Chea v Aperio Group (Australia) Pty Limited
[2012] VCC 1802
•21 November 2012
| THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04491
| KIM SENG CHEA | Plaintiff |
| v | |
| APERIO GROUP (AUSTRALIA) PTY LIMITED (ACN 113 833 748) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2012 | |
DATE OF JUDGMENT: | 21 November 2012 | |
CASE MAY BE CITED AS: | Chea v Aperio Group (Australia) Pty Limited | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1802 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: injury to the lower back – unfitness for pre-injury work – whether the plaintiff had participated in rehabilitation and retraining – whether the plaintiff was fit for suitable employment
LEGISLATION CITED: Accident Compensation Act 1985, s134AB(38)(c), (f) and (g)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
JUDGMENT: The plaintiff is granted leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr J Valiotis | Zaparas Lawyers |
| For the Defendant | Mr M Clarke | Wisewould Mahoney Lawyers |
HIS HONOUR:
1 Before the Court is an application brought by Originating Motion filed on the 29 September 2011 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring a proceeding for pain and suffering and loss of earning capacity. The plaintiff's case for pain and suffering was conceded at the conclusion of the evidence.
3 Mr J Mighell SC appeared with Mr Valiotis of Counsel for the plaintiff, and Mr Clarke of Counsel appeared for the defendant.
4 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 6-16 and 34-114: Exhibit A;
· The defendant tendered its Court Book (“DCB”) pages 1-83: Exhibit 1.
The Statutory Scheme
5 The relevant considerations which apply to such an application based upon ss(37)(a) are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(e) In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application;
(f) In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury.
[3](supra)
6 The relevant considerations which apply to such an application based upon ss(37)(c) not referred to above, are as follows:
(a) Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than “serious” to the extent of being “severe”.
(e) Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
(j) In conformity with Barwon Spinners, I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
7 I am required by s134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
8 The plaintiff was born in 1976 in Cambodia. He is now thirty-six years of age. The plaintiff escaped from Cambodia with his family at a time when the Vietnamese had invaded and occupied Cambodia. He escaped to Thailand with his family, where they remained in a refugee camp for three years. He was sent back to Cambodia with his family by the United Nations. He remained there for six months before he was sponsored by an uncle to migrate to Australia. He arrived here on 28 March 1994.
9 The plaintiff is a married man. He has two children. He has a daughter, who is nine years of age, and a son, who is twelve months’ old.
10 The plaintiff had seven years of education in Cambodia. He left school when he was thirteen years of age. When he came to Australia he spoke no English. He now speaks some English, sufficient to communicate at a basic level, and is able to read and write English at a basic level.
11 The plaintiff commenced employment with Australian Challenge Pty Ltd on 3 February 1995. In about May 2003, the business of Australian Challenge Pty Ltd was purchased by Multiflex Packaging Pty Ltd. Subsequently, the defendant purchased the business of Multiflex Packaging Pty Ltd in about July 2006.[4]
[4]DCB 1-2
The Plaintiff’s Injury
12 The plaintiff was employed as a level three machine operator. The work he undertook involved manual handling of 25-kilogram bags of plastic granules which were loaded into a plastic moulding machine; loading the plastic moulding machines from a 400-kilogram plastic container using a suction device, and also unloading rolls of plastic film, which weighed about 7 kilograms, manually, and unloading heavier rolls using a forklift.
13 By 2005, the plaintiff was transferred onto a larger plastic moulding machine which he operated with another worker. The work involved unloading the plastic moulding machines similar to what I have summarised above; loading the plastic moulding machines with 25-kilogram bags of colour; unloading rolls of plastic film weighing between 5 to 15 kilograms and loading fifteen to twenty rolls onto a pallet.[5]
[5]PCB 7-8
14 The foregoing is sufficient to understand how the plaintiff suffered injury.
15 In early 2008, the plaintiff became aware of intermittent lower back pain. By January 2009, he suffered increased lower back pain and pain going into his right leg. By 21 July 2009, his lower back pain worsened and spread into both of his legs.
The Plaintiff's Medical Treatment
16 It is unnecessary to summarise much of the plaintiff's medical treatment because the ultimate issue which fell for my determination concerned the plaintiff's claim for loss of earning capacity. The defendant conceded that the plaintiff had suffered a compensable injury; that the compensable injury impaired the function of his lower back, and that it produced consequences both in terms of pain and suffering and loss of earning capacity.
17 Furthermore, the defendant conceded that the plaintiff was not fit for his pre-injury work. It submitted two matters. Firstly, that the plaintiff had not participated in rehabilitation and retraining, and secondly, that he was otherwise fit for suitable employment full-time.
18 In short, the plaintiff first saw Dr Chea, general practitioner, for about two years.[6] The defendant referred the plaintiff to medical practitioners at a clinic where he saw Dr Lange, general practitioner, and Dr Nguyen, general practitioner. The plaintiff was first seen at their clinic on 31 July 2009. The plaintiff gave a history of suffering injury as a result of repeated lifting. He was assessed at that clinic on 31 July 2009, January 2010, and lastly on 1 March 2010.
