Bloomfield v J and R Jones Plumbers Pty Ltd
[2011] VCC 131
•10 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
CI-09-03163
| DARREN BLOOMFIELD | Plaintiff |
| v | |
| J & R JONES PLUMBERS PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 January and 1 February 2011 |
| DATE OF JUDGMENT: | 10 February 2011 |
| CASE MAY BE CITED AS: | Bloomfield v J & R Jones Plumbers Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 131 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – impairment of the lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr B McKenzie | Lander & Rogers |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff on 16 August 2004 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in clause (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon one affidavit and gave viva voce evidence. He was cross-examined. The plaintiff also relied on an affidavit of his solicitor, Kim Shaw, exhibiting the Australian Bureau of Statistics Labour Price Index for the years 2004-2005 and 2006-2007 inclusive. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
6 The plaintiff is presently aged forty one, having been born on 2 June 1969. He is married with two children. He is in receipt of a Disability Pension.
7 The plaintiff finished Year 9 at the age of sixteen and then completed a four- year apprenticeship as a plumber. He has worked as a plumber all his working life, apart from six months in 1991, when he worked as truck driver and fruit picker.
8 The plaintiff commenced in the defendant’s employ in about 1992.
9 Whilst in that job, in 1998, the plaintiff fell from a roof (“the fall”), injuring his left wrist, hand, left leg, ankle and foot. He had seven months off work and then returned to restricted duties for two months.
10 The plaintiff had some problems with his back in 2003, after which he made a full recovery, and did not miss any time off work.
11 Whilst the plaintiff had some minor back pain prior to the said date, he did not recall previously having problems with either leg but he was advised by his chiropractor, Mr Turley, that there was a record of leg pain when he attended him in October 2003.
12 On the said date, the plaintiff suffered injury to his low back when lifting a hot water service appliance weighing about fifty five to sixty kilograms into the back of a ute and later carrying it with a fellow worker (“the incident”).
13 After the incident, the plaintiff continued to work on in pain and did not seek medical treatment immediately because he thought his back would improve with time. However, this was not the case.
14 The plaintiff continued to work for about a week, doing mainly supervisory work of the three apprentices because Mr Jones was away and the plaintiff did not want to let him down.
15 After about a week, the plaintiff attended an osteopath, Mr Henderson. At that time, the plaintiff had constant back pain and numbness in both legs; his right worse than the left. This leg pain was severe. Mr Henderson manipulated the plaintiff’s back but this did not relieve his problem and made it worse.
16 Having attended the osteopath, the plaintiff was taken to the Austin Hospital where he remained overnight. He was given Panadeine Forte and anti- inflammatory medication. The following day, he underwent an MRI scan.
17 Two days later, the plaintiff attended Dr Bowen at the Eltham Central Medical Clinic. The plaintiff continued to have low back pain and leg pain, together with sensation of numbness in his legs.
18 The plaintiff was put off work, and apart from an attempt to return to work between 19 and 28 October 2004, he had to cease work because of increased back and leg pain and numbness in his legs and he has not returned to work as a plumber since.
19 The plaintiff first saw neurosurgeon, Mr Brazenor, on referral from Dr Bowen on 29 November 2004. Until that time, the plaintiff had had physiotherapy which was not helping him and was making him feel worse. Until the plaintiff saw Mr Brazenor, he did not have any understanding of his condition, thinking it was simply a muscle problem.
20 Mr Brazenor advised the plaintiff that he had suffered injury to a couple of discs shown on MRI scan and suggested he undergo a CT scan which was carried out on 3 December 2004.
21 The plaintiff deposed that Mr Brazenor recommended conservative treatment but told the plaintiff he would never get back to ‘hands on’ plumbing work. If he wanted to return to such, Mr Brazenor advised the plaintiff that surgery involving insertion of two artificial lumbar discs was the only option. Mr Brazenor suggested the plaintiff consider that surgery, and after explaining the risks to him, the plaintiff decided to go ahead with it.
22 Initially liability for the surgery was refused, however, following a decision of the Medical Panel in about September 2005, surgery was authorised but by that stage the plaintiff had changed his mind about the surgery, having concluded it was quite experimental.
23 The plaintiff’s treatment then consisted of rest and a light exercise program and he took Mobic and Panadol on a regular basis. In 2005, he started wearing a brace provided by Mr Brazenor.
24 Throughout 2005 and 2006, the plaintiff’s symptoms remained much the same. He had constant low back pain, worse with any sort of reasonable activity. The pain radiated into his legs with a sensation of numbness into both thighs; worse on the right than the left.
25 The plaintiff then began to develop psychological symptoms. He had ”been a bit down” in 1998 but never felt he needed help and was not referred for any counselling or prescribed any medication.
26 Towards the end of 1999, the plaintiff’s first marriage broke up and he became depressed and sought help through his general practitioner who sent him to a counsellor whom he saw about half a dozen times. The plaintiff was also prescribed anti-depressant medication.
27 A little time later, the plaintiff’s mood lifted and he had no problems in that regard until after the incident.
28 The plaintiff became aware in 2005 the he was very depressed, anxious and worried about the future. He did not want to socialise and he was having memory and concentration problems and was frustrated about work. He was teary from time to time and had difficulty sleeping.
29 Eventually the plaintiff spoke to Dr Bowen who referred him to Dr Wong, a psychiatrist, whom the plaintiff first saw in about October 2005. He saw Dr Wong fortnightly. Dr Wong prescribed Avanza which was later changed to Lexapro. He also prescribed a sleeping tablet and, in late 2006, the anti- depressant was changed to Efexor.
30 Because of Dr Wong’s unavailability, the plaintiff stopped seeing him in mid- 2007. The plaintiff continued taking Efexor until the surgery in 2008 when Mr Brazenor put him on Prothiaden.
31 Because of financial problems, the plaintiff could not continue his mortgage payments and he moved to cheaper accommodation in the country where he bought a house near his parents.
32 In these circumstances, the plaintiff tried to retrain as a truck driver but he could only sit in the truck for a couple of hours at a time. He completed a three-day truck driving course spread over some weeks. During that time, he spent a total of only about four hours actually driving a truck.
33 The plaintiff wanted to obtain a licence so he could perhaps drive a bus. However, he was refused a bus licence on the basis of safety as he had trouble operating the clutch and brake on the bus.
34 Eventually the plaintiff was granted a truck licence in November 2006 but he was unable work driving because of pain on prolonged sitting.
35 The plaintiff has no other formal qualifications. He has not been provided with any job offers or retraining following the incident. He has looked through the papers and has had contact with plumbers’ suppliers in respect of truck driving jobs, but he has been unsuccessful. However, he is aware such work often involves heavy lifting.
36 In about April 2007, the plaintiff was able to get work as casual driver at Aulds Stock Removalists (“Aulds”). He was required to pick up injured or live stock, shoot them and then winch them onto the truck. The plaintiff undertook this casual work with great difficulty. Driving for long hours caused his back and leg pain to worsen and there was also some lifting with which he struggled. The plaintiff thought that this was not a job for a person with a bad back, but he felt he had to work because he needed the money. He was paid $18.70 per hour and worked on that basis four days on, four days off, averaging $580 net per week. As he could not cope with that work in late 2007, he dropped down to two days a fortnight.
37 The plaintiff was reviewed by Mr Brazenor in late 2007 and sent for a further CT scan. Mr Brazenor advised the plaintiff that this scan showed that there was a worsening of his back.
38 Surgery was again discussed and ultimately took place on 21 February 2008, after which the plaintiff was hospitalised for nine days.
39 Initially after the surgery the plaintiff had significant low back pain and right buttock pain. He had pain into his right groin and down his thigh to his knee. He also had numbness in his groin and leg and his right thigh muscle was slightly wasted.
40 Mr Brazenor reviewed the plaintiff every month or so and was concerned that the numbness may have been suggestive of some nerve damage during the surgery and the plaintiff was prescribed Neurontin in this regard. His medication regime at that time also consisted of Digesic, Panadeine Forte and morphine patches.
41 Over time, the numbness improved but the plaintiff continued to be troubled by it on an intermittent basis in his groin and right thigh. The numbness emerged upon activity or after sitting for too long, and could appear for no apparent reason.
