Campbell v Forktorque Pty Ltd
[2011] VCC 1016
•8 August 2011
IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
AT MELBOURNE
CIVIL DIVISIONSERIOUS INJURY
Case No. CI-10-03132
DAVID FRASER CAMPBELL Plaintiff v FORKTORQUE PTY LTD Defendant
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JUDGE: HER HONOUR JUDGE COHEN WHERE HELD: Melbourne DATE OF HEARING: 27 and 28 June 2011 DATE OF JUDGMENT: 8 August 2011 CASE MAY BE CITED AS: Campbell v Forktorque Pty Ltd MEDIUM NEUTRAL CITATION: [2011] VCC 1016
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – s.134AB Accident Compensation Act 1985; low back injury; worker under 26 at time of injury; whether “serious injury” as to pain and suffering and as to loss of earnings.
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APPEARANCES: Counsel Solicitors For the Plaintiff Mr S Spittle Hounslow & Associates For the Defendant Mr D Myers Lander & Rogers HER HONOUR: 1 Mr David Campbell suffered injury to his back in the course of his employment with the defendant on 5 November 2008. At the time, he was 25 years of age and employed as a welder. His employment was terminated in February 2009 and he has not worked since. He seeks leave of the Court to bring a claim for damages in respect of both pain and suffering and loss of earnings. To obtain leave, he must satisfy the Court that he has suffered “a serious injury” within the definitions and requirements of the Accident Compensation Act (“the Act”).
2 The plaintiff relies now only on part (a) of the definition of “serious injury”, in that he claims to have suffered serious permanent impairment of the function of his lumbar spine. On this basis, he must satisfy the court that the consequences of the injury to his lumbar spine, when judged by comparison with other cases in the range of possible impairments of a body function,[1] can be fairly described as being more than significant or marked, and as being at least very considerable.[2] Further, to obtain leave to claim damages for loss of earning capacity, he must satisfy the court that he has suffered a permanent loss of earning capacity of 40% or more[3].
[1] Sub-s.134AB(38)(b)
[2] Sub-s.134AB(38)(c)
[3] Sub-s.134AB(38)(e)
3 The defendant concedes that the plaintiff suffered an injury to his low back on
or about the date alleged. It argues, however ─
(i)
that the consequences to the plaintiff do not meet the test of being at least very considerable when compared with other injuries (impairments) of a similar nature, and when stripped of psychological factors which have co-existed;
(ii) the plaintiff does not have a permanent loss of earning capacity of at least 40 per cent in that ─
(x) all medical opinion is to the effect that he has residual working capacity;
[4] Sub-s.134AB(38)(g)
(y) his failure to exercise his residual working capacity is not a result of his physical injury; (z) he has not discharged the onus of proving either that he is permanently incapable of earning 60% of his pre-injury earnings, or that after rehabilitation or re-training for suitable employment he would not be capable of such earnings[4]. 4 The evidence consisted of the exhibits set out in the attached schedule and the oral evidence of the plaintiff, who was the only witness required for cross- examination.
5 As in most applications of this type, the credibility and reliability of the plaintiff’s own evidence is very important, as not only the Court but also the doctors’ opinions which are in evidence are all heavily dependent on the reliability of his account of the timing and extent of symptoms, and their effects on his activities. In this case, the defendant did not challenge the plaintiff’s credibility directly, but its case implicitly is that the plaintiff’s description of the extent of the effects of his low back injury is exaggerated, even if not deliberately so.
6 My impression of the plaintiff was that he was not deliberately embellishing or exaggerating. However, my impression is that he is a young man of some emotional vulnerability on whom the impact of his back injury and loss of a job had greater than average impact. Further, he seems to me to have now, and may always have had, a somewhat over-optimistic idea of his own capacities and what he was likely to achieve in personal pursuits or earnings from employment before his injury. That has probably heightened his own perception of how seriously he has been disabled by the injury to his back. I have taken this into account as I am required to make an objective assessment of the extent of consequences to him from his injury rather than to rely on his subjective perspective.
Plaintiff’s background and personal circumstances
7 Mr Campbell is now aged 28.[5] He grew up in Melbourne and attended school until leaving during Year 10. Although not mentioned by the plaintiff nor canvassed during the hearing, from the psychological report of Mr Ferrier, it appears that there were some sad and unstable factors in his family circumstances through his childhood.
[5] Date of birth: 10 May 1983
8 After leaving school, he first worked on cars, then in the steel industry, doing welding, metal polishing and fabrication work. He did not have any formal training or apprenticeship, but learnt the skills of welding from other welders on the job. Prior to starting with the defendant, he was employed by Workout Workshop Pty Ltd, a company which fabricated gymnasium equipment.
9 He commenced employment with the defendant on 28 August 2007 as a boilermaker/welder. This company made and worked on forklifts, and he was mainly involved in making the weather cabins for forklifts. I find that his duties were physically demanding, as not only was he welding but also lifting, placing and working on steel frames and steel sheet cladding for the doors of forklift cabins. Those duties required the lifting of weights of approximately 20 to 25 kilograms, as well as twisting and bending and some overhead work, and working in awkward positions. Although in his affidavit he said that the work hours were 7am to 4pm Monday to Friday with some, but not regular, overtime, his earnings (as agreed) for the time he worked for the defendant were for an average 47 hours per week.
