Casagrande, Shane v Refgo Pty Ltd and VWA
[2009] VCC 1758
•30 November 2009
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-01848
| SHANE CASAGRANDE | Plaintiff |
| v | |
| REFGO PTY LTD | First Defendant |
| and | |
| VICTORIA WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 and 21 October 2009 |
| DATE OF JUDGMENT: | 30 November 2009 |
| CASE MAY BE CITED AS: | Casagrande, Shane v Refgo Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1758 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – worker aged under twenty six – loss of earning capacity – pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R P Gorton QC with Mr J | Arnold Thomas & Becker |
| P Brett | ||
| For the Defendants | Mr W R Middleton SC with | Herbert Geer |
| Ms M Taaffe | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment from 20 October 1999 to 1 May 2004 but more particularly, on 1 May 2004 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in Section 134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning permanent serious impairment or loss of a body function.
4 The impairment of body function relied upon is the lumbar spine.
Outline of Section 134AB
(i) Apart from being a serous 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 last for the foreseeable future.
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, sub-sections 19 and 38(e) impose specific burdens in relation to a claim for loss of earning capacity.
(iv) By subsection 38(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which when judged by cases in the range of possible impairments may be fairly described at the date of the hearing as at least “very considerable” and more than “significant” or “marked.”
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
(vi) When a worker is aged under twenty six years or under at the date of injury, pursuant to Section 134AB(38)(e)(i) of the Act, he must establish that at the date of the hearing he has a loss of earning capacity of forty per cent or more. Further, he must establish, pursuant to subsection (e)(ii), that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of forty per cent or more. Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.
(vii) Consideration must also be given pursuant to subsection (g) of the reasonableness of the plaintiff’s attempts to rehabilitate or retrain.
(viii) Subsection 38(h) provides that consequences which are psychologically based are to be totally disregarded in paragraph (a) cases.
(ix) I have applied the principles identified by the Court of Appeal in Barwon Spinners v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross examined.
6 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged twenty seven, having been born on 13 February 1982. The plaintiff lives in a de facto relationship with the mother of his five year old son in Burnie, Tasmania. The plaintiff is in receipt of Centrelink benefits and his partner works part time as a waitress.
8 The plaintiff attended secondary school until halfway through Year 9 when he left to commence an apprenticeship as a baker with the first defendant in about 1996 or 1997. He served four years of his apprenticeship but did not complete the academic side. However, from 2000 until the said date he worked as a qualified baker.
9 The plaintiff had a difficult home life, and possibly as a result of those circumstances, he drinks alcohol regularly. He has had four or five convictions for driving whilst disqualified, both before and after the said date, having lost his licence for having exceeded 0.05. In 2006, he went to gaol for two months, having breached a suspended sentence received for one of these offences.
10 The plaintiff agreed that he had, at various times, driven whilst disqualified when he had to. Sometimes he would drive to work, and not having a licence was not an impediment to his job. However, he had had a “wake-up call” when he had gone to prison. The plaintiff presently has a Tasmanian licence which does not require an interlocking device.
11 The plaintiff was a patient at the Rosebud Clinic (“the Clinic”) for ten years from the time he was a young boy. He never had any treatment for his lower back prior to the said date.
12 When cross examined, the plaintiff could not remember, in May 1990 at the age of eight, presenting himself at the Clinic with several months of mid and upper back pain.
13 The plaintiff agreed that he had been involved in a car accident in August 1994 when he was aged twelve. He was pretty young and could not really remember what pain he had complained of. He did not remember having low back pain or going to the hospital.
14 The plaintiff was cross examined about histories he had given to doctors about any back pain prior to the said date. He agreed that possibly he had told Mr Weaver that he had previously had mild backache, but had told him this would recover with a good night’s sleep.
15 The plaintiff said that he might have had some sore muscles along his back. There might have been mid back pain but it was minor. Any lower back problem would have been a strain not pain like he has now.
16 The first defendant operated a wholesale bakery in Mornington. Most of the baking was of high quality bread for restaurants. The plaintiff’s normal working hours were from 8.00 pm to 4.00 am.
17 In cross examination, the plaintiff denied having seen a letter from the first defendant dated 30 April 2001 warning his work was unsatisfactory. The plaintiff agreed there were issues at work about him turning up on time but he was not told by the first defendant it would not put up with this behaviour anymore.
18 On the said date, the plaintiff felt a sudden crunch and pain in his lower back as he was lowering a crate of bread to the floor (“the incident”).
19 The plaintiff believed that his injuries had been coming on for a while due to the difficult nature of his work.
20 The plaintiff agreed he told Mr Weaver that the crate of bread weighed about ten kilograms, but then said he did not know exactly how much it weighed.
21 The plaintiff told a fellow worker, Grant Wolfenden, of the incident. The plaintiff finished his shift with the help of other workers but he did not attend work the next night. The following night, the plaintiff was only able to work half a shift and since that time he has not worked as a baker.
22 There was no first aid book or incident report book at work. The plaintiff also reported the incident to John Mentiplay on the phone over the next couple of days.
23 A few days after the incident, the plaintiff saw Dr Gaur at the Clinic and x-rays were organised.
24 The plaintiff denied that following the incident he told Dr Gaur that he hurt his low back at home and that he had had five years’ of recurrent back pain. Further, he denied that he had had pain at a higher level on his lumbar spine, as reported by Dr Gaur, and that the doctor had it wrong that the pain was other than in his lower back. The plaintiff agreed that he had never had any sciatic pain.
25 In cross examination, the plaintiff was asked about an entry in his clinical file on 9 June 2004 when Dr Gaur recorded the plaintiff “had a lot on his plate”. The plaintiff said at that stage the things that were troubling him were that he had a son and there were problems with drink driving.
26 Physiotherapy and heat treatment were provided by Dr Guybert at the Clinic. The plaintiff also had physiotherapy treatment from Mr Pickett twice in May 2004. The plaintiff later attended Dr Forbes Smith at the Dromana Clinic who referred him to an orthopaedic surgeon, Mr Pease, who organised radiology and suggested the plaintiff undergo a spinal fusion.
27 At first the plaintiff agreed with this suggestion, but Mr Pease required him to give up smoking and the plaintiff could not do so. The plaintiff also started to have doubts about the surgery so Mr Pease decided not to proceed. An epidural injection was performed but it did not give the plaintiff any long term help.