42 The plaintiff has not been troubled by buttock pain since about September 2008. His low back pain has improved somewhat since recovery after surgery, but the pain continues to be constantly present, worsened by activities, but also for no apparent reason. It is also worsened by sitting for more than half an hour. The plaintiff continues to experience groin pain intermittently but he is not troubled by leg pain.
43 The plaintiff continues to suffer from depression and anxiety and worries about his circumstances
44 The plaintiff was referred to Ms Crawford, psychologist, whom he saw fortnightly from 4 August 2008 until the end of last year.
45 When he swore his affidavit in February 2009, because of marital tensions, the plaintiff was spending a lot of time with his parents and he thought his injury was responsible for those problems.
46 In February 2009, the plaintiff deposed he was restricted in the activities he could undertake and attempts at anything more than moderate activities inevitably resulted in a significant increase in back pain. He tried to do as much as he could around the house. However, vacuuming and cleaning had to be done by his wife as he was unable to do such jobs. He tried to help with the shopping.
47 In cross-examination, the plaintiff said that he can mow lawns. He cleans the gutters because there is no one else to do so but after he has done this sort of thing, he then thinks “what have I done that for, because it’s so painful”.
48 The plaintiff has tried to do more since the surgery but every time he tries to “stretch the boundaries” as far as activity is concerned, he pays the price in increased pain.
49 In cross-examination, the plaintiff said that he does things that might need to be done around the house where he lives with his wife and two children. He helps out a bit with cleaning. He looks after their two-year-old when his wife works. He does a bit of maintenance around the house.
50 Until the fall, the plaintiff played cricket and enjoyed waterskiing. Thereafter, he was still able to ride motorbikes, a favourite pastime, go camping, and he landscaped his own gardening. Before his surgery, he could do a little light gardening but no landscaping. He now cannot ride a bike or camp without difficulty. Since his surgery, he has not been able to enjoy those activities at all. He is a bit of a quiet person and goes to the odd footy match.
51 In cross-examination, the plaintiff said he does go pushbike riding, still goes camping and takes out an aluminium boat and goes fishing with his wife.
52 The plaintiff is the captain of the local fire brigade, having signed up when he moved to the area in early 2008. Basically he tries to keep the brigade together and if there is a fire, he sends out a crew and keeps them all in line. The most physical activity the plaintiff has done in this capacity was driving a truck.
53 The plaintiff hoped, in joining the brigade, to broaden his horizons a bit in terms of obtaining potential work in the future
54 The plaintiff has always done physical work and never done clerical duties. He has no computer or business skills and has relied on physical work to earn an income. He is at a loss to work out an alternative employment as it is clear to him he does not have the capacity to change careers to become a full time truck driver because of his back condition.
55 In examination-in-chief, the plaintiff said that in the two years since swearing his affidavit, he had not worked as such. He had tried to help out people if he could, to get him on that road of finding a place to work.
56 In March 2010, the plaintiff unsuccessfully applied for a job at Reece Plumbing Supplies store in Echuca. The job was mainly sales but also included delivery work.
57 About a dozen times the plaintiff has helped out a local builder in Rochester, Jarrod Kelly. The plaintiff has assisted him with rubbish removal relating to small bathroom renovations. The plaintiff cleans up rubbish at the end of a job and takes it to the tip. Sometimes he attends the local tile company to collect tiles for the renovation work.
58 This could not be a full time job for the plaintiff as it is too physical. The longest time he has worked in this capacity was for about half a day, during which time he did bits and pieces. That is why he sort of “gave it away” with Mr Kelly, however Mr Kelly understood the plaintiff had a crook back so he did not push him. The plaintiff was paid for that work in beer.
59 The plaintiff explained basically there is just too much heavy lifting with any building type job that he has tried to pursue. Whether it is a twenty kilogram bag of concrete or some other weight, he would be required to lift such a weight ten or fifteen times a day and it just becomes too much for his back at the end of the day.
60 There are also local farmers whom the plaintiff has helped to move something for an hour or so. They might ask him to push one hundred and fifty sheep up the road, beep the horn and open a few gates.
61 Since swearing his affidavit in February 2009, the plaintiff’s condition is about the same but there are times when he thinks it is a bit better so he offers to help people and do certain things and then realises that his back is not what it should be.
62 The plaintiff sees his general practitioner, Dr Adams, probably once a month. The plaintiff stopped seeing Gwen Crawford, psychologist, late last year when the insurer ceased funding treatment costs. Chiropractic and physiotherapy treatment ceased at Mr Brazenor’s suggestion in late 2004.
63 The plaintiff takes six to eight Panadeine Forte throughout the day. He also takes Somac for stomach problems associated with his medication intake. The plaintiff takes Mobic probably once a week, having previously been prescribed Prothiaden. He takes Mobic after doing tasks like working for Mr Kelly but that medication upsets his stomach.
64 Panadeine Forte makes the plaintiff very drowsy and sleepy so at the end of the day he is pretty tired. The good thing with that medication though is that it takes away the plaintiff’s back pain and helps him sleep at night, replacing sleeping tablets
65 The plaintiff’s back is sore all the time. His level of pain when driving depends on the vehicle involved. The plaintiff’s pain increased when driving his wife’s four wheel drive over rougher terrain.
66 In cross-examination, the plaintiff agreed Mr Brazenor had been trying to get him back to work, as had Dr Adams. Mr Brazenor had suggested the plaintiff work as a tanker driver and also a building site manager.
67 Following such advice, the plaintiff obtained a truck licence and got the job with Aulds in 2007. The plaintiff thought that was work he could do at that time, however he could not continue that job because of problems with his back resulting from truck driving.
68 The plaintiff described Mr Brazenor as “a funny sort of a bloke”. He agreed they talked about all avenues of work. Mr Brazenor suggested the plaintiff look for a bus driver’s job. The plaintiff did not think he would be capable of doing this job.
69 The plaintiff agreed he would not know how he could cope with jobs until he tried doing them.
70 Whilst there are truck driving jobs around, there are not many which do not involve handling loads. The plaintiff has not seen an advertisement for such a job with no manual lifting involved.
71 The plaintiff has rung up for truck driving jobs about half a dozen times. Most truck driving jobs in his area require an HC licence and that is “pretty much where you draw it to a dead end”.
72 The plaintiff has been on the internet trying to look at further education but he always comes up with “a bit of a snag” with his qualifications as he only has a manual work background.
73 The plaintiff has a computer at home which he gives a go but he is not very computer savvy. In cross-examination, he agreed that down the track he was sure he could be taught computers.
Video Surveillance
74 Surveillance film was shown of the plaintiff on 30 October 2009.
75 For relevant purposes, the film commenced at 11.53 am when the plaintiff was shown at the Uniting Church, Rochester, doing work for Mr Kelly, who was installing a new bathroom.
76 At 12.50 pm, the plaintiff was shown carrying a few lengths of timber. At 1.06 pm, he was shown carrying rubbish.
77 At 1.22 pm, he was shown getting up onto the towbar of Mr Kelly’s vehicle and securing something on the roof racks.
78 At 1.25 pm, the plaintiff was seen carrying some lengths of timber and putting them at the back of the vehicle. At 1.32 pm, he was standing on the sideboard of the vehicle tying a ladder to the trailer.
79 At 1.34 pm, the plaintiff was shown moving a star picket for the temporary fencing. The job concluded at about that time.
80 The plaintiff was then seen at the local hotel at 1.47 pm with his father-in-law and Mr Kelly. The plaintiff was seated on a bar stool, drinking and talking and one occasion ordering some beers and carrying them back to the table. The plaintiff and the other two men left the hotel at 1.59 pm.
81 The plaintiff disagreed that he was experiencing no apparent pain or restriction during the time at the hotel.
82 On 31 October 2009, the plaintiff’s vehicle with a cage box trailer attached was shown at the property of a neighbour, Brian Kirwan. The plaintiff had taken his pet sheep to Mr Kirwan’s property to be shorn. The plaintiff was not shown engaging in any activities. At 12.21 pm, the plaintiff was shown driving from the property with his sheep in the back of the trailer.
83 When asked about the activities shown on these films, the plaintiff agreed he was shown bending and lifting, reaching above and below shoulder height, but he would not say he was doing these movements without apparent pain or restriction. He explained – “you know there’s always pain involved, so I do get on with, you know, and do what I have to do, but always suffering through it”.
