Chamoun v Victorian WorkCover Authority
[2021] VCC 1924
•3 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00771
| GEORGE CHAMOUN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 October 2021 | |
DATE OF JUDGMENT: | 3 December 2021 | |
CASE MAY BE CITED AS: | Chamoun v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1924 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – pain and suffering and loss of earning capacity – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Church v Echuca Regional Health (2008) 20 VR 566; Woolworths Ltd v Warfe [2013] VSCA 22; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr S J Carson | Arnold Thomas & Becker |
| For the Defendant | Mr B McKenzie | Lander & Rogers |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of his employment with Twelfth Tallow Pty Ltd (“the employer”) which occurred in or about 3 April 2018 (“the said date”).
2The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury”. The relevant body function is the lumbar spine.
3Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
4The impairment of body function must be permanent, in the sense it is likely to continue into the foreseeable future.
5Under the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described (at the date of the hearing) as being “more than significant or marked” and as being “at least very considerable”.[1]
[1] Section 325(2)(c) of the Act
6I 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.
7The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, the Act imposes specific burdens in relation to a claim for loss of earning capacity.[2]
[2] Section 325(2)(e)(i)-(ii) of the Act
8In this application, where there is a claim for loss of earning capacity, that loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter. The formula by which loss of earning capacity is to be measured is set out in s325(2)(f) of the Act.
9Questions of rehabilitation and retraining must be considered in whether the 40 per cent loss has been established.[3]
[3] Section 325(2)(g) of the Act
10I have applied the principles edified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Haden Engineering Pty Ltd v McKinnon[5] in reaching my conclusions.
[4] (2005) 14 VR 622
[5] (2010) 31 VR 1
11The plaintiff relied on three affidavits and was cross-examined. He also relied on an affidavit sworn by his wife, Silvia, on 9 March 2021. Further, the parties relied on medical reports and other documents which were tendered. I have read all the tendered material, and also viewed video surveillance of the plaintiff during the hearing.
12The main issue in dispute in this case was loss of earning capacity, however, pain and suffering was not conceded.[6]
[6]Transcript (“T”) 8
13Counsel for the plaintiff submitted that on all the medicine, the plaintiff was indeed suffering from not a serious injury but a severe one, which had had a very disturbing impact on his quality of life.[7]
[7] T130
The Plaintiff’s evidence
14The plaintiff is presently aged forty-one, having been born in July 1980. He is married, with two young sons, aged eleven and nine.
15The plaintiff left school after Year 11 and completed an automotive apprenticeship with City Saab and is a qualified tradesman. He started work with the employer in 2001, after his apprenticeship.
16The employer operated a small mechanical workshop, where the plaintiff was employed as a mechanic. The work was very fast paced and heavy, and he completed all types of repairs.
17He began to experience spinal pain and restrictions about two years after starting work, but managed the pain conservatively by chiropractic treatment about six times a year.
18However, he suffered a significant increase in pain and spinal restrictions leading up to Easter 2018. He attended his chiropractor, who recommended time off to rest. He told his boss he was struggling with back pain because of the workload. When he went to work on the said date, he was told to do his normal duties and not given lighter ones, which he was told would occur.
The incident
19On the said date, the plaintiff was required to service the brakes on a Saab, which involved the removal of a vehicle wheel, a very heavy and cumbersome task, which he had to do manually. He experienced a significant jolt of excruciating pain while he attempted to remove the bolts on the Saab (“the incident”).
20He attended his general practitioner (“GP”), who told him to stop work. He has not worked since.
21As at 15 October 2019,[8] he suffered from significant pain and restriction in his lower spine and also referred pain and numbness into his left leg and foot. His spinal pain fluctuated in severity and intensity and his left foot numbness had worsened over time, causing issues with balance and limping, and he could not run.
[8]First affidavit
22He decided not to have surgery because he was told there was no guarantee of success. His wife had had complications from a simple procedure which contributed to his reluctance.
23He then relied on an extensive amount of medication for his spine. He had been prescribed strong pain medication. He took Panadol and Nurofen daily. He had been prescribed Panadeine Forte, which he tried to avoid because it caused bowel irritation. He took Valium when in severe pain. He tried to rehabilitate himself as much as possible. He had physiotherapy monthly and did stretches multiple times a day, but obtained no lasting relief.
24Ongoing back pain prevented him from being able to sleep and he found it difficult to get a comfortable position. Accordingly, he was constantly tired, lethargic and irritable, and found it difficult to concentrate or learn new tasks.
25His ongoing spinal pain and restriction prevented him from being able to work as a mechanic. He could not stand, sit or climb under a car. He could not lift anything heavy or use strength or pressure to complete tasks. That was a significant loss, as this was his profession and he had never considered doing any other type of employment before his injury. He enjoyed repairing cars and was good at his job. He was then unsure what type of work he would be able to do in the future. He did not like school and left early to complete an apprenticeship. He had never worked in an office and struggled to sit and stand for long periods.
26His ongoing pain and restrictions had a significant effect on his ability to be an active father to his young boys in their sporting activities. He was not able to look after his garden, which he enjoyed doing, and had a significant increase in pain when he tried to mow the lawn or do any gardening. He was not able to complete any type of housework that included heavy lifting or repetitive actions, thus placing significant pressure on his relationship with his wife, who was also working full time and had to do most of the housework. Their relationship was not as strong as before, as he was preoccupied with his pain.
27Prior to the incident injury, he raced a Datsun 1600. This was a passion and he and a friend went to about six races together every year. They spent a lot of time repairing and tinkering with their cars between races, but he could no longer do that. He could not get into the Datsun without experiencing significant pain and had to avoid any type of jolt or sudden movement. He no longer participated in that sport, which was a great loss.
28Prior to the incident, he was proud to service and care for cars driven by his close friends and family. He could no longer do this as he could not bend or stand for long periods.
29He tried to be as active as possible and contribute to the household. He tried to do the shopping, although that caused an increase in back pain in the days thereafter. He tried to walk the dog, even though he had pain when the dog pulled on the lead. The plaintiff had gained weight, as he found it difficult to exercise and keep active.
30Very little had changed as of 2 February 2021 when he swore his second affidavit. Back pain fluctuated in its severity with better and worse days, but the bad were outnumbering the good. Even if pain free, he always had to be on guard and protective of his back. He had to develop ways to move and try and do things to avoid movements he knew would cause flare ups. If having a better day, he tried to get some lighter chores done, but he had to be very careful, as his back could flare up significantly and then he was pretty much not be able to do anything of a physically demanding nature at all for the next day or two.
31While increased pain was usually activity related, it could come on equally when sitting or standing still for too long, or it could increase for no obvious reason, and that made it very hard to keep pain levels under some degree of control.
32The pain was mainly focused in the lower back, more to the left. He also had ongoing numbness into his back and the side of the left leg, and left leg was still weak. He still had spasms, despite being relatively inactive.
33His left foot numbness was still there, and the foot seemed to drop. It still caused him to be unsteady on his feet and he continued to stumble as a result, and a slight limp was also still frequently present.
34It did not take much to flare up his back pain. He had found it flared up only after a few minutes of light chores around the house and he would be in quite significant pain within about fifteen minutes and had to stop what he was doing. Bending and twisting type movements were usually very problematic.
35He stepped into the role of taking care of his children, as his wife was then working to keep them afloat. That had proven to be far more difficult than he could have expected. Just driving the children to school for about fifteen minutes increased his back pain.
36He did not get much relief at night either, with his sleep still quite hopeless, his pain making it hard to get to sleep and also waking him. That was very frustrating and frequently left him feeling very tired.
37He would prefer not to be taking medication, but he reached the point where he simply could no longer put up with the pain. He was taking Panadeine Forte regularly, but only did so occasionally now because of gastric problems, however, he took Panadol and anti-inflammatories. He was also having physiotherapy, which seemed to help with the pain. Acupuncture could help bring back spasms under control, otherwise he was under the care of his general practitioner.
