Bolch v Poultran Pty Ltd and VWA
[2012] VCC 44
•7 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05682
| TREVOR ALLAN BOLCH | Plaintiff |
| v | |
| POULTRAN PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 January 2012 | |
DATE OF JUDGMENT: | 7 February 2012 | |
CASE MAY BE CITED AS: | Bolch v Poultran Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 44 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – injury to the lumbar spine – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, ss.134AB(16)(b), 134AB(37) and (38)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Keogh SC with Mr J J Fitzpatrick | Arnold Thomas & Becker |
| For the Defendants | Mr B R McKenzie | Herbert Geer |
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 in the course of his employment with the first defendant in or about October 2008.
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 application is the lumbar spine.
5 The plaintiff relied upon one affidavit and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
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 in the sense that it is likely to continue into the foreseeable future;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) of the Act 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 “more than significant” or “marked” and as being “at least very considerable”;
(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 paragraph (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 Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is presently aged thirty four, having been born in April 1977. He is married with four children, the oldest of whom is fifteen.
7 The plaintiff left school before completing Year 10 and his literacy skills are not strong. In 1983, he commenced an apprenticeship as a cabinet maker, with Alpine Furniture (“Alpine”), where he qualified and continued working until about 2004.
8 In about January 2005, the plaintiff commenced employment with the first defendant at premises near Pakenham. The plaintiff then resided in Emerald.
9 The first defendant’s business involved transporting chickens between farms. Principally, the plaintiff’s job involved transporting chickens, which were at about the point of lay, to farms where they would be farmed for their eggs. The plaintiff drove a truck, but he also had to do a lot of heavy work, loading and unloading the truck and loading and unloading chickens.
10 The plaintiff was paid a net weekly wage of about $960 and it was not uncommon for him to work twelve to sixteen hours in a day.
11 The work was always extremely heavy. The plaintiff and fellow workers were supposed to put twelve birds in each cage to transport them; thus a full cage weighed about twenty four kilograms. A big cage, holding one hundred and twenty chickens, weighed about five hundred kilograms or more. The plaintiff was required to stack crates of chickens on the back of the truck, between seven and nine high. In doing so, he had to stand on two crates on tip toes and throw a crate on top of the existing pile.
12 In cross-examination, the plaintiff confirmed that he injured himself as a result of repetitive bending and lifting whilst he was engaged in catching and caging chickens as he described to the Ayres interviewer. The plaintiff also said that he injured himself whilst lifting plastic crates full of chickens onto the truck.
13 Prior to the said date, the plaintiff had not injured his back or had any back problems.
14 The plaintiff is not certain of the date of the injury, but believes it to be 28 October 2008 (“the said date”).
15 On the said date, the plaintiff was loading crates onto the back of the truck, standing on two other crates. As he was doing so, throwing a loaded crate on top of a stack of seven crates so as to make an eighth level, he felt an intense lightning bolt feeling shoot down his left leg. Soon after, he experienced aching in his low back but continued to work (“the incident”).
16 On the said date, the plaintiff was picking up 10,500 chickens, which probably weighed about 1.5 kilograms each. The pace of loading and unloading the truck was always frenetic.
17 When driving back to work, the plaintiff experienced a lightning bolt shock sensation down his left leg. When he arrived at the delivery farm, he proceeded to assist to unload the chickens. He reported the injury to a fellow worker, who was the owner of the first defendant company.
18 Following the incident, the plaintiff continued to work as long as he could, but he could not continue because of left leg and low back pain. He thought he continued to work for almost a month, with the odd day off.
19 The plaintiff initially had treatment from Mark Quittner, physiotherapist, who continues to treat him. The plaintiff also attended Dr Stephens at the Healesville Medical Centre. He now sees Dr Hanna, who was originally at that clinic, and has moved to Glen Waverley.
20 In December 2008, the plaintiff underwent an MRI scan, after which he saw Mr Timms, neurosurgeon, on referral from his general practitioner.
21 On 30 September 2009, Mr Timms performed a left sided L4-5 microdiscectomy, rhizolysis and fat graft (“the surgery”).
22 Before the surgery, the plaintiff had quite severe low back pain, a lot of left leg pain and he could hardly walk. He had pain, particularly when on the toilet during bowel motions.
23 After the surgery, when the plaintiff got out of bed, he was still experiencing some electric shock type pain in the left leg, as well as the low back.
24 In July 2009, the plaintiff underwent a second MRI scan of his lumbar spine, following which Mr Timms diagnosed a recurrence of the L4-5 disc prolapse, and recommended further surgery in the form of a re-do lumbar discectomy.
25 The plaintiff’s general practitioner referred him to Mr Bittar, neurosurgeon, for a second opinion. Mr Bittar advised the plaintiff he should not have the further surgery but suggested a cortisone injection be tried.
26 After receiving Mr Bittar’s advice, Mr Timms agreed the plaintiff should not undergo the further surgery, but he should have the injections which WorkCover later agreed to fund.
Medication
27 Until July 2010, the plaintiff was taking up to eight Panadeine Forte a day. He then stopped taking them because they were making him constipated. He was then sometimes taking over the counter painkillers for a headache, but that medication did nothing for his back pain.
28 Of more recent times, the plaintiff has recommenced taking Panadeine Forte, taking two at lunchtime and two before he goes to bed.
29 In July 2010, the plaintiff deposed he was having fairly severe low back pain, sixty per cent of the time. Just being on his feet caused increased low back pain and generally brought on left leg pain. About forty per cent of the time, he had lesser low back pain, which was like an aching discomfort.
30 For a lot of time, the plaintiff had pain in the left leg like an electric shock type pain. On those occasions, the pain was confined pretty much to his left buttock and the back of his left thigh and calf. Initially, when he experienced the symptoms, he had electric shock type symptoms right down to the ankle. If he did not have the electric shock type pain, he was sometimes left with a burning feeling in the same parts of his buttock, thigh and calf.
31 The plaintiff often lay on the floor for anything up to about thirty minutes, during which time the strong low back pain would generally ease off and, more often than not, the leg pain would also ease off or go away.
32 The plaintiff did exercises at home, between five and ten times a day, a set of which took about fifteen minutes. One exercise involved hanging from a bar. That activity could often relieve his low back and left leg pain for a period of time.
33 Around the home, the plaintiff still mowed the lawn, but he just did as much work as he could manage at a time. The plaintiff could not use the chain saw to cut up wood and he could not split the wood at home
34 Because of his back injury, the plaintiff could not play football with his sons as he would like and could not kick a football with them or teach them how to kick.