84 Twenty three minutes of video taken on 13 March 2010 was shown.
85 The plaintiff was seen operating a tractor at a farm at Rohan Road, Carag, on the property of an elderly neighbour. The plaintiff was shown driving a blue tractor assisting in work involving building a machinery shed. He operated the tractor manoeuvring metalwork in position for the welder.
86 The plaintiff helps out occasionally at different people’s farms. He could not do this sort of work full time but thought he may be able to do so part time. He could not find any part time tractor driving work.
87 The tractor driving the plaintiff has done could be for three or so hours or ten or fifteen minutes but a real job of that nature would be for twelve hours or fourteen hours a day and he would be required to go away from home with work. Whilst the plaintiff could do this work for a day at a time, he could not work for a full week.
88 After doing this type of work, the plaintiff was quite sore when he got home and his back “struggled under those conditions”. Tractor driving was quite rough, especially on paddocks, even with the best seats.
89 The plaintiff had helped out on these types of jobs, trying to get his foot in the door for future work, but he knew his body could not handle this work full time.
90 Nine and a half minutes of film taken on 27 and 28 August 2009 was shown.
91 On the first date, the plaintiff was shown carrying out the local postal run as the usual postman had to go to a funeral on that date. This was the only time the plaintiff had done the run
92 At 8.58 am, the plaintiff was shown picking up newspapers and bending into his vehicle. He went inside the post office and then came out with another crate of mail to deliver.
93 At 9.25 am, the plaintiff was shown sitting in his car, and having worked out his delivery route, he drove to the local bakery where he picked up four loaves of bread.
94 At 9.40 am the following day, the plaintiff dragged in a couple of empty wheelie bins on the nature strip in front of his house.
95 The plaintiff would have tried the Reece job in Echuca if he got it. Sales work generally puts him off, given the amount of computer work involved. However, he explained his problem was probably more physical. His back held him back from a lot of jobs and he has not met the requirements when he has enquired over the phone for work.
96 When the plaintiff spoke to a man at Echuca about a plumbing supplies job, he was told there was a lot of manual load involved. The plaintiff could not cope with working six days a week, day in day out. Working three days a week was what the doctors recommended and the plaintiff did not doubt that would be what he could handle. He disagreed that plumbing supplies was a light job as he knew from his experience in the area. The plaintiff agreed he would be able to reach up to get stock.
97 The plaintiff disagreed that the Reece job was ideal but said it was work. He did not know if he would be able to cope with it until he tried.
98 The plaintiff did not know whether the job of plumbing inspector still existed, but the one time he had seen one working, the inspector was doing ‘hands on’ work in a drain, which the plaintiff did not think he could cope with.
99 The plaintiff thought that he could probably work as an inspector for a day and then, like the doctor said, he would need a day in between to recover. But he could go for a week; he could go for a month, and then fall in a heap. He did not know.
100 The plaintiff has never thought about working as a motor vehicle or caravan salesman and does not really have any experience in the automotive trade. He would be willing to give those jobs a try if he found one.
101 The plaintiff’s intentions are to find a job, and he would apply if the appropriate one came along. He last looked in the paper on last Friday. He looks out for plumbing-type work as that always caught his eye. There are jobs for plumbers in there all the time but he cannot do that sort of work. He hoped he would still be involved in the building trade at some stage as that is where the money is.
102 In re-examination, the plaintiff said he is not sure whether he would be able to work Monday to Friday every day. He would not be able to do that day after day and he would have to take more Panadol.
103 After the activities shown on film and other similar activities, the plaintiff explained he suffered from the same sort of thing every day. At the end of the day he would sit on the couch or lie on the floor and think, when was it all going to stop?
104 The defendant provided the plaintiff with a Ford utility in the first half of 2004, which he could use for personal needs. Servicing is paid for by the defendant. The plaintiff is responsible for washing and maintaining the vehicle and carrying out minor repairs and also pays for petrol.
105 The plaintiff agreed there was no reference to that utility in his 2004-5 taxation return. He claimed the car like he would claim the costs of work boots. He probably drove about one hundred kilometres per day for work. He then said that he claimed expenses on the utility and also his private car in his 2004-5 taxation return.
Summary of Plaintiff’s Taxation Documents
Financial Year Gross Earnings 1998-1999 $31,342 1999-2000 $34,246 2000-2001 $27,922 2001-2002 $32,410 2002-2003 $29,158 2003-2004 $30,324 2004-2005 $24,988 2005-2006 $26,864 2006-2007 $21,274
Lay Evidence
106 Ms Rachel Shaw, solicitor, swore an affidavit on 31 January 2011 annexing the Australian Bureau of Statistics Labour Price Index for the years ending September 2005, 2006 and 2007.
107 The seasonally adjusted increases throughout those years was about four per cent.
The Plaintiff’s Medical Evidence
108 The plaintiff attended the Emergency Department at The Royal Melbourne Hospital on 18 September 1998 following the fall.
109 A report in relation to foot injuries suffered in the fall was provided by Dr Beischer, foot and ankle surgeon. In his first report, Dr Adams also referred to the plaintiff’s injuries from the fall.
110 Further, on examination on 16 January 2001, the plaintiff told Dr Adams he was suffering from depression which largely related to a marriage split. The plaintiff was then undergoing counselling and anti-depressants were advised.
111 Dr Adams reported that on 16 February 2009, the plaintiff presented with a two-week flare up of back pain around the site of his operation and he was prescribed further Digesics.
112 In May 2009, anti-depressants were prescribed for depression and at the suggestion of the plaintiff’s counsellor, Ms Crawford, ten further psychological sessions were advised.
113 Dr Adams noted issues of depression in July and August 2009.
114 Dr Adams reported that on 28 September 2009, the plaintiff related his dismay concerning the insurer, QBE. The plaintiff had been told by his surgeon prior to his back operation that he would have a one in five chance of retrograde ejaculation. In view of this, he had had sperm stored prior to the operation but QBE was unwilling to pay for it.
115 Dr Adams considered that the plaintiff suffered from reactive depression related to his back injury. He noted the deterioration in the plaintiff’s mood in early 2009 seemed to have occurred subsequent to the realisation that his back operation and subsequent recovery did not return him to his pre-injury state.
116 Dr Adams noted that although Mr Brazenor appeared very happy with the surgical result and was expecting the plaintiff to be able return to meaningful employment, the plaintiff had not managed to do that.
117 Dr Adams noted the plaintiff’s speed and extent of recovery may have been assisted by specialist rehabilitation but that access was not available to such services in the country. Dr Adams then advised anti-depressant medication, together with further counselling, would hopefully allow the plaintiff to develop positive strategies towards finding suitable employment. Dr Adams noted if it was decided at a later date that the plaintiff had no current capacity for work, he would likely benefit from the services of a pain clinic.
118 Having read Dr Thomas’s report, Dr Adams advised that the plaintiff seemed to have reached a plateau with regard to his physical work capacity following the incident. He accepted the implication from Dr Thomas’ assessment that the plaintiff’s current physical limitations should be considered permanent and that his impairment would continue into the foreseeable future, and that any further medical treatment would only be supportive.
119 Dr Adams thought the plaintiff had a positive attitude to the prospect of any part time employment and noted his work capacity limitations, which were significant, made gainful employment unlikely.
120 Dr Adams believed that the plaintiff should embark upon a regular supervised program of back mobilisation and muscle strengthening over the next two years to assist in his day to day pain control and also to maintain his limited work capacity potential. Dr Adams noted Dr Thomas stated an ongoing exercise program was reasonable.
121 Dr Adams reported in November 2010 that since May 2010, he had seen the plaintiff once in June and once in October.
122 On 18 October 2010, Dr Adams noted the plaintiff was working for a builder, four to five hours a week, doing only rubbish removal from sites at his own pace. Pain had developed in the low back and there was some radiation into the groin and thigh and both feet with long driving. The plaintiff was then taking four to six Panadeine Forte a day.
123 Ms Gwen Crawford, clinical psychologist, first saw the plaintiff on 4 August 2008 and continued to see him until the end of 2010, when funding ceased.
124 Initially the plaintiff told her of the incident. She noted that he had significant symptoms of depression including low mood, reduced motivation, irritability, forgetfulness and poor ability to concentrate.
125 Ms Crawford noted that in March-April 2009, the plaintiff experienced more suicidal ideation, and after being prescribed a different medication, he reported, in July 2009, that he felt less emotional.
