Bruno v Victorian WorkCover Authority
[2018] VCC 410
•18 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-01426
| PAUL JAMES BRUNO | Plaintiff |
| v | |
| VICTORIA WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 February and 16 March and 10 April 2018 | |
DATE OF JUDGMENT: | 18 April 2018 | |
CASE MAY BE CITED AS: | Bruno v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 410 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the back – claim under sub-paragraph (a) of the definition of “serious injury”
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; Bale & Anor v Mills (2011) 81 NSWLR 498; The Queen v Morrow [2009] VSCA 291; WAQ v Di Pino [2012] QCA 283; Watkins v Valley View Poultry Pty Limited [1995] NSWCA 496
Judgment: Leave granted to the plaintiff to bring a proceeding to recover damages for the loss of earning capacity consequences arising out of the impairment of the function of his lower back.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico | Hounslow Lawyers Pty Ltd |
| For the Defendant | Mr D Masel SC with Mr T Storey | Injury Disputes Practice Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff is a thirty-one-year-old man who was employed as a brickies labourer by R J Fuller and S M Fuller Family Partnership (“the employer”) from about 11 May 2010 to 13 August 2010.
2 The plaintiff alleges that he suffered injury to his lower back on 30 July 2010 in the course of his employment with the employer. He alleges that the pain and suffering and loss of earning capacity consequences of the impairment of function of his lower back are “serious”.
3 Ms J Frederico of counsel appeared for the plaintiff. Mr D Masel SC appeared with Mr T Story of counsel for the defendant.
The Plaintiff’s case
4 It necessary to set out a significant portion of the plaintiff’s affidavit in order to properly understand the basis upon which the plaintiff alleges that he was injured in the course of his employment. That has become necessary because the employer denies that the plaintiff suffered any injury in the course of his employment with it.
5 In the plaintiff’s affidavit sworn 10 November 2015, he described the occurrence of the injury to his lower back as follows:
“19.On 30 July 2010, through the course of my employment, I was transporting bricks on a trolley when a pack of bricks fell forward which pulled me forward and caused me to suffer injury.
…
21.Immediately after the accident I felt severe pain in my lower back. I felt sick, and developed a painful headache, so I told my boss what had happened. My boss told me that I had most likely suffered a muscle strain and asked me to continue working which I did. I was told not to go to the doctor. My pain increased throughout the day and I subsequently developed a migraine, so I left work early, unable to complete my shift.
22.Due to my severe back pain I remained off work for about a week so I could rest. When the pain failed to subside I decided to see my GP which I attended on 10 August 2010. I was seen by Dr Ravi Chollangi who referred me for a CT scan which was performed later that day.
23.I returned to my GP on 12 August 2010 for the results of the CT scan and was seen by Dr John Nguyen. I was told that I had suffered a disc bulge in my lumbar spine and Dr Nguyen advised me to take some pain killers and do some back exercises and swimming. I was told that I would be unfit to work from 13 August 2010 to 20 August 2010 during which time I rested.”[1]
[1]Plaintiff’s Court Book (“PCB”) 10-11
The Defendant’s case
6 Robert Fuller, the co-founder and operator of the employer, swore an affidavit on 13 January 2017 denying that the plaintiff suffered an injury to his lower back in the course of his employment. He said:
“12.In order to assess the plaintiff’s progress during the trial period I kept a diary specifically to record the plaintiff’s comments, work, and performance.
13.The entries recorded in the diary were each made on the date listed and are a true and correct account of the worker’s attendances, progress, comments, and actions.
…
15.On or about 10 August 2010 the plaintiff made comments about wanting to “rip someone off” with an insurance claim. He admitted attempting to make a claim against a previous employer but was told to go away as he was being paid cash in hand and there was no record of him.
16.The plaintiff worked through to Thursday, 12 August 2010 without complaint or any sign of injury.
17.On Friday, 13 August 2010 I have recorded that I was told by Mr Rognrust that when he went to collect the plaintiff that morning and bring him to the site we were working on, the plaintiff refused to come and claimed that he needed an operation on his back.
18.The plaintiff did not return to work and has not worked for the partnership since that date.
19.I have seen the plaintiff’s serious injury affidavit and I refute the claim that I was informed that the plaintiff had injured himself at work prior to his ceasing work on 13 August 2010. As I was never informed that the plaintiff was injured I refute the claim that I told him not to go see a doctor.”