10 When he started working for the defendant, his health was generally good. He had suffered low back pain while working at his previous employment after lifting steel, but the injury settled down and he believed it had resolved. He recalled an injury in 2004 to his back, but I am unsure whether that was the same as the one at Workout Workshop Pty Ltd. He had also suffered a work- related injury to his left forearm in July 2007, for which he sought compensation, which was granted, but then his employment was terminated. It was put to him, and he agreed, that he had also suffered injury at the age of 15 with a motor bike. I accept that he had genuinely forgotten about that, and that such injury was of no significance in the current case in that he had fully recovered and been able to undertake heavy duties in previous employment, and then with the defendant.
11 Before his back injury Mr Campbell used to attend a gym approximately three to four times a week, and was interested in building muscle bulk in order to try out at a gridiron competition. He says that he could have entered a body- building competition, such was his previous physique, and that he looked and felt strong and was proud of that, and it gave him confidence. Some months before the injury the subject of this application, however, when he attended his doctor for back pain, his doctor advised decreasing the gym work, which he says he did.
The work injury
12 The plaintiff says that during 2008, he experienced episodes of low back pain that occurred at work and, in particular, an episode in August 2008 when he experienced back pain after an awkward lift. His doctor advised reducing his gym work and that injury, as with past ones, seemed to improve and resolve. However, on 5 November 2008, when lifting an unusually shaped door for a forklift cabin, he felt what he describes as intense and severe pain in his lower back. He worked on for approximately 20 minutes but then stopped, and the following day sought physiotherapy treatment from Mr Ritter,[6] whom he had attended the previous year. He was noted to have decreased quadriceps reflex on the left and reduced sensation in the left lateral foot.
[6] Exhibit E
13 A week later, he attended his general practitioner, Dr Whiteside, complaining of pain in the lower back, more so on the left, and pain radiating into his left thigh as far as the knee. Although there was very limited flexion of his back, Dr Whiteside found his straight leg raising almost normal, and knee and ankle reflexes intact. He prescribed Panadeine Forte for the pain and ordered x- rays and then a CT scan of the lumbar spine.
14 The CT scan was reported[7] as showing “mild degenerative changes” and specifically, at the L4/5 level: “Small left paramedian disc bulge present, which indents the thecal sac but without central canal stenosis, there is compromise for the exiting left L4 nerve root but without impingement”. There was also at the L5/S1 level, mild circumferential disc bulge indenting the thecal sac anteriorally and contacting the S1 nerve roots within the canal, a mild central compromise, and L5 nerve roots exiting freely. There was also mild degenerative change involving the facet joints at that level.
[7] Exhibit L
15 Mr Campbell was sent for physiotherapy and returned to work on light duties, four hours per day, doing no lifting, and sitting at a bench welding.
16 He returned to Dr Whiteside on 10 December complaining of a lot of pain the previous day in his left thigh, knee and back of his calf. He had stopped taking the Panadeine Forte but was taking Voltaren, and his physiotherapist had given him a certificate for work but suggested he see a specialist. On that occasion, Dr Whiteside found his straight leg raising limited to 45 degrees and his left knee reflex absent, prescribed Tramal and referred him to a rheumatologist, Dr Mark Patrick. It seems that the appointment to see Dr Patrick was cancelled because by then Workcover had ceased paying for his medical expenses[8].
[8] Exhibit A, Affidavit of 15/3/10, para 15.
17 His hours were increased to 25 per week in January 2009, and he says that he was experiencing pain managing those.
18 While suffering gastroenteritis and vomiting in early February, he felt something “popped” in his back, and on 4 February attended Dr Whiteside. He was complaining of pain in his left leg which he said was numb if he sat on it for too long. On that occasion, straight leg raising and knee and ankle reflexes were normal, but there was very limited back flexion. A WorkCover certificate declaring him unfit for work on that day was issued.
19 In the meantime, on 20 January, 2009, he had been examined for the defendant by Dr Peter Clark, whose opinion was that he was fit for full unrestricted duties[9]. As a result, his WorkCover payments (including for physiotherapy) were stopped from 15 February. His employment was terminated by his employer the following day.
[9] Exhibit 3
20 He has not been employed since. He says that when he stopped working there was some improvement in his back pain, and some months later he attempted some work for a friend who is a mechanic, but by the end of the day his back was sore again. He has been on Centrelink payments ever since.
21 Mr Campbell next attended Dr Whiteside on 26 June 2009, with low back and leg pain. He was issued with a certificate for Centrelink, declaring him unfit for work from 26 June to 26 September 2009.
22 He attended Dr Whiteside again on 3 September 2009 saying the back pain continued to trouble him with pain in his left thigh. He told Dr Whiteside of the attempt at work for a mechanic, that he could not really run at all and was not playing any sport, was able to walk freely but was in a lot of pain when he stopped, and the back pain was making sleep difficult.