126 On 22 October 2009, the last examination reported on, the plaintiff told Ms Crawford that he felt he was making little progress and he was unable to regain the quality of life he had had before the incident.
127 Ms Crawford diagnosed a Major Depressive Disorder of moderate extent. She postulated that the psychological stresses experienced by the plaintiff were as a result of the incident and had caused that condition.
128 The plaintiff was examined by Dr Horsley, occupational health specialist, on 4 November 2009.
129 The plaintiff told her he had ongoing back pain which was chronic in nature and varied on the Visual Analogue Scale from 4 to 8, to 10 out of 10. Most of the time it was 6 to 7 out of 10. There were no left leg symptoms and the plaintiff suffered from ongoing right leg pain which radiated posterolaterally to the popliteal fossa.
130 Examination of the lumbar spine revealed mild loss of lumbar lordosis. There was some mild touch sensitivity on light touch palpation centrally in the lower lumbar region. There was no muscle spasm and there was no fear avoidance behaviour exhibited. There was limitation of movement.
131 Peripheral nervous system examination revealed a reduction in light touch sensation down the lateral aspect of the right thigh. There was also a reduction in temperature sensation in the same distribution.
132 Dr Horsley noted a Medical Panel opinion of 11 September 2005 where the Panel opined the plaintiff was suffering from an aggravation of lumbar disc degeneration relevant to the claimed injury.
133 Dr Horsley diagnosed an aggravation of pre-existing lumbar spondylosis at the L4-5 and L5-S1 levels, noting that the plaintiff had had a CT scan with radiological evidence of an L4-5 disc lesion.
134 Dr Horsley believed the plaintiff’s symptoms were likely to persist given the length of time since the incident and the ongoing nature of his symptoms. She thought he would benefit from a structured physical program that was physio supervised, and he would also benefit from involvement in a multi- disciplinary outpatient program to encourage him to reduce his current medication, to consider vocational options and to gain assistance with return to work.
135 Dr Horsley thought that the plaintiff’s capacity for work was likely to be part time. She noted however, at the age of forty, he needed to return to the workforce in some capacity. In her view, his barriers included his limited literacy skills, his physical restrictions and his educational background. She thought it was unlikely that the plaintiff would ever be able to return to work as a plumber. However, she considered he may be able to return to work in areas akin to plumbing, but on a part time basis.
136 Dr Horsley believed work had been a significant contributing factor, exacerbating and aggravating the plaintiff’s underlying pre-existing lumbar spondylosis at L4-5.
137 Noting a good response to the surgery, Dr Horsley thought however, it was likely the plaintiff would experience increasing symptoms at the level above the artificial disc as time passed.
138 Dr Horsley suggested the following work restrictions applied in relation to the plaintiff’s back condition: avoidance of repetitive over-reaching, repetitive pushing and pulling, truncal rotation, working in awkward and confined spaces, lifting items greater than twelve to fifteen kilograms and, on an occasional basis, lifting items up to ten to twelve kilograms on a repetitive basis, periods greater than an hour without changing posture, standing for greater than an hour without changing posture and driving for greater than an hour without taking a rest break.
139 Dr Horsley believed the plaintiff was permanently unfit for his previous work as a plumber and that the critical physical demands of a full time position with full duties was beyond his physical capacity. She thought the plaintiff needed assistance and a realistic vocational assessment and probable further upgrading of his skills was indicated. She thought the plaintiff’s capacity for work was likely to be part time in view of his ongoing back condition.
140 Dr Horsley subsequently reported that, in her view, the plaintiff’s capacity for work was likely to be part time in the vicinity of twenty hours a week. She noted his barriers to return to work included his geographic location in Rochester, his literacy issues, his educational background, his inability to return to his chosen occupation of plumbing, and his physical restrictions.
141 Mr Dohrmann, neurosurgeon, examined the plaintiff on 30 November 2009.
142 The plaintiff told him that he continued to experience low back pain and pain and numbness in the right leg. However, his symptoms had improved to a reasonable level of comfort following surgery.
143 On examination, extension was normal and there was only a mild restriction of active lumbar flexion. Straight leg raising was mildly reduced on both sides. There was reduced appreciation to pin prick over the lateral aspect of the right thigh and the medial aspect of the right leg consistent with L4 nerve root involvement.
144 Mr Dohrmann noted the CT scan performed on 12 September 2008 revealed evidence of an L5-S1 instrumental fusion with interbody cages, and a well positioned anterior interbody artificial disc prosthesis at L4-5.
145 Mr Dohrmann thought the plaintiff was suffering from chronic low back pain and referred right leg pain due to a work-related exacerbation of degenerative disc disease at L5 and L5-S1 surgically treated with evidence of residual radiculopathy.
146 Mr Dohrmann considered the plaintiff’s lower back injury was consistent with the incident.
147 In Mr Dohrmann’s view, the plaintiff retained a capacity for work, though efforts to achieve that through vocational rehabilitation had been unsuccessful to date.
148 Mr Dohrmann considered the plaintiff would not be able to return to his pre- injury work as a plumber with any heavy physical work involving repeated bending, lifting and twisting motions of his lumbar spine. He thought the plaintiff would also not be able to return to work with prolonged sitting which would require him to regularly get into or out of a motor vehicle.
149 However, Mr Dohrmann thought the plaintiff would have a medical capacity for work of a light physical nature. For example, provided he did not have to lift objects greater than ten kilograms, the plaintiff would be able to work in a plumbing retail position, serving customers with smaller items.
150 Mr Dohrmann considered the plaintiff’s partial incapacity for work was permanent and that his condition had stabilised. He thought the prognosis for complete relief of symptoms was poor and that the plaintiff was likely to continue experiencing a degree of chronic lower back pain and right leg pain notwithstanding the significant improvement following surgery. In his view, the plaintiff would continue to need analgesic anti-inflammatory and other medication and there was no obvious likelihood of further surgery.
151 Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 23 April 2010.
152 On examination, the plaintiff’s back was tender in the L5 region. There was some restriction of movement. Neurologically his lower limbs presented as being intact. He had some tenderness in the left big toe region relating to the fall.
153 Dr Thomas thought the plaintiff’s injury was consistent with the stated cause. He considered the plaintiff had work capacity, albeit limited. He thought the plaintiff was unable to return to his pre-injury duties, noting the primary problem was that the plaintiff was not able to perform work that utilised his back. He was not able to perform work bending, lifting and twisting below waist height or above shoulder height.
154 Dr Thomas noted the plaintiff had a basic Year 9 education and worked as a plumber all his life. He thought the plaintiff’s incapacity was permanent and that the long term prognosis was at that stage not determined.
155 Dr Thomas thought a five kilogram lifting limit between waist and shoulder height was reasonable. An ability to alter posture frequently would also be reasonable. At bench height, lifting small easily liftable objects, the plaintiff could work up to but not beyond twenty four hours a week. Dr Thomas thought any increase in the physical demands of the work duties would lead to a decrease in the plaintiff’s ability to perform such work.
156 Dr Thomas considered, as a truck driver, without the requirement to manually load or unload in an appropriate set up truck with good ergonomic seating, air suspension et cetera, the plaintiff could work performing short trips frequently up to but not more than twenty four hours a week. Any requirement to manually load or unload with respect to the type of truck that the plaintiff drove would lead to a decrease in the amount of hours that he could perform such work.
157 Professor Bittar, neurosurgeon, examined the plaintiff on 28 April 2010.
158 The plaintiff told him of constant lower back pain, which was generally dull with sharp exacerbations. He also experienced pain radiating from his right groin to the anterolateral aspect of the thigh and the lateral aspect of his calf, and had numbness over the dorsum of his right foot.
159 On examination, there was marked restriction of lumbar flexion. There was moderate tenderness bilaterally in the lumbar paravertebral region. The plaintiff had reduced sensation to light touch over the dorsum of his right foot and lateral aspect of his right calf.
160 Professor Bittar thought the plaintiff suffered from discogenic lower back pain and leg pain, with features of right L5 radiculopathy.
161 In his view, the plaintiff’s employment had been a significant contributing factor, specifically the incident had been a dominant contributing factor, and remained a significant contributing factor to the plaintiff’s current pain disability and requirement for treatment.