38He was very worried about his future as he was a skilled mechanic and proud of his ability. He had been advised he should avoid lifting more than about 5 kilograms and he also had problems with prolonged postures if he was to have any hope of keeping his pain under control.
39He had carried out some minor repairs and servicing on his own car and had struggled with these very simple tasks. In some ways, he was testing to see how well he would cope, but, unfortunately, he struggled greatly, with much increased pain after only working on a car for a very short period. The realisation that he was that bad was very hard to take, and it upset him greatly to think there was now no way he could work on any sustainable basis in his trade.
40With his work history and bearing in mind his physical limitations, he was not at all hopeful he would be able to regularly or reliably commit to even very part-time work. He largely had to structure his days around how bad his pain was, and had to carry out basic tasks carefully in order to avoid flaring up his back pain too much. He did not believe that could translate into a real-world job.
41In his most recent affidavit sworn on 25 October 2021, he confirmed, unfortunately, nothing had really changed over recent months. Perhaps the only change is he has more physiotherapy as he had struggled with significant back and leg pain after trying to push himself to be more active.
42He still tries to do things around the house and with his sons when he can, but he has to wait for a day when he feels up to a particular task and then be as careful as possible when doing it. On bad days, he gets out of bed stooped over with pain like an old man, but on better days, which are unpredictable, he tries to be more active.
43Even on those better days, no matter how careful he is, he will inevitably still have significant pain. Recently, he helped his children set up a small vegetable patch, which was the sort of job that would not have bothered him at all before the incident. However, despite trying to be careful with his back, he ended up being mostly in bed for the next two days as this activity stirred up so much back and leg pain.
44That activity was just another reminder of how fragile his back is. It upsets him that using his back even lightly will leave him in so much pain and things certainly do not seem to be getting any better. Taking stronger medications is also problematic, as he does not want to be drowsy around his young children when they might need him. He is also worried about the long-term effects of tablets.
45He does not really know what the future holds. He looks at SEEK on the internet and the jobs he might be able to do in theory, but he well knows he would not be able to commit to full-time employment, or set days or hours of part-time work, as his days, and what he does each day, continue to largely revolve around how bad his back and/or leg pain is.
46He is aware various sales and counter-type service work have been suggested as appropriate. He would like to be able to do these jobs, but the reality is he knows he would not be able to last, in the sense he would need significant time off work when his back and/or leg play up. Either sitting or standing for extended periods brings on pain and he then needs extended periods to get over the pain, during which he is largely inactive. Similarly, lifting even quite light items, such as working in automotive parts sales, would be a challenge, and he knows he would stir up significant pain sooner or later.
47Even part-time work would be problematic in this respect. He would need a job where he could come and go, depending on how bad the pain is. He believes this situation is fanciful, and very much doubts such a job exists. This is extremely frustrating for him, as being unable to work has placed the family under financial stress.
Surveillance
48On 9 October 2021, the plaintiff was filmed at his house putting a bottle of Stop Leak into the radiator of a car owned by his friend, David, who owns the fruit shop. David paid for the part. That task would not normally have taken the plaintiff 50 minutes, but he was “sort of working a little bit – operating a bit slower than what … [he] normally would”. The job might have gone for just over half-an-hour by the time he started the car, allowed it to run and warm up, and allowed the Stop Leak to start to activate inside the engine. He had David’s car because David had borrowed his station wagon.[9]
[9]T15
49The plaintiff was filmed using an electric screwdriver at one stage. He denied he was leaning under the dash – he was leaning over it. He agreed that he twisted firstly under the dashboard and then into the centre console. He thought he might have leaned in to grab his phone. He was also just checking to see whether the leak had stopped.[10]
[10]T19
50He disagreed he was bending freely. When it was suggested that there was no apparent problem with his back shown on the film, he replied: “You can’t see in the video the aftermath of what I face after doing things like that.”[11]
[11]T20
51He was not filmed servicing the car. He was just shown putting Stop Leak into the radiator and filling up the water - “That is hardly servicing, nor is it hardly the amount of work or stress that servicing or regular maintenance on a car would entail”. He agreed that he was putting liquid into the car, using a hose, putting the cover on, and using an electric drill to secure the cover.[12]
[12]T21
52The film did not show that later on, when he went into the house, he was lying on the floor stretching and doing exercises to try and get his back “back into thing”. It does not show the fact that he was taking pain relief after that.[13]
[13]T22
53He admitted that he would not have volunteered doing that activity had he not been filmed. He did not mention it in his affidavit sworn 25 October 2021.[14] He stressed that you cannot see how he was after that activity.[15]
[14]T23
[15]T24
54He denied his affidavit was incorrect and that what he was shown doing on the film was inconsistent with him having to raise the kitchen benchtop so that there was no need to bend. In his affidavit, he had also said there were days when he felt better than others and when he was able to complete other tasks.[16]
[16]T25
55He agreed he told Dr Slesenger about his problems with housework and difficulties with light shopping and to having to use a long-handled gardening tool. When it was suggested that the film showed he could do things like that, he said that he had never said he could not bend. Bending aggravated his pain. He has never said that he physically cannot do things, but when he is doing them repeatedly, it aggravates his back and it becomes painful over time. He disagreed that the films showed he did not have any problem of any significance with his back.[17]
[17]T27
56He was also filmed on 12 February and 28 February 2021 at Officeworks and Repco. He agreed he was shown bending and straightening up. When it was suggested he had no problem doing that, he said he did not believe a film can show any pain or discomfort.[18]
[18]T29
57When filmed in his car, he was getting petrol because he had to. He did not agree that he got in and out of the car without any apparent difficulty, because he is in discomfort all the time. Filling up with petrol is a chore that he has to do regardless of whether it is uncomfortable or not.[19] He has to carefully get in and out of the car. He was just going about his daily business. The film cannot show any pain or discomfort.[20]
[19]T31
[20]T32
58As his taxation returns for 2018-2019 and 2019-2020 showed, he received payments under his Colonial disability policy during those years.[21] He is only getting money from Colonial at the moment. His weekly payments have been cut off. For two years he was getting both payments. His current pension payment is eighty per cent of his normal wage, and he will get that until he is sixty-five.[22]
[21]T37
[22]T42
59When it was suggested that he had no motivation on that basis to seek any work, he said he “could not disagree with that any stronger”:
“Because I was a very motivated employee for a company for many years. My plan was always to own my own workshop, somewhere that my kids could come and work at eventually because they’re both motivated with cars. Sitting at home isn’t an example I want to be setting for my children. This basically is putting our life on hold coz I’m unable to work coz of my day-to-day changes so dramatic. So, sitting home collecting income protection isn’t a life that I wanted to live.”[23]
[23]T42
60Dr Slesenger had spoken to him about seeing a pain management specialist. He has not discussed this with his doctor, because getting in to see her has not always been very easy with COVID. He disagreed he had not taken Dr Slesenger’s report to his GP to discuss because he was not motivated to go back to work. Pain management is not going to cure his injury. He disagreed he had not had an injection in his back because his condition was not that significant. He had discussed an injection with his GP, who said it would be a very short-term Band-Aid and could actually aggravate the injury afterwards.[24]
[24]T43
61The plaintiff has an appointment with his GP next week and intends to take Dr Slesenger’s reports to her and would take her advice.[25] He could recall his GP telling him he could not do any job that required frequent heavy lifting over 10 kilograms. When it was suggested she had not placed any restrictions on his sitting, he said sitting and bending forward are the same position and it is very much the same thing.[26]
[25]T45
[26]T46
