due to his low back. I do not accept that consequence is a very considerable consequence for him. The plaintiff had only worked in a self-employed capacity on the evidence before this Court for approximately three to four years before he went to Byron Bay.
104 Based on the plaintiff’s evidence, which I accept, and the opinions of the medical practitioners which I have reviewed in these Reasons, I accept that the plaintiff’s consequences as described will be permanent, in the sense that they are for the foreseeable future.
Conclusion
105 I find that the plaintiff has satisfied the test for the pain and suffering consequences when judged by comparison with other cases on the range of possible loss of body function as being properly described as being more than marked or significant and at least very considerable in respect of the injury to his low back arising out of his employment with the employer which occurred on 11 August 2015.
Loss of earning capacity
106 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, he must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
107 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(a) “without injury” earnings; and
(b) “after injury” earnings.
108 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion or would have earned, or would have been capable of earning from personal exertion had the injury not occurred.
109 The plaintiff was not working for the full three-year period prior to his injury on 11 August 2015. The parties nevertheless accept that the plaintiff’s “without injury” pre-injury earnings was $940.00 gross per week. The plaintiff returned to work after his initial injury and remained in employment until May of 2016. Since May 2016, the plaintiff has been on weekly payments of compensation.
110 The issue in this case is what is the plaintiff now capable of earning as a result of his personal exertion. Based on the evidence of the plaintiff that he is willing to engage in employment and the fact that he has been certified by his general practitioner as fit for suitable employment, I find that the plaintiff is motivated to work and that if given the appropriate opportunity, he will engage in that employment.
111 The plaintiff, in his evidence, when cross-examined about the roles that he could perform relating to customer service and security officer roles, stated as follows:
Q:“I suggest that really, those two roles are spot-on roles for you - that you would be able to do them. That is the ordering clerk and the security officer at the building?‑‑‑
A:There is a possibility that I would be able to, yeah.”[65]
[65]T102, L18-22
112 The medical evidence in this case from Mr Jones, Mr Cunningham and Dr Slesenger all are of the opinion that the plaintiff has a capacity to engage in suitable employment. In the Recovre’ report, the role of customer service/ordering clerk and security officer are roles that the plaintiff can undertake. The medical evidence supports the conclusion that the plaintiff can undertake each of those forms of employment with the restrictions he is currently on in regard to employment.
113 The role of customer service and ordering clerk would produce a gross income of $870.00 per week approximately.[66] The role of security officer would result in a gross income of $803.00 per week.[67]
[66]DCB 33
[67]DCB 38
114 I conclude that based on these findings, the plaintiff has failed to establish that he has a 40 per cent or more loss of earning capacity into the future.
Conclusion
115 The plaintiff’s application for leave to bring proceedings to recover loss of earning capacity damages as a result of the injury to his low back on 11 August 2015 is dismissed.
116 I will hear the parties on costs.
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