23 He saw Dr Whiteside again on 12 October 2009 when he still said his back was pretty sore, but he could not afford to get treatment for it and that was making him quite depressed. He requested a referral to a psychiatrist or a psychologist. Although Dr Whiteside’s last report[10] said he had planned to review Mr Campbell later in the week to prepare a mental healthcare plan and referral to a psychologist, Mr Campbell had not attended since.
[10] Exhibit F, 18/2/10
24 He has since attended a different general practitioner, Dr Newman, who is his mother’s doctor, although I do not know how frequently.
25 Mr Campbell took himself off Panadeine Forte after it was first prescribed, as he is allergic to codeine. He has taken only non-prescription painkillers since, being Panadol and Nurofen. He has also taken Voltaren bought over the counter.
26 The only other treatment he has had for his back has been physiotherapy (including hydrotherapy) which he found helpful. He had this from November 2008 until Workcover payments ceased in mid-February 2009, and for certain periods in 2010 and again from October 2010 until March 2011 when Workcover paid. He ceased whenever WorkCover stopped paying, as he says that he could not afford to pay for it himself. While that would be a reasonable explanation for not continuing with treatment which he found helpful, for someone with otherwise limited financial means, the situation is more complicated in his case. It emerged that Mr Campbell has had access to money from an inheritance from his grandmother, which was partly distributed to him last year and partly this year. He has apparently lost most of it - about $150,000 - through online gambling. My impression is that he is a relatively psychologically vulnerable young man, and that this gambling as well as what he admits was illegal drug use (of “speed”) during 2010 was a consequence of losing the stability and self-confidence from his previous employment and other physical activities. It is hard to accept however, that it was a reasonable decision to spend none of the money available to him to have treatment which he found helpful for his back.
27 He was referred to a psychologist, Mr Ferriere, in December 2010, at the urging of his mother, and attended for counselling for some months, but ceased to attend before the hearing.
28 In February this year, he was referred by his GP for further specialist opinion, to Mr Roy Carey, orthopaedic surgeon. Mr Carey ordered an MRI of his lumbar spine which confirmed two-level disc disease at the base of the spine. Mr Carey did not recommend surgery.
29 Early this year, with his WorkCover payments again discontinued, he was eventually persuaded to move back to live with his mother. In that environment, he has ceased the drug use and gambling, and with her persuasion and support has enrolled at Chisholm Institute, where he is currently undertaking a Certificate IV in TIG welding. This consists of four hours of classes on a Monday for theory, and then four hours on a Thursday for what is called practical. The course is only for those hours per week because it is the study component for apprentices in welding. Mr Campbell is enjoying and believes he is doing well at this course and hopes to follow it with a Certificate VII, in MIG welding. He hopes to be able to teach welding in the future, although it is unclear whether there is a further qualification required for that.
Medical Opinion
30 Apart from the opinion of Dr P Clark, all other medical opinion is to the effect that Mr Campbell continues to suffer from ongoing effects of an injury to his lumbar spine, suffered at work on or about 5 November 2008.
31 A CT scan taken a couple of weeks after the event confirmed mild disc bulges at L4/5 and L5/S1 with mild facet joint degenerative change. An MRI of his lumbar spine taken 24 March 2011[11] confirms mild L4/5 and L5/S1 disc degenerative change with small posterior disc protrusions contacting but not significantly impinging upon the thecal sac, with no convincing impingement on the exiting or traversing nerve roots.
[11] Exhibit L
32 In December 2009, Mr Michael Shannon examined the plaintiff for the defendant, for an impairment assessment, and queried why liability had been denied for his condition[12] as he found objective evidence of radiculopathy. On physical examination he found spasm on lateral flexion, slight wasting of the left thigh, left knee reflex absence, the latter two being neurological signs, and taken with the plaintiff’s account and the CT scan, Mr Shannon diagnosed a small left sided L4/5 disc protrusion with radiculopathy. At that stage he thought the symptoms had improved somewhat since the plaintiff ceased work, but found that he was still suffering ongoing spasm in his back, and considered him unfit for his former occupation or other work involving significant bending or lifting. Mr Shannon doubted that surgery would be required.
[12] Exhibit G
33 Mr Michael Dooley[13], orthopaedic surgeon, in March 2010 found no neurological abnormality, but there was restricted movement in the low back. His diagnosis was of underlying degenerative disease of the lumbar spine with a work-related aggravation, and that he may have sustained a disc prolapse on the left side at the L4/5 level. Mr Dooley felt there was longer and greater than expected constancy and intensity of the pain, and of restriction of range of lumbar spine motion, but confirmed that his employment had been a significant contributing factor to his lumbar spine injury. His opinion was that he would have difficulty carrying out regular physical work, but was capable of undertaking light physical work or clerical duties. In June 2011 on re- examination, Mr Dooley maintained his opinion that a work-related episode had aggravated underlying degenerative disc disease of the low lumbar spine with a possible small disc prolapse on the left side at L4/5. He did not consider that there was anything other than a theoretical prospect that lumbar spine fusion surgery was an option in his management, and thought return to satisfying and productive employment would be important in his overall management. Mr Dooley noted that Mr Campbell was undertaking a TAFE course and hoping to be able to work in a teaching capacity and thought that he should be able to work in such a capacity. From an orthopaedic viewpoint alone, he expected some ongoing intermittent low back pain and occasional lower limb pain but would not expect the condition to deteriorate. He did consider that Mr Campbell’s presentation related to a psychological condition.