62He could recall discussing with WorkAble that he would like to become a teacher of automotive mechanics and do further training to undertake that role. He agreed he had been speaking to a friend at the VACC who would be likely to give him work as an area manager, but he needed to build up his driving tolerance first. He agreed he advised WorkAble he had also been considering starting his own business but was not sure in what capacity.[27] He agreed he told Dr Soliman that he was keen to work as a mechanic in a dealer’s workshop or in spare parts, or in a service department as a customer service officer.[28]
[27]T47
[28]T48
63He agreed he told WorkAble he had applied for Repco and Super Cheap Auto jobs in a customer service or spare parts type role and that he was looking for that sort of work as recently as January 2020. WorkAble was encouraging him to apply for these jobs, even if he did not think he would be able to do them. They recommended he apply just to get his skills sharp and to have his résumé ready and just see how he would go. He did not hear anything back from Repco or Super Cheap Auto. If they had offered him a position, he might have given it a try, quite possibly to see how it went, but he had not attempted to work so far. However, he had not tried, as he was not confident enough that he could turn up to an allocated job regularly and be ready to perform every day.[29]
[29]T49
64When challenged as to his ability to sit for an hour and forty-five minutes while giving evidence, he explained he had been constantly moving his position while seated. His left leg was completely numb and he would pay for the amount of sitting tomorrow. He can sit for twenty minutes before it becomes too uncomfortable and painful. He had not stood up and stretched while giving evidence “because you need to be able to see … [him] on camera”.[30]
[30]T50 – He was not told he could stand when required
65He had updated his résumé and sent it to a number of employers seeking qualified truckdrivers and forklift roles.[31]
[31]T52
66He agreed he had spoken to his friend, David, from the Alexander Fruit Market, who told him he was not currently hiring because of COVID and any work there was being put on hold. David has not spoken to him about it further because he has all the staff he presently needs for the current workload. David had suggested a role like a kind of errand boy to park the truck down the end of the street after he returned from the market, pack the forklifts away, just do a few errands, and see how he went after a few days, and how his back would hold up, but with the pandemic, David just did not need the extra staff.[32]
[32]T53
67The plaintiff agreed he told WorkAble he would try truck driving. He had applied for a job as a delivery driver, which WorkAble had suggested as suitable. He had arranged to practise driving his friend’s forklift to gain some experience before starting in a job, but he had not heard back from any employer.[33] He also applied for a customer service role, storeperson and reception, among a wide range of other jobs.[34]
[33]T54
[34]T55
68There were a lot of jobs that WorkAble suggested that he told them he did not think he would be able to do, and their representative who was helping him said, “look, just apply for a bit of practise, sharpen up your résumé and get your confidence back to go for an interview.”[35]
[35]T56
69The plaintiff agreed he applied for a job as road safety camera operator, but did not think he would be able to do it, as it involved sitting for the entire time on the side of the road. He agreed that most of the jobs he had applied for were part time, but he might have applied for a few full time. He has not received an offer of a position in relation to any of those jobs. If he had, he may have attempted them – “Yes, not very confidently but … [he] would have”.[36]
[36]T57
70He disagreed that not having attempted any of the positions he could not say he could not do them. He disagreed that because he had applied for various positions, he believed he could perform them. When it was suggested that as he was able to sit for a long period during the hearing, and was shown moving freely on the film, he was quite capable of performing lighter work right now, he said “not constantly, no”. He disagreed there was no reason why he could not start in a position part time and see how he went.[37]
[37]T58
71The plaintiff was taken through the notes of his physiotherapist
· 23 October 2018 – “doing some work at home, climbing ladders and feeling R calf pain”.
· 12 February 2019 – “servicing evaporative cooler on the roof kneeling and leaning forwards”.[38]
· 12 March 2019 – “lifted 19kg x 50 wooden floorboards. Feeling ok for it.” [39] The floorboards were in a packet. They were not real floorboards – laminate, like about five a pack. He had help moving them, taking them from the driveway to the garage.[40]
· 2 January 2020 – “helping a friend at the fruit shop.” He was straightening some things in David’s shop.
· 3 February 2020 – “doing some painting with climbing ladders to get onto scaffolding.” His wife was painting the house and he was holding the ladder behind her. He was not on the scaffolding.
· 9 July 2020 – “working on hands and knees for 30 mins.”[41] He would have been cleaning up after the builder on their property – cleaning glue off the floor and sweeping.[42]
· 17 August 2020 – “tiling wall up and down ladder.”[43] He was just tidying up after work had been done by his friend, who is a tiler.[44]
· 22 December 2020 – “helping friend with painting.”[45] He was cleaning the rollers, brushes and trays.[46]
· 5 January 2021 – “slept on air mattress for a few nights.”[47]
· 30 August 2021 – “carried twelve internal doors from the driveway into the house. Got help with Antoine. Hurt back when turned to the L.” He carried the doors with his son from the front door, where the delivery driver had left them, into the house.[48]
[38]Having trouble with DF and toe ext weakness
[39]L ankle stiff and into DF and PG
[40]T62
[41]Not able to take weight symmetrically Lx stiff
[42]T65
[43]pain in LxR and R thigh
[44]T65
[45]LBP can manip L DF weakness Not able to lift foot and ankle to full range.
[46]T66
[47]and now suffering pain in the neck and LxR
[48]T66
72When it was suggested he would start applying for work again once the case is over, the plaintiff said: “I don’t think I’m capable of doing or applying for a position and confidently be prepared to turn up every shift without being able to call in sick regularly.” He thought the few jobs he has done around the house noted by his physiotherapist is “test enough”.[49]
[49]T67
73The plaintiff’s computer use is very basic. He agreed “Blackbox” is used to diagnose the problems in cars. He agreed he was articulate in his presentation and could engage in a role involving members of the public.[50] He agreed that he had enjoyed a successful career in motor mechanics and the mechanics industry. He held both a forklift driver’s licence and a truckdriver’s licence.[51]
[50]T67
[51]T68
74He agreed he possessed the transferable skills listed by WorkAble – customer service skills and communication, invoicing and quoting, stock management and ordering, managing and training of staff, problem solving, mechanical aptitude and good attention to detail.[52]
[52]T69
75He confirmed that when his case was finished, one way or another he would start applying for work, such as he had been applying for until March last year.[53]
[53]T70
76In re-examination, he explained that he did not feel confident in applying for a job and being able to turn up to every rostered shift without calling in sick quite regularly because of pain.[54]
[54]T70
77His computer skills are basic, he can do a Google search, emails and basic searching.[55]
[55]T70
78He would not be able to work on a forklift for the entirety of a shift moving stock around and being able to manage and maintain the vehicle. As a truck driver, he would be sitting in a truck for the majority of his shift, picking up and delivering and potentially unloading stock, or assisting with unloading stock. He did not think he had the ability to do either job on a constant basis.[56]
[56]T71
79He had gone to the physiotherapist after various activities because he was in pain and the physiotherapist helped him manage and try and somewhat relieve the pain.[57]
[57]T71
80The bottles he was holding in the film would have been from 150 millimetres, at most maybe 500. When filmed, he was operating a bit more slowly than he normally would, because, pre-injury, that job would have taken him a very short amount of time. He moves a little slower now so that he does not turn too quickly and aggravate his back when he is twisting and turning. The electric screwdriver was not difficult to operate as long as he could use his index finger.[58]
[58]T72
81He confirmed the film did not show the aftermath of doing things like that and that he went inside and would have taken Panadol and Nurofen. The Nurofen was to stop any inflammation and the Panadol would be for some pain relief. He would need it because his back was starting to ache from leaning forward and doing what he did. He did those activities because they made him feel useful:
“I think part of the struggle that I’ve had the most up till now has been coming from someone who was so active to not being able to do a lot, not being able to apply my skill set that I was very good at, so little activities like that keep me a little bit sane.”[59]
[59]T73