20.I also wrote a letter dated 14 August 2010 addressed To Whom It May Concern.”[2]
[2]Defendant’s Court Book (“DCB”) 145-146. The diary is annexed to his affidavit and marked “RJF 1” and the letter is also annexed to his affidavit and marked “RJF 2”
7 Robert Rognrust was an employee (and maybe still is) of the employer. He swore an affidavit on 24 January 2017. Relevantly, he said:
“7.I recall that sometime in August 2010 the Plaintiff as having a lunch break with Robert and myself when he made comments about wanting to make a false insurance claim. The Plaintiff stated that his neighbour had made a claim and received ‘money for nothing’ which had inspired him.
8.The Plaintiff worked through to Thursday 12 August 2010 without complaint or any sign of injury.
9.On or about Friday, 13 August 2010 I went to collect the Plaintiff and bring him to work, the Plaintiff refused to come and claimed that he needed an operation on his back.”[3]
[3]DCB 153-154
8 The diary discloses that the plaintiff allegedly worked on 22, 23, 26, 27, 28 and 31 July 2010 and 1, 2 and 5 August 2010 at a building site at Blossom Avenue, Melton. It also discloses that the plaintiff allegedly worked on 5, 6 and 10 August 2010 at a building site at Kevington Avenue, Eynesbury.[4]
[4]These were the dates put to the plaintiff under cross-examination at Transcript 19-21 and 26-27
9 The alleged significance of the diary is that the plaintiff did not perform any loading out of bricks using a trolley on 30 July 2010. The diary discloses that he did that work on 22 July 2010. Mr Fuller expanded upon that in his affidavit, but with greater particularity in the letter:
“I wish to advise you that the date that Mr Paul Bruno has stated that he injured his back on the 30-7-10 this date does not correspond with the date I sent him to do the task of loading bricks around the jobsite on the 22-7-10. I also wish to advise you that Mr Paul Bruno never reported any injury to me what so ever, only that he had a sore back on the 8-8-10. Mr Paul Bruno was employed by me as a subcontractor who stated that he had his own ABN, his red card an OH&S requirement and his own insurance which is an requirement of the building company I contract for. Since Mr Paul Bruno has made a claim about his back and I have found out that he lied about his insurance just to gain employment. Mr Paul Bruno was working on a 3-month trial, that time has now expired on the 12-8-10 and he will no longer be employed for this position as it dose (sic) not suit him. I have not had any contact with Mr Paul Bruno since this alleged Injury.”[5]
[5]DCB 152
10 There are some very unusual features of the letter which have led me to conclude that I do not accept some critical aspects of the evidence of Mr Fuller.
11 Firstly, the letter is dated 14 August 2010, which is the day after Mr Rognrust went to pick the plaintiff up. According to Mr Rognrust, the conversation he had with the plaintiff was limited to the plaintiff refusing to go to work and needing an operation on his back. He did not inform Mr Rognrust when, where and how he suffered the problem with his lower back, and indeed, did not inform him that it was work related.
12 Mr Rognrust could only have informed Mr Fuller of the subject matter of the limited exchange he had with the plaintiff. Mr Fuller and the plaintiff did not speak on 13 August 2010 nor on the following day. Despite what Mr Rognrust related to Mr Fuller of the limited exchange, somehow Mr Fuller says he knew that the plaintiff was alleging that he not only injured his back in the course of his employment, but that the injury occurred on 30 July 2010. According to the Worker’s Claim for Impairment Benefits Form, the plaintiff reported the injury to Mr Fuller on 16 August 2010.[6] Therefore, it would appear that Mr Fuller could not have obtained an understanding of when, where and how the plaintiff was injured until that date.
[6]PCB 51
13 The only person from whom Mr Fuller could have obtained an understanding of the plaintiff’s allegations was from the plaintiff. So how did Mr Fuller come to an understanding of when and where the plaintiff suffered the lower back injury? And, of critical importance, how did he come by that understanding the day after, that is, on 14 August 2010?
14 The next unusual feature of the letter is that it is prefaced this way: “Since Mr Paul Bruno has made a claim about his back … .” The plaintiff had not made a claim by 14 August 2010, although that interpretation is dependent upon the meaning given to the word “claim”. Was it intended to convey a claim for compensation by the lodgement of a claim form or was it intended to be more consistent with a reporting of the injury in a less formal way?
15 The next unusual feature is Mr Fuller’s understanding that the plaintiff had lied about certain representations he made. How did he discover that, in such a short period of time between 13 August 2010 on 14 August 2010?
16 The next unusual feature is that the letter is written in the present tense, because Mr Fuller then said “Mr Paul Bruno was working on a three-month trial, that time has now expired on 12-8-10 …” It rather suggests that the letter was written contemporaneously with the expiration of the three-month trial. My immediate impression was that the date of the letter is wrong and was written on a later date, but that may not be so.