162 Professor Bittar thought the plaintiff was permanently incapacitated for his pre-injury duties. He thought the plaintiff had the capacity to work approximately four hours per day, five days a week in a suitable position.
163 Mr Rodney Syme, urologist, examined the plaintiff on 10 February 2010.
164 He concluded it was clear from the plaintiff’s history that he was suffering from retrograde ejaculation, or absence of ejaculation. In such circumstances, the plaintiff was unable to achieve a pregnancy due to the lack of ejaculation of seminal fluid.
165 Mr Syme considered the cause of this disturbance was damage to the sympathetic nerves as they travel over the sacral promontory and, as Mr Brazenor indicated, it was a known complication with surgery that the nerves will undergo some damage and that lack of ejaculation or retrograde ejaculation will be the consequence.
166 Mr Syme therefore thought it clear that the plaintiff’s ejaculatory problem was directly related to his surgery. He suggested that there were two possible solutions to management of this problem: firstly, the use of various drugs at the time of intercourse; and, secondly, utilising artificial insemination.
The Car
167 Cumpston Sarjeant, Consulting Actuaries, provided a report of the estimate of the approximate value of a Ford Falcon ute provided for the plaintiff’s use.
168 The annual value to the plaintiff of that vehicle was assessed as being between $8,650 for 15,000 kilometres, $19,988 for 45,000 kilometres and $21,213 for 40,000 kilometres in 2009.
Vocational Evidence
169 Ms Angel of Flexi Personnel reported on 26 March 2010 that taking into account the plaintiff’s WorkCover certificate, he appeared to be severely limited in his current state to return to the workforce in any unrestricted capacity. Due to his injury and medicated state, as a recruiter, she would not refer the plaintiff to any vacancies regardless of the duties unless he received a letter of clearance from his doctor stating he was safely able to return to the workforce and perform unrestricted duties.
170 Ms Angel concluded that with his limited work capacity, restrictions and pain, the plaintiff would find it difficult to find suitable employment in the open labour market.
171 However, if he was able to find suitable light employment, was paid under the current Manufacturing and Associated Industries and Occupations Award 2010 and employed as a C13 Assembler-Process Worker performing light bench/factory type work, he would receive an hourly rate of $14.75 gross per hour.
172 As a sales assistant being paid under the General Retail Industry Award 2010, classified as a Retail Worker Level 1, the plaintiff would be paid $15.79 gross per hour.
The Defendant’s Medical Evidence
173 Mr Brazenor first saw the plaintiff on 29 November 2004, at which time the plaintiff’s main pain was low back pain radiating to the right more than the left side.
174 On examination, there was no lumbar spinal deformity or spasm. Flexion and extension both produced low back pain. There was no wasting in any muscle group in the lower limbs and straight leg raising was restricted to 80 degrees on the right by low back pain. The plaintiff was neurologically normal in the lower limbs.
175 An MRI scan of the lumbar spine was organised on 26 August 2004.
176 Mr Brazenor formed the opinion the plaintiff had changes of cumulative injury to lower discs in his lumbar spine. He firstly recommended conservative treatment and told the plaintiff he would never get back to ‘hands on’ plumbing.
177 Mr Brazenor told the plaintiff there was a seven out of ten chance of losing his pain over the next six months or so if he simply walked and laid down as instructed, avoided bending and twisting at the waist, performed back exercises, and attended physiotherapists and chiropractors. Conversely, he estimated there was a three out of ten chance that despite all those concessions, the plaintiff’s pain would not remit, forcing him ultimately to consider surgery.
178 The only surgery Mr Brazenor advised which would get the plaintiff back to being a ‘hands on’ plumber was the insertion of two artificial discs. Mr Brazenor rated the chance of success of that operation as nine out ten, but the chance of a life threatening complication at one out of a hundred. He also pointed out that five per cent of males incurred the condition known as “retrograde ejaculation” rendering them sterile and further pointed out that the long term fate of those artificial discs was unknown with respect to what happened to them over twenty to forty years.
179 On review on 23 December 2004, the plaintiff was no better and the decision was made to request approval for surgery from QBE.
180 On review in April 2005, it was noted the plaintiff’s pain was diminishing but he was unable to do simple tasks, such as mowing the lawn, without paying the price in pain on that day or the following day.
181 On review on 8 June 2005, Mr Brazenor again certified the plaintiff off work pending the result of his conciliation, enjoining him to continue walking four times a day.
182 On review on 9 August 2005, the plaintiff was slightly improved but still disabled.
183 Mr Brazenor thought the plaintiff would never again do any job involving repeated bending at the waist or repeated lifting of objects from below waist level, or lifting weights in excess of fifteen kilograms, unless he underwent successful two level disc arthroplasty.
184 There were subsequent reviews on 15 March 2006 and 9 August 2006. Mr Brazenor noted the plaintiff had not made significant progress but he had done heavy truck driving and was fit to take the licence. He had been referred to Dr Wong for psychiatric counselling.
185 The plaintiff told Mr Brazenor he doubted his fitness for heavy truck driving at that time, because he had recently done a three-hour trip and was hardly able to stand up when he got out of the truck cabin and he had experienced a lot more pain the next day.
186 On the next review in December 2007, the plaintiff advised he was driving a truck and coping barely, but he was having a lot of low back pain.
187 A further CT scan was performed on 17 December 2007 confirming the two levels of severe disc injury at L4-5 and L5-S1.
188 Surgery was again discussed and Mr Brazenor quoted a nine out of ten success rate, of which half the recipients would work again as plumbers if they wanted to and that one out of ten could go through the operation and twelve months of convalescence yet be no better.
189 Mr Brazenor operated on the plaintiff on 21 February 2008.
190 On review in March and April 2008, the plaintiff was walking for thirty minutes four times a day and had lost twelve kilograms. He was still having right buttock iliac crest and groin pain and he noted some wasting in his right quadriceps. The spinal construct looked perfect and the hip joints were pristine, as demonstrated in the isotope bone scan and CT scan.
191 On review on 5 May 2008, the plaintiff was taking Neurontin at night for pain in his right leg and Mr Brazenor asked to review him in June 2008 but the plaintiff did not show up for the appointment.
192 The plaintiff next attended on 5 August 2008 when Mr Brazenor noted the beautifully normal lumbar lordosis and no palpable spasms. The plaintiff could only flex at the waist allegedly to 30 degrees and extend to 10 degrees, limited by low back pain.
193 Mr Brazenor put the plaintiff on an anti-depressant at night and anti- inflammatory by day and certified him as fit for half time employment without restriction.
194 Mr Brazenor noted that a CT scan carried out on 12 September 2008 was “beautifully normal”.
195 On review on 11 March 2009, the plaintiff continued to complain of back pain at L4, for which he was taking Mobic daily and Digesic intermittently. He told Mr Brazenor he had driven a truck for the CFA during the bushfires and he had pulled up very badly after that and had to rest for a few days.
196 Mr Brazenor noted, on examination, the plaintiff was normal and he looked fit and lean and walked well in his boots. There was no spasm and the plaintiff had a fine lumbar lordosis. Mr Brazenor again made comments about the alleged lower back pain which restricted movement.
197 The plaintiff also continued to complain of numbness in his right thigh, but Mr Brazenor suggested to him that those symptoms were not a justification for failing to return to work.
198 Mr Brazenor then sent the plaintiff off for further investigations, the results of which Mr Brazenor again described as “beautiful”.
199 Mr Brazenor noted that he had put it to the plaintiff that the upshot of all the investigations was that he could no longer “certificate” him off work. He told the plaintiff that, in his view, he was fit for full time employment, albeit not at a job where he had to bend at the waist or lift from below waist level. The plaintiff replied that he could not sit for long periods, which would prohibit truck driving, or bus driving, and Mr Brazenor told him that was a pity as they were quite ideal jobs for him otherwise.
200 Mr Brazenor concluded “at the end of the day we have a man with no discoverable pain generator in his lumbar spine any more”. He noted “there was significant incongruity between what little could be found on examination and his low back and on thorough radiological investigation, and on the other hand his complaints of significant disability and moderate pain”.
201 Mr Brazenor advised he had urged the plaintiff to get a job at all costs and offered to review him at the end of 2009.
202 Mr Brazenor wrote to Dr Adams on 12 September 2008 following review that day, advising the CT scan was “breathtakingly beautiful”. He told Dr Adams he had congratulated the plaintiff on his progress and told him that he thought the right anterior thigh pain was going to wane over the next twelve months. He told the plaintiff he should be back at work but probably not swinging a pick and a shovel.