[13] Exhibit J
34 Mr Rodney Simm examined the plaintiff twice for medico-legal assessment for his solicitors, originally on 17 February 2010 and again on 29 March 2011.[14] He had read the report on the CT scan, and noted that if he were managing the plaintiff he would recommend an MRI scan to confirm the diagnosis. Nevertheless he was confident that it would show lumbar disc degeneration with degenerative annular changes probably at the L4/5 level where there was some associated left sided L4/5 disc protrusion. Although the degenerative change was constitutional, he considered that the symptoms as reported of severe onset of pain in November 2008 probably represented some minor stretching or disruption of the degenerative annular fibres and noted that symptoms included numbness in the distribution of the L5 nerve root, that is, to the anterolateral lower leg and dorsum of the foot. He found no hard clinical signs of L5 radiculopathy but thought the reported pathology on the CT scan and the clinical symptoms in association with some residual sensory change in the L5 distribution were all entirely consistent. He did not find abnormality of the left knee reflex nor evidence of weakness of the left thigh nor sensory change in the L4 dermatome. He did not consider the plaintiff to be elaborating or embellishing his symptoms and accepted his history to be a genuine account. He considered the symptoms confined the plaintiff to light activities and prevented him from undertaking physically demanding employment which included his pre-injury employment. He expected him to have chronic symptoms much as outlined and not to be able to return to physically demanding occupational or recreational activities in the foreseeable future.
[14] Exhibit H
35 On further assessment in late March 2011, Mr Simm still found the plaintiff to present in a straightforward and co-operative manner, with no elaboration of physical signs. He had restricted movements of the thoracolumbar spine but normal reflexes in his legs, no muscle wasting or focal power loss, but he reported some decrease to pinprick sensation over the front and lateral side of the left thigh but not below the knee. By then an MRI of the lumbar spine had been performed on 24 March 2011 and he noted the results. He considered that Mr Campbell presented with persistent pain and evidence of lumbar spine dysfunction consistent with the diagnosis of unresolved aggravation of L4/5 lumbar disc degeneration. He thought he had low back pain with referred symptoms to the left lower limb consistent with internal disc disruption at L4/5 level but with no clinical signs of radiculopathy. Sensory changes in the L5 nerve root distribution were consistent with annual disruption of the degenerate L4/5 lumbar intervertebral disc. He considered the plaintiff’s condition had improved since last seen, that his reported lumbar back pain was now intermittent, and more central, with a minimal component of referred pain, but he was still unable to sustain prolonged periods of sitting, walking or physical activity.
36 Mr Simm did not consider that the work duties in August 2008 influenced the underlying pathology, but were probably more symptomatic exacerbations of his underlying condition, although there may have been some disc disruption at that time. His opinion was that the incident on 5 November 2008 probably related to the current condition – that once the degenerate disc was disrupted the structure of the disc was compromised and he has experienced chronic symptoms from that time up until the present time. Mr Simm concluded that the plaintiff was incapacitated for pre-injury employment which was physically demanding work as a boilermaker and was unlikely to return to such work in the future or to other heavy physical work because that would lead to an unacceptable exacerbation of symptoms from the unresolved aggravation of his lumbar disc degeneration. He now required work which allowed him some flexibility with static postures and he could handle light objects between knee and chest height. He considered the prognosis was for the condition to persist as it existed at that time, and the plaintiff would be prone to exacerbations of back and/or leg pain in the future which might occur spontaneously or after incidents of back strain.
37 Dr S Homolka[15], occupational physician, examined the plaintiff in September 2010 for the defendant. She considered his presentation demonstrated features of abnormal illness behaviour, and his clinical examination findings were inconsistent with the L4/5 disc injury suggested by the CT scan report. This included that she elicited tenderness at higher levels but not at the L4/5 level. She thought further investigation with an MRI would be of assistance. However, on clinical grounds her opinion was that he currently suffers from a residual low back dysfunction with radiation of pain into his left lower limb but without radiculopathy, following a soft tissue injury. In addition she considered he had developed a chronic pain syndrome and perhaps psychological sequelae to his injury, although the latter lay outside her area of expertise.