35 The plaintiff could not run. Before suffering injury, he ran about two kilometres at a time to keep fit. He now had to avoid bending, twisting and lifting as much as possible.
36 Because of the injury, the plaintiff had given up trail bike riding and riding a pushbike. He had also given up playing golf, which, before the incident, he enjoyed and tried to play as much as possible.
37 Because of his injury, the plaintiff had not gone fishing or shooting, nor had he taken the children to watch football matches. He watched his boys train and play football but he could not participate, as he would like, and could not get involved in coaching them.
38 Because of his back injury, the plaintiff has not been able to work since about November 2008 and he has suffered financial loss. He cannot do any work at present.
39 The plaintiff’s claim for weekly payments and medical expenses was accepted and surgery was paid for by WorkCover. A claim was also accepted pursuant to s.98C in respect of lump sum compensation.
40 In cross-examination, the plaintiff agreed his payments were terminated in May 2011 and he is now in receipt of Newstart benefits.
41 In examination-in-chief, the plaintiff confirmed he continues to see Dr Hanna once a month and prescribes Panadeine Forte and an antidepressant. He takes Panadeine Forte twice at night and twice at lunchtime.
42 The plaintiff continues to see Mr Quittner every fortnight, depending on the circumstances. The plaintiff still performs exercises as described in his affidavit, to build up his muscles, and exercising also relieves some of his pain at times.
43 Every morning, as directed by Mr Quittner, the plaintiff lies on a flat surface for thirty minutes at a time. It is a weightless exercise and it keeps his spine “in a straight pattern where it should be”.
44 The plaintiff has received two cortisone injections in his low back, which initially gave him some relief for about a week or a fortnight. The relief was partial and then the pain gradually increased.
45 As at the date of hearing, the plaintiff could not see himself as having a capacity for work. In cross-examination, he agreed he had considered getting back to doing some sort of cabinetmaking work. He had thought about doing such work at home because he could work alone and keep his mind active. He had no idea whether he would be able to get back to this work but he wanted to, because he was “going insane” at home everyday doing nothing and thinking about his limitations. He thought perhaps, down the track, if there was something he could do from home, it might be worth looking into. Such work would definitely never be full time. If anything, it would be part time not working many hours per week.
46 The plaintiff agreed he was thinking about cabinetmaking as discussed with Mr Elder in May 2010. In February 2011, he told Mr Kudelka he was thinking about repairing furniture or undertaking similar work, like making clocks out of timber, on a part time basis. He expressed similar intentions when interviewed by Ayres Management in February 2011 and when he saw Mr Hooper in December 2011.
47 The plaintiff has not registered with any job agency or applied for any job since the said date. He has not investigated any literacy courses. The plaintiff agreed that his literacy skills were sufficient for him to complete his apprenticeship.
48 The plaintiff cannot send or receive emails but he basically can just go on the internet. The plaintiff has not looked for work online or in any newspaper.
49 The plaintiff confirmed that after he completed his apprenticeship, he worked for the next eleven years in the factory. He used to do a little bit of work from home but not a great deal and he was more caught up with factory work during that time.
50 The plaintiff has not taken any steps to investigate cabinetmaking work, or obtain that sort of work, or advertise for it. He has some of the tools and, depending on the job involved, he may have to purchase other machinery. The plaintiff thought he might be able to do that work for “petrol money” and would not earn more than about $100 per week. He would charge by the job rather than work at an hourly rate.
51 The plaintiff has discussed this issue with Dr Hanna over time but Dr Hanna has not at this point encouraged him to start work and has suggested he hang off on that for a while. The plaintiff disagreed he was holding off until his case was over. He explained he was holding off because of the situation he is in with pain, and financially he did not have any money to be able to get things going.
52 The plaintiff agreed, when he saw Ayres Management, the jobs of caretaker, product assembly and picture framer were discussed with him. He understood what each of those jobs involved. The plaintiff agreed he seemed to have had an interest in doing those jobs, at least on a part time basis to see how he went.
53 The plaintiff explained that he was prepared to try the suggested jobs on a part time basis because it primarily came back to income and “[they] did not have much coming in” so he thought whatever he could do, he was going to try. However, all the jobs that were suggested were “declined” by his treating surgeon, general practitioner and physiotherapist.
54 The plaintiff spoke to all of these treaters and believed they had sent off letters advising that jobs suggested, such as working in a retirement home, were not suitable for the plaintiff.
55 The plaintiff thought picture framing was not suitable as even if he had to stand for only short periods, there was still bending involved.
56 The plaintiff would not be able to do the lifting of furniture required in working as a product assembler. He would also have problems with lifting if working at home.
57 The plaintiff has not tried any work, nor is he looking for work at this stage. The plaintiff explained that, to be honest, it could be years down the track before he would look. Until he is happy enough with where his body is at, and he is confident enough to be able to do things without possibly making it a lot worse, he really could not elaborate.
58 The plaintiff agreed he had had a long discussion with Dr Horsley about his work situation. The plaintiff had not done anything about obtaining a vocational assessment through CRS as Dr Horsley had suggested. He had not done any about upskilling or increasing his skills. In terms of pain management, he had worked with a physiotherapist and that was about as far as he had gone.
59 The plaintiff agreed Dr Horsley told him about the importance of remaining active and getting a greater understanding of his back condition and that his wife be involved in encouraging him to do more at home.
60 Essentially, the plaintiff agreed that he was still doing the same level of activity as deposed to in July 2010 and it was fair to say he had not done anything to increase his level of activity on the home front.
61 The plaintiff had not done anything to get back to part time work for fifteen to twenty hours as Dr Horsley suggested.
62 The plaintiff disagreed that he had the skills set out in the job description for a sales clerk. He did not believe he could do some training in computers. He could perhaps be trained to learn a bit more programming but he did not think he would go well sitting at a computer for long periods of time.
63 The plaintiff agreed that he had not mentioned problems with sitting in his affidavit but he had told Dr Hanna sitting was a problem. The plaintiff confirmed the situation deposed to; namely, that he avoided bending, lifting and twisting as much as possible, and that he had problems standing.
64 The plaintiff agreed he had been sitting in the witness box for about forty minutes without moving around but “no one could feel the pain that [he] felt at that moment” and he had not felt the need to stand up at that time. He completely disagreed that that was the case, because he did not have a particular problem sitting for any period of time, explaining that he had to stop driving after twenty five minutes and lie on the back seat of the car whilst his wife drove.
65 The plaintiff had never thought of applying for a customer service-type job with his former employer Alpine, a business which the plaintiff thought had now closed.