203 Mr Brazenor thought the plaintiff could drive tractors, trucks, particularly if they had sprung seats, and all in all he really could not “certificate” him from that date.
204 Mr Brazenor again wrote to Dr Adams on 11 March 2009, having seen the plaintiff that day.
205 Mr Brazenor advised the plaintiff had never done much good after the surgery and continued to complain of back pain, for which he took Mobic and Digesic. He was still not back at work and indeed claimed to have driven a truck for the CFA during the bushfires and said he pulled up very badly afterwards and had to rest for a few days.
206 Mr Brazenor advised the plaintiff looked fantastic on examination. There was no palpable spasm. The plaintiff had a fine lumbar lordosis. Movement was limited by mild lumbar pain. Whilst the plaintiff complained of numbness in his right thigh, Mr Brazenor suggested to him that that was not a justification for failing to get back to work.
207 A further CT scan and bone scan was ordered. Mr Brazenor told the plaintiff to start looking for either a bus driver’s job or a truck driver’s job where he did not have to handle a load. Equally, however, if the scans were normal, Mr Brazenor thought the plaintiff could try a bit of plumbing work and see how he went.
208 On review on 30 March 2009, Mr Brazenor advised the new CT scan was beautiful. He put it to the plaintiff that the upshot of all that was that he could no longer certify him off work. He thought the plaintiff was fit for full time employment, but not at a job where he had to bend at the waist or lift from below his waist level.
The Defendant’s Medico-Legal Evidence
209 The plaintiff was first seen by Mr Hooper, orthopaedic surgeon, on 22 November 2004.
210 On examination, spinal movements were limited and there were no neurological signs present.
211 At that stage, Mr Hooper thought the plaintiff would not be able to continue doing heavy work as a plumber and should be retrained in some form of lighter activity.
212 Mr Hooper did not think any form of more aggressive or surgical treatment would benefit the plaintiff. He thought the plaintiff’s condition of continued low back discomfort was likely to be permanent.
213 Having been provided with Mr Brazenor’s report in which he recommended two discs be replaced, Mr Hooper commented that such treatment must be regarded as experimental and that Mr Brazenor should be asked how many of those cases he had done and how he could possibly make the claim that the plaintiff would be back to doing light work in two or three weeks and doing full work as a plumber in six weeks, which Mr Hooper thought was quite extraordinary and was not in keeping with most people’s understanding of the procedure.
214 Mr Hooper thought many people managing the plaintiff would suggest to him that he change his occupation and cope with his back discomfort doing lighter work, noting the significant complications with that type of surgery.
215 As of January 2005, Mr Hooper thought there was absolutely no chance the plaintiff would return to work as a plumber no matter what surgery was undertaken and that other opinions should be sought before that surgery was contemplated.
216 Mr Nye, neurosurgeon, first saw the plaintiff on 17 March 2005.
217 On examination, there was normal spinal posture and no spasm. There was restriction of movement of the lumbar spine. There was no neurological abnormality of the lower limbs and there was claimed distal impairment of pin prick appreciation affecting each leg, which was not anatomical and considered functional.
218 Following assessment and examination of the investigations, Mr Nye concluded the plaintiff had two-level disc degeneration in the lumbar spine subject to aggravation in the incident and that was the cause of his continuing symptoms.
219 Mr Nye agreed with Mr Hooper that the plaintiff would not be a candidate for surgical treatment and he could not endorse the recommendation for two-level disc replacement or spinal fusion, having regard to the modest severity of the changes on MRI scan, and he did not believe all conservative treatment had been exhausted. He thought a structured exercise program and walking was appropriate, noting complications with the plaintiff walking because of an old foot injury.
220 Mr Nye thought the plaintiff’s long term prognosis was not favourable with respect to a resumption of pre-injury duties as a self employed plumber, as a consequence of physical demands of such a position. He considered an occupation change may well be necessary for the plaintiff. He thought that the plaintiff could adopt a supervisory role but he could not return to a ‘hands on’ position.
221 On re-examination on 8 May 2006, Mr Nye noted the plaintiff had attempted to return to work in November 2005 supervising others. This attempt was not successful as a consequence of the need for some ‘hands on’ work.
222 In reference to the surgery recommended by Mr Brazenor, Mr Nye noted the plaintiff stated he had recently married and as the surgery entailed some risk of infertility, he was hesitant going ahead.
223 Findings on examination were similar to the previous examination.
224 Mr Nye noted the vocational assessment report was discussed with the plaintiff, with suitable positions including sales representative in building and plumber supplies, building and construction management and quantity surveying. Mr Nye thought some training may be required in relation to quantity surveying.
225 Mr Nye noted the plaintiff expressed reservations with respect to a job as a truck driver, the consequence of some difficulties associated with the three- hour test undergone earlier in the year, and concern was also expressed regarding the identified job as an excavator operator.
226 Following re-examination, Mr Nye reached conclusions similar to those previously expressed. He thought the plaintiff had a partial incapacity and contributing factors included the previously identified work-related incidents. He considered the plaintiff was not fit for pre-injury duties.
227 Mr Nye considered restriction should be applied to tasks that could be undertaken, including in any work situation, an absence of need for repeated bending or twisting movements of the spine, prolonged unrelieved periods of either standing or sitting and a lifting limit of five kilograms would be appropriate.
228 Mr Nye thought employment as a truck driver and excavator operator would not be appropriate, as aggravation of an existing condition would almost certainly result.
229 By letter dated 26 June 2006, Mr Nye noted bus driving, specifically a school bus doing two three-hour shifts, had been identified. Mr Nye had concerns about the plaintiff’s ability to drive a bus because of the sitting involved, as would also be the case with truck driving.
230 Mr Nye thought the gradual introduction and attempt at those activities would not be detrimental to the plaintiff’s health, but his prediction was that such activity would not be able to be sustained to a level which would attract significant remuneration.
231 Mr Nye last saw the plaintiff on 18 March 2010.
232 On examination, there was reduced lumbar lordosis with associated spasm of paravertebral musculature. There was restriction of thoracolumbar movement. There was an impairment of sensory appreciation affecting the right thigh laterally and the distribution of the lateral cutaneous nerve of the thigh and possibly related to an injury unrelated entrapment neuropathy involving the peripheral nerve. Mr Nye noted some distal sensory impairment was also claimed and that was variable and suggested a possible L5 involvement on one side.
233 Following the examination, Mr Nye concluded the plaintiff had undergone technically successful surgery for two-level lumbar disc degeneration unassociated with definite neurological sequelae. He suspected an element of development of Chronic Pain Syndrome with a secondary psychological component and particularly depression.
234 Mr Nye considered the plaintiff had limitations with respect to employment and any work situation would have to be of a light physical nature and exclude a need for repeated bending or twisting movements of the spine, prolonged unrelieved periods of sitting, standing or motor vehicle driving or travel. Lifting under the five kilograms would be appropriate and such lifting should not be conducted from below waist level.
235 Mr Nye noted current medical treatment was limited to prescription medication but he expressed some concern regarding the amount of analgesic medication in use. He thought the prognosis was not considered favourable.
236 Having seen the vocational assessment report of 28 January 2005, Mr Nye advised the jobs of truck driver and excavator operator would not be appropriate, having regard to the plaintiff’s spinal condition.
237 Mr Nye thought the positions of industrial sales representative (plumbing, building supplies), building and construction manager and quantity surveyor would be within the plaintiff’s claimed physical capacity and noted further training may be required for such positions.
238 At this last examination on 18 March 2010, improvement following the surgery was reported, with some reduction in pain levels in the back and legs. Mr Nye noted some continuing back pain was described in extending to high levels in addition to intolerance of motor vehicle driving.
239 Under the circumstances, Mr Nye was of the same opinion with respect to the vocational assessment, noting that such was conducted in 2005 before the surgery.
240 Having seen the reports of Dr Thomas and Dr Horsley, and the vocational assessment prepared by Co-Work on 17 June 2010, Mr Nye advised he did not consider the position of motor vehicle or caravan sales person would be appropriate, as having regard to the plaintiff’s back, the necessary physical demands of those positions and particularly getting in and out of motor vehicles repeatedly for purposes of demonstration and driving would be required, with potential for aggravation of the plaintiff’s condition.