[15] Exhibit M
38 Dr Homolka’s opinion was that in occupational terms, given the radiological evidence of degenerative changes in his lumbar spine it would be unwise for him to return to work in welding or in any other physically demanding occupation, and considered him totally and permanently unfit for his full pre- injury duties with the defendant. She considered he had a current work capacity for full-time employment in suitable alternative duties which do not involve heavy lifting or strain in excess of 10 kilograms, repetitive bending or remaining in one position for extended periods of time. As to vocational options identified in an NES Vocational Assessment Report (17 June 2010), she thought that the options of welding assistant (small or light items), sales representative (welding products), dispatch clerk and retailer sales assistant would be within his current work capacity, but not job options of call centre operator and cashier, as they require sustained sitting.
39 In February 2011 the plaintiff was referred by his current general practitioner, Dr Newman, to Mr Roy Carey, orthopaedic surgeon. Mr Carey ordered an MRI of the lumbar spine, as a result of which he diagnosed two-level disc disease at the base of the spine, and presumed that was where the pain arose. He recommended non-surgical management. He commented that the plaintiff “obviously” has some work capacity but not to do all the duties of his previous job. He also commented that it was “almost unbelievable” that despite being off work so long, his Nabenet adviser had arranged no formal rehabilitation or retraining of any type.[16]
[16] Exhibit K
40 The plaintiff changed general practitioners to Dr Newman, some time in 2010. Dr Newman has reported[17], confirming the diagnosis from the MRI scan and that no surgical intervention was required. He also considered it unlikely that the plaintiff would be able to return to his pre-injury duties but with rehabilitation he should be able to return to full-time work in the future. He thought he probably requires re-training and to look for an occupation that does not require a lot of physical work. Dr Newman further stated that based on the MRI scan and neurosurgical report one would think that the plaintiff should recover from this injury, but back injuries are difficult to give a firm diagnosis and the fact that he is still symptomatic 18 months after the injury is a concern. Nevertheless, with good rehabilitation, Dr Newman thought he should improve.
[17] Exhibit 1
41 Finally, the defendant tendered a psychologist’s report from Mr Bernard Ferriere[18] who assessed the plaintiff in December 2010 due to concerns by his mother that he displayed wide mood fluctuations from elation to depression. Mr Ferriere set out the plaintiff’s personal background which indicates parental troubles which would have impacted on not only his earlier childhood but on an ongoing basis. He was diagnosed by Mr Ferriere as having a chronic adjustment disorder characterised by mixed exogenous depression and anxiety. The report examines the relationship between his work injury and the difficulties that developed including gambling, which compounded his feelings of hopelessness and helplessness. Cognitive behavioural treatment was undertaken but yielded limited results as he did not respond well to that approach. The undertaking of study at Chisholm TAFE was felt to open the possibility of him working for himself, and he had shown considerable improvement by establishing a vocational framework. Mr Ferriere felt it reasonable to assume that Mr Campbell could achieve further significant recovery within 12 months with appropriate psychological intervention, although at that stage (17 June 2011) he had ceased his psychological treatment, and with chronic adjustment problems there was the possibility that without support he could relapse.
[18] Exhibit 2
42 The defendant tendered the psychologist’s report, and argues that I should not be satisfied that his psychological condition is not influencing his experience of symptoms of his back injury.
Compensable injury
43 I am satisfied from the preponderance of medical opinion that as a result of work duties, at least on 5 November 2008, Mr Campbell suffered injury to his lumbar spine in the form of aggravation of pre-existing degenerative changes and probable disc damage at L4/5, and possibly L5/S1. I am satisfied that the aggravation and any disc damage caused by that work incident continues to cause symptoms which have consequences for him and are likely to do so permanently.
44 Dr Homolka speaks of “soft tissue injury” but that is not inconsistent with the above. The only medical opinion to the contrary is that of Dr P Clark, who assessed the plaintiff only once, on 20 January 2009, which was before he experienced exacerbations of pain from incidents such as vomiting or walking too far. His view was that the plaintiff had fully recovered from a straining injury. Dr Clark did not see any radiological report – he records the plaintiff telling him there had been an Xray and CT scan that were normal – and he did not feel the need to see any radiology. Given that the plaintiff was on a graduated return to work program at the time, working only 25 hours per week at light duties, and that it was reported the following week by Nabenet assessment[19] that “it is essential that return to pre-injury hours and duties be via a graded program”[20], I do not accept Dr Clark’s opinion about the plaintiff’s injury or that he was fit for full pre-injury duties. It is most unfortunate that this was not examined more closely before cessation of Workcover payments.
[19] Exhibit 7
[20] Ex 7 - Page 4 of 5 – in box “Reasons for Assessment Recommendation”
Has the plaintiff suffered as “serious injury” as to pain and suffering?
45 I am satisfied that as a result of that injury he suffered significant pain in his low back which restricted his free movement of his back. I am also satisfied that there have been resulting symptoms in his left leg, including intermittently referred pain into the left thigh and, on occasions, temporary numbness or sensory change in his left foot. He says that the pain in his low back has fluctuated, and in his more recent affidavit said it was no longer constant but existed most of the time with increases upon certain activities.