17 The last unusual feature is the writing of the letter itself. Apparently, Mr Fuller wrote a letter which was not requested by anyone with an interest in whether the plaintiff had suffered a compensable injury. That was yet to come. What was the purpose of the letter?
18 I am conscious of the fact that the plaintiff did not elect to cross-examine Mr Fuller. The rule of fairness must mean that a party must put its case to the other party. However, the analysis I have made is based exclusively on what I have been asked to make of inconsistencies in Mr Fuller’s evidence. I do not see that this process has infringed the rule of fairness, but was always open for the plaintiff to make through submissions.
19 Out of an abundance of caution I listed the proceeding for a mention on 16 March 2018, at which time I informed the parties of each of the unusual features of Mr Fuller’s evidence. The parties applied for an opportunity to make oral submissions, which they undertook on 10 April 2018. Both parties provided me with very helpful written submissions and authorities. The plaintiff submitted that the analysis I had undertaken did not infringe the rule of fairness.[7] The defendant’s submission was to the contrary.[8]
[7]Plaintiff's submissions dated 10 April 2018, and reliance on Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraphs [86]-[91]
[8]Defendant's submission dated 10 April 2018 and reliance on ‘Cross on Evidence’ (11th edition), paragraphs 17430-17460; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16; Bale & Anor v Mills (2011) 81 NSWLR 498 and The Queen v Morrow [2009] VSCA 291
20 Philippiadis,[9] and the authorities cited therein, make it clear that there is a distinction between what constitutes an infringement of the rule of fairness and permissible reliance upon inconsistencies in evidence relied upon by a party.[10] What the plaintiff has chosen to do is to highlight the inconsistencies in Mr Fuller’s evidence. The authorities, additionally, make it clear that where there is a divergence in a party’s evidence, then the responsibility lies with that party to explain the divergence. On a close analysis of Mr Fuller’s evidence, it is very clear that there are inconsistencies. He could have explained those inconsistencies. He chose not to. It is not an answer to simply submit that he should have been cross-examined on the inconsistencies.[11]
[9]Supra
[10]Philippiadis (supra) at paragraphs [86]-[91; WAQ v Di Pino [2012] QCA 283 at paragraph [32] and Watkins v Valley View Poultry Pty Limited [1995] NSWCA 496
[11]Watkins (ibid) at paragraph [32]
21 The plaintiff was cross-examined at sufficient length for him to understand that he was being accused of making a fraudulent claim. He was cross-examined on the basis that the unloading of bricks only occurred at Blossom Avenue on 22 July 2010. He was cross-examined on the basis that he worked at Blossom Avenue and Kevington Avenue on specific dates.
22 I should say something about the manner in which the plaintiff gave his evidence before returning to the plaintiff’s answers to the cross-examination. The plaintiff’s style of giving evidence was shambolic. He rarely gave a responsive answer, and was sometimes argumentative. Despite a number of warnings I gave him to listen to the question and give a responsive answer, he did not do so. After reading the transcript and recalling the manner in which the plaintiff gave his evidence under cross-examination, I have concluded that the plaintiff has a manner about him which sees him respond in the way that he did. I do not think he was being deliberately non-responsive, was prevaricating or was being artful in the manner in which gave answers under cross-examination.[12]
[12]I will say more about this when I deal with the evidence of the two neuropsychologists
23 What is clear is that on the critical issues of when, where and how he worked, and the circumstance of the occurrence of his injury, it was my strong impression that he denied the allegations made by Mr Fuller and maintained that he was probably injured at Blossom Avenue on 30 July 2010 in the circumstances in which he deposed to in his affidavit,[13] and confirmed in his Claim for Compensation dated 23 August 2010.[14]
[13]Transcript 19-21 and 26-27
[14]DCB 1-2
24 Mr Fuller’s evidence is only part of the evidence relied on by the defendant to submit that the plaintiff’s claim is fraudulent. It seeks to link the claim the plaintiff has made here as a manifestation of the plaintiff’s intention to rip off an employee. I should add at this point that the plaintiff denied that he had such a conversation with Mr Fuller and Mr Rognrust.[15] The defendant also points to the occasions when the plaintiff saw Dr Chollangi, which are a further manifestation of his intention to rip off an employer.