28 The plaintiff also attended a chiropractor, Dr McNab, at McCrae Chiropractic Clinic four times between May and July 2004, having been referred to him by Mr Wilson, a myotherapist.
29 The plaintiff’s condition was complicated by an incident at Mt Buller in July 2005 when he fell, breaking his ankle, whilst walking after dinner. The plaintiff attended the Mt Buller Medical Centre in relation to that injury.
30 The plaintiff explained in cross examination that he drove from the Mornington Peninsula to Mt Buller to take a friend whose girlfriend was working there. He did not go skiing at all, nor did he attempt any snow activity.
31 They arrived at about 7.00 pm, went out for dinner and attended a party for about five hours where he enjoyed himself and was drinking. Affected by alcohol, he slipped whilst walking on the snow on the way back to the chalet. He fractured his left ankle which was put in plaster.
32 The following day the plaintiff drove his automatic car back to the Peninsula. When asked how he could do this level of activity at Mt Buller and he was not able to work, the plaintiff said he just had not found a suitable job.
33 In re-examination, the plaintiff explained that he had to stop a number of times on this trip because of his back pain and he needed to get out of the car to move around.
34 Mr Pease somehow got the idea that the plaintiff had been skiing when he fractured his ankle and, given this information, Mr Pease advised that the plaintiff was no longer unfit for work. The plaintiff’s weekly payments were then ceased.
35 However, this confusion was eventually cleared up with Mr Pease and, at a conciliation conference, the plaintiff’s payments were reinstated.
36 In September 2006, the plaintiff was referred by his general practitioner to Mr Pullar, neurosurgeon, who said he had nothing further to offer the plaintiff and he did not advise surgery.
37 In cross examination, the plaintiff said he had always sent his bills for his lower back treatment to WorkCover. The plaintiff agreed he had seen Dr Guybert at the Clinic on fourteen occasions between 17 May 2004 and 18 October 2004. He saw Dr Gaur in between May and August 2004.
38 The plaintiff saw Dr William Lyon four times between 9 December 2004 and 9 September 2005.
39 The plaintiff saw Dr Forbes Smith at Dromana ten times between January 2005 and April 2006. The plaintiff agreed that Dr Forbes Smith certified the plaintiff fit for suitable duties in May 2006, but the plaintiff was not working or looking for work.
40 The plaintiff saw Dr Cacek once in August 2006.
41 The plaintiff also saw Dr Kiriakova in Mt Waverley on about five occasions between May and July 2008 when he was prescribed Tramal.
42 In cross examination, the plaintiff said he did not think that between August 2006 and May 2008, he had had any treatment for his back. However, in that period he would have had medication like Nurofen regularly and he self medicated with marijuana. He no longer uses marijuana for pain relief.
43 Having been told by Mr Pullar that he was not a candidate for surgery, the plaintiff has had minimal treatment. There is little that can be done for his back. He attends his general practitioner and sometimes takes Tramadol. Otherwise, he simply puts up with his symptoms. He still carries out exercises prescribed by his physiotherapist. At present, the plaintiff is willing to consider surgery with the way his back is and the severe impact it has had on his life.
44 The plaintiff has complied with treatment suggested for him and he has missed appointments on occasion. He did not think he would have missed specialist appointments, but he might have had problems at times without a drivers licence.
45 Since September 2008 the plaintiff has lived in Tasmania because it is cheaper and he has family there, however, he had to leave his friends behind in Victoria and that has been a great disappointment to him. Since moving to Tasmania, he has attended the Somerset Medical Clinic.
46 The plaintiff saw Dr Markabawi at the Somerset Medical Clinic once in December 2008 and saw Dr Tamini once in March 2009 and on other occasions. The plaintiff now sees Dr Markabawi regularly.
47 The plaintiff has pain in his low back all the time which varies in intensity. Despite the limitations his condition places upon him, he still tries to do as much as he can and he avoids activities which place undue strain on his spine.
48 There are occasions when the plaintiff’s back pain gets worse after activities and other times there are flare ups and severe pain for no reason. When in less pain, he tries to be more active and that will often lead to an aggravation. Unfortunately, the plaintiff is unable to predict when his pain is going to be severe which makes planning his life very difficult. That unpredictability, in his view, would seriously affect his reliability as an employee in paid employment being required to present himself at work.
49 In cross examination, the plaintiff confirmed he still had constant varying back pain in the middle and left side of his back above the belt line, worsened by prolonged standing, sitting, bending and twisting.
50 The plaintiff agreed he had problems flexing and could not do so to ninety degrees without bending his knees. He probably could flex to fifty or sixty degrees, but he does not do it very often. If he does so, the plaintiff gets a big pulling pain, which feels like it is going to snap.
51 The plaintiff enjoyed being a baker and it was his life. He is unable to return to that trade as it is beyond his physical capacity.
52 The Victorian WorkCover Authority sent an assessor to the first defendant’s premises to find light duties for the plaintiff but none have been offered to him.
53 The plaintiff attended KTM Consultancy Services on six occasions between September 2004 and March 2006 but no work was suggested to him.
54 The plaintiff has been in contact with CRS, but they have not arranged any job interviews for him either in Melbourne or Tasmania.
55 At the present time, with CRS’ assistance, the plaintiff is considering training for truck delivery or, alternatively, similar work such as a school bus driver where he would not be required to load and unload. He is unable to say whether he would be able to do that sort of work, but from his experience of other activities and trying to drive for longer periods, he would have difficulty doing it on a full time basis. He would be very limited in the hours he could do and thought he could do perhaps in the order of two to two and a half days per week with appropriate breaks.
56 The plaintiff is trying to get an endorsed truck licence in Devonport. It is supposed to be an on-the-job course, but he is not working so he does not know how long the course will take. He has just gone through the occupational health and safety component and he has not yet actually sat down in a truck. Training for truck driving is a serious intention for him.
57 In cross examination, the plaintiff agreed that he could work, but only part time. He could not do the type of activities that were involved in assembling a quad bike for eight hours. He could not work as a courier driver for eight hours a day. He knows his limitations and could not go back to standing at a bench all day.
58 The plaintiff looks in the paper every week and cuts out possible driving jobs and puts them in a scrapbook as suggested to him by the rehabilitation people but he has not applied for a job.
59 The plaintiff did a two-week excavator course, but he did not think he could do that type of work. The licence just gave him another option.