66 The plaintiff did not think he could work as a CNC programmer as suggested by CoWork. He had never used that sort of equipment and he would not be able to do that job with training. The job involved using a computerised machine like a computer design cutter. By law, you had to stand to operate it and concentrate on the machine’s operation, watching it the whole time.
67 The plaintiff did not think he would be able to work in a security monitoring room, even in circumstances where he would not have to bend or lift and could move if he wanted to or needed to. He did not believe he could do so because all his life he had been a hands-on person. He had thought about working at Bunnings as a salesman but he wanted to stay in work that he enjoyed and that was hands on work.
68 The plaintiff has not been back to see Mr Timms in recent times. In September 2011, the plaintiff discussed with Dr Hanna redoing the surgery, but having spoken to other people, the plaintiff had gone strongly against the idea and advised Dr Hanna to that effect.
69 The pinching sensation experienced on the left side is also coming into the plaintiff’s right buttock and he is waiting to hear from Mr Timms regarding another CT-guided injection on the right side.
70 The plaintiff confirmed that his medication regime had been the same for the last few months and agreed that Dr Hanna would have started prescribing Panadeine Forte again in about October 2010.
71 The plaintiff agreed he could drive an automatic car with power steering and that there was public transport from Healesville, which was about four kilometres from where he lived, to the city.
72 In terms of sporting activities, the plaintiff was playing golf on a very occasional basis prior to the incident, probably “having a hit” once a month. It had been well over five years since he had last played golf. He had not ridden a pushbike in the last five years and it was at least that long since he had ridden a trail bike.
73 Before the incident, the plaintiff went fishing pretty much every weekend or second weekend, both locally and interstate. He did a little spot of fishing two months ago near his home.
74 About twelve months prior to the incident, the plaintiff had stopped pig shooting and he has not tried shooting since.
75 On a typical morning, the plaintiff gets his boys ready for school and gives them breakfast. He then tries to do some very light jobs around the house. He potters around in the garden doing a little bit of weeding or raking, at best for half an hour, before the pain and pinching sensation comes on.
76 After making his children’s beds, the plaintiff wanders around outside because he has a number of animals and he tries to keep himself occupied.
77 The plaintiff denied having operated a back hoe since he was injured and said the photograph of him doing so was when landscaping was being done on his behalf and the plaintiff was merely sitting on the bob cat with his son.
78 The plaintiff disagreed, as a general proposition, when he is out and about he moves pretty well. He can drive. He does not do the shopping on his own, rather, his wife does all the shopping. He might go and help her but she does all the lifting. He can bend but it is very limited.
79 There were five DVDs of surveillance shown to the plaintiff.
80 The plaintiff was shown for about two minutes on 15 December 2010 engaged in minimal activity.
81 The second DVD was three minutes of surveillance of the plaintiff on 6 and 10 April 2011. The plaintiff attended a medical examination on the first date. He was seen bending into his vehicle and he later he parked it. His wife drove to the appointment and he drove home, a trip of about an hour.
82 The plaintiff disagreed that he was shown moving freely. He explained that getting into the car, there was still massive pain once he sat down and his back just pinched straight away and did so for the rest of the trip home. The plaintiff was shown briefly standing in his front yard on 10 April 2011.
83 The third DVD was surveillance of 28 September 2011. The plaintiff was shown walking up the ramp outside the Healesville Hospital. He agreed he seemed to move in a normal manner, as was the case when he walked out of that address. The plaintiff explained that most of the time he walked normally after treatment.
84 The plaintiff agreed he was shown in the front yard scooping up dog droppings, a task which was not a problem at all. He does not walk the dogs. They are walked by his son.
85 The fourth DVD of about five minutes’ duration was taken on 4 and 5 November 2011. The plaintiff was shown bending to pat his dog and on another occasion bending to pick up a basketball, without any particular problem.
86 Sixteen minutes of film was taken on 2 and 3 January 2012.
87 On the first date, the plaintiff was shown in his carport, bending into the back of his car. It was difficult to see the plaintiff’s movements. He denied he was bending from the waist, saying he bent from his knees.
88 On 3 January 2012, the plaintiff was shown at the Eastland Shopping Centre. For some time he was seated in the food court. The plaintiff agreed he had his left foot up on a nearby chair and explained that he did so as his left leg was causing him difficulty because he had been walking around and his sciatica was hurting that much.
89 The plaintiff agreed he was later shown bending from the waist and closing the boot of his car with his right arm. He was then shown walking from Clark Rubber, carrying a 2.4 kilogram pump on his right shoulder.
90 In re-examination, the plaintiff confirmed at worst his pain is extreme, affecting him from the middle of his back to his left buttock, all the way down to his ankle. He has that pain every day but it varies. Most of the time, the pain is really bad in the morning. At that time, the plaintiff is not very active at all and he is quite limited in what he can do. In such circumstances he would find it extremely difficult to get out of the house and go to work.
91 If he is sitting in the same position for half an hour or so, the plaintiff gets excruciating pain. If he is driving, he has to get out of the car and have a stretch, or, if his wife is with him, he gets her to drive.
92 The plaintiff would have difficulty driving for forty minutes or so to a potential job as he had a problem with his neck twisting to look in blind spots and he also had a problem sitting for longer than thirty minutes.
93 The plaintiff has attempted to travel by public transport but on the one occasion he went on the train, the movement of the train jarred his back and he could barely step off the platform as the sciatica was pinching so much.
94 The plaintiff agreed that his level of pain was affected by activity. When he increased his level of activity, most of the time he had to go straight back inside and literally lie down on his bed because the pain is unbearable.
95 The plaintiff tries to restrict his intake of Panadeine Forte because it blocks him up, but sometimes he did not have any choice and he struggled with pretty much anything he did. Because of the level of pain, the plaintiff found it difficult to concentrate on any specific thing and “it all just went out the door”.
96 When asked about the suggested job as a caretaker, the plaintiff said that the housework he did was not very onerous. He had some problems and he was not always able to do the sweeping because of his sciatica. The plaintiff then said he just did not know whether he could do the caretaker job.
97 When I asked the plaintiff about a suggested job at a caravan park, which was basically sitting on a ride-on mower and cleaning up, the plaintiff said that job would not be any good for him at all.
98 The plaintiff could not cope with working a factory and cabinetmaking because most of the time it was mass production so he could not have a rest or sit down. Also, once a unit was completed, there was lifting and stacking required and there was no possible way he could do that.
99 The plaintiff thought he would not be able to do picture framing in a factory. He would have trouble lifting heavy glass and frames.