[15]Transcript 26
25 The plaintiff first saw Dr Chollangi on 10 August 2010. His clinical note for that day is very cryptic, but what it does disclose is:
“…
low back pain x long standing
brick layer
ROM restricted
…
localised lower back tenderness
…
lumbosacral spasm
… .”[16]
[16]DCB 204
26 Dr Chollangi referred the plaintiff to have a CT scan. He provided him with a medical certificate, and a prescription for Panadeine Forte.
27 The next entry in the clinical notes discloses that the plaintiff saw Dr Nguyen on 12 August 2010. He recorded that the plaintiff was still having lower back pain. He was given advice about how to look after his lower back, and was prescribed Panadeine Forte and Mobic.[17]
[17]DCB 204
28 The next entry in the clinical notes is the one on which the defendant concentrated. It is dated 17 August 2010, when the plaintiff saw Dr Chollangi. The entry reads:
“[H]e consulted me for headache and long standing back pain on 10th Aug 2010
that time he did not mention that pain is related to work related injury
now he is arguing and trying to attribute long standing back pain to acute work related injury
he wants to sue employer to make it as work cover
IN MY OPINION THE BACK PAIN IS NOT RELATED TO ACUTE BACK INJURY AT WORK
HE HAS GOT PRE-EXISTING BACK INJURY FOR THE LAST 6 YEARS.”[18]
[18]DCB 203
29 The plaintiff was cross-examined on what Dr Chollangi recorded on 10 August 2010 and then on 17 August 2010. It was put to him that the attempt to persuade Dr Chollangi that the lower back problem was work related was part of the fraud he was attempting to perpetrate on the employer.[19] The plaintiff said that he did inform Dr Chollangi that he suffered a lower back injury in the course of his employment, but that Dr Chollangi wrote it down incorrectly when he saw him on 10 August 2010.[20] What is clear is that the plaintiff and Dr Chollangi were seriously at odds.
[19]Transcript 29-31
[20]Transcript 29
Resolution of the conflict
30 The manner in which the plaintiff gave his evidence had a potential to make it difficult to determine what his evidence amounts to, and whether his demeanour affected his creditworthiness and reliability. I have partly dealt with this above. A careful reading of the transcript, and taking into account the whole of the evidence contained in the plaintiff’s affidavits and, to some extent, in the medical reports, has led me to conclude that the plaintiff was making a real effort to give a truthful account of his work with the employer and how he came to be injured.
31 In simple terms, he says that he was injured on 30 July 2010 at Blossom Avenue unloading bricks. I think it is more probable that he was injured on that date and at that place and in that manner.
32 I am partly fortified in reaching that conclusion because of the evidence of Mr Fuller that the plaintiff did inform him that he was experiencing back pain at least by 8 August 2010. That marries up well with the plaintiff’s first attendance shortly thereafter on Dr Chollangi on 10 August 2010 complaining of lower back pain. I think it is probable, therefore, that the plaintiff did suffer a lower back injury in the course of his employment on 30 July 2010.
33 The conflict between the plaintiff and Dr Chollangi appears to have occurred because he thought the plaintiff was committing a fraud on the employer. The circumstances of the consultation might well have justified him in having that view, and perhaps compounded by the plaintiff’s manner. What Dr Chollangi did not have was the evidence of Mr Fuller that the plaintiff in fact was suffering lower back pain at least by 8 August 2010 which, of course, is contemporaneous with the plaintiff’s first attendance on Dr Chollangi.
34 The foregoing makes the thesis advanced by the defendant far less acceptable. Even if the plaintiff did say he wanted to rip off an employer, it is for the defendant to link this claim as a manifestation of that intention. The mere statement of an intention and the coincidence of the plaintiff suffering injury is not enough to sheet home the very serious allegation of fraud. The conflict between the plaintiff and Dr Chollangi does not add anything much. I think it needs to be seen in isolation as a probable confused level of communication by the plaintiff with Dr Chollangi.
35 I will deal with the plaintiff and the defendant’s reference to the plaintiff’s Claim Form[21] and the employers report.[22] The endorsements made by the plaintiff and the defendant on the forms do not add anything to this issue. What the plaintiff wrote on his form is consistent with what he deposed to in his affidavit and what he said in his oral evidence. What Mr Fuller wrote on the employer’s report is consistent with what he deposed to in his affidavit and the letter. I do not think these documents really add anything which requires me to make any further comment.
[21]PCB 48-59
[22]PCB 50-51
36 In reaching the conclusions that I have, it is inherent that I have some doubts about the account given by Mr Fuller in his affidavit, the diary and the letter. However, even if I accept all of what he says, it is difficult to ignore the fact that he knew that the plaintiff was suffering soreness to his lower back on 8 August 2010. For reasons which are now plain, I consider that to be consistent with the plaintiff’s account, fortifying me in accepting the plaintiff’s evidence of where, when and how he came to suffer a lower back injury.