46 I am satisfied from what he says in his affidavits and from what he has told various doctors, that overall the pain in his back and in his left leg has marginally improved. There is still some sleep disturbance from back pain - “”I don’t have specific days that I have a bad night. It’s just sometimes I wake up. I’m in a bit of pain…about two nights a week roughly”[21]. I am satisfied that physiotherapy assisted and is likely to give further relief if he pursues such treatment. However I am also satisfied from the orthopaedic reports that his current symptoms are likely to be permanent, and there are likely to be intermittent exacerbations from over-activity or sometimes spontaneously. He is a young man who has a long period of such symptoms ahead of him.
[21] T 76, l 21-25
47 As a young man attempting to return to work, and co-operating with the return to work program[22], the loss of Workcover payments for medical treatment, and indeed loss of his job, meant that his rehabilitation was halted abruptly.
[22] Exhibits 5, 6 and 7
48 Whether or not Mr Campbell’s prospects of playing grid-iron football, or of participating in bodybuilding competitions, were as great as he now perceives them, I am satisfied that the injury to his low back did significantly hinder his ability to continue with the physical and sporting activities he used to undertake, including bodybuilding and weight lifting. Whether he would have been able to continue with those with an already symptomatic degenerative lumbar spine is unknown, but I accept that such activities were brought to a more abrupt end than if he had not suffered this injury. I also accept that for a young man to find himself losing a physique in which he had pride, was also a significant consequence of the low back injury, together with his inability to continue with gym and bodybuilding activities.
49 The psychological effects of his back injury cannot be taken into account for the purposes of assessing the consequences of that back injury as his application is based only on paragraph (a) of the definition of “serious injury”[23]. That means that I cannot take into account as consequences his becoming introverted and feeling depressed. I do consider relevant that he became isolated socially, both from cessation of work and from inability to attend his gym and bodybuilding activities, and that he lost self confidence as a result.
[23] Sub-s.134AB(38)(h)
50 I am also satisfied that as a result of the injury to his lumbar spine the plaintiff is likely to be permanently unfit to return to his pre-injury occupation as a boilermaker/welder. Although not formally qualified as such, he had worked in that field for some five years, and whether he was likely to become fully qualified or not, he had a career in that activity open to him or, alternatively, a career in other physically demanding work. The loss of that occupational potential, which is a field in which he was interested and already established is of considerable significance to a young man in his twenties, and I take it into account in relation to his loss of enjoyment of life, being part of pain and suffering damages as opposed to pecuniary losses.
51 He has taken limited medication, and apart from initial short-lived prescription of Panadeine Forte, which he ceased due to allergic reaction, he has been able to manage with over-the-counter Panadol, Nurofen and Voltaren. His only other treatment has been physiotherapy, which might recur in the future. Overall, he has not required, and is unlikely according to the medical opinion to require in the future, significant interventionist medical treatment. There is also no medical prognosis that his condition is likely to significantly deteriorate in the foreseeable future, although he will be vulnerable to exacerbations of back pain whether spontaneous or through strains from particular activity.
52 Given his youth and the many years in which he will be undergoing a level of ongoing back pain and need to modify activities, exacerbated from time to time, some interference with his sleep especially when the pain is worse, and permanently unable to return to an occupational field which he enjoyed and had already established as his likely career, I am satisfied that when compared with other possible impairments, the consequences to this plaintiff can fairly be described as more than significant or marked and at least very considerable. I am satisfied that they are likely to last for the foreseeable future and can be categorised as permanent in that sense. Accordingly, I am satisfied that he has satisfied the definition of having suffered a serious injury as to pain and suffering.
Loss of earning capacity
53 In order to obtain leave to bring a claim for damages in respect of loss of earning capacity the plaintiff must establish that he has suffered a permanent loss of earning capacity of at least 40 per cent.
54 As he was not yet 26 years old at the time of the injury, the assessment of his pre-injury earnings is not confined to having his without injury earnings measured under the rigid formula laid down in s.134AB(38)(f)(ii) of the Act. I was referred to cases which have examined the explanation in the Minister’s Second Reading Speech (23 May 2000) of why young workers are to be treated differently in this regard. That was because it would be unfair to limit a young worker to what might have been low pre-injury earnings, during training or starting in a field, without taking into account the potential such worker had to increase those earnings after training and gaining occupational experience.
55 The defendant points out that that particular rationale does not apply to this plaintiff who, although under the age of 26, and not holding formal qualifications, had worked for some five years in the field, and was not noticeably limited by his age in his capacity to earn significant wages.
56 His actual earnings with the defendant prior to November 2008, based on working 47 hours per week, were an average of $1,218 gross per week or approximately $63,336 per annum.
57 It is conceded by the defendant that if, at the time of the hearing, the plaintiff were working 47 hours a week as a qualified boilermaker for the defendant, he would be receiving approximately $1,410 gross per week or $73,000 per annum, and the plaintiff’s counsel argues that that figure should be used to determine his current loss of earnings. He was not, of course, a qualified boilermaker, and had not started any formal training by the time of the injury. Even though he said in response to a question from me that he was thinking about doing so, I am not satisfied that he was likely to have been fully qualified by now, as well as working 47 hours per week. That is because if find that he was unlikely at that stage to give up weekly income to spend the hours at a college to do the study component. Alternatively, if he had given up that time (at least 8 hours per week according to the evidence about the course requirements for a Certificate IV at Chisholm TAFE of four hours on two days per week), he would be earning $30 per hour[24] but for a 39[25] hour week, $1,170[26].