100 The plaintiff could not do a sales clerk job because it would involve moving and lifting stock – “If you did not have your complete strength, it would be very dangerous”. Further, he had no familiarity whatsoever with invoicing and banking.
101 The plaintiff would be unable to work on a CNC machine because the operator was required to fill the machine with cut product and scraps and then remove them from the machine. Further, the operator would have to replace any damaged cutters and maintain the machine generally.
102 The plaintiff confirmed he would not be able to do security work which involved sitting for long periods. Depending on how long and how far he had to work, he might be okay, but he has trouble walking around a couple of aisles at Coles.
103 The plaintiff explained that “there are a hundred things [he] wanted to do but it is not possible”. He did not believe he could work a five day week and be able to turn up for work every day, because the pain restricted him. He seriously had trouble trying to overcome his pain and that was what was restricting doing pretty much everything he wanted to do.
Summary of the Plaintiff’s Taxation Returns
Financial Year Ending
30 June
Gross Income from
Personal Exertion
1997/1998 $19,438 1998/1999 $24,966 1999/2000 $30,956 2000/2001 $30,638 2001/2002 $29,775 2002/2003 $29,253 2003/2004 $30,046 2004/2005 $44,783 2005/2006 $53,623 2006/2007 $59,071 2007/2008 $58,708 2008/2009 $56,052
The Plaintiff’s Medical Evidence
104 The plaintiff initially attended Dr Hanna on 29 November 2008. The plaintiff gave a history of heavy lifting over a period of time and a bulging L4-5 disc was diagnosed with sciatic pain. Dr Hanna noted at that early stage the plaintiff changed career and he was referred to a neurosurgeon and WorkCover certificates were given.
105 Dr Hanna noted Mr Timms performed a left-sided L4-5 microdiscectomy rhizolysis with fat graft on 30 March 2009 with the pre-operative diagnosis of left-sided L4-5 disc prolapse.
106 Dr Hanna reported in November 2009 that the plaintiff had a recurrent lumbar disc prolapse at L4-5 after microdiscectomy surgery. He noted the plaintiff developed low back pain and sciatica in October 2008 as a result of his work and the repetitive bending and lifting when transporting chickens.
107 At that stage, Dr Hanna thought the plaintiff was not physically fit to work before the surgery and noted recurrent symptoms thereafter with the confirmation of recurrent L4-5 disc bulge on MRI. Dr Hanna noted the plaintiff was advised by his surgeon that he would need to redo the surgery and the plaintiff was currently seeking a second opinion.
108 Dr Hanna then thought the plaintiff’s condition had not stabilised and that there was some risk he may suffer from low back pain and disc problems after the second surgery.
109 Mr Quittner, physiotherapist, reported in May 2011. He has been treating the plaintiff for his lumbar spine injury since 14 November 2008.
110 Mr Quittner explained that he had advised the plaintiff to self traction and that was why the plaintiff was hanging from an overhead beam when recently filmed. He thought the plaintiff should continue home exercises instructed by him.
111 In a questionnaire completed at Mr Quittner’s request in April 2011, the plaintiff noted he avoided sitting because it increased his pain straight away.
112 Mr Timms saw the plaintiff on 15 December 2008. The plaintiff then gave a history of a sudden onset of low back pain when bending and lifting at work in October 2008.
113 Mr Timms noted as a result of his work, the plaintiff had low back pain and sciatica on the left hand side from a disc prolapse at L4-5.
114 An initial CT-guided steroid injection only relieved the plaintiff’s symptoms for a few days and Mr Timms then decided to operate in March 2009.
115 Despite initial improvement, in June 2009, the plaintiff experienced some sciatic symptoms which were worsening and a further MRI scan was organised.
116 That MRI scan suggested there was a recurrence of the disc prolapse impressing the nerve root and Mr Timms discussed with the plaintiff doing a redo lumbar microdiscectomy.
117 Mr Timms diagnosed an injury of an acute disc prolapse at the level of L4-5 in the lumbar spine, more on the left, resulting in low back pain and left leg sciatica as a result of the incident.
118 When Mr Timms last reviewed the plaintiff in August 2009 he thought the plaintiff was suffering a recurrence and he was unfit for any work. In terms of the future, Mr Timms thought a long-term prognosis could not be accurately provided as the plaintiff required further treatment.
119 Mr Bittar, neurosurgeon, saw the plaintiff in November 2009 and March 2010. He diagnosed a recurrent left L4-5 intervertebral disc prolapse. He thought at that stage the long term prognosis was unclear.
120 Mr Bittar noted the plaintiff was reviewed in a busy public hospital and a detailed history was not taken in relation to the circumstances of the incident.
121 Mr Bittar thought there was a significant chance the plaintiff would require further surgery and there was a high chance he would continue to suffer from significant pain and disability in the foreseeable future. He thought there was a significant chance of further deterioration.
Investigations
122 Mr Timms organised an MRI of the plaintiff’s lumbar spine in December 2008. It was reported there was mild left paracentral disc protrusion at L4-5 causing mild compression and displacement of the left L5 nerve root in the left subarticular recess.
123 Mr Timms organised an MRI scan of the plaintiff’s lumbar spine on 30 July 2009. It was reported there was recurrent left paracentral disc protrusion at L4-5 with subarticular recess stenosis and displacement of the descending L5 nerve root.
Medico-Legal Examinations
124 Mr Pease, orthopaedic surgeon, examined the plaintiff in February 2011.
125 Mr Pease noted the plaintiff had decided to continue with further conservative treatment and not undergo surgery. There had been some improvement although the symptoms recurred after a steroid injection and the second injection was not particularly helpful.
126 The plaintiff told Mr Pease he was not able to enjoy his usual sports and that he could not sit for any period.
127 On examination, there was quite marked paraspinal tenderness with reflex muscle spasm and increased tone on palpation of the spine. There was 1.5 centimetres of wasting at the left mid calf compared to the right. There was no sensory deficit. In the standing position, the plaintiff had a restricted range of voluntary forward flexion.
128 In Mr Pease’s view, the plaintiff suffered a lumbar injury at work and his symptoms were consistent with disc prolapse demonstrated on MRI. He thought there appeared to be a direct relationship between the plaintiff’s work and his injury. Whilst the plaintiff continued to complain of severe sciatica, he did not believe the plaintiff was capable of returning to work, nor did he consider it likely he would be offered employment. He thought the plaintiff’s prognosis was guarded, and to all intents and purposes it had stabilised and further deterioration was not likely.
129 The plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, in May 2011.
130 The plaintiff told Mr Miller he had previously regarded himself as an outdoor person and had not been able to resume a number of activities because of his injury.