60 As a result of his back condition, the plaintiff’s enjoyment of leisure activities, including dirt bike riding, has been greatly diminished and his ability to partake in all the activities he would like to with his five year old son is very limited which is an enormous disappointment to him.
61 In September 2007, the plaintiff deposed that he was far more active before the incident. He used to work on cars a lot, both his own and those of his friends. He rode motorcycles. He played pennant basketball for Dromana Seagulls.
62 Since the incident the plaintiff cannot work under a car engine, he cannot play basketball and he had to be careful how he plays with his son, who was then aged three, and he could not even kick a football with him. The plaintiff used to play golf and still tries to play sometimes, but when he plays a shot, his back is really aggravated. At times, he is able to play without aggravation.
63 In cross examination, the plaintiff said he was not playing basketball as of the said date. He can kick a football with his son. The plaintiff first played golf after the incident and has played half a dozen times.
64 The plaintiff has a four wheel drive vehicle which is a lot straighter and easier for him to drive rather than his girlfriend’s coupé. He has had this manual car for nearly two years. He does not drive it off the road and does not have a special need for carrying things.
65 After an hour or an hour and a half, the plaintiff starts to get squirmish when driving. He gets a similar feeling after prolonged standing or sitting generally. His back is better with some activity such as walking. He is able to walk his dog. He spends his day doing housework, watching television and using the computer.
66 The plaintiff does a little bit of most things, like dishes and sweeping. He does some vacuuming and mows the lawns with a ride-on mower when required, probably every fortnight. That takes him fifteen to twenty minutes. In terms of handyman tasks, he does most things a little bit. He has hung up curtains when he had to. He got on the roof and put up a television aerial.
67 In re examination, the plaintiff said that he gives his partner a hand around the house when he can for short periods and “just does little bits of things.” He cannot do prolonged sweeping or vacuuming and he gets sore and has to sit down and have a rest.
68 The plaintiff has difficulty cutting, chopping and collecting firewood, and also has problems carrying out heavier tasks around the home.
69 The plaintiff collects small amounts of firewood which he cuts with a chainsaw and he is helped by his partner. Using the chainsaw is one of the worst things he can do for his back.
70 The plaintiff also uses a wood splitter to cut wood. About once a month he collects wood in the rural area of Burnie and puts it in the back of his Land Rover. He and his partner usually cut the wood and she will carry it. It takes about half an hour to fill the boot of the Land Rover and about fifteen minutes to chop and split the wood.
71 The plaintiff still works from time to time on the car engine, doing some minor mechanical repairs but not like he used to. He still changes the oil, but does not give the car a lube.
72 He used to change major parts, take gearboxes out, do clutches and change diffs. He cannot do this now because of he cannot crawling in and out from under a car, tight bolts are hard to get undone and just the time it takes. Working on his car causes him pain and he has to take medication after doing so.
73 The plaintiff last owned a dirt bike in 2007. He did not ride between May 2004 and September 2007 because it never went properly. He last rode a real motorbike before the incident.
74 Since the incident, until his son was about three, the plaintiff rode with him on his son’s 50 cc mini bike, possibly on a dirt track, but not regularly. The plaintiff no longer does so because his son has his own quad bike, on which the plaintiff also has a ride off road. The plaintiff agreed the bike bounced and affected his back, but he rode with his son “a little anyway”.
75 The plaintiff agreed that the mini bike is about two feet high and he would have to sit in a very awkward position to ride it. He agreed he would have done that dozens of times with his son.
76 In cross examination, the plaintiff disagreed that he had a fruitful, satisfying physical relationship and said that he had sexual relations may be once a month.
77 The plaintiff has totally recovered from the injuries he had suffered to his bowel in a transport accident in 1997.
The Plaintiff’s Medical Evidence
78 Mr Hugh Weaver, orthopaedic surgeon, examined the plaintiff on behalf of CGU Workers’ Compensation Insurance (“CGU”) on 25 August 2004.
79 The plaintiff told him he had no history of any previous back problems, save for mild aches, which recovered with a good night’s sleep. The plaintiff told him of the incident as he lowered a crate weighing approximately ten kilograms to the ground.
80 The plaintiff told Mr Weaver that since the incident he had low back pain present all the time and that he had to rest and stop on the way to Melbourne for his appointment.
81 On examination, within the thoracic spine there was some limitation of movement but the plaintiff flexed well to eighty degrees without difficulty. Straight leg raising definitely caused the plaintiff to experience a certain degree of low back pain, although it was performed to eighty degrees bilaterally. Neurological examination of both lower limbs was completely normal.
82 Mr Weaver had available to him the CT scan of May 2004.
83 In Mr Weaver’s view, the plaintiff presented as someone who appeared to be exhibiting evidence of a genuine persisting problem affecting his lumbar region.
84 He noted the plaintiff presented with a history and with findings obtained from CT scans which suggested that he was exhibiting an element of genuine lumbar intervertebral disc degeneration. He noted the point to be made was that this problem was clearly a very significant one indeed for a man of his relative youth.
85 In Mr Weaver’s view, the plaintiff would have little difficulty in arguing his problem reflected, at least in part, the effects of his work. He thought it was unlikely the plaintiff was going to return to work immediately and the best he could do was a graduated return to work.
86 He agreed a case might be theoretically made for the plaintiff to undergo assessment and a rehabilitation service if he reported no improvement, rather than being left to his own devices. At that stage, Mr Weaver thought the plaintiff was currently incapable of returning to work.
87 Dr Forbes Smith, from the Dromana Medical Centre, first saw the plaintiff on 24 January 2005 as a WorkCover case with a history of disc prolapse. He understood the plaintiff’s work as a baker involved a lot of bending and lifting which resulted in injury.
88 Dr Forbes Smith noted that for a considerable time his clinic had issued certificates for suitable alternative duties.
89 Dr Forbes Smith considered the plaintiff’s prognosis was poor as he had shown little effort to manage his own rehabilitation and had missed several appointments. He had also been discharged from the care of his specialist because he failed to comply with requests to stop smoking prior to future proposed surgery.
90 In Dr Forbes Smith’s view, the plaintiff’s condition had stabilised and he had chronic low back pain due to degeneration of L4-5. He concluded the plaintiff suffered an injury to his L4-5 disc in the course of work.