82He did have a flare up of back pain after doing the activities shown on the film, but there are some days that he gets up and feels his back is feeling better, maybe soon he could get back to work, and then one slight move and he is set back. There have been a few times when he has spent two or three days in bed after doing an activity that he would have done with his eyes closed prior to the accident.[60]
[60]T73
83When filmed working on the vehicle, he was lifting his left leg at the same time to take the load off his back. It was a technique that Sergey, his physiotherapist, had shown him, to make it less stressful on his back when he was bending forward.[61]
[61]T74
84He also lifted his left leg when filmed at Officeworks and Repco because when he lifts it, it takes a bit of pressure off his foot. He has some footdrop in his left foot. He has lost some control of the left toes and he gets a dull ache coming up and down his left leg.[62]
[62]T74
85In the gap in the film from 9.14am to 10.00am, he would have been doing exercises Sergey had showed him, like stretching.[63]
[63]T75
86His wife ceased work during the first lockdown at the start of the Pandemic and has not been able to work since. They have been getting the disaster payment recently and ongoing income protection payments.[64] The plan was always that he would take over the employer’s business when he was ready to retire. Both his sons had uniforms at the workshop because they had days off school when they used to come to the workshop and he would teach them how to work on cars, and they both loved it. It had always been his dream to have his own workshop and be able to pass these skills onto them.[65]
[64]T76
[65]T77
87It has been heartbreaking a lot of the times, especially when the kids are asking to do things and he has to say “‘No, sorry, mate, I can’t help” or “I can’t do this” or “I just need to lie down for a little bit”.[66]
[66]T77
88He then became visibly upset about his inability to open his own workshop:
“My job for me was always more of a hobby than it ever was a job. I was one of those few people that could say that I loved going into work every day. The alarm going off in the morning to get up was never something that I dreaded so to have that dream taken away from me has been crushing, especially considering I don’t know what else I can devote my life to the way that I did to working on cars.”[67]
[67]T78
89He tried to teach his kids to work hard and achieve their goals and did not think he was a great example being at home every day. This was not the life he wanted to live, being so young sitting at home, as he had plans to open up his own business, and be doing something he had an absolute passion for would have been like a dream come true.[68]
[68]T78
90He has not pursued pain management because it is not going to cure his injury, it may Band-Aid it, but it is never going to be a cure for it. His GP has not referred him for pain management.[69]
[69]T78
91The plaintiff could not turn up on a regular basis and perform every day because his physical position alters so rapidly from day to day:
“I may be able to turn up maybe one or two days confidently and then by the third my condition could change where I might be, not be able to go in for the next five, four, three, whatever it is. It’s too erratic at the moment.”[70]
[70]T79
92His back became very sore when giving evidence. When he got up for lunch he was stooped over for the first ten minutes and was in quite a bit of pain in the afternoon.[71]
[71]T79
93A lot of the jobs WorkAble looked at, even in management, would have him seated all day, which was not something he would be able to do. Some of the jobs he applied for were just for practise and experience.[72] He did not think he could accept a job and be able to turn up for every shift and not aggravate his back, and not have to take time off.[73]
[72]T80
[73]T81
94He confirmed that although he applied for jobs, he did not believe he could perform them. He could not do any of the suggested jobs on a full-time basis. He might be able to do them short term a couple of days here and there, but a lot of the jobs would require him to be seated for most of the time. His workshop management job with the employer was managing himself towards the end.[74]
[74]T82
Summary of the Plaintiff’s Taxation Returns
| Financial Year | Income from Personal Exertion |
| 2021 | $50,024 (WorkCover) |
| 2020 | $70,096 (WorkCover) |
| 2019 | $18,072 (WorkCover), plus $71,641 |
| 2018 | $81,766 |
| 2017 | $78,363 |
| 2016 | $80,092 |
| 2015 | $77,896 |
| 2014 | $76,017 |
Lay evidence
95The plaintiff’s wife, Silvia, swore an affidavit on 9 March 2021. They have been married since 2008.
96She confirmed the plaintiff was an active, very busy man at home, in the garden and with his mechanical skills before the incident. They had very active and busy weekends with the children, taking daytrips and also going as far as Mildura from time to time – a trip they now would not even try. They also did family kickboxing lessons with both children but the plaintiff can no longer participate in them.
97He is able to cope with light jobs around the house, but is not able to do anything like he used to, domestically or with the children, and heavier tasks are just left to be done, which upsets him greatly.
98She sees he struggles with many quite basic tasks, such as chopping wood, and even minor maintenance on a car, a situation which is quite devastating for him to deal with, as he is quite accomplished as a mechanic.
99Their relationship has been impacted, in that their intimacy is now reduced. The plaintiff is not interested anymore, due to the fact it causes him discomfort and he is unable to undertake certain positions. She sees he walks with a slight limp from time to time. In the mornings, he very gingerly swings his legs around off the bed to put his feet on the floor and then very carefully slowly stands up. He looks like a frail old man.
100She had to step up her work to maintain a decent income for the family. However, having said that, she is now off work for her own health reasons and this has again placed them under significant financial pressure. Against this background, she knows if the plaintiff could be working he would.
Medical evidence
Treaters
Dr Leonora Anderson, general practitioner
101In her most recent report of 30 July 2021, Dr Anderson, diagnosed a severe lumbar disc prolapse confirmed on the 2018 MRI scan.
102She noted the plaintiff had been keen to manage his injury conservatively. His clinical condition had been relatively stable, with intermittent exacerbations of pain and persistent weakness and sensory changes to the left leg.
103She had recommended, on several occasions, for him to follow up with neurosurgeon, Dr Maartens, for a review and further discussion as to whether surgery was an option, but he was keen to continue with conservative treatment.
104The plaintiff had not been able to return to work as a mechanic due to his medical condition. He had adapted to the restrictions that his injury had had on his ability to lift and bend forward/stoop. He required assistance with domestic duties like lawnmowing and gardening. His injury meant he is unable to perform any occupation that requires frequent heavy lifting of greater than 10 kilograms, bending forward/stooping.
Mr Iwan Bennett, neurosurgeon
105Mr Bennett provided a June 2020 report based on Mr Maarten’s notes.
106The report of the initial consult letter was 29 August 2018, when there was a diagnosis of left L4-5 prolapsed intervertebral disc and left L5 radiculopathy, with partial footdrop.
107Mr Maarten did not provide an opinion as to the relationship between the plaintiff’s work and his injuries. Mr Bennett thought it was difficult to answer as to the future prognosis and likelihood of further deterioration given the time since the assessment.
108Mr Bennett noted, given the presence of L4-5 disc degeneration on the MRI scan, he would expect the plaintiff to remain at a higher risk than other men his age of having future episodes of self-limited back and/or left leg pain. The left foot weakness would be unlikely to worsen in the absence of a new disc prolapse, other new progressive spinal pathology or new peripheral neuropathy or myelopathy.
109Mr Maarten’s case notes were not adequate to provide a view as to current and future treatment needs. When he initially saw the plaintiff, he recommended he have a nerve root injection. At the time of the assessment, it was reported the plaintiff was limited in what activities he was able to do or willing to undertake – presumably due to pain.
110Noting the 2018 MRI scan, Mr Bennett thought the left L5 disc extrusion may have been the result of an acute disc injury, a more chronic degenerative process, almost likely a culmination of the two. While the extrusion of the disc was likely to reabsorb with time, the underlying degenerative processes cannot be avoided in this, or any other person, and will likely continue in this, and other areas, of the spine. To the degree this will occur in any particular person, is difficult to predict.
Investigations
111The plaintiff had a lumbar MRI scan on 10 April 2018, following which it was reported there was left paracentral disc extrusion at L4-5, with severe compression of the budding left L5 nerve roots.
112Following a further MRI scan on 22 October 2019, it was reported the previously observed left paracentral L4-5 disc extrusion had reduced its size, however, there was ongoing, at least, contact of the traversing left L5 nerve root. There was no further intervertebral height loss of the degenerative L4-5 intervertebral disc. The described changes at the sacroiliac joints in combination with vertebral corner fat metaplasia raised the possibility of an axial spondyloarthropathy.