131 On examination, there was diffuse lumbar tenderness and mild lower lumbar muscle spasm. There was restricted movement of the lumbar spine and slight weakness of ankle dorsiflexion. Neurological examination was otherwise unremarkable.
132 Mr Miller thought the plaintiff had suffered an L4-5 disc injury and it was possible further surgery was indicated, as Professor Bittar stated.
133 Mr Miller thought the prognosis for the lumbar spine was fair to poor and that the plaintiff’s adverse mental state reaction required separate assessment.
134 Mr Miller thought the plaintiff’s conservative treatment was appropriate and would need to continue indefinitely, and he may require further surgery.
135 Mr Miller thought the plaintiff was not fit for pre injury duties. He noted the plaintiff had limited education and work experience in non physical areas. He would not be able to return to work that involved repetitive bending and lifting of weights of more than five kilograms and he would have a requirement to shift his posture on a regular basis. He could not perform prolonged driving and a return to work would be problematic due to the work related injury.
136 Mr Miller thought the plaintiff would be left with a significant long term impairment and that his injuries had substantially stabilised.
137 Mr David Brownbill, neurosurgeon, examined the plaintiff on 6 July 2011.
138 On examination, active thoracolumbar spinal movements were three quarters of full in flexion. There was slight general lumbar tenderness and palpable guarding to the upper left of the lumbar spine. The right thigh measured 41 centimetres and the left 40 centimetres. The right lower thigh measured 33 centimetres and the left 32 centimetres. There was no neurological abnormality.
139 Mr Brownbill had available to him the reports of Mr Pease, Mr Miller and also the NES vocational assessment of 18 February 2011.
140 Mr Brownbill considered, on probability, the plaintiff sustained a derangement of the L4-5 intervertebral disc in the incident which acted as a basis for a disc prolapse.
141 Mr Brownbill thought, in future, the plaintiff would need to avoid activities involving heavy lifting, full spinal mobility, repeated bending or prolonged sitting or standing, and he would not be able to return to his described pre injury employment.
142 Noting the plaintiff’s education was limited to Year 9 and his work had always been of a heavy physical nature, the demonstrated intervertebral disc derangement and the plaintiff’s described ongoing activity related left leg pain, Mr Brownbill considered, on probability, the plaintiff would have difficulty performing any work for which he was suited in an ongoing or regular basis.
143 He thought the plaintiff’s condition had stabilised.
144 Mr Brownbill thought the “caretaker, assembly wood products job” would not be appropriate for the plaintiff as, on probability, it would not conform to the activity restrictions he had referred to. He thought the picture framer job appeared to conform and therefore may be suitable.
145 Mr Brownbill considered any attempt to return to work should be in a graded fashion under medical supervision and the number of hours the plaintiff could work would be determined by his response to that activity. However, noting the plaintiff’s description of intermittent sudden radiating left leg pain, Mr Brownbill considered it likely he would not be able to continue that job in an ongoing or reliable fashion.
146 Mr Kevin King, orthopaedic surgeon, examined the plaintiff in September 2011.
147 On examination, there was marked limitation of thoracolumbar spinal movements by pain and spasm with a spasmodic scoliosis concave to the right on forward flexion – half the normal range of all movements were present. There was no neurological abnormality.
148 Mr King had available all the investigations.
149 Mr King noted, even at this late stage, it would probably be in the plaintiff’s interest to have the L4-5 level re-explored, although he thought the results of a repeat discectomy do not tend to be satisfactory.
150 Mr King thought, in his present state, the plaintiff continued to be severely disabled and was unfit to return to any of his old jobs, either as a cabinet maker, truck driver or collector of chickens, and in that respect, the plaintiff had been left with a major long term impairment of his capacity to work for the foreseeable future.
151 Mr King could find no evidence of any sort of psychological overlay, noting the plaintiff’s significant physical impairment in the form of low back pain and left sciatica seemed to be the direct result of organic injury. He considered the plaintiff’s condition had stabilised and he thought the plaintiff’s prognosis was poor.
152 Dr Horsley, occupational physician, examined the plaintiff in January 2012.
153 Dr Horsley noted the plaintiff’s functional tolerances, despite his exercise program, remained reduced. His sitting tolerance was thirty minutes and dynamic standing tolerance was about ten minutes.
154 On examination, there was mild tenderness on palpation and no paraspinal muscle spasm. There was mild loss of lumbar lordosis.
155 The thigh circumference on the left was 38.5 centimetres and, on the right, 40 centimetres. The left calf was 31.5 centimetres and the right 32 centimetres.
156 Dr Horsley noted the investigations, the operative report and Dr Weissman’s psychiatric report.
157 In Dr Horsley’s view, the plaintiff sustained a significant injury to the lumbar spine resulting in an L4-5 disc lesion with radicular pain down the left leg. She thought that, post-operatively, there had been a recurrence of the prolapse and the plaintiff had persistent radicular pain in the left leg and ongoing mechanical back pain. She thought he had also developed an Adjustment Disorder with depressed and anxious Mood, diagnosed by psychiatrists.
158 Given the duration of the plaintiff’s symptoms, Dr Horsley thought they were likely to persist. Before surgery, she thought the plaintiff should be involved in a pain management program and he needed a program plan for a graduated return to his activities of daily living and also a realistic vocational assessment.
159 Dr Horsley considered the plaintiff was unlikely to be able to return to his previous role as a cabinet maker and was unlikely to return to driving or labouring. She noted the critical physical demands of both of those roles were likely to be beyond his capacity on a full-time basis and a much more comprehensive and integrated response to the plaintiff’s vocational rehabilitation was required.
160 The following work restrictions, in her view, should apply; namely avoidance of repetitive over reaching, repetitive pushing and pulling, truncal rotation and repetitive bending and lifting. She thought the plaintiff should adopt good manual handling techniques and avoid lifting greater than ten to twelve kilograms, except on an occasional basis, and avoid lifting up to eight to ten on a repetitive basis.
161 In her view, the plaintiff was unfit for his pre injury duties on a permanent basis.
162 Dr Horsley considered at thirty four years of age, the plaintiff needed to return to the workforce. The goal at this juncture would be a part time basis working in the vicinity of fifteen to twenty hours per week. Without significant assistance, she thought the plaintiff’s prognosis for return to work was guarded to poor and, with assistance, his prognosis for a return to work was still guarded. She thought the plaintiff would have great difficulty returning to work now because of his poor functional capacity.
Vocational Evidence
163 Mr Paul Stanley, occupational therapist, prepared a vocational assessment of the plaintiff for Evidex in January 2012 following an interview on that date.