91 Dr Forbes Smith noted the plaintiff apparently, for some time prior to seeing him, had been lost to the system and, in the middle of all that, the plaintiff had broken his ankle in the snow. The plaintiff unfortunately had some social problems involving drugs and alcohol and had been in trouble in relation to drink driving. These matters had not assisted his rehabilitation.
92 Dr Forbes Smith noted that it was difficult to know where to go next with the plaintiff, given that after a very prolonged period in determining the major cause of his ongoing back pain and then determining surgery was appropriate, as he was in gaol and unable to stop smoking, the plaintiff had been discharged by his spinal surgeon. Dr Forbes Smith suggested, in addition to finding another surgeon, alternatively the plaintiff should be locked into an occupational rehabilitation provider to find suitable employment given his medical constraints with his chronic back injury.
93 Dr Castle examined the plaintiff at the request of CGU on 28 February 2005. The plaintiff told him that when he was moving a full crate of bread on the said date, he put it on the floor and felt something pop in his back.
94 On examination, straight leg raising was to thirty degrees bilaterally. There was no neurological abnormality. There was some reduction in the range of lumbar movement.
95 Dr Castle’s report focussed on the plaintiff’s suitability for a range of jobs.
96 In his view, work as a forklift driver was unsuitable as the plaintiff had difficulty driving his own car for forty minutes. Work as a truck driver was a little more likely when the plaintiff did not have requirements for lifting or dealing with heavy loads.
97 Dr Castle noted that working as a security patrol officer involved continued standing. In his view, working as a parking attendant was likely to be suitable. He noted work in hospitality had the same sort of difficulties as forklift driving.
98 Dr Castle considered that the plaintiff could work as a parking attendant, possibly for short shifts, or as a bar attendant and perhaps as a truck driver.
99 Dr Castle, noting that the plaintiff was not having any treatment, commented that situation was suitable and reasonable. He considered the plaintiff seemed to have a reasonable attitude to his problem.
100 In Dr Castle’s view, the plaintiff had injured his lumbar spine in the incident and he had a disc bulge at L4-5 demonstrated on CT scans. He considered the plaintiff’s employment was a significant contributing factor and that he had not ever had the capacity to return to his pre accident work.
101 Dr Castle thought the plaintiff had the capacity to return to suitable employment where he could sit and stand as he needed to and where there was no repeated bending or he did not have to lift more than seven kilograms.
102 Mr Richard Pease first saw the plaintiff on 1 June 2005. The plaintiff told him of heavy work as a baker for seven years and the development of back pain. The plaintiff complained of back pain with occasional radiation into the groin and told him he had not suffered from any back pain previously.
103 On examination, there was no local tenderness in the lumbar spine, nor any deformity. There was no gluteal tenderness or any soleal triggering. Neurological examination did not reveal any evidence of neuromeningeal irritation and there was no measurable wasting in the lower limbs. The plaintiff’s reflexes were brisk and equal and there was no weakness or any sensory deficit.
104 The plaintiff brought with him the CT scan of May 2004 which showed a bulging disc at L4-5, more to the left than right. Mr Pease noted a subsequent scan indicated the disc lesion had increased in size. An MRI scan confirmed an L4-5 disc herniation and, on review in June 2005, Mr Pease suggested that the plaintiff have a CT-guided epidural which was performed by Dr Marks on 15 July 2005.
105 Mr Nigel Broughton, orthopaedic surgeon, treated the plaintiff at Frankston Hospital in relation to the left ankle fracture in July 2005. He provided a short report to Dr Forbes Smith describing a fall at Mt Buller, the fracture of the left ankle and the application of plaster.
106 Having been provided with this correspondence from Mr Broughton, Mr Pease concluded that if the plaintiff was fit to ski, he was fit to work. In such circumstances, he no longer considered the plaintiff’s employment materially contributed to any current back symptoms.
107 Mr Pease noted that the plaintiff complained of work related low back pain but physical examination did not demonstrate any abnormality. He thought however, CT scanning and MRI showed pathology at L4-5 which could be consistent with low back pain.
108 Having been advised as to the circumstances of the accident in the snow, Mr Pease changed his view to the effect that the fact the plaintiff was sightseeing was of no relevance in terms of the plaintiff’s work capacity. He noted he had not seen the plaintiff for four months so he could not comment on his current status.
109 Mr David Conroy examined the plaintiff for CGU for the purposes of impairment assessment on 3 November 2005.
110 The plaintiff told Mr Conroy that as he straightened, having put down a crate of bread, he felt a sudden severe pain in his back.
111 On examination, the plaintiff lacked a third of the anticipated range of all movements in the lumbar spine. There was no abnormality of the lower extremities and no neurological impairment.
112 Mr Conroy noted the MRI scan of 2005 showed a large L4-5 disc protrusion without nerve root involvement.
113 Mr Conroy assessed the plaintiff’s lumbar spine impairment at five per cent.
114 The plaintiff was referred by Dr Cacek to Mr Pullar, neurosurgeon. It appears that the plaintiff saw Mr Pullar in September 2006 following Mr Pease’s examination and suggestion of surgery.
115 Mr Pullar noted that the plaintiff injured his back in May 2003 working as a baker and that he did not relate a specific incident. At the time of that examination the plaintiff was taking Tramal and he was not working.
116 On examination, Mr Pullar found the plaintiff had limited spinal mobility with moderate paravertebral muscle spasms. Straight leg raising was relatively unrestricted and neurological examination was normal.
117 Mr Pullar noted it was curious that the CT scan image changed significantly between 2004 and 2005 without any intervening injury or any significant change in symptoms.
118 Mr Pullar was not convinced surgery was the right course of action, noting he was perhaps a bit conservative in his approach, but he thought it was well established that a poorer outcome resulted from patients who smoked and had compensation claims.
119 Dr Kiriakova of the Family Medical Centre in Mt Waverley first saw the plaintiff on 30 May 2008 when the plaintiff asked for a specialist referral. She saw him three more times for a referral again and prescription of Tramal for his back pain and for some other non related injury problems. She last consulted the plaintiff on 31 July 2008. She noted reports confirmed L4-5 disc protrusion.
120 Dr Markabawi, of the Somerset Medical Centre in Tasmania, saw the plaintiff on 15 December 2008. Dr Markabawi diagnosed recurrent back pain, mainly affecting the lower back and spreading to the legs.