Pain and suffering consequences
37 The defendant submitted that if I was satisfied that the plaintiff suffered a lower back injury as described by him in the course of his employment with the employer, then the defendant conceded that the pain and suffering consequences contended for by the plaintiff are “serious”.
Loss of earning capacity consequences
Statutory basis for assessment
38 Both the plaintiff and the defendant submitted that because the plaintiff was under 26 years of age at the date he suffered the lower back injury, that his loss of earning capacity is to be calculated by reference to common law principles.[23]
[23]Section 134AB(38) (i) and (ii) of the Accident Compensation Act 1985
The Plaintiff’s education and work history
39 The plaintiff last attended the Sunbury Downs College. He left school when he was thirteen or fourteen years of age. He says that he had difficulty with the study of English. He experienced difficulty reading. He struggled to learn in a classroom environment.[24]
[24]PCB 8
40 The plaintiff’s father conducted a steam cleaning business. After the plaintiff left secondary school, he worked with his father, who gave him employment just to give him something to do.[25]
[25]PCB 8 and Transcript 11
41 The plaintiff then worked as a labourer. His pattern of employment was inconsistent. He would work for three or four weeks at a time.[26]
[26]PCB 9
42 The plaintiff then worked with a company known as Major Creations in about 2004 and 2005. He made plastic folders used as window displays for real estate agents. He worked for about a year before he was made redundant.[27]
[27]PCB 9 and Transcript 11-12
43 The plaintiff then performed general labouring work for a couple of months. He went to Darwin in the hope of finding work. He was unable to find work so he returned to Melbourne. He then worked as a labourer. The work was intermittent and, it would appear, short term.[28] Some of that work involved washing dishes in a restaurant.[29]
[28]PCB 9 and Transcript 11-13
[29]Transcript 12
44 The plaintiff then obtained employment with the employer as a brickies labourer and was involved in the work which has been adequately described above.
45 I do not think it was controversial at all that the plaintiff is a poorly educated man who has spent the majority of his adult life in unskilled labouring work.
Calculation of the Plaintiff’s earnings
46 The plaintiff prepared a summary of his taxation returns between the year ending 30 June 2008 to the year ending 30 June 2015.[30]
[30]PCB 198
47 The summary demonstrates that for the financial year ending 30 June 2008, the plaintiff earned $894.00, and in the financial year ending 30 June 2009, the plaintiff earned $560.00. He was asked whether that is what he earned in those years. My impression from the rather rambling answers he gave is that he was not disputing what is disclosed in the summary.[31] The plaintiff’s earnings for the years from 30 June 2011 to 30 June 2015 were significantly more than the previous years. The highest being $28,928.00 for the year ending 30 June 2011, but it would appear that they were WorkCover payments.
[31]Transcript 14-17
48 As far as I can see, the employment the plaintiff obtained with the employer was probably the most stable employment he obtained. According to the Employer Injury Claim report, the plaintiff worked 45 hours per week earning $160 per day with the usual grace of $800 per week.[32]
[32]PCB 51
49 The alternative wage base is found in the report of Ms Webster, who conducted an employment assessment of the plaintiff on 3 November 2016. She referred to the Building and Construction General On-site Award 2010 relevant to a bricklayer who would be paid $22.15 gross per hour. Over the 45 hours the plaintiff worked with the employer, that amounts to $996.75 gross per week.[33]
[33]PCB 146
The Plaintiff’s subsequent work/educational history
50 The plaintiff was off work for about twelve months after he suffered the lower back injury. He then took the following steps to find employment and to attempt to retrain:[34]
[34]PCB 10-11 and 21-23
· He obtained casual work with his brother as a labourer in about mid-2011. His brother is a bricklayer. He worked for him on a few occasions. He ceased doing that work because of increased pain in his lower back.
· The relevant insurance agent referred him to Nabenet Integrated Workplace Health Services (“Nabenet”) for the purpose of assisting him to find suitable employment.[35] He was sent to what he described as a university in Melton to do a building course. He could not cope with the classroom style learning.
[35]PCB 158-197
· He completed “some studies” through the Goulburn Ovens Institute of TAFE.
· Nabenet assisted him in finding an apprenticeship with a qualified builder. The plaintiff is unable to remember the name of the builder. He commenced an apprenticeship, although, he described it as being on “a trial basis”. He ceased the apprenticeship because he was unable to cope with the labouring duties associated with the apprenticeship.