164 Mr Stanley concluded, leaving aside the psychological consequences of the plaintiff’s low back injury, no recognised occupation in the open labour market for which the plaintiff was likely to qualify represented suitable employment, and that situation would continue for the foreseeable future.
165 Mr Stanley thought work as a cabinet maker job was unsuitable because of moderate to heavy lifting; carrying; pushing and pulling to transport materials and place them on an assembly table and frequent bending to do drilling and install runners, locks and catches. Further he considered that prolonged standing to prepare items of furniture would be too difficult for the plaintiff.
166 Working as a product assembler would require carrying of some material and also stacking, which would be beyond the plaintiff’s functional capacity, as would prolonged standing at a work bench and the need to bend.
167 A sales job would require prolonged standing and physical demonstrations to customers and would likely require moderate to heavy lifting, carrying, pushing and pulling of stock.
168 Mr Stanley thought the plaintiff did not have the capacity for caretaking work, nor did he have the functional capacity or transferable skills for clerical and administrative occupations.
169 Picture framing would be unsuitable as it involved prolonged standing, frequent bending and moderate to heavy lifting.
The Defendants’ Medical Evidence
170 Dr Hanna reported to QBE in January 2011, confirming the diagnosis of recurrent L4-5 disc bulge and reactive depression.
171 Dr Hanna advised that the plaintiff would ultimately have a capacity for suitable employment and currently he was not suitable for employment. He also thought, once depression was under control with established counselling, the plaintiff should be able to pursue suitable employment. He thought the plaintiff was unlikely to have developed a capacity for pre injury duties and that recurrent disc bulges and sciatica would certainly worsen if he resumed driving.
172 In Dr Hanna’s view, suitable employment was that involving no lifting of more than three kilograms, no repetitive bending, no long standing and rest as required. He thought once the depression had settled, the plaintiff would have the capacity to participate in vocational training. In his view, the treatment plan was to continue specialist follow up physiotherapy, hydrotherapy, exercise program, analgesia, psychology and counselling. He considered surgery was the last resort.
The Defendants’ Medico-Legal Evidence
173 Mr Nye, neurosurgeon, initially examined the plaintiff in March 2010 and re-examined him in April 2011.
174 After the first examination, Mr Nye thought the proposed further surgery was reasonable.
175 Mr Nye considered the described work incident resulted in damage to the L4-5 disc with resulting disc protrusion and nerve root compression and the condition had not resolved.
176 On re-examination, there was no spasm of paravertebral musculature in the lumbar spine. There was some restriction of lumbar movement and the neurological assessment was normal.
177 Mr Nye agreed there had been a recurrence of the prolapse. He noted some temporary improvement of symptoms had resulted from spinal injections and that the plaintiff’s presentation suggested some preoccupation with symptoms. Mr Nye suspected an element of development of Chronic Pain Syndrome.
178 Mr Nye thought the short and long term prognosis did not appear favourable.
179 With respect to further treatment, Mr Nye expressed some reservation in regard to physiotherapeutic techniques and particularly traction and acupuncture. He thought the injury and resulting condition had affected the plaintiff’s employment capacity and that he did not have a capacity for pre injury employment duties. Mr Nye considered restrictions necessary in any employment situation included an absence of a need for repeated bending or twisting movements of the spine, prolonged unrelieved periods of either standing or sitting and a lifting of five kilograms.
180 Mr Nye considered the plaintiff had a permanent partial incapacity with consequences in regard to future employment.
181 Mr Nye was provided with the vocational report of 18 February 2011, which identified the positions of caretaker, assembler of wood products and also picture framer as suitable for the plaintiff. Mr Nye thought the first two positions would be appropriate provided recommended restrictions applied and an appropriate ergonomic situation was available for the job of assembler.
182 Mr Nye thought the position of picture framer would not be appropriate, as his understanding of the position was that prolonged standing would be required, with the need to bend and reach for the purposes of working on a bench and such would not be appropriate having regard to the plaintiff’s lumbar spine condition.
183 Dr Elder, consultant in occupational medicine, examined, the plaintiff in May 2010, at which time the plaintiff told him he was thinking of recommencing cabinet making.
184 On examination, there was decreased motion of the lumbosacral spine and there was tenderness at L4-5 on the left. There was significant erector spinae muscle spasm. There was decreased power in knee extension on the left, poor muscle definition, especially of the vastus medialus, and there was greater than two centimetres of wasting of the left thigh.
185 Dr Elder thought the plaintiff had degenerative disc disease at L4-5 with radiculopathy and that the impairment had stabilised.
186 Mr Kudelka, orthopaedic surgeon, examined the plaintiff in February 2011.
187 On examination, the left thigh was one centimetre less in circumference from the right and the left calf was two centimetres less than the right. There was some restriction of lumbosacral movement.
188 At that stage, Mr Kudelka thought the plaintiff would be able to undertake activities of daily living but was unlikely to return to any remunerative employment if simple analgesics and self managed exercises ceased. He would not recommend any further surgery but appreciated it had been suggested.
189 Mr Kudelka thought the symptoms from the traumatic injury to L4-5 would not resolve in the foreseeable future and the plaintiff could not return to work in his pre injury duties and hours.
190 Mr Kudelka believed the plaintiff had a reduced capacity for work. He noted this was based on the nature of the plaintiff’s incapacity, back pain and stiffness and some pain in the left leg. The plaintiff’s age, education, skills and work experience fortunately included some training as a cabinetmaker and the plaintiff thought he may look for work repairing furniture or similar on a part time basis to aid his finances, and Mr Kudelka thought that was a good idea. He noted the certificate from Dr Hanna dated 4 October 2010, who considered the plaintiff was unfit for any duties.
191 Mr Kudelka thought the plaintiff could not return to work as a truck driver at that time, even working modified hours. In his view, the plaintiff could return to work in alternate work doing some part time repair work utilising his cabinetmaker’s skills and he could commence this part time work now if it was available.
192 Mr Kudelka thought there was nothing but the plaintiff’s back injury preventing him working. He considered some limitation in the plaintiff’s work capacity would last indefinitely as full recovery from a spinal injury, including surgery, does not occur. He thought the plaintiff had a capacity for suitable employment, avoiding strains on his back, and utilising his knowledge as a cabinetmaker. He thought the plaintiff would recover at least some work capacity.