241 Mr Nye thought the positions of spare parts interpreting, sales assistant (hardware) and plumbing inspector were considered to have potential, providing restrictions applied as indicated in his earlier report.
242 Mr Nye advised in January 2011 that he thought the plaintiff had a capacity to undertake the positions considered suitable on a graduated returned to work basis with a progression to a full time commitment.
243 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on 19 May 2006.
244 As this report pre-dates the surgery, it is of little assistance when considering the plaintiff’s current capacity for employment.
245 In any event, Mr Shannon thought the plaintiff sustained aggravation of pre- existing lumbar disc degeneration in the incident. He thought truck driving may not be ideal for the plaintiff, but he noted the plaintiff had few qualifications.
246 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 19 April 2010.
247 On examination, there was mild tenderness of the low lumbar spine in the midline. There was some restriction of lumbosacral movement causing low back pain with flexion and extension. Straight leg raising on the right was to 70 degrees, and on the left 80 degrees. Mr Dooley noted power was difficult to assess because of pain. The lower limb reflexes were present and symmetrical and there was some patchy loss of sensation in the right thigh.
248 Mr Dooley thought the plaintiff suffered from degenerative disease of the lumbar spine affecting mainly the L4-5 and L5-S1 levels. He believed the plaintiff aggravated underlying disc degenerative disease of the lumbar spine in the incident. He thought it was difficult to explain all the plaintiff’s ongoing pain on the basis of the soft tissue injury alone. He noted if the plaintiff’s ongoing pain was in fact due to the aggravation of underlying degenerative disc disease, then one would have expected the subsequent surgery to have significantly improved his pain, and that had not been the case.
249 Noting Mr Brazenor’s comments that, at the end of the day there was no discoverable pain generator in the plaintiff’s spine any more and that there was a significant incongruity between the plaintiff’s pain and disability and the little that could be found on clinical examination and neurological investigation, Mr Dooley considered the plaintiff had had a psychological reaction to injury and/or pain, which accounted for a significant component of his ongoing pain.
250 Mr Dooley thought the appropriate treatment was to continue a general exercise and fitness program. He considered that ongoing formal conservative measures would not help the plaintiff and that there was no indication for further surgery.
251 Mr Dooley noted that although the plaintiff had not completed secondary school and undergone further tertiary education, for his overall wellbeing it was very important he return to a level of appropriate useful and satisfying work.
252 From an orthopaedic viewpoint alone, Mr Dooley thought the plaintiff would continue to note intermittent low back pain and some lower limb pain and he would not expect his condition to deteriorate in time. He thought it reasonable for the plaintiff to take analgesic medication.
253 Having read the Risk Link report of 2005, Mr Dooley, from an orthopaedic viewpoint alone, believed the plaintiff would be able to carry out building and construction managing and quantity surveying or estimating. Based on the plaintiff’s current presentation, Mr Dooley believed the plaintiff would have difficulty working as a truck driver or excavator operator, positions which involved sitting for significant periods of time. Mr Dooley thought the plaintiff would have difficulty doing this sort of activity on a full time basis.
254 Noting the plaintiff had just turned forty one, Mr Dooley thought it imperative he return to stable employment for his overall long term wellbeing. From a practical viewpoint, he considered that it was imperative that the plaintiff work in an area that gave him satisfaction, as he thought he would not last in a job in which he did not have real interest.
255 Mr Dooley advised, from an orthopaedic viewpoint alone, he believed the plaintiff would be able to carry out duties required to work in caravan sales, spare parts interpreting, plumbing inspecting and hardware sales, as long as there was no heavy lifting or regular bending involved.
256 Mr Dooley believed the plaintiff would be able to undertake those positions on a graduated return to work basis. He noted it difficult to predict whether or not the plaintiff would be able to return to work full time.
257 Mr Dooley suggested that with the plaintiff’s return to work, he aimed to work up to the level of working full hours Monday, Wednesday and Friday, as that would allow him some time off in between his working days. The clinical decision would then need to be made as to whether or not the plaintiff could increase his working hours over and above that.
258 Dr Ball, psychiatrist, examined the plaintiff on 18 May 2006.
259 Dr Ball commented there was nothing bizarre about the plaintiff’s presentation. His thought form was normal, but with some morbid content about the overall current and possible future situation. His mood was slightly depressed but was responsive and there was no pathological lability or incongruity. There was no abnormality of perception and no cognitive impairment.
260 Dr Ball diagnosed an Adjustment Disorder with Depression and Anxiety entirely secondary to the plaintiff’s physical injuries, most specifically his back injury and the consequences thereof.
261 At that stage, Dr Ball thought the plaintiff’s prognosis was very much dependent on his continuing treatment, possible benefit from pain management but essentially related to improvement in his physical condition.
Vocational Evidence
262 Risk Link prepared a Vocational Assessment Report in January 2005, predating the surgery, in which the jobs of truck driver, sales representative (plumbing - building supplies), excavator operator, building and construction manager and quantity surveyor were suggested as suitable for the plaintiff.
263 Co-Work Pty Ltd provided a vocational assessment of suitable employment on 17 June 2010.
264 Co-Work had no hesitation in recommending the plaintiff for motor vehicle or caravan sales person, spare parts interpreter, sales assistant (hardware) and plumbing inspector.
Other Documents
265 The plaintiff’s personal taxation returns for the financial years 2001-2002 to 2004-2005 inclusive were tendered.
266 In the taxation return of each year, motor vehicle expenses up to $7,000 were claimed by the plaintiff. There was no change in the plaintiff’s 2004-2005 taxation return to indicate any fringe benefits tax or deductions claimed in relation to the Holden utility which he had been provided by the defendant in early 2004.
267 The plaintiff lodged a Claim for Compensation on 30 August 2004 in which he stated he hurt his back while lifting a hot water unit into the car on 16 August 2004. The Employer’s Claim Report relating to that incident was dated 2 September 2004.
Surveillance
268 The defendant relied on surveillance of the plaintiff taken on 27 and 28 August 2009, 30 and 31 October 2009 and 13 March 2010.
Overview
269 There is no dispute that the plaintiff suffered a compensable injury to his low back in the incident as a result of which he eventually underwent surgery in 2008.
270 Most medical practitioners have described this injury as an aggravation of pre- existing lumbar spondylosis at the L4-5 and L5-S1 levels surgically treated with evidence of right radiculopathy.
271 Whilst the plaintiff had some mild low back problems in 2003, there was no suggestion by Counsel for the defendant that this was a relevant factor when considering the present application.
272 Psychological or psychiatric consequences of the plaintiff’s back injury must be excluded when considering an application pursuant to paragraph (a).
273 Unless I can be satisfied on the balance of probabilities, that the organically- based pain and suffering consequences satisfy the statutory criterion, then the application must be dismissed.
274 As the Court of Appeal said in Barwon Spinners & Ors v Podolak (supra), at page 664, para 117:
“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, … requires that any psychological or psychiatric overlay be stripped aside. …”
275 Thus, the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.
276 It was said by Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, at 652-3, that:
“So far as the evidence allows, the court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or a physical basis…. Where the court is unable to disentangle the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion. …“
277 What may be viewed as a slightly different approach to this issue was taken by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, where His Honour said, at p.19:
“A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”
278 Redlich JA expressed a not dissimilar view to Ashley JA in the case of Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, at p.19-20. In Redlich JA’s view, where there was evidence –
“… consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”
279 I accept, having considered these authorities, as his Honour Judge Morrow said in Gorgiev v Healthscope Ltd (2008) VCC 1443, at paragraph 50:
“…if one can say that the plaintiff has suffered a ‘serious injury’ on evidence other than the psychological and psychiatric consequences of the injury, then that is all that is required. The mere fact that these latter factors intrude does not mean that an otherwise sound organically based case is to be dismissed.”
280 I accept that the plaintiff’s injury is organically-based, despite a suspicion by Mr Nye of an element of development of Chronic Pain Syndrome with a secondary psychological component and particularly depression, and Mr Dooley’s view that the plaintiff had a psychological reaction to injury and/or pain which accounted for a significant component of his ongoing pain. Mr Brazenor did not specifically mention non-organic matters when he commented on the incongruity between the level of complaint and physical findings.
281 The preponderance of the medical evidence is that the plaintiff suffers from a back condition which is organically-based.