· In about July 2013, he obtained casual work with Daniel Knight up until November 2013.
· In about January 2014, he did some hand rendering work for Deez Render.
· His bank statements show a payment from a company known as Western Brick Laying. However, the plaintiff could not remember working for that company. If he received a payment from it, then it is probable he did some work for it, probably as a labourer.
· At around the time when he swore his first affidavit on 10 November 2015, he again assisted his brother doing some light bricklaying work. He was hopeful that exposure to the work that his brother performed might enable him to get a bricklayer’s “ticket” so that he could commence trading as a bricklayer setting up jobs. I assume that means not actually doing the hands-on bricklaying in labouring work.
51 This outline of the work the plaintiff performed subsequent to suffering the lower back injury, and his educational pursuits, has been taken from his affidavits and from the cross-examination of him. While the plaintiff provided some dates associated with his return to work, he was not always able to. What that means is that what I have set out is not necessarily an accurate chronology.
52 The plaintiff has engaged in two subsequent forms of work activity which are of significance. The first is employment he obtained with Mario Notaro, who is a bricklayer. The plaintiff approached Mr Notaro, who was impressed by the plaintiff’s keenness to work. The plaintiff worked for him from 14 August 2014 to 5 September 2014 and then from 17 August 2015 to 16 February 2016.
53 Mr Notaro described the work the plaintiff performed and the difficulty he was having with doing that work as follows:
“9.When he started he did small jobs, spreading mud and he was able to lay a few bricks. However, he never worked full time hours or duties and it was really obvious to me he struggled with the work.
10.I cannot recall when I first noticed it but after a short period I told Paul I can see you are struggling with the work. I am twice your age and you can only do half of what I do. I only use half loads too, so the work load Paul was doing was smaller than on other building sites. For example I only put a half load into the concrete mixer which means my work load is lighter and better for your back. Paul then told me about his injury and I understood a bit better why he struggled.”[36]
[36]PCB 41
54 At about the time when the plaintiff swore his third affidavit on 3 January 2017, he was scavenging for pushbikes which he restored and then sold on online.[37] The plaintiff was taken to his Facebook pages which contained photographs of pushbikes and comments relevant to the pushbikes being for sale. My impression was that the plaintiff was scavenging for pushbikes, but it was very low level activity, producing modest income, if any. The plaintiff has not worked, except for scavenging pushbikes, since he last work with Mr Notaro.
[37]PCB 22 and Transcript 39-45
The Plaintiff’s intellectual capacity
55 The plaintiff was examined by Mr Phillips, neuropsychologist, on 27 and 29 January 2007. He was also examined by Professor Crowe, neuropsychologist, on 20 October 2017. The purpose of their examinations was to assess the plaintiff’s capacity to successfully engage in further education and retraining.
56 Mr Phillips and Professor Crowe undertook significant testing of the plaintiff. They both came to very similar conclusions. Mr Phillips observed:
“In my view, it is easy to over-estimate Mr Bruno’s cognitive abilities and level of comprehension, since he remains socially adept and very compliant in demeanour. My experience, borne out by formal testing, was that Mr Bruno at times understands very little of what has been said to him or what he has read. At times he can almost completely fail to take in or remember what has been said to him, if it is conveyed in even a slightly complex manner. This was demonstrated most strongly when, on a simple prose memory task, he scored at floor.”[38]
[38]PCB 156
57 Professor Crowe observed:
“… However, he does have a longstanding verbal learning disability with particular weakness with regard to reading, writing and arithmetic and in association with this significant memory compromise. These problems predate the injury … .”[39]
[39]DCB 78
58 I do not think the conclusions that Mr Phillips and Professor Crowe reached are very different. They do explain why the plaintiff behaved in the manner he did when he gave his evidence. Without meaning to be uncharitable to the plaintiff, he is a very simple and unsophisticated man with limited intellectual abilities clearly demonstrated on neuropsychological testing.
59 Therefore, I think it is understandable why the plaintiff found it difficult to undertake the courses he referred to in his evidence, and why he found them difficult.
Proposed suitable employment
60 In the end it was proposed by the defendant that the plaintiff is fit to undertake work as a product assembler and as a parking inspector. The reference to those forms of employment is to be found in a vocational assessment report of Recovre dated 11 January 2017.[40] The descriptions of each of the jobs are very extensive, accompanied by photographs of workstations and equipment to be used in undertaking the tasks required in each of those jobs. I have read the descriptions carefully, but I do not propose to try to summarise them because of the sheer breadth of the material of a description of each which is very difficult to summarise concisely.