113The most recent lumbar MRI scan weightbearing was conducted on 19 March 2021. It was reported there was disc desiccation at L4-5 with a circumferential bulge slightly centric to the left. There appeared to be bilateral descending L5 nerve root contact in the lateral recesses. There was mild to moderate bilateral facet joint OA at L4-5.
Medico-legal evidence
Mr Doig, orthopaedic surgeon
114Mr Doig examined the plaintiff on the defendant’s behalf in June 2019 for the purposes of an AMA assessment.
115Clinical examination disclosed that the plaintiff had reduced sensation in both the L4 and L5 dermatomes, with weakness in the L5 myotome consistent with a persistent radiculopathy.
116He had problems walking on his toes and heel on the left foot due to muscle weakness.
117The diagnosis was of a sequestrated intervertebral disc at L4-5 on the left, with persistent radiculopathy in the left leg.
118The plaintiff continued to suffer pain and restrictions as a result. With respect to returning to pre-injury duties, the prognosis must be guarded. He will have a 10-kilogram lifting, pushing and pulling restriction, with limited bending and twisting through the spine, and require breaks from prolonged sitting and driving.
Mr Russell Miller, orthopaedic surgeon
119The plaintiff was examined by Mr Miller in October 2020.
120The plaintiff reported his lower back was his major problem. He had lower backache, discomfort and pain radiating into the buttocks and further down the legs, predominantly the left, with feelings of numbness, tingling and weakness in the left leg and toes. He was then taking Panadol and the occasional Panadeine Forte, and having weekly physiotherapy.
121Neurological examination of the lower limbs revealed diminished sensation on the anterior aspect of the left leg and dorsum of the left foot. There was a centimetre of left calf muscle wasting and the plaintiff had difficulty undertaking a heel raise and a toe raise on the left side. He walked with a slight limp on the left.
122Mr Miller diagnosed a musculoligamentous strain and aggravation of degenerative disease in the lumbar spine, with a large disc protrusion at L4-5, causing compression of the left L5 nerve roots. There were persisting features of radiculopathy and neurological deficit.
123From the point of view of his lumbar spine, the plaintiff will have difficulty with work that involved repetitive bending, repetitive lifting and lifting of weights more than 5 kilograms. It will have to have a requirement to shift his posture on a regular basis. These restrictions are permanent and work related. He could not return to his previous duties on any significant full-time or part-time basis. His injuries had substantially stabilised as of April 2019.
124Mr Miller was asked to report following the 2021 lumbar MRI scan. It confirmed his view there was significant disease in the lumbar spine with degenerative disease and disc pathology at L4-5, probably causing nerve root irritation or nerve root compression at that level, accounting for the findings. He remained of the view the prognosis for the spine was poor. He thought the plaintiff may require consideration for surgery at that level in the form of a decompression and fusion. In the absence of surgical intervention, he regarded the condition as having substantially stabilised.
125On re-examination in April this year, the plaintiff reported similar lower back complaints.
126Mr Miller was asked on this occasion to comment on the 2019 MRI scan, and noted it was degraded due to the body habitus and, therefore, did not allow comparison between the various scans.
127He concluded there was significant disc pathology at L4-5. It was possible that could be treated surgically, but the plaintiff was not considering such intervention. He thought this type of surgery was complex, with prolonged rehabilitation, significant complication rates and limited reliability, therefore, the decision to not undergo surgery was reasonable.
128He confirmed his earlier views as to the plaintiff’s work capacity and stabilisation.
Dr Joseph Slesenger, occupational physician
129Dr Slesenger examined the plaintiff by Telehealth in April 2020.
130The plaintiff then advised his lower back pain had continued at a mild to severe level and was aggravated by activity, and variable, and at times unpredictable. Left leg symptoms continued at a severe level, with associated weakness and lack of coordination around the foot. His left leg was prone to giving way and he had fallen on four occasions. He reported a sitting and walking tolerance of twenty to thirty minutes. He was taking Panadeine Forte, two to four, up to three days a week, and also Panadol, and having weekly physiotherapy and doing self-managed exercises.
131Dr Slesenger had available the 2018 MRI scan.
132He then diagnosed mechanical injuries of the lumbar spine and aggravation of degenerative disease at the lumbar spine, with radiating features, but no confirmed evidence of radiculopathy.
133He advised the plaintiff against returning to work performing pre-injury duties. With regard to suitable alternative duties, taking into consideration the variable and unpredictable nature of his symptoms, his medication, side effects, his functional limitations, his past employment history, his age of thirty-nine, his residence in Narre Warren, his limited computer skills and his qualifications, Dr Slesenger did not anticipate him returning to work performing suitable alternative duties on a consistent and reliable basis.
134The prognosis must be guarded given the length of his impairment and disability and limited response to treatment. Nevertheless, there were opportunities for treatment and he recommended the plaintiff be referred to a pain specialist to address his pain control, which appeared to be suboptimal. There may also be an opportunity for him to have an injection into the lumbar spine, however, that required confirmation at clinical examination.
135He believed the plaintiff’s condition had not stabilised and did not anticipate him reaching a position of stabilisation for a further six to eight months. He thought there was a risk of degeneration due to the degenerative nature of the underlying condition, noting it would be useful to see the recent MRI scan.
136Dr Slesenger re-examined the plaintiff in June 2021, when his complaints were of a similar nature, as was his treatment regime.
137Since last seen, the plaintiff’s symptoms had persisted, with ongoing pain centred at the lower back of a moderate to severe level, radiating into the left leg at a severe level, with associated weakness in the left leg and numbness in the lower part of the left leg. The giving way continued and his symptoms were aggravated by cold weather. He had daytime fatigue, which he attributed to a combination of his pain and variable sleep. His weight had increased by 18 kilograms.
138The plaintiff was then taking Panadeine Forte, one to two tablets, two to three times a week, and Panadol most days, physiotherapy and self-managed exercise continued.
139On examination, there was tenderness over the lumbosacral junction and the paraspinal musculature. Lumbar movement was restricted.
140Dr Slesenger diagnosed lumbar spine soft tissue injury, aggravation of degenerative disease, chronic lower back pain with left leg radiating features and evidence of radiculopathy.
141Taking into consideration the length of the impairment and disability, the plaintiff’s poor response to treatment, the degenerative nature of his underlying condition and his reluctance to have surgery, Dr Slesenger thought that the restrictions are likely to be permanent.
142Dr Slesenger suggested, in terms of the lumbar spine alone, the following restrictions: No push, pull, carry or lift over 5 kilograms, no repetitive bending or twisting, no prolonged static postures and no exposure to whole body vibration.
143He confirmed referral to a pain specialist was appropriate. Having been provided with all the imaging, it lay outside his expertise to comment, but said the findings were consistent with the clinical findings.
Vocational
144A vocational assessment report was provided by Vocal Directions Pty Ltd – Paul Hartley, vocational assessor – in July 2020.
145Mr Hartley did not consider any of the jobs suggested by WorkAble in November 2018 were suitable employment for which the plaintiff’s residual capacities were realistically marketable or sustainable.
146Clearly, the plaintiff had no related experience as a sales representative, and in that instance, would require not only the attainment of significant computer skills but also a Certificate III in Business to Business Sales or higher. Neither had been recommended as suitable for him nor indeed provided. Therefore, the plaintiff could not be seen to have the necessary skill level or skillset for this occupation. The driving and the physical requirements as listed would be in excess of medical restrictions, and Mr Hartley did not believe that the plaintiff’s residual capacities would be realistically marketable for this occupation.
147Clearly, despite his mechanical knowledge and skills, the plaintiff could not be seen to have the necessary skill level or skillset to work as a motor vehicle parts inspector. The physical requirements would be in excess of medical restrictions, and Mr Hartley did not believe the plaintiff’s residual capacities would be realistically marketable for this occupation.