282 I accept the plaintiff was a credible witness who gave evidence truthfully and did not overstate his level of incapacity. Further, anything shown on the surveillance films was not inconsistent with his evidence as to his level of activity.
283 I accept the plaintiff has a serious injury to his lumbar spine in terms of pain and suffering.
284 Whilst there was some improvement in the plaintiff’s condition following surgery, he has continued to suffer constant low back and right leg pain since the incident. His evidence in this regard was not really challenged in cross- examination.
285 That low back pain initially was treated conservatively until 2008, when Mr Brazenor carried out a surgical procedure involving an instrumental fusion at L5-S1 with interbody cages and an interbody artificial disc prosthesis at L4-5.
286 Following that surgery, the plaintiff has required ongoing Panadeine Forte in high dosages, and less frequently, Mobic, after more strenuous activity – medication which continues to be prescribed by Dr Adam, a course supported by Mr Dooley.
287 The plaintiff’s low back injury has affected his mobility, causing him pain on prolonged sitting and standing. His back pain has also affected his ability to sleep.
288 Further, as a complication of the surgery, the plaintiff has suffered from retrograde ejaculation which results in him being unable to father another child by normal means, a particular concern for him due to his recent marriage and desire to have more children.
289 A consequence which, in my view, is serious is the plaintiff’s inability to continue working in his trade as a plumber because of his back injury – a trade in which he has essentially worked his whole adult life.
290 The consensus of medical opinion, save for Mr Brazenor’s early optimism, is that the plaintiff is unable to return to such duties on a permanent basis.
291 There is no evidence that the plaintiff’s back condition will improve and no further treatment is indicated. Accordingly, I accept that his impairment is likely to last into the foreseeable future and is therefore permanent.
292 In order to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a)
at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b)
after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
293 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 294 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
295 “Without injury” earnings consist of the 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.
296 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
297 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
298 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
“It must be remembered that under subs (38) the onus is squarely on the plaintiff to establish the loss of earnings and to the requisite threshold. That onus was not discharged by the rejection of the defendants’ calculations or even of their witnesses altogether on this topic, which serves to emphasise how important it was for the judge to determine first just what was the physiological impairment of the plaintiff and whether and to what extent, if any, that impairment would probably be permanent. True it is that the degree of any permanent impairment may well be reflected in a consequent capacity to earn or not, as the case may be, but one way or the other there must be a fairly precise identification of the relevant disability, both physiological and economic, and the onus is on the plaintiff in that regard. …”
See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
299 Essentially the parties agreed on a “base” “without injury” earnings figure of $33,135, applicable to the relevant statutory period.
300 However, Counsel for the plaintiff submitted that a further amount should be added to this base amount to take into account the benefit to the plaintiff of a Holden utility provided to him by the defendant in early 2004.
301 Whilst there is actuarial evidence of the value of this vehicle to the plaintiff on a yearly basis, there is no evidence that this vehicle was part of a salary package or that the plaintiff’s salary was being increased in 2004-5. There is no particular mention of that vehicle in the plaintiff’s 2004-2005 taxation return, either in terms of fringe benefits tax or a claimed deduction.
302 The plaintiff’s taxation returns from 2001-2002, through to the financial years 2004-2005, simply show a claim for motor vehicle expenses which the plaintiff explained related to his own car in the earlier years and included the utility in 2004-5.
303 Whilst the plaintiff drove one hundred kilometres per day for work, I am not satisfied, on the basis of the limited evidence available in this regard, that the figures put forward by Cumpston Sargeant can be added to the base salary when considering the plaintiff’s “without injury” earnings.
304 Accordingly, I accept that the “without injury” earnings figure is $33,135.
305 Sixty per cent of that figure is $19,881 per annum, or $382 per week.
306 Therefore, to succeed in his claim for loss of earning capacity, the plaintiff must establish on a permanent basis that he is unable to earn in excess of $382 per week – a loss of forty per cent.
307 Based on vocational evidence relied upon by the defendant, wages for positions deemed suitable for the plaintiff were as follows:
Gross Earnings Gross Earnings
Occupation Per Week Per Annum
Truck Driver $750 $39,000 Sales Representative $997 $51,844 Excavator Operator $800 $41,600 Building & Construction Manager $770 $40,400 Quantity Surveyor Unknown Unknown Motor Vehicle – Caravan Salesperson $1,255 $65,260 ($33.91 per hour)
Spare Parts Operator $1,037 $53,924 ($28.00 per hour)
Sales Assistant (hardware) $779 $40,508 ($21.05 per hour)
Plumbing Inspector $1,300 $67,600 ($35.13 per hour)
308 Counsel for the plaintiff relied on a slightly lower hourly rate of $15.79 for a Retail Worker Level 1 as set out in the General Retail Industry Award 2010.
309 Whilst the consensus of medical opinion is that the plaintiff is no longer able to work as a plumber, the real issue in dispute in this case is the plaintiff’s capacity for suitable employment and the hours he could work in such employment.
310 The plaintiff is still a relatively young man, now aged only forty one. He tried a return to work with Aulds in quite a physical job prior to surgery, with which he had increasing difficulty. Since the surgery, he has been able to do some tractor work helping out on local properties. A dozen or so times he has worked half days for Mr Kelly assisting in removing rubbish from worksites and purchasing materials for Mr Kelly’s renovation business – work for which he has received no wages but has been paid in beer.
311 The activities set out on film show the plaintiff has a capacity to drive a tractor, work standing on the side of a vehicle, lift, bend and unload items from the boot of a work vehicle, squat and perform other physical activities.
312 I accept however that the plaintiff would not be able to perform work of this physical nature on a full time basis five days a week. As Counsel for the defendant correctly conceded, the plaintiff does not have the capacity to work as a bus driver or a truck driver, as initially suggested by Mr Brazenor. He would also have trouble getting in and out of vehicles, as would be necessary in an automotive sales job.
313 In my view, a suitable job for the plaintiff would be working as a salesman in the plaintiff’s chosen field of plumbing – the type of job the plaintiff applied for at Reece in early 2010. It is work in the field with which the plaintiff is familiar and enjoys.
314 Whilst the plaintiff is not particularly computer savvy at the moment, he agreed that in the future he was sure he could be taught computers. He also agreed he could reach up to get stock and that he was able to bend and lift if not on a heavy and repetitive basis.
315 Given the plaintiff’s own evidence as to his capacity and his readiness to work at Reece, I consider that he has the capacity to do sales/sedentary type work, lighter work than the tasks which the plaintiff was shown performing on film.
316 The issue then is the hours the plaintiff would be capable of working.
317 Medical opinion differs in this regard. Both Dr Horsley and Professor Bittar suggested the plaintiff could work twenty hours per week, with neither commenting on the suitability of a sales job or suggesting the plaintiff needed to work alternate days. Dr Thomas thought twenty four hours was appropriate, not specifically addressing a sales job or suggesting working alternate days.
318 Mr Dohrmann simply stated the plaintiff was fit for work of a light physical nature, not addressing any particular type of job nor imposing any restriction on the hours worked.
319 Mr Dooley supported a graduated return to full time duties from working three full alternate days, and Mr Nye thought the plaintiff had a present capacity for full time duties of a light physical nature.
320 Taking into account the plaintiff’s age, his intention and motivation to return to work, the work related activities he has performed since surgery and the duties involved as a sales assistant, I am not satisfied that, on a permanent basis, he would not have an ability to earn more than $382 per week.
321 In my view, whilst the plaintiff may have the capacity to work twenty four hours a week at present, I am not satisfied that this is the extent of his capacity into the foreseeable future.
322 As was submitted by Counsel for the defendant, even working twenty hours per week in the sales assistant (hardware) position ($21.05 per hour), the plaintiff was capable of earning of $421 gross per week. Working twenty four hours per week, the plaintiff would earn $505.20.
323 Whilst the hourly wage rate of $15.79 relied upon by the plaintiff results in him suffering the requisite loss if working these hours (20 hours - $315.80 and 24 hours - $378.96), I am not satisfied that this is the extent of the plaintiff’s work capacity on a permanent basis.
324 Taking into account all the evidence, I am not satisfied that the plaintiff has a loss of earning capacity of forty per cent on a permanent basis.
325 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering and dismiss his claim in relation to loss of earning capacity.
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