[6]Dr Chea is not related to the plaintiff. No reports or clinical notes of Dr Chea were relied upon by either party
19 Dr Lange considered that the plaintiff had suffered an L5-S1 disc lesion. He provided three reports dated 11 February 2010,[7] 20 May 2011[8] and 20 July 2012.[9] His opinion regarding the plaintiff’s injuries seems to have been largely based upon a CT scan which was taken on 25 August 2009. The radiologist reported that the scan demonstrated an L5-S1 paracentral disc bulge compressing the left S1 traversing nerve root.[10]
[7]PCB 34-35
[8]PCB 36-38
[9]PCB 39-40
[10]PCB 72
20 Dr Lange referred the plaintiff to physiotherapy. He provided the plaintiff with prescriptions for anti-inflammatory medication. He certified that the plaintiff was fit for duties with no lifting over 10 kilograms and no repeated bending. Interestingly, having not seen the plaintiff since 1 March 2010, Dr Lange nonetheless expressed an opinion in his report dated 20 July 2012 that the plaintiff should have recovered sufficiently to return to work as a shop assistant, speed camera operator, projectionist or cashier at a car park.[11] It is not an opinion shared by some other medical practitioners.
[11]PCB 39-40
21 The plaintiff's treatment was subsequently taken up by Dr Pragastis, general practitioner. The plaintiff first saw him on 15 March 2010. Dr Pragastis provided two reports dated 20 June 2011[12] and 30 July 2012.[13] Dr Pragastis certified the plaintiff as unfit for work from 15 March 2012. The plaintiff has not worked since. Dr Pragastis prescribed the plaintiff medication. The plaintiff was intolerant to some medication. He was able to tolerate Mobic. He referred the plaintiff to have an MRI scan, which was taken on 5 May 2010. The radiologist reported that it demonstrated a mild left paracentral disc protrusion at L5-S1 irritating the left S1 nerve root.[14] He referred him to have a second MRI scan, which was taken on 21 February 2011, which produced the same appearances as the first MRI scan.
[12]PCB 41-43
[13]PCB 44-45
[14]PCB 73
22 Dr Pragastis referred the plaintiff to Dr Sui, acupuncturist, who commenced treating the plaintiff on 15 March 2010. Dr Sui provided two reports dated 6 February 2011[15] and 29 April 2012. He treated the plaintiff three times a week, which the plaintiff said helped reduce his levels of pain. However, the plaintiff's WorkCover benefits for acupuncture treatment were stopped by October 2011. Since that time, Dr Sui has continued to provide the plaintiff acupuncture treatment about once a week.[16]
[15]PCB 46-48
[16]PCB 51
23 The plaintiff was referred to Mr Boling, neurosurgeon. It would appear that the plaintiff saw him in 2010. In his report dated 3 August 2010,[17] he said that he last saw the plaintiff on 9 June 2010. He examined the plaintiff and reviewed the MRI scan taken on 5 May 2010. He was of the opinion that the plaintiff had suffered from a small disc prolapse at L5-S1 without any obvious nerve root compression. He considered that the pain suffered by the plaintiff was discogenic in nature. He was of the opinion that the plaintiff was unfit for his pre-injury work due to “his current severe pain syndrome”. He considered that the plaintiff needed to be retrained into non labouring type work which did not involve bending, twisting or heavy lifting. He recommended that the plaintiff be evaluated and treated through a comprehensive pain program. In conclusion, he considered that the plaintiff's prognosis was poor.
[17]PCB 76-77
24 The plaintiff was assessed by a multidisciplinary team known as Epworth Rehabilitation Dandenong on 26 August 2010. The team comprised a physiotherapist, an occupational therapist and a psychologist. They were of the opinion that the plaintiff would not benefit from a multidisciplinary program. In summary, the reasons were that the plaintiff reported and demonstrated several fear avoidant behaviours; presented with unhelpful beliefs about pain; demonstrated a reduction in motivation to change his current situation; reported no active pain management strategies, spending a large amount of the day lying down, and presented with limited motivation in developing a self-management approach to pain.[18]
[18]DCB 80-83
25 The plaintiff was referred to Mr Timms, neurosurgeon. The plaintiff first saw him on 1 December 2011. He referred the plaintiff to have a third MRI scan, which was taken on 11 January 2012. The radiologist reported that the appearances on the MRI scan were the same as the previous two MRI scans.[19] The plaintiff had a CT-guided epidural injection on the same day as the third MRI scan was taken. Mr Timms subsequently saw the plaintiff on 29 February 2012. He was of the opinion that the plaintiff had suffered a discal injury at L4-5 at L5-S1. He considered that the disc injury at L5-S1 was the cause of the plaintiff’s symptoms. He advised the plaintiff to undergo physiotherapy, hydrotherapy, Pilates, regular analgesic medication and intermittent steroid injections. I infer that it was symptomatic treatment rather than curative, because Mr Timms expressed the opinion that the plaintiff was completely incapacitated for both his pre-injury work and for alternative duties.[20]
[19]PCB 75
[20]PCB 59 and 65
The Plaintiff's Medico-Legal Opinions
26 What is clear from an analysis of the opinions of the plaintiff's treating medical practitioners is that they expressed very similar opinions regarding the nature of the pathology at the seat of the plaintiff's complaints of disabling lower back pain and leg pain. They each were essentially of the opinion that the plaintiff was either unfit for work, or in the case of Mr Boling, the plaintiff might be able to return to work with retraining, but in the setting of having a poor prognosis.