148The plaintiff could not be seen to have the necessary skills to work as a stock controller/stock clerk, warehouse stock controller or mechanical workshop manager. The physical requirements would be in excess of medical restrictions, and Mr Hartley did not believe the plaintiff’s residual capacities would be realistically marketable for these occupations.
149Mr Hartley had a similar view in terms of automotive service adviser. The plaintiff could not be seen to have the necessary skill level or skillset for this occupation, although the physical requirements were less onerous than the other jobs suggested; however, based on the job and employer requirements, Mr Hartley did not believe the plaintiff’s residual capacities would be realistically marketable for this occupation.
150In terms of a trainer/TAFE teacher automotive mechanical trades, teaching a trade-related role was likely to require hands-on teaching duties and demonstrations in excess of physical restrictions, and the job requirements and duties listed in the position description clearly demonstrated the plaintiff’s residual capacities were not realistically marketable for this occupation.
151Finally, in terms of automotive apprentice scheduling, the plaintiff lacked any of the required skills and experience for this occupation as highlighted in three current advertisements. Mr Hartley believed it was clearly demonstrated that the plaintiff’s residual capacities were not realistically marketable for this occupation.
152He concluded that the plaintiff had no realistic ability to fulfil the inherent requirements of suitable employment in a consistent and reliable manner to the level required by industry and that, on balance, given his poor prognosis for improvement and persistent restrictions and chronic pain related to his work-related lower back injury, in addition to other substantial barriers to employment, that, unfortunately, on balance, and in the absence of the provision and successful completion of considerable retraining and the ability to attain access to an employer incentive scheme to attain the significant workplace accommodations he requires for work within his restricted result capacity, he was likely to have no current work capacity into the foreseeable future.
Flexi Personnel wage rates
| A | Sales representative | $21.38 - $23.75 per hour |
| B | Service adviser | $23.67 per hour |
| C | Internal sales | $22.33 per hour |
| D | Stock controller | $22.46 per hour |
| E | Fleet controller | $26.86 per hour |
The Defendant’s medical evidence
Medico legal
153Dr David Barton, occupational physician, carried out a worksite assessment in October 2018. He then concluded that there were not any options to have a return-to-work plan with the employer.
154Dr James Economos, occupational physician, saw the plaintiff in May 2018. He then thought, based on the plaintiff’s presentation, he would only have the capacity to sustain three hours a day, three days a week, undertaking work of a light semisedentary nature, changing posture as tolerated.
155Dr Sam Soliman, occupational physician, saw the plaintiff in May 2019, at which time the plaintiff described constant lower back pain at five to six out of ten, and as bad as eight to nine. The pain was worse bending over, heavy lifting, sitting for more than thirty minutes, standing for more than an hour, or driving for more than thirty minutes. There was also left leg pain and left leg numbness.
156He then thought the plaintiff’s injury, namely discogenic lower back pain with left L5 radiculopathy, had not resolved. The plaintiff did not have the capacity to return to pre-injury duties and hours, but could return to suitable duties and had a current work capacity.
157Dr Ralph Poppenbeek, occupational physician, examined the plaintiff in February 2020.
158The plaintiff then described pain across the lower back, focused on the left. He had numbness in the posterior and lateral aspect of the left leg, and there was left, weak numbness. The footdrop had not changed since the onset in April 2018.
159On examination, the plaintiff had a slight limp, favouring the left leg. He had very flat feet, with slight dragging of the left foot, but no pronounced footdrop. He had difficulty standing on his heels, particularly with elevation of the left foot.
160The plaintiff stood with a forward flexed antalgic posture, and there was slight left-sided lumbosacral tenderness. Forward flexion was moderately limited, but other lumbar spine movements were full range. There appeared to be some stiffness in lateral flexion and rotation to the left.
161SLR was relatively free to 75 degrees on the right, and restricted to 60 on the left. The left plantar reflex was equivocal, but the right was normal. Muscle power was generally reduced in dorsiflexion and plantar flexion in the left foot and ankle, and sensation was diminished generally in the left foot compared with the right. These were non-specific changes which did not indicate dermatomal loss.
162Dr Poppenbeek noted the 2018 MRI where, at L4-5, there was a left paracentral disc protrusion with severe compression of the left L5 nerve root and adjacent theca. That indicated the condition was quite specific rather than a generalised degenerative disease phenomenon.
163The salient feature of the plaintiff’s presentation was a significant left lateral disc protrusion at L4-5 which has resulted in L5 radiculopathy as the working diagnosis.
164The involvement of only a single level was indicative of an acute event rather than aggravation of degenerative change, and the major cause was the plaintiff’s work activity. Given the severity of the disc protrusion, he did not think the plaintiff had the capacity to return to unrestricted pre-injury duties, modified or alternative duties. Suitable, although alternative duties, seemed preferable, and on a graduated return basis.
165Noting the August 2019 vocational report, he thought that the plaintiff could work as a sales representative, area manager, controller and automotive workshop controller within his current physical limitations, and could probably also do automotive apprenticeship scheduling work, provided he did not have to do hands-on work.
166He suggested the plaintiff avoid unsupported repetitive or prolonged forward bending and frequent lifting over 5 kilograms. The plaintiff should try to vary work posture as much as practicable and avoid walking for long periods in excess of half-an-hour at a time. He suggested that the plaintiff start on two to three hours, three days a week, and gradually increase according to tolerance.
167Sitting should be limited to about an hour at a time, standing for twenty minutes, walking for thirty to forty-five minutes, and restricted bending, pushing or pulling. A 5-kilogram lifting limited would be suitable. He thought orthopaedic or neurosurgical opinion would be of benefit to clarify that the surgery would be of assistance or, alternatively, facet joint or epidural injections.
168In his April 2020 report, Dr Poppenbeek commented on a number of suggested jobs.
169He thought that work as a sales representative was suitable within the restrictions he had earlier advised, and that the plaintiff may need short breaks whilst driving. The jobs of area manager, automotive apprentice scheduler, automotive workshop controller – hands off – and stock controller were suitable and appropriate.
Dr Mary Wyatt, occupational physician
170Dr Wyatt examined the plaintiff via video conference in October 2021.
171The plaintiff looked deconditioned. He indicated soreness with flexion which was shown to just under half normal range. He indicated some soreness at the end of range of motion with extension, lateral flexion and rotation, though those were shown to be normal in range. Seated straight leg raising resulted in complaints of pain at the low back on the right and at the back of the left calf.
172The plaintiff described having soreness in the lower lumbar spine centrally and in the right side, which was present most of the time, whereas the right side pain comes and goes. The pain can radiate into his left leg and front and outer aspect of the left thigh, and also into the shin, which can also be numb, and into the top of the left foot and inner aspect of the arch. Aggravating factors included long periods of sitting or standing.
173Dr Wyatt thought the plaintiff’s problem was best characterised as chronic low back pain with persistent radiculopathy. There were consistent examination findings of reduced dorsiflexion at the left toe and variable examination findings in relation to the strength of the plantar flexion of the left foot.
174The plaintiff indicated that his back was sorer, with prolonged sitting and standing in one position and eased by walking.
175Noting the plaintiff’s work background had been on cars, she thought he required work that is not manually demanding, and did not see him as being capable of returning to his normal job, and it was unlikely in the future. She thought work duties should allow change in posture, not require significant forward bending, or significant manual handling. Work options would be in customer service, such as service attendant within a larger car dealer outlet. Other options would be rental car hire, plant equipment hire or, with some improvement in his fitness, working in automotive spare parts.
176She thought the plaintiff had a capacity for suitable employment, noting that he had been out of the workforce for an extended period. He appeared somewhat deconditioned and she considered working 30 hours a week would be a sensible starting point to re-engage with work.
177Dr Wyatt provided a supplementary report in October 2021, commenting on the March 2020 WorkAble job suggestions.