[40]DCB 93-129, and in particularly, at DCB 105-118 and 123-128
What do the doctors say?
61 Dr Nguyen last examined the plaintiff for the purposes of addressing Centrelink issues on 6 September 2017. The product of his examination on that occasion was to observe that the plaintiff continued to suffer from “on and off low back pain”. He considered that the plaintiff had no capacity for work, although, he noted that the plaintiff was looking for light work with no heavy lifting or no heavy physical demands.[41]
[41]PCB 69
62 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 29 August 2016 and on 10 August 2017. He provided two reports bearing the same dates.[42] He arrived at very much the same opinion on both occasions he examined the plaintiff. Therefore, I will refer only to his last opinion. He considered that the plaintiff had a history of chronic lower back pain. He considered that his prognosis was poor. In relation to the plaintiff’s capacity to return to work, he considered that the plaintiff’s chronic lower back pain “would not allow the plaintiff to even undertake what might be regarded as suitable employment”. He considered that he was effectively unlikely to ever return to gainful employment.[43]
[42]PCB 77-80 and 80A-80D
[43]PCB 80D
63 Dr Slesenger, specialist occupational physician, examined the plaintiff on 25 August 2016 and 16 January 2018. He provided three reports dated 30 August 2016,[44] 24 January 2017 (a supplementary report to the first report),[45] and 18 January 2018.[46]
[44]PCB 81-91
[45]PCB 93-95
[46]PCB 95A- 95I
64 After first examining the plaintiff, Dr Slesenger considered that the plaintiff had developed a mechanical injury to his lower back, and a Chronic Pain Disorder. Effectively, he did not consider that the plaintiff was fit to work as a bricklayer, trade assistant, machine operator, process worker and assembly worker. He expressed some optimism that the plaintiff did have a capacity to return to work so long as he avoided pushing, pulling, carrying or lifting over 5 kilograms; avoiding repetitive bending or twisting; could sit and stand is required, and was limited to working four hours a day, four days per week.[47]
[47]PCB 89-91
65 In his supplementary report, he was asked to consider alternative job options of product assembler, meter reader and parking inspector. He was provided with the report of Recovre. He considered that the plaintiff was unlikely to be able to return to work in any of those jobs. In short, the basis for that was a combination of the plaintiff’s past occupational experience, his literacy skills, his lack of computer skills and his current symptoms and functional limitations.[48]
[48]PCB 94-95
66 Dr Slesenger was then asked to consider other medical reports, radiology and the plaintiff’s capacity to return to suitable employment. His opinion did not change from that stated in his supplementary report.[49]
[49]PCB 95G-95I
67 The defendant had Mr Pease, orthopaedic surgeon, examine the plaintiff on 12 September 2017. He provided a report dated 20 September 2017.[50] He accepted that the plaintiff had suffered injury, although, he said that there was little to find on his physical examination of the plaintiff. He referred to a number of medical reports he was provided, and then expressed the opinion that the plaintiff was “perfectly capable of undertaking a wide range of suitable employment on a full-time basis”. He was provided with the report of Recovre. He considered that “to a large extent he would be capable of performing all of the jobs listed”.[51]
[50]DCB 49-57
[51]DCB 55-57
68 Dr Yong, specialist occupational physician, examined the plaintiff on 15 June 2016 and 11 January 2018 . He provided three medical reports dated 15 June 2016,[52] 13 January 2017 (a supplementary report to the first report),[53] and 11 January 2018.[54]
[52]DCB 28-42
[53]DCB 43-48
[54]DCB 81-92
69 I note that Dr Yong was sent a considerably larger volume of documents than any of the other medical assessors.[55] He considered that the plaintiff had suffered an injury to his lower back, resulting in chronic lower back pain. He considered that the plaintiff could work so long as the following restrictions were applied:
[55]DCB 28-31
§ avoid repeated bending and twisting of the back
§ avoid prolonged back flexion postures
§ avoid repeated firm pushing and pulling tasks
§ avoid lifting more than 10 kilograms on a repeated basis, and
§ work at reduced hours initially.[56]
[56]DCB 38
70 Dr Yong considered that working as a bricklayer would exceed the limitations, and as for working as a trades assistant, machine operator, process worker and assembly worker, that they would require an individual assessment of the suitability or otherwise.[57]
[57]DCB 39-40
71 Dr Yong was asked to then consider whether the plaintiff could work as a product assembler, meter reader or parking inspector. He considered that working as a product assembler and meter reader would be within the limitations. It does not appear he considered that work as a parking inspector was within those limitations, but he did not expressly exclude it.[58]
[58]DCB 46-47