193 Mr Jonathon Hooper, orthopaedic surgeon, examined the plaintiff in December 2011.
194 On examination, there were no hard neurological signs present and there was some restriction of lumbar movement.
195 The plaintiff told Mr Hooper that constant sitting and walking caused him discomfort.
196 Mr Hooper thought the plaintiff would be capable of returning to light work, albeit with some difficulty, but it was unlikely he would be able to return to heavy work that involved bending and lifting. He thought it appeared the plaintiff may have sustained a further disc protrusion.
197 Mr Hooper considered it was most unlikely the plaintiff would return to heavy work, although he would be capable of doing light work if such a job could be found for him.
198 Mr Hooper thought the plaintiff had a fairly guarded prognosis.
199 Mr Hooper concluded the plaintiff would have great difficulty returning to heavy or repetitive work. He noted the plaintiff told him he was planning to return to lighter work as a cabinetmaker, but Mr Hooper thought the plaintiff would have a permanent incapacity which would prevent him doing heavy work.
200 Mr Hooper noted he had reviewed the vocational assessment and “its usual computer-generated material was presented about theoretical jobs that people such as the plaintiff can do,” but the difficulty, of course, he noted, was placing people such as the plaintiff in one of those jobs with a compliant employer.
201 Mr Hooper considered the plaintiff should continue with his self exercise program but he did not believe continued physiotherapy was likely to be of benefit to the plaintiff and if he decided not to go ahead and have the further surgery, Mr Hooper thought he should be reviewed by his local doctor.
202 Professor Ivor Jones, consultant psychiatrist, examined the plaintiff in February 2011.
203 Professor Jones concluded that the plaintiff showed some minor depressive symptoms and some increase in anxiety with supportive features on the borderline now, between those of an Adjustment Disorder and those of a normal response, but in the recent past, those clinical features had been more prominent. On balance, he thought the plaintiff had an Adjustment Disorder with anxiety and depression. He considered recent antidepressant medication was reasonable. He thought the plaintiff’s ability to work was precluded on physical grounds.
Surveillance
204 There was DVD footage of two minutes’ surveillance of the plaintiff on 15 December 2010, nearly five minutes on 4 and 5 May 2011, two minutes on 28 September 2011, three minutes on 6 October 2011 and sixteen minutes on 2 and 3 January 2012.
Claim Documents
205 The plaintiff submitted a Claim Form on 9 December 2008, setting out he was loading crates of chickens and stacking them eight high on the trailer when he suffered a lower back injury on 28 October 2008.
206 The Employer’s Injury Claim Report set out the plaintiff reported injury on 1 December 2008 and last worked that day.
207 On 5 November 2009, the plaintiff lodged a claim for impairment benefits in relation to injury to the back, scarring, gastric system due to heavy lifting from January 2005 to October 2008.
Vocational Evidence
208 In January 2009, Health Work provided an initial assessment report. That was followed by an NES vocational assessment report compiled by Don Ayres in February 2011. At that time, the self reported tolerances were sitting and standing of sixty minutes.
209 The jobs of caretaker, assembler - wood products, and picture framer were suggested as appropriate for the plaintiff. The caretaker job had an average weekly wage of $756; product assembler, $764; and picture framer, $642.
210 It was noted the plaintiff would like to return to work but felt self employment may be a better option but he agreed he could perform some part time work, provided it fitted his restrictions and tolerances and also subject to his doctor’s opinion.
211 CoWork Pty Ltd provided a vocation and labour market analysis report in November 2011.
212 It was noted the plaintiff had expressed his intention to return to part time furniture making and repair work from home.
213 The author of the CoWork report, Joanne Bryant, occupational therapist, did not endorse that employment option as physically suitable or financially viable for the plaintiff as he contemplated a return to the workforce. On the other hand, she considered the occupations of internal sales clerk, CNC programmer and control room monitor to be alternatives which were better suited to the plaintiff’s physical capacities, while offering him, at thirty four years of age, a career path with a potential to increase his earnings as his skill base increased. The weekly wages for those jobs were as follows:
Sales clerk - $897.18
CNC programmer - $1,100.00
Alarm security monitor - $989.00
Overview
214 There is no dispute that the plaintiff suffered a compensable injury to his lumbar spine in or about October 2008 as a result of the heavy nature of his duties with the first defendant.
215 The plaintiff’s claim for compensation was accepted and he received weekly payments until 2011. The decision to terminate payments is presently under review.
216 I accept that the plaintiff suffered an L4-5 prolapse which was treated surgically on 30 March 2009. The prolapse subsequently recurred, as was confirmed on MRI in July 2009, at which time there were also findings of subarticular recess stenosis and displacement of the descending L5 nerve root.
217 The plaintiff’s treating surgeon, Mr Timms, initially intended to redo the original surgery, but having received a second opinion from Mr Bittar, decided to treat the plaintiff conservatively.
218 In this case, there is no suggestion the plaintiff suffered from any back problems prior to the incident. Further, save for Mr Nye’s comment that the plaintiff’s presentation suggested some preoccupation with symptoms and he suspected an element of development of Chronic Pain Syndrome, no other medical practitioner considered there is any non organic component in the plaintiff’s presentation.
219 In any event, Mr Nye accepted there had been a recurrence of the prolapse.
Credit of the Plaintiff
220 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
221 I found the plaintiff to be a genuine, truthful witness who did not overstate his level of disability. He was not shown engaging in any activity in the surveillance DVDs which was inconsistent with his evidence as to his level of pain and restriction.
222 Further, there was no suggestion by any medical practitioner that the plaintiff was exaggerating his symptoms or was not co operating on examination.
Consequences
223 I am satisfied that since October 2008, the plaintiff has experienced constant back pain which varies from an aching discomfort to fairly severe pain most of the time. For a lot of time he also experiences pain in the left leg like an electric shock type pain, confined mainly to his left buttock and the back of his left thigh and calf.
224 These symptoms have persisted despite surgery, and the plaintiff continues to require painkilling medication on a regular basis.
225 The plaintiff is still a relatively young man. His work history has been one of manual labour, with training as a cabinet maker.
226 I am satisfied that as a result of his back condition, the plaintiff is no longer able to engage in unrestricted, heavy manual duties. The preponderance of medical opinion is that the plaintiff has a permanent incapacity for heavy work.
227 In my view, this interference with the plaintiff’s employment is a consequence which, when judged by comparison with other cases in the range of possible impairments, can be fairly described as very considerable and more than significant or marked.
228 Having satisfied the narrative requirements 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).
229 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.
230 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
231 “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.
232 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.
233 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 - see Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [70].