121 It was noted the plaintiff had also seen Dr Tamini at that Medical Centre on 2 March 2009 for the same reason.
122 Dr Markabawi was reluctant to comment about the plaintiff’s prognosis and any work relationship of his condition because of the few times he had seen the plaintiff.
123 He thought the plaintiff needed an assessment by an occupational physician and also to undertake a function capacity test to check his work capacity. He noted the plaintiff’s condition seemed to have stabilised. In early 2009, the plaintiff had had only two visits. He reported that the plaintiff was still getting recurrent back pain occasionally which did not seem severe based on the amount of painkillers and the visits to the surgery.
124 Mr Klug, neurosurgeon, examined the plaintiff on 25 February 2009.
125 The plaintiff told him of the incident and that at the present time his condition had not resolved. He described his main complaint as fairly constant low back pain which varied in severity.
126 On examination, there was some restriction of the expected range of movement, particularly involving flexion. On extremes of movement, the limiting factor appeared to be some back pain without radiation.
127 There was some mild restriction of straight leg raising on the left due mainly to back and buttock pain. There was no evidence of muscle weakness in either lower limb. All reflexes were present, brisk and symmetrical. Mr Klug noted the left calf was slightly thinner than the right, but the difference was not significant, being only half a centimetre.
128 Mr Klug had no reason to doubt, that as a result of the incident, the plaintiff injured his low back, predominantly at L4-5. In his opinion, the injury was responsible for a disc protrusion which, in turn, was responsible for back pain with referral into the lower limbs.
129 Mr Klug noted the plaintiff’s condition had failed to resolve with treatment and he believed that the plaintiff was still suffering from low back pain due to a mechanical disorder in this region, which was most likely to be discogenic in origin.
130 Mr Klug believed that the plaintiff had a genuine ongoing condition which would preclude him undertaking various types of jobs which involved undue stress on his back or repetitive jolting.
131 Mr Klug thought the plaintiff could undertake light physical activities such as working at bench top height with some flexibility being available to enable him to sit and stand.
132 Mr Klug thought the prognosis was guarded and it was more likely than not that the current condition would persist with some waxing and waning.
133 Mr Klug thought it appropriate to continue with current lines of treatment and that it was possible surgery could be of some benefit. However, there would be no guarantee and he thought it reasonable that at that stage the question of surgery be deferred.
134 Mr Schofield, orthopaedic surgeon, examined the plaintiff on 3 March 2009.
135 The plaintiff told him about the incident and that he continued to complain of constant low back pain felt to the left of the midline, varying from day to day.
136 On examination, there was normal lumbar lordosis with tenderness at the lumbosacral level to the left of the midline. There was spinal flexion to seventy degrees, extension to thirty degrees, and other movements were normal. On the left, straight leg raising was restricted to seventy degrees, and eighty degrees on the right. There was no wasting of either leg, and reflexes were present, but on repeated testing the left knee reflex appeared hyperactive compared to the right. There were no other neurological signs.
137 Mr Schofield was aware of the CT scan of 27 February 2008.
138 Mr Schofield noted there was a history of some intermittent back pain prior to the said date, and this was consistent with early degenerative change occurring at L4-5, but with the annulus being intact. He considered the incident represented an acute posterior rupture of the annulus, causing a prolapse, confirmed on an MRI scan two months later.
139 Mr Schofield noted current x-rays showed a softening of the L4-5 disc, especially in the erect view. He concluded the plaintiff had therefore developed aggravation of pre existing degenerative changes as a result of the incident, with ongoing symptoms preventing him from returning to his pre injury duties.
140 In Mr Schofield’s view, with appropriate training the plaintiff may be able to resume more sedentary work, and he would need some retraining. He considered the plaintiff’s future prognosis with return to pre injury employment was poor.
141 At Mr Schofield’s request, a further MRI scan was carried out on 9 April 2009.
142 Mr Schofield confirmed that the MRI scan showed the plaintiff was suffering single level disc disease affecting L4-5. He noted the report of a prominent disc bulge. He thought this was a significant finding and explained the reason for the plaintiff’s continuing chronic pain.
143 Mr Schofield doubted any conservative treatment was likely to produce a cure, but he thought the plaintiff may gain sufficient benefit to resume light duties. He thought in the long term, however, the plaintiff did need surgery to decompress and stabilise the L4-5 disc.
Vocational Evidence
144 KTM Consultancy Services Pty Ltd provided an initial and Worksite Assessment report in September 2004.
145 It was suggested at that time that the plaintiff would be best served by looking at alternative options to baking, as due to the heavy nature of work involved, the potential for re injury was high.
146 At that stage, as the employer did not have suitable duties, redeployment through a vocational assessment and JSA appeared the most appropriate option.
Investigations
147 A CT scan of the lumbar spine taken on 6 May 2004 at Dr Gaur’s request showed small broadly based disc protrusion or disc bulge at L4-5. It was noted this may be clinically significant. There was also minor bulging at L5- S1.
148 X-rays of the lumbar spine taken on 8 February 2005 were normal.
149 A CT scan of the lumbar spine taken on 7 April 2005 showed an L4-5 disc protrusion which indented the thecal sac slightly more prominently towards its left side. There was no encroachment on the lateral recesses or exit foraminae.
150 An MRI scan taken on 10 June 2005 showed significant broad based L4-5 disc herniation.
151 A CT scan of the lumbar spine taken on 27 February 2008 showed broad based left paracentral disc herniation at L4-5 causing moderate spinal canal narrowing without significant stenosis. Ligamentum flavum thickening and posterior osteophytes also contributed to this narrowing. There was no foraminal narrowing on either side. The anterior thecal sac was distorted by the disc herniation.
152 At L5-S1 there was a central posterior disc bulge abutting the descending S1 nerve roots but no compression against them. There was no significant canal stenosis there, nor foraminal narrowing on either side. There was minor facet joint osteoarthritis at L4-5 and L5-S1 levels bilaterally.
153 It was noted there was no obvious change in the size of the disc herniations or worsening or canal narrowing since the 2005 CT scan.
The Defendants’ Medical Evidence
154 The defendants also relied upon Mr Pease’s first report.
155 Dr Paul Kornan, psychiatrist, examined the plaintiff on 9 November 2005. This report was tendered mainly for matters of history, in particular, that Dr Kornan noted that the plaintiff had a cannabis habit of $200 to $255 a week at that time.