178She noted that the plaintiff was enrolled in a digital marketing course but due to family commitments, was unable to pass and complete it. He was enrolled in forklift and heavy rigid truck licence training completed in March 2020 to help support work at a friend’s fruit shop which required licences.
179In terms of work options, the role of sales representative was said to be sedentary to light physical demand, promoting and selling company goods, quoting and visiting clients at retail outlets and following up with clients. Obviously there were a range of jobs of this nature but, generally, this was a physically suitable job for the plaintiff.
180A service adviser would be a particularly good role for the plaintiff, noting his work background as a mechanic. The role is not physically taxing and is suitable for him.
181The job in internal sales is sedentary to light physical demand work and may involve walking around to verify cargo or documents. Much of the role involves sitting at a computer workstation.
182The role of stock controller involved monitoring stock and ordering and checking it. Employees usually need a Certificate II or III, and at least one year of experience. The plaintiff may not qualify on this basis but, physically, is suitable for the role. There were no qualifications required for the purchasing manager in the advertised role.
183The role of fleet controller was not physically taxing, largely coordinating vehicles and their needs. It was sedentary to light demand, with sitting in an office or standing or walking around the garage and liaising with other staff. This would be good for the plaintiff because of his background as a mechanic.
184Dr Wyatt noted that the plaintiff had now been out of work for some years and is not job fit. She recommended that he initially return to work for 30 hours a week if possible, and expected that he would have a reasonable likelihood of being able to move to full-time hours of work over three to six months, but that remained to be seen, as his work fitness had not been tested.
185It was not absolutely necessary that he work reduced hours. He had applied for work that was fulltime even though he was unsure about whether he could cope with full-time hours.
186A return to the gym and pool were likely to improve his back function and pain and assist his work capacity.
Vocational evidence
187In March 2021, WorkAble provided the full-time earnings of the suitable employment options identified in its March 2020 vocational assessment:
(a) sales representative, weekly earnings of $1,419, median age forty-two years, working full time, eighty-five per cent;
(b) service adviser, weekly earnings of $1,184, median age forty years, working full time, eighty-eight per cent;
(c) internal sales, weekly earnings of $1,251, median age forty-one years, working full time, eighty-three per cent;
(d) stock controller, weekly earnings of $1,251, median age forty-one years, working full time, eighty-three per cent;
(e) fleet controller, weekly earnings of $2,191, median age forty-four years, working full time, ninety-three per cent.
Overview
188There is no dispute the plaintiff suffered a compensable injury to his lumbar spine which materially contributes to his current presentation. The consensus of medical opinion is that he suffered a large disc prolapse at L4-5, which has resulted in L5 radiculopathy.[75]
[75]T129
189MRI scans provide strong confirmation of the severity of the underlying discal injury, which has been confirmed on clinical examination by most examiners.[76]
[76]T128
Credit
190As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[77]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[77](Supra) at paragraph [12]
191The defendant “had reservations in terms of pain and suffering” because of the plaintiff’s credit in particular, relying heavily on the surveillance film.[78]
[78]T103
192Counsel for the defendant submitted that what the plaintiff was shown doing on the film – bending and lifting – was inconsistent with the level of restriction he described to Dr Wyatt and Dr Slesenger. The plaintiff was shown engaging in a level of activity inconsistent with someone with a back condition, such as he asserted, agreeing that any sign of pain could not be seen in the film.
193It was submitted that there was no sign of hesitancy when the plaintiff was engaged in various activities, or any apparent difficulty associated with his back. He did not need to service his friend’s car out of a financial imperative.[79]
[79] T104
194The plaintiff highlighted in his affidavit that bending and twisting were problematic for him. He did those activities not once but numerous times without any pain or restriction apparent. The surveillance was highlighted as a strike against the plaintiff’s credibility in relation to his complaints, with credit being the centrepiece in the plaintiff’s serious injury application.[80]
[80] Haden Engineering Pty Ltd v McKinnon (Supra); T104
195Counsel for the plaintiff submitted that the Court should have no difficulty accepting at all that the plaintiff is highly motivated, and it might be thought he is a tough, stoic, impressive and decent individual.[81]
[81]T125
196In the end, there was only twenty-six minutes of film, and the plaintiff was actually shown at Officeworks and Repco resting his left leg.[82]
[82]T126
197While I initially had some concerns about the film of the plaintiff working on the car, what he was shown doing for less than half an hours was not a particularly heavy activity, although it involved some bending. It was not over an extended period of time and there was a gap in the film.
198Further, the defendant admitted the plaintiff was under surveillance for about 58 hours, and there was only about 65 minutes of film, about half of which was shown.[83]
[83]T102. Church v Echuca Regional Health (2008) 20 VR 566
199I accept the plaintiff’s explanation that he did the job on the car more slowly than he would have pre injury and that he suffered afterwards with increased back pain. This situation is consistent with his physiotherapist’s notes which recorded the plaintiff attended and openly told him of engaging in various activities ranging from relatively heavy to minimal, and the pain experienced thereafter.
200I accept that the plaintiff is not a man to just sit around and do nothing at home. He tries various activities but suffers afterwards, with increased pain, sometimes needing to lie down or take pain killing medication.
201Further, I accept that at times while working on the car and when filmed at the shops, he lifted his left leg at times to take pressure of it.[84]
[84]Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [111]
202I do not accept the submission that the plaintiff’s answers had a “rehearsed tone” and he lacked motivation to work as until recently he was receiving the Colonial benefit at the same time as WorkCover.[85]
[85]T119
203The plaintiff became visibly upset when describing his inability to continue in his trade and open his own workshop. I accept that he would still be working in his trade as a mechanic if not for his injury, as it was his lifetime job, which he loved and wanted to pass on to his young sons, taking over his employer’s business. It is not his choice to sit around at home, not being productive in his trade as he had been for his entire working life, pre injury.
204The plaintiff’s wife corroborated his evidence of his difficulties with pain and various restrictions. Her evidence was not challenged.
Pain
205As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[86] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain, both in court and to doctors.
[86](Supra) at paragraph [11]
206The plaintiff has experienced significant low back pain and referred pain and numbness in his left foot since the incident.[87] At times, the pain is severe, with associated weakness and numbness in his lower left leg.
[87]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
207His back/left leg pain is aggravated by a range of activities, including prolonged postures, bending and lifting. His back pain and left foot issues are at times unpredictable.
208As a result, the plaintiff’s lumbar movements are restricted and he constantly needs to vary his posture and avoid aggravating activities.
Treatment
209The plaintiff has been keen to continue with conservative treatment, although Dr Anderson has, on several occasions, suggested he follow up with a neurosurgeon to discuss surgical options.
210Mr Maartens, neurosurgeon recommended a nerve root injection when he saw the plaintiff in 2018 .
211The plaintiff has required physiotherapy on an ongoing basis, more regularly recently, when he has tried to push himself to be more active. He also has acupuncture treatment and does self-managed exercises.
212He continues to require regular painkilling medication – Panadol and Nurofen – having ceased stronger painkilling medication as it caused bowel issues.
213As Dodds-Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd:[88]
“… The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[88](2007) 17 VR 592 at paragraph [199]
Work
214Significantly, as a result of his lumbar pain and restrictions, the plaintiff has been unable to work in his trade as a mechanic – the only job he has done since leaving school at the age of sixteen after completing Year 11.
215The consensus of medical opinion is that he is unfit for his trade as result of his lumbar condition. This is a relevant consideration when assessing pain and suffering consequences.[89]
[89]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering v McKinnon (supra) at paragraph [35] and Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38]
216While the physiotherapist’s notes indicate to some extent what the plaintiff has retained,[90] they also confirm the difficulties he has had with the various activities described.[91] As counsel for the plaintiff submitted, the notes “really tell the tale of him trying to do things, even light to moderate activities, which are then productive of increasing back pain and an increase in disability”.[92]
[90]T105
[91]T106
[92]T130
217While the issue of permanency was raised on the defendant’s behalf with the suggestion of pain management by Dr Slesenger and Dr Poppenbeek with the former of the view the plaintiff’s condition had not stabilised,[93] in my view, there is no medical evidence that pain management is curative. Other examiners concluded the plaintiff’s condition had stabilised.