234 I am therefore required to determine a “without injury” earnings figure.
235 Counsel for the defendants submitted the appropriate figure was $1,200, the amount in the plaintiff’s claim form dated December 2008, said to be his usual pre-tax weekly earnings. Sixty per cent of that amount is $732. An alternative figure relied upon was $1,098 per week ($57,134 gross per annum), being an average of the plaintiff’s taxable income in the financial years 2005-2006 to 2007-2008. Sixty per cent of that figure is $659 gross per week.
236 Counsel for the plaintiff submitted the appropriate figure was $60,000 or $1,153 per week, sixty per cent of which is $692.
237 I accept an appropriate “without injury” earnings figure in this case is in the range of $60,000.
238 The plaintiff’s present earnings from personal exertion are nil.
239 Whilst the preponderance of medical evidence is that the plaintiff is no longer fit to perform heavy manual work or engage in truck driving, most doctors of this view consider the plaintiff has the capacity to do lighter non physical work with significant restrictions on the work activities involved.
240 The restrictions generally supported are of the nature described by Dr Horsley. These include avoidance of repetitive over reaching, repetitive pushing and pulling, truncal rotation and repetitive bending and lifting, with restrictions on the weight to be lifted.
241 Further, Mr Nye thought the plaintiff should not have prolonged unrelieved periods of sitting or standing. Similar restrictions were seen to be appropriate by Dr Hanna in April 2011 and Mr Brownbill in July that year.
242 I accept that plaintiff is a motivated young man with a good work history. In my view, with a family to support and at the age of thirty four, the plaintiff is keen to return to the workforce but cannot because of his back condition and sciatica. He has expressed a willingness to try various jobs suggested by the vocational assessor, on a part time basis, because of financial pressure and frustration at having to stay home not working.
243 I accept that with his present level of symptoms, the plaintiff could not work – a view endorsed by Dr Hanna, Mr Pease and Dr Horsley. As Mr King commented in September 2011, in his present state, the plaintiff continued to be severely disabled and was unfit to return to any of his old jobs. More recently, in January this year, Dr Horsley thought the plaintiff would have great difficulty returning to work now because of his poor functional capacity.
244 The level of the plaintiff’s back pain and recurrent sciatica, in relation to which surgery has been recommended, and the problems he has described, particularly in the morning, would make it very difficult for him to be able to attend work on even a part time basis with any regularity.
245 Any return to work depends on an improvement in the plaintiff’s condition but the prognosis is guarded, as Mr Pease commented in February 2011 and Mr Hooper confirmed in December last year.
246 In my view, the plaintiff does not have the capacity to engage in any of the occupations suggested by the defendants on a regular basis working any where near full time hours.
247 Various doctors have commented on the jobs suggested by the vocational assessors relied upon by the defendants.
248 Mr Hooper noted he had reviewed the vocational assessment and “its usual computer-generated material was presented about theoretical jobs that people such as the plaintiff can do”, but the difficulty, of course, he noted was placing people such as the plaintiff in one of those jobs with a compliant employer.
249 As Mr Brownbill pointed out, the caretaker job would not be appropriate for the plaintiff as, on probability, it would not conform to the activity restrictions suggested by him.
250 I accept that the plaintiff has difficulty doing simple cleaning tasks at home when he is able to do things at his own pace. He would therefore be unable to work as a caretaker or cleaner in a job where he would be required to undertake more substantial physical tasks on a regular and sustained basis.
251 I do not accept that the plaintiff could work as a picture framer because of the lifting of frames and glass that would be required and the postures he would have to adopt when carrying out this work.
252 Whilst Mr Brownbill thought the picture framer job did appear to conform and therefore may be suitable, he considered any attempt to return to work should be in a graded fashion under medical supervision and the number of hours the plaintiff could work would be determined by his response to that activity. Noting the plaintiff’s description of his sciatic pain, Mr Brownbill considered it likely he would not be able to continue that job in an ongoing or reliable fashion.
253 Mr Nye thought the job of picture framer would not be appropriate, as his understanding of the position was that prolonged standing would be required with the need to bend and reach for the purposes of working on a bench.
254 In my view, general processing or assembling work in a factory setting also would be unsuitable for the plaintiff because of the sustained posture involved and the requirement to complete tasks in a defined time frame without the ability to have rests when necessary. There would also be lifting and bending required as the plaintiff described in relation to the operation of the CNC machine.
255 Prolonged walking and sitting involved in work as a security guard would make that job unsuitable for the plaintiff. As the plaintiff described, he had pain just walking around the supermarket.
256 The plaintiff has no skills, training or experience in sales or clerical tasks. He has had no computer training and would also have difficulty with prolonged sitting if required to process data. Sales work would not be suitable as it would involve prolonged standing and at times, lifting and moving stock.
257 Whilst the plaintiff has considered undertaking cabinet making work at home, his capacity to do so is extremely limited because of the lifting and bending that would be required. As he described, any earnings he could make in this regard would be minimal, just petrol money.
258 The author of the CoWork report, Joanne Bryant, occupational therapist, did not endorse that employment option as physically suitable or financially viable for the plaintiff as he contemplated a return to the workforce
259 Dr Horsley’s view that the plaintiff could engage in fifteen to twenty hours per week of part time work is somewhat qualified.
260 As of January 2012, such employment was the “goal”. In her view, without significant assistance, in the form of a pain management program and realistic vocational assessment, she thought the plaintiff’s prognosis for return to work was guarded to poor and, with assistance, his prognosis for a return to work was still guarded.
261 A successful return to work part time work for up to twenty hours per week, Dr Horsley’s “goal”, would still result in the plaintiff suffering a loss of earning capacity of forty per cent.
262 As Mr Brownbill explained, noting the plaintiff’s education was limited to Year 9 and his work had always been of a heavy physical nature, the demonstrated intervertebral disc derangement and the plaintiff’s described ongoing activity related left leg pain, on probability, the plaintiff would have difficulty performing any work for which he was suited in an ongoing or regular basis.
263 The plaintiff would not be an attractive prospect for employment given his need to sit and stand with regularity in order to relieve his back pain and also his requirement to lie down at times of more severe episodes of pain – factors which the Court of Appeal in Barwon Spinners (supra) at paragraph 74 found to be relevant considerations.
264 Taking into account the duration of the plaintiff’s symptoms and the agreement between medical practitioners that his prognosis is poor, I am satisfied that the plaintiff has a loss of earning capacity of forty per cent and that it likely to last into the foreseeable future.
265 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g).
266 Counsel for the defendants submitted that the plaintiff had not discharged the onus in this regard as he had not attempted rehabilitation or retraining and had made no attempt to re enter the workforce.
267 However, in light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act,
268 Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages; i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 paragraph [147] and Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
269 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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