156 Dr Kornan did not think the plaintiff was depressed, and considered his mental faculties were adequate throughout the interview. Dr Kornan did not consider the plaintiff had suffered a psychiatric injury. He thought the plaintiff presented with some psychiatric problems which included a personality disorder not otherwise specified, and cannabis abuse. He did not think employment was a significant contributing factor to the claimed psychiatric injury.
157 Dr Phillip Cohen, psychiatrist, examined the plaintiff on 29 March 2006. Again, this report was relied upon largely for reasons of history.
158 The plaintiff told Dr Cohen that since he had been released from gaol in March 2006 he had been living with his sister. He had fifty per cent custody of his eighteen month old son. He spent his time with his son when he was in his care, and he took him for rides on his motorbike around paddocks. He told Dr Cohen that he lost his licence to drive for sixteen months, and had to be driven to the appointment by a mate. Otherwise he watched television and played video games.
159 Dr Cohen described the plaintiff as having a pain disorder associated with a general medical condition. He did not consider this a psychiatric condition. Otherwise he diagnosed the plaintiff as suffering from a cannabis related disorder not otherwise specified under the DSM-IV Guide.
160 The defendants relied upon a subsequent examination by Mr Hugh Weaver on 29 March 2006, some nineteen months after the initial examination.
161 At that time the plaintiff confirmed he had discontinued all previous treatment and he no longer took anti-inflammatories. The plaintiff told Mr Weaver he experienced no pain-free days, and that he had persisting pain which affected the low back region, together with groin pain fluctuating from side to side.
162 The plaintiff told Mr Weaver he spent his time either watching movies or playing with a ‘Game Boy’ system, and he also walked his dogs.
163 On examination, within the thoracolumbar region the plaintiff flexed to forty five degrees, but indicated further flexion would be uncomfortable for him. Lateral flexion and rotatory movements were full.
164 There was no obvious thigh or calf wasting. Straight leg raising was limited to no more than forty five degrees bilaterally, and the neurological examination of both lower limbs was normal.
165 Mr Weaver noted that the CT scan of April 2005 revealed evidence of a much more substantial and prominent intervertebral disc present at L4-5 than shown on the CT of May 2004.
166 Mr Weaver confirmed his opinion remained very much unchanged from his earlier report, certainly to the extent that the plaintiff appeared to be exhibiting evidence of a genuine lumbar intervertebral disc problem which presumably continued to reflect the effects of his work duties.
167 Mr Weaver was concerned about the limited amount of progress that the plaintiff had made since last seen, and noted that the plaintiff seemed to have been left fairly much to his own devices. Mr Weaver thought that clinical examination revealed that the plaintiff’s lumbar spine was somewhat irritable, and, although there was no evidence of obvious lower limb neurological involvement, he considered there was a suggestion that a degree of lumbar segmental instability might be present. He noted that these clinical features were essentially supported by the findings obtained from various investigations.
168 Mr Weaver concluded he would by no means disagree with the concept that the plaintiff was theoretically a candidate for surgery. However, he indicated to the plaintiff that there would be no point having such surgery carried out without the plaintiff himself being very proactive about that prospect.
169 If surgery was not undertaken, Mr Weaver thought that the plaintiff would almost certainly need to attempt rehabilitation and retrain for alternative employment.
170 Mr Weaver expected that the plaintiff’s future treatment options were probably going to consist largely of conservative forms of management.
171 In his view, if the plaintiff was left to his own devices, he had little expectation that the plaintiff would resume employment of his own volition. Mr Weaver considered the plaintiff was theoretically capable of being retrained for alternative wider forms of employment of some kind, and that that was where the continued assistance of a rehabilitation service would almost certainly be necessary for him.
172 Mr Michael Polke, orthopaedic surgeon, examined the plaintiff on 4 April 2008. The plaintiff told him that since the incident, he had continued to suffer from left sided lower back pain radiating to the left gluteal region.
173 On examination, there was no tenderness or muscle guarding. There was a slight reduction of lumbar movement, with flexion to seventy degrees extension, lateral flexion to thirty degrees, right rotation to thirty degrees, and to the left to twenty degrees. Straight leg raising was to seventy degrees bilaterally, and there was no neurological deficit.
174 Mr Polke commented that the CT scans in 2004 and 2005 confirmed the left sided L4-5 disc prolapse, but not obviously causing neural compression or spinal stenosis. He noted the 2005 MRI scan showed similar changes.
175 In Mr Polke’s view, the plaintiff suffered from an L4-5 disc prolapse. He considered the plaintiff’s short and long term prognosis was pretty good, from a physical point of view.
176 Accepting the accuracy of the plaintiff’s history, in his view, the injury could have occurred at work in the manner described, and it was a significant contributing factor to the injury.
177 Mr Polke considered the plaintiff should not return to work in his pre injury job, and that this was likely to last indefinitely. Medical restrictions he thought appropriate consisted of avoiding heavy lifting of more than five kilograms and repeated bending. He thought the plaintiff would be able to work doing more sedentary work in a full time capacity.
178 Mr Polke considered the plaintiff could undertake other employment, as he had some basic computer skills, or he could work as a security officer, which the plaintiff mentioned, after obtaining the appropriate licence, particularly as he found walking around relieved his pain.
179 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 10 August 2009. The plaintiff told him that since the incident he had complained of constant ongoing low back pain aggravated by sitting and standing.
180 The plaintiff told Mr Dooley he felt he would be able to work as delivery driver, and he had completed a training course in driving excavation.
181 On examination of the left low lumbar region, there was tenderness. Flexion was to sixty degrees, and extension to fifteen degrees. Lateral flexion to the left and right was to twenty degrees, as was rotation to both sides. There was no neurological abnormality and no wasting.
182 Mr Dooley had available the 2009 MRI scan which showed evidence of degeneration of the L4-5 and L5-S1 levels. In his view, there was no evidence of major disc prolapse or of nerve root compression.
183 Mr Dooley concluded the plaintiff suffered from degenerative disc disease at the L4-5 level. He noted it was well recognised that degeneration at that level could occur at a relatively young chronological age.
184 Mr Dooley believed it probable that in the work related incident the plaintiff aggravated underlying degeneration. He thought that would account for the plaintiff noting ongoing low back pain with exacerbation of pain at times.
185 Mr Dooley considered that on balance, the constancy of the plaintiff’s ongoing pain was greater than he would expect to see at present.