[24] T 53, lines24-5
[25] 47 less 8 hours study, and probably less if travel time lost from working hours
[26]
58 In my view the figures for what he was actually earning at about the time of the injury, rounded up to reflect some small incremental increase over the near three years that has passed since his injury, is the appropriate measure of his pre-injury earning capacity. It already incorporated significant overtime which on his own affidavit was not regular. I therefore find that his pre-injury earning capacity was $63,500 gross per annum, or $1,221 gross per week. To prove a loss of earning capacity of at least 40% he therefore needs to prove that he is not now earning, and is not capable of earning in suitable employment[27], as much as $733 per week or $38,100 gross per annum.
[27] Sub-s.134AB(38)(f)(i) (B)
59 Further,
“(g) a worker does not establish the loss of earning capacity required
…where the worker has, or would have after rehabilitation
or retraining, and taking into account the worker's capacity for
suitable employment after the injury and, where applicable, the
reasonableness of the worker's attempts to participate in
rehabilitation or retraining, a capacity for any employment including
alternative employment or further or additional employment which, if
exercised, would result in the worker earning more than 60 per centum of
gross income from personal exertion as determined in accordance with
paragraph (f) had the injury not occurred”.60 The plaintiff not only bears the general onus of proof in such a case, but also the specific onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability[28].
[28] Ss 134AB(19)(b)
61 The defendant relied on the case of Doolan v Rayners SawmillsPty Ltd[29] as an example of where the burden of proof, not only as to current incapacity for earnings but also as to inability to be retrained for suitable or alternative employment, was not discharged.
[29] [2008] VSCA 219, esp. at [71] and [107]
62 In this case the plaintiff has not, in fact, engaged in any suitable employment or employment at all since the defendant terminated his employment. I am satisfied from the preponderance of medical opinion that he is permanently incapacitated for employment as a boilermaker/welder, or any similarly physically onerous work. This was not disputed by the defendant. On the other hand, all medical opinion confirms that he would be capable of work not so physically demanding, without heavy lifting or sustained twisting or bending, and without prolonged standing or sitting, and several doctors recommend retraining to achieve that.
63 The plaintiff’s counsel submits that retraining or rehabilitation will not alter the current state of affairs or improve his predicament and, in particular, will not improve his current capacity for employment. Mr Spittle points to what he calls a total disregard for the statutory obligations as regards occupational rehabilitation services and suitable retraining or vocational re-education. I agree that there has been such failure on the part of the employer and its WorkCover insurer. Indeed, Mr Carey noted on first assessing the plaintiff on referral from his general practitioner in February of this year, that he found it “almost unbelievable” that despite being off work for so long his Nabenet adviser had arranged no formal rehabilitation or retraining of any type.
64 Under ss 134AB(38)(g), it may be that the failure by the defendant’s agencies to offer appropriate rehabilitation or retraining – including even failing to pay for his current course at Chisholm TAFE - should qualify any assessment of the reasonableness of his attempts to participate in rehabilitation or retraining. I do not make any specific finding on whether he has satisfied this provision, because of my findings before reaching that issue.
65 The problem for the plaintiff is that for the purposes of this application, notwithstanding that the employer and its insurer may have failed in their statutory obligations, he still bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment, and the extent of such inability.
66 I am satisfied from the evidence that several of the alternative jobs suggested or discussed in the medical reports would not be suitable employment for him. As Dr Homolka said, he was likely to be unsuitable as a call centre operator due to the need for prolonged sitting. I am satisfied that being a welder’s assistant is unlikely to be less physically demanding than being a welder, as the assistant traditionally does the heavier – and often more menial - labouring tasks in any trade. It is not apparent to me, however, why dispatch clerk or sales work, including for specialised trade goods, provided there was limited lifting, or for any other lighter goods, would be beyond his physical capacity. He is literate in English, and provided he could move around so that he need not stand or sit for prolonged periods, he would seem to be capable of such work.
67 Further, it is not enough for the plaintiff to exclude specific suggestions as to alternative jobs; the onus is to prove that he is not capable of suitable employment even after retraining (specifically employment which would earn him at least 60% of his pre-injury capacity). In this regard I note that he said that he is not interested in being retrained for computer based employment. That does not mean that he would not be capable of it, which is the test. As he could maintain his interest and use a computer for on-line gambling, including presumably entry of banking or payment details, there is no evidence other than his lack of interest of why he is not capable of performing data entry tasks. He quite possibly would require training for any full-time employment of that nature, but there is nothing to indicate he would not be capable of the training or the duties, and provided that he had some flexibility in changing posture as necessary, I am not satisfied that he would be incapable of such full-time employment. There is no evidence of what earnings might be expected from such work, but that is a problem for the plaintiff in discharging his onus of proof ie that a full-time data-entry or other computer- based job would earn him less than $38,100 p.a.