[93]T107
218Accordingly, I accept that the plaintiff’s condition has stabilised and is permanent not having had any significant improvement over more than 3 years despite conservative treatment.[94]
[94]T9
219In Stijepic v One Force Group Aust Pty Ltd,[95] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[95] (Supra) paragraph [43]
220The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it is relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
221The plaintiff is still a relatively young man, now aged forty-one. He has experienced significant back and left leg pain for over three years and this situation is likely to last for the foreseeable future.
222Taking into account all the evidence, I am satisfied the consequences of his lumbar impairment are serious and permanent.
223Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
224Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
225The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
226The former must be calculated by reference to the six-year period specified in s325(2)(f).
227“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
228It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
229The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
230I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.[96]
[96] See Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
231Counsel for the plaintiff submitted that the appropriate “without injury” earnings figure was $83,561 taken from the plaintiff’s 2017/2018 taxation return. In that document, wages and salaries were noted as $81,766. There was an additional income of $6,103 from his superannuation policy, making a total of $87,887, less work-related deductions of $4,326.
232On the plaintiff’s case, the base figure ($83,561) with inflation totalled $87,377.68. The forty per cent loss threshold on that basis was $54,426.61 or $1,046.00 per week.
233Counsel for the defendant, however, submitted that the base figure was the salary or wages figure of $81,766, as set out in that taxation return. With increases at the agreed rate, the figure was $85,500.69, 60% of which is $51,300.41 or $986.55 gross per week.
234The $81,766 represented income only until 6 April 2018 and, aggregated out over the full twelve months, would have totalled $106,000. In those circumstances in my view, the higher base amount relied on by the plaintiff is somewhat conservative and more fairly reflects “without injury” earnings than the defendant’s lower figure.
235Accordingly, the without injury earnings figure is $1,046.00 per week.
Financial submissions
236The plaintiff’s primary position was that there is no realistic work capacity.
237Counsel for the plaintiff relied on the wage rates provided by Flexi Personnel (hourly wages of between $21,38 and $26.96). Working 30 hours a week, as suggested by Dr Wyatt as a starting point, the plaintiff must succeed, as he was not capable of earning in excess of $1,046.66 a week.
238The defendant’s analysis based on the higher WorkAble figures, was rejected by the plaintiff as the plaintiff is not a full-time worker and the “median” is not relevant. The plaintiff is an injured worker who would be coming out of a considerable period out of the workforce and would be new to whatever job was nominated.
239However, using the WorkAble figures, if the 38-hour per week rates were reduced to 30 hours per week, the following amounts apply:
· Sales representative $1,419 per week divided by 38 x 30 = $1,120.26 (x 52 weeks = $58,253.52)
· Service advisor $1,184 per week divided by 38 x 30 = 934.74 (x 52 weeks = $48,606.48)
· Internal sales $1,251 per week divided by 38 x 30 = $987.63 (x 52 weeks = $51,356.76)
· Stock controller $1,251 per week divided by 38 x 30 = $987.63 (x 52 weeks = $51,356.76)
240Only the job of sales representative exceeds to threshold of more than $54,426.61.
241On the WorkAble figures, to exceed the threshold, the plaintiff would have to work 28 hours a week as a sales representative, 33.5 hours as a service advisor, 32 hours in internal sales or stock controller, 18 hours as a fleet controller and 36 hours as a forklift operator.
242Counsel for the defendant submitted the WorkAble median rates applied as the plaintiff is obliged to satisfy the Court as to the permanency. Those figures could also be used, doing a calculation on a part-time basis. WorkAble relied on the Australian Bureau of Statistics and Job Outlook, which were commonly sourced materials for these matters.[97]
[97]T114
243To exceed the lower weekly figure of $943.45 relied on by the defendant, the following hours needed to be worked:
| A | Sales representative | 26 hours per week |
| B | Service adviser | 31 hours per week |
| C | Internal sales | 29 hours per week |
| D | Stock controller | 29 hours per week |
| E | Fleet controller | 16.5 hours per week |
| F | Forklift operator | 32 hours per week |
Overview
244While examiners, Dr Anderson and Dr Doig, thought a 10-kilogram lifting was appropriate – that restriction was only one of a number which they recommended.
245The plaintiff would also need breaks and be able to avoid sustained, prolonged postures and not undertake bending and forward stooping.[98]
[98]T121
246Mr Miller and Dr Poppenbeek put a more restrictive lifting limit of 5 kilograms with these additional restrictions.
247Taking into account all the evidence, in my view, the plaintiff has a very limited capacity for part-time, non-physical work, not requiring prolonged sitting. Twenty hours a week would be a reasonable goal, working alternate days. I do not share Dr Wyatt’s more optimistic view that 30 hours a week would be a starting point for a range of jobs. Only last year, Dr Poppenbeek suggested the plaintiff start on fewer hours, suggesting 2 to 3 hours, 3 days a week. There has been no improvement in the plaintiff’s condition since that time.
248While I accept the plaintiff is an articulate man who would work well in customer service with a range of transferable skills, as WorkAble listed, because of the unpredictability of his back pain, he would not be a reliable employee who could attend work on a consistent basis. The onset of back pain, although mainly activity-based, is unpredictable and can occur for no particular reason. He presently plans his day around his pain level – a freedom he would not have if required to attend work regularly. He would need a job where he could come and go, depending on how his back felt – a fanciful situation. Daytime fatigue would also be an issue because of his difficulty sleeping due to pain.
249He would need days off after a flare up. His problems after bending forward while working on the car in the film and undertaking the various activities described by his physiotherapist, confirm that event the lightest of activities give him significant problems with back and leg pain. As counsel for the plaintiff submitted, once off, fairly simple activities produced and provoked his pain and were relevant when considering whether the plaintiff had any work capacity.[99]
[99]T123
250I accept the plaintiff’s evidence that he has applied for a wide range of jobs at the suggestion of WorkAble – not because he believes he would have the capacity to perform the duties involved. In my view, is a motivated man who would like to work and would be doing so if he could, not be relying solely on a disability benefit when his wife also is not working.[100]
[100]T118
251While there was detailed analysis in counsels’ submissions of the various wage rates and the hours the plaintiff could work, at best working 20 hours per week, he would suffer the requisite loss on any figures or analysis.
252A sales representative job would not be suitable because it would involve a considerable amount of driving and it was not apparent what items the plaintiff would be selling.[101] A sales role involved prolonged sitting, and the stock controller role required a Certificate II or Certificate III. A fleet controller role was also unsuitable as it involved prolonged sitting, standing and walking.[102]
[101]T121
[102]T122
253Although the plaintiff obtained a forklift licence, that job would be totally unsuitable for him given his issues with prolonged sitting. This would also be the case working as a truck driver.[103]
[103]T124
254Further, the plaintiff has limited computer skills.
255Counsel for the defendant also submitted the plaintiff had not discharged his onus under sub-paragraph (g) in relation to retraining and rehabilitation.
256However, the plaintiff has cooperated in terms of rehabilitation and retraining, obtaining licences and cooperating with WorkAble, and has regularly consulted SEEK, looking for appropriate employment.[104]
[104]T126
257In light of my findings as to the plaintiff’s spinal 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 40 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 s325(2)(g).
258Taking into account all the evidence, I do not consider that the plaintiff would have the capacity to work more than 20 hours week on very restricted duties, given his significant ongoing pain and restrictions which are permanent. He has therefore suffered the requisite loss of 40 per cent – the inability to earn in excess of $1046 per week- on a permanent basis.
259Accordingly, I also grant leave to bring proceedings for damages for loss of earning capacity.
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