186 He considered the appropriate treatment for the plaintiff was to improve his fitness and stamina. From an orthopaedic view he thought the plaintiff was capable of walking reasonable distances and of improving his fitness, noting stretching exercises and light gymnasium work would be appropriate.
187 In Mr Dooley’s view, for the plaintiff’s overall wellbeing it was imperative that he return to appropriate, useful and satisfying work. Mr Dooley considered delivery driving/excavator driving would be appropriate for the plaintiff but that he would have difficulty with work involving regular bending and lifting.
188 It remained Mr Dooley’s firm view that the chances of surgery improving the plaintiff’s low back pain would be very poor, and there would be a greater chance of worsening his clinical situation. He thought that in the short and long term, the prognosis was that the plaintiff would continue to note intermittent low back pain.
189 Mr Dooley considered the plaintiff unfit to carry out work involving repetitive or heavy lifting. He considered that the plaintiff would be suited to work as a delivery driver. In his view, the plaintiff would struggle working as a dog groomer or bicycle mechanic, but he would be able to do engineering type work at desk level. Mr Dooley noted that parking inspecting was not a popular job in smaller regional towns.
190 The defendants tendered the worker’s Claim Form dated 14 May 2004 which set out that the plaintiff suffered injury on 1 May 2004 putting crates down, feeling pain, and needing effort to get back up.
191 At that time the plaintiff was working forty hours a week earning $18.50 an hour. The plaintiff reported the condition on 3 May 2004 to Paul Mentiplay. The plaintiff noted he had had a claim involving a motor vehicle accident, but not for similar injuries, and denied having any previous pain or disability in the area of his present injury or condition.
Vocational Evidence
192 Ms Hudson of the KTM-SDA Group provided a vocational assessment report on 29 March 2006, having interviewed the plaintiff on 27 March.
193 She discussed a number of suitable job options with the plaintiff with which he agreed. These included bike mechanic and small engine repairs.
194 In her view, the plaintiff had demonstrated that he had sufficient internal resources and motivation in the past to hold down a job successfully. She considered the critical factors in his successful return to work included his availability for work due to his role as a carer and his physical tolerance levels, in particular, in the initial stages of his return to work.
Video Surveillance
195 There was five minutes of video shown of the plaintiff on 19 and 20 March 2009. The plaintiff’s home in Tasmania and his Land Rover were shown. The plaintiff was shown leaving the Reject Shop with a small shelf which he agreed he assembled himself.
196 There was seventeen minutes of video surveillance taken on 25 and 26 March 2009, which was not shown, when the plaintiff was said to be basically walking and driving.
197 There was video surveillance of approximately three hours taken on 28 and 29 April 2009. The video commenced on 28 April at 12.05 pm. Between 12.08 and 12.31 pm, the plaintiff was shown slowly unloading pieces of wood from the back of his Land Rover, usually two at a time
198 The plaintiff took many light loads of wood from the boot of his car. He explained that he had to unload the wood slowly because carrying a heavier load hurt his back.
199 At 12.32 pm, the plaintiff took a chainsaw, which he thought weighed five kilograms, to his garage.
200 On 6 May 2009 at about 4.00 pm, the plaintiff commenced assembling a quad bike for his son. The first fifty minutes of this activity were obscured by the fence at the plaintiff’s house. The plaintiff was then shown for a further fifty minutes from another angle where his activities were much more visible.
201 During that time the plaintiff was seen to bend, twist and squat whilst putting the bike together. In the first part of the video he had a smoke and stopped the task to speak to a neighbour. In the second part of the video he sat at times to put the bike together.
202 The plaintiff did not agree that during that hour and forty five minutes he was exhibiting long periods of bending, twisting, squatting and crouching. He did not agree that nowhere in that film was he showing any signs of back pain or discomfort. He said he sat down because of back pain and he remembered doing so. He was sitting down so he did not have to lean in. He had a couple of “smoko” breaks but agreed otherwise he would have been working pretty much for an hour and forty minutes. He could do that maybe partly because he would have “had adrenalin” with the new bike. He was not in the one position all the time. He agreed he was shown twisting, prolonged bending and squatting.
203 The plaintiff thought the quad assembly was a pretty minor task which someone else who did not have a back problem could do in half the time.
204 Thirty five minutes of video was then shown of the plaintiff on 24 and 25 July 2009. He was seen briefly moving quickly down the steps of his house at 11.51 am on 25 July but he was not sure that he was shown breaking into a small jog.
205 The plaintiff was shown going in his partner’s car to buy a totem tennis pole for his nephew and he was also shown kicking a football with his left foot with his son. He explained he only would have kicked a short distance, and that he does not play with his son for very long as he is only five.
206 Twenty five minutes of video taken on 22 September 2009 was shown. The plaintiff was shown with a chainsaw at 9:49 am. He believed he was cutting some wood. He agreed he had to bend over to cut it and he also probably carried two logs.
Findings
207 Whilst there was some cross examination as to the precise circumstances of the incident, with different accounts having been given by the plaintiff at various times, I accept that on the said date the plaintiff suffered a compensable injury to his lumbar spine whilst moving crates of sour dough bread at work.
208 Counsel for the defendants conceded there was not the requisite evidence in relation to Dr Gaur’s note that the plaintiff hurt his back at home, and this issue was not pursued.
209 Further, there was cross examination as to the level of the spine involved in the plaintiff’s initial complaints, with the defendants relying upon Dr Gaur’s notes on examination on 11 and 17 May 2004, that the plaintiff’s pain appeared to be localised above the L4-5 level and Dr Gaur’s comment that the CT scan showed two small disc bulges at L4-5/L5-S1 unlikely to be of clinical significance.
210 However, this first CT scan organised in May 2004 was of the lumbar spine where there is demonstrable pathology, and whilst Dr Gaur may have originally thought the plaintiff’s pain was at the higher level of L2-3, the plaintiff’s pain was still in the lumbar region.
211 Further, all the surgeons who have been consulted have accepted the plaintiff’s pain was at the L4-5 level, producing the symptoms that are complained of. There was no medical evidence to the contrary. Mr Weaver was not sceptical about the plaintiff’s complaints and he was the one who in early days found an ongoing significant problem. Mr Pease was also supportive of the plaintiff’s claim in this regard until he received the “skiing” information.
212 All subsequent medical practitioners have accepted the reality of the plaintiff’s symptom presentation continuously since the incident as being due to an L4-5 injury. There is no medical opinion to the effect that that an L4-5 injury is not the cause of the plaintiff’s back problem.