72 On the second occasion Dr Yong examined the plaintiff, the plaintiff told him that he had suffered a number of flare ups of pain in his lower back. On the basis of Dr Yong’s history and examination of the plaintiff, he concluded that the plaintiff’s lower back condition had deteriorated and his functional tolerances had reduced. He altered his view of the limitations he would apply to:
§ avoid repeated bending or twisting of the back
§ avoid prolonged back flexion postures
§ avoid repeated firm pushing or pulling tasks
§ avoid lifting more than 7 kilograms on a repeated basis
§ vary posture regularly between sitting, standing and walking, and
§ work reduced hours initially.[59]
[59]DCB 90
73 On the basis of Dr Yong’s last assessment of the plaintiff, he considered that he could work as a product assembler and as a parking inspector, but not as a meter reader.[60]
[60]DCB 91
74 There is a stark contrast between the opinions of Mr O’Brien and Mr Pease. I prefer the opinion of Mr O’Brien because what is apparent from a survey of the opinions of Dr Nguyen,[61] and Dr Tan, neurosurgeon,[62] and the plaintiff’s evidence, is that the plaintiff suffered a disabling injury to his lower back. Dr Tan considered that surgical amelioration was within the range of reasonable treatment.[63] I think their opinions are consistent with the opinion of Mr O’Brien, which fortifies me in preferring the opinion of Mr O’Brien.
[61]PCB 59-71
[62]PCB 72-75A
[63]PCB 75A
75 There is not much contrast in the opinions of Dr Slesenger and Dr Yong. They both appear to me to have obtained a very adequate history, enabling them to comment on the plaintiff’s residual capacity for suitable employment. Where they differ appears to be a matter of emphasis. Dr Slesenger appears to have looked at the broader picture of not only the plaintiff’s residual physical capacity, but also his educational background and other transferable skills. Whilst Dr Yong appears to have approached the formulation of an opinion in a similar way, it is not clear to me that he necessarily took into account the opinions of Dr Phillips and Professor Crowe which I think are of the utmost importance. Their opinions demonstrate that the plaintiff has very modest skills to call on apart from his bodily integrity.
76 The plaintiff was cross-examined extensively about his education, training, transferable skills and his motivation. My impression from the cross-examination, when considered in the light of the medical evidence which I prefer, leads me to conclude that the plaintiff’s lower back injury has essentially rendered him permanently unfit for work as a product assembler or a parking inspector.
77 The plaintiff has persistent pain in his lower back which restricts his general mobility, and in particular, his capacity to sit, stand, walk and undertake the sort of postures which would be required in any job, even as a product assembler and parking inspector. I think Mr Phillips’ opinion strongly points to the plaintiff being a very simple and unsophisticated man. For it to be suggested otherwise I think is not borne out by the whole of the evidence, and in particular, the suggestion that he is computer literate and has some levels of sophistication because he is scavenging for bikes and able to use Gumtree, eBay and Facebook, I think is wrong.
Other issues
78 There were a number of other issues raised which I think are of little or no consequence. I propose to deal them rather more summarily.
Prior lower back problem
79 Dr Chollangi recorded a history that the plaintiff had experienced lower back problems for six years prior to the occasion when he first saw him on 10 August 2010.[64] The plaintiff was cross-examined about that history. He denied that he told Dr Chollangi that he had suffered a prior lower back injury, and that it was produced by the hard work that he had performed over preceding years.[65]
[64]DCB 203-204
[65]Transcript 31, 34, 35-36
80 There is no evidence, apart from the bare reference to a prior lower back injury, in Dr Chollangi’s clinical notes. In the face of the plaintiff’s quite strenuous denial, I prefer his evidence that he did not suffer any prior lower back injury of any significance
The admission
81 The defendant’s solicitors wrote to the plaintiff’s solicitors enclosing a Notice pursuant to s4, Part A, of the WorkCover (Litigated Claims) Legal Costs Order 2010 offering to settle the plaintiff’s application for pain and suffering only.
82 The plaintiff submitted that it is an admission of liability. I disagree. I think it is an offer to compromise the plaintiff’s application which is without prejudice and is inadmissible as evidence. In any event, it is irrelevant now that the defendant has conceded that the plaintiff’s pain and suffering consequences are “serious”.
Conclusion
83 In the circumstances, and for the reasons which I have set out at length above, I will grant the plaintiff leave to bring a proceeding to recover damages for the loss of earning capacity consequences arising out of the impairment of the function of his lower back. I do so after having made the relevant comparison with like impairments as I am obliged to do.
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