68 As to his capacity for retraining, the plaintiff, of his own volition is undertaking a course at present through Chisholm Institute towards a certificate in TIG welding, and he hopes to follow it with a Certificate VII in MIG welding. He says that he is coping well with that course. I accept that it is only eight hours of attendance at college per week, and there must be some real doubt as to whether such certificates, assuming he completes them, will lead to his being qualified to teach welding which is his stated aim. It is to his credit that he has undertaken this course, especially as the defendant’s representatives refused to pay for it yet seek to rely on his capacity to do it. Nevertheless, the fact of his capacity to do this course is indicative that he is capable of undertaking some retraining, rather than the opposite.
69 On the basis that he is currently capable of and apparently enjoying the course at the Chisholm Institute, I cannot be satisfied that he is not capable of undertaking other training courses for occupations without significant physical strain or exertion, including but not necessarily limited to teaching or supervisory or inspection roles.
70 He is a young man; still only 28 years of age. I accept that he has undergone considerable depletion in confidence and upheaval in his life plans as a result of his back injury, from which he has apparently started to emerge on returning to live with his mother, and with her support and encouragement and his own endeavour at undertaking a course at Chisholm Institute.
71 Taking all of these matters into account, it is difficult in assessing his condition and circumstances at present, to say that he is permanently incapacitated from all full-time work. He aspires to obtain employment teaching welding, and has also mentioned possibly opening a business of his own designed furniture. Whether or not either is likely to occur, I have no evidence of what likely average weekly earnings such occupations would produce. Whilst it is unlikely to give the overtime possibilities that he was apparently enjoying in his employment with the defendant, there is no evidence that such occupations at ordinary hours would earn him less than $38,100 pa ($733 p/w) at present.
72 In the end, I am not satisfied that the plaintiff has discharged his onus of proving that as a result of the work injury to his low back he is permanently, and in particular after retraining and rehabilitation, unlikely to be capable of earning at least 60% of his pre-injury earning capacity, or $38,100 pa ($733 p/w) on present day values.
Conclusion
73 For the above reasons, I am satisfied that on or about 5 November 2008 the plaintiff suffered injury to his low back in the course of his employment with the defendant which satisfies the definition of a serious injury as to pain and suffering damages and I propose to grant him leave to bring proceedings accordingly. I am not satisfied that he has suffered a permanent loss of earning capacity of at least 40 per cent, and am therefore not satisfied that he has suffered a serious injury as to loss of earning capacity.
SCHEDULE OF EXHIBITS
David Campbell v Forktorque Pty Ltd
CI-10-03132
Number and
| Identifying | Short Description of Exhibit | Court | Date | Tendered |
| Mark on | Book | tendered | by… |
| Exhibit | Referenc |
e
A Affidavits of Plaintiff sworn 18/03/10 and P37-56 27/06/11 Plaintiff 23/05/11 B Workers claim form dated 14/11/08 P1-2 28/06/11 Plaintiff C Workers claim form for impairment benefits P3-4 28/06/11 Plaintiff dated 05/11/09 D Affidavit of Susan Campbell sworn 23/05/11 P57-58 28/06/11 Plaintiff E Reports of Mr Ritter dated 14/01/09 and 16/7/09 P63-66 28/06/11 Plaintiff F Reports of Dr Whiteside dated 22/07/09 and P67-70 28/06/11 Plaintiff 18/02/10 G Report of Mr Shannon dated 14/12/09 P71-75 28/06/11 Plaintiff H Reports of Mr Simm dated 17/02/10 and P87-97 28/06/11 Plaintiff 29/03/11 J Reports of Mr Dooley dated 24/03/10 and P98-101 28/06/11 Plaintiff 22/06/11 D24a-24c K Reports of Mr R Carey dated 23/02/11 and P102-104 28/06/11 Plaintiff 13/05/11 L Radiology reports dated 13/11/08, 24/03/11 P59-62 28/06/11 Plaintiff (MRI) and 24/3/11 (Lumbosacral Spine X-Ray) M Report of Dr Homolka dated 29/09/10 D15-24 28/06/11 Plaintiff N Letter to Mr Dobeli from Dr Jon Ford dated D87 28/06/11 Plaintiff 01/11/10 1 Report of Dr Newman dated 05/05/11 P105-106 28/06/11 Defendant 2 Report of Mr Ferriere dated 17/06/11 P107-116 28/06/11 Defendant 3 Report of Dr P Clark dated 21/01/09 D8-14 28/06/11 Defendant 4 Affidavit of Murray McLeod sworn 27/05/11 D6-7 28/06/11 Defendant
5 Offers of suitable employment dated 17/11/08 D54, 28/06/11 Defendant
and 22/01/09 D56-58
6 Return to work plan dated 17/11/08 D55 28/06/11 Defendant 7 Reports of Nabenet dated 27/01/09 and D59-63 28/06/11 Defendant 17/06/10