213 Accordingly, I accept that the compensable injury suffered by the plaintiff in the incident is an aggravation of degenerative change at the level of the L4-5 disc without radiculopathy or leg pain.
214 I find that the plaintiff’s impairment is organically based. As it is the impairment not the injury which is the relevant consideration, the absence of nerve root compression is not of any significance in circumstances where there is a compensable injury and all doctors accept the genuineness of the plaintiff’s complaints.
215 In this case, where it is alleged there the plaintiff had a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2004 incident is serious and permanent.
216 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
217 In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.
218 In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172, provided the plaintiff establishes that the subject compensable injury in 2004 materially contributes to his impairment and its consequences, and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
219 Whichever approach is followed, the plaintiff, to reach the threshold of “serious injury”, is required to establish that the aggravation from the 2004 incident is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).
220 Prior to the incident, the plaintiff suffered only minor back strains from his work. The earlier complaints of back pain to the Clinic when the plaintiff was aged eight and twelve were not of significance, nor were they of any ongoing nature. Significantly, the plaintiff was able to enjoy his life and work full time in his heavy job as a baker until the incident without any pain or restriction in his back.
221 I accept the submission of counsel for the plaintiff that there is a stark contrast between the plaintiff’s lifestyle and level of activity before and after the incident.
222 Section 134AB(37) defines “serious injury” as “a permanent serious impairment or loss of body function”.
223 To satisfy the test under the Act the impairment in relation to each of pain and suffering and loss of earning capacity must have consequences that, when judged by comparison with other cases in the range of possible impairments, which may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
224 The statutory test requires a judgment based on an evaluation of all the evidence.
225 The term “serious” requires the impairment and its consequences to this particular plaintiff to be reviewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA at para 29.
226 I accept that the plaintiff has suffered ongoing lower back pain of varying severity since the incident. As surgery was decided against by Mr Pullar in 2006, the plaintiff has continued conservative treatment in the form of painkillers and injections – a situation considered reasonable by Dr Castle and Dr Wyatt, who thought the plaintiff’s program should be one of self management.
227 The absence of significant medical treatment does not mean the plaintiff does not have the symptoms of which he continues to complain.
228 I accept that the plaintiff was a straightforward witness. There was no complaint about his presentation on examination by any doctors and all have accepted the reality of his symptoms coming from some sort of organic pathology.
229 If anything, the video evidence of the plaintiff unloading wood out of the back of his four wheel drive supported the plaintiff’s evidence as to his level of restriction and disability, performing this task at a very slow pace.
230 Whilst he was shown working on the quad bike for an hour and forty minutes, I accept that he did so at his own pace, sitting rather than leaning at various times.
231 A most significant consequence for the plaintiff of his lower back injury is his inability to return to his trade as a baker – a trade which he left school to undertake.
232 As counsel for the defendants conceded, the plaintiff’s inability to return to his chosen trade is supported on medical grounds by all medical practitioners in this case.
233 Further, the plaintiff is a still a very young man. In what should be the very best years of his life, he can no longer freely engage in his hobbies involving cars and bikes. He is limited in what he can do around the house but at times he has to do various tasks and then experiences pain.
234 I accept the plaintiff’s back pain interferes with all his activities and has affected his sex life.
235 It is now nearly six years since the incident. Since that time the plaintiff has continued to suffer constant back pain. Accordingly, I find that the impairment to the plaintiff’s spine is permanent, in the sense that it is likely to last for the foreseeable future.
236 Taking into account all the evidence, I accept that the plaintiff suffered a serious injury to his spine in the incident. When judged by comparison with other cases in the range of possible impairments, the impairment to his spine may be fairly described as more than “significant” or “marked” and as being at least “very considerable”.
237 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
Loss of Earning Capacity
238 As the plaintiff worker was aged under twenty six at the time of injury, special statutory requirements apply.
239 Firstly, the plaintiff must establish a loss of earning capacity of forty per cent at the time of the hearing. He has done so, as at present his gross earnings from personal exertion are nil.
240 Further, the plaintiff must establish that he has a loss of earning capacity of forty per cent or more and that it is likely to continue permanently.
241 In the Second Reading Speech on the Accident Compensation (Common and Benefits) Bill in the Legislative Assembly on 23 May 2000, The Honourable M M Gould, Minister assisting the Minister for WorkCover, said:
“The three year pre and post injury period does not apply in the case of a worker referred to in Section 5A(7) of the Act or a worker under the age of twenty-six at the date of injury. The Government recognises that apprentices and workers undergoing training for the purposes of being qualified and in general terms workers under the age of twenty-six should not be subject to a six year period of inquiry of earnings or earning capacity. In the case of such workers the Court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common law position prevails.”
242 At the time of the incident the plaintiff was earning in excess of $800 per week, or $43,000 per annum in the financial year.
243 As the plaintiff does not does not have a capacity for his pre injury trade as a baker, I accept that he would be similarly unfit for any other type of heavy, unrestricted manual work.
244 I accept, however, the plaintiff does have a capacity for some employment as all medical practitioners suggest, but not for work which involves prolonged sitting or standing, bending, twisting or lifting more than nominal weights.
245 Whilst it might be said that the plaintiff is not a highly motivated young man, he would not, in my view, be capable of working full time on bench assembly work as suggested by Dr Baker and Mr Klug because of his back injury
246 Even the performance of minor tasks on a repetitive basis would be difficult for the plaintiff on only a part time basis. The fact he could assemble the quad bike for an hour and a half is a far different situation to being required regularly to do similar tasks in a work setting.
247 The plaintiff would have problems with work as a truck driver or as an excavator driver because of the amount of sitting involved and the need to drive over rough surfaces. Work as a courier would have the additional problem of a certain amount of lifting also being involved.
248 Given the plaintiff’s education was only to Year 9 and his work has always been in the one physically based trade, I do not consider he would be capable of undertaking sedentary duties. I accept that it would be unrealistic, taking these factors into account, to retrain the plaintiff into office work.
249 In my view, the plaintiff, because of his back condition, is only capable of doing very light work on a part time basis. Being limited to such work, I am satisfied that the plaintiff has the requisite loss of earning capacity of forty per cent and that this loss is permanent.
250 I am also required to consider issues of retraining and rehabilitation pursuant to sub section (g).
251 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).
252 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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