27 Mr D’Urso, neurosurgeon, examined the plaintiff on 15 June 2012[21] and Professor Bittar, neurosurgeon, examined the plaintiff on 20 October 2012. Essentially, both concluded that the plaintiff cannot return to his pre-injury work, and is unlikely to be able to return to alternative work. Professor Bittar expressed that opinion emphatically, saying that the plaintiff was unfit for both his pre-injury employment and alternative employment.[22] Mr D’Urso was emphatic that the plaintiff was unfit for his pre-injury employment, but postulated that, with a comprehensive outpatient rehabilitation program, it might be possible for him to return him to “at least part-time light duties employment and possibly full-time light duties employment”. He then qualified that by saying, “however, this would be somewhat speculative”.[23] The only logical conclusion I can reach from Mr D’Urso’s opinion is that the plaintiff is essentially unfit for all employment.
[21]PCB 78-80
[22]PCB 83
[23]PCB 79-80
28 Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 28 June 2012.[24] He appears to accept that the plaintiff suffered a discal injury at the L4-5 and L5-S1 levels. He considered that the plaintiff was not fit for his pre-injury employment. He considered that the following restriction should be imposed upon him – a lifting limit of 5 kilograms between waist and shoulder height; avoidance of repetitive bending, lifting or twisting below waist height or above shoulder height, and limited to working four hours per day, five days per week.[25]
[24]PCB 66-67
[25]PCB 67
The Defendant’s Medico-Legal Opinions
29 The medical practitioners who examined the plaintiff for the defendant accept that the plaintiff suffered a compensable injury. Their diagnoses are consistent with the diagnoses made by the plaintiff’s treating and medico-legal medical practitioners.
30 In summary, they each considered that the plaintiff was fit for alternative employment:
· Dr Davison, occupational physician, examined the plaintiff on 13 May 2011. He was of the opinion that the plaintiff could work with the following restrictions – varying posture regularly; avoiding prolonged sitting and prolonged standing; avoiding frequent bending or twisting, and avoiding manual handling greater than 4.5 kilograms in force or weight at bench height.[26] Subject to compliance with his recommended physical restrictions, Dr Davison was of the opinion that the plaintiff could work in light stores work or as a car park attendant.[27]
[26]DCB 29
[27]DCB 37
· Mr Dooley, orthopaedic surgeon, examined the plaintiff on 9 August 2011. He was of the opinion that the plaintiff could work with the following restrictions – avoiding regular heavy physical activity, bending, and lifting.[28] He was of the opinion that the plaintiff could work as a car park attendant, customer service officer, confectionery distributor, assembler in a seated position or in light picking/packing work full time.[29]
[28]DCB 40
[29]DCB 42
· Mr Wilde, orthopaedic surgeon, examined the plaintiff on 14 March 2012. He was of the opinion that the plaintiff could work with the following restrictions – not to lift his arms above shoulder height; not to lift weights over 5 kilograms; avoiding repetitive work and repetitive lifting above shoulder height, and limited to work five hours per day, four days per week.[30] He was of the opinion that the plaintiff could work as a car park attendant, product examiner, product grader or product tester.[31]
[30]DCB 48
[31]DCB 48
· Mr Jones, orthopaedic surgeon, examined the plaintiff on 17 September 2012. He was of the opinion that the plaintiff could work with the following restrictions – lifting weights at bench level up to 5 kilograms; no bending or twisting, and lifting of lesser weights than 5 kilograms.[32] He was of the opinion that the plaintiff could work as a product examiner, product grader or product tester.[33]
· Dr Yong, occupational physician, examined the plaintiff on 1 October 2012. He was of the opinion that the plaintiff could work with the following restrictions – avoiding repeated bending and twisting of the back; avoiding firm pushing or pulling; avoiding lifting more than 5 kilograms on a repeated basis, and varying posture regularly between sitting, standing and walking.[34] He was of the opinion that the plaintiff could work as a car park attendant, product examiner, product grader, product tester, confectionery distributor or car park attendant.[35]
[32]DCB 55
[33]DCB 55
[34]DCB 62
[35]DCB 63-64
The Plaintiff's Evidence
31 The plaintiff swore two affidavits on 9 May 2011[36] and 21 July 2012.[37] In addition to the evidence contained in his affidavits, the plaintiff gave some further short evidence-in-chief, and then was cross-examined at some length by Mr Clarke.
[36]PCB 6-13
[37]PCB 14-16
32 The plaintiff gave his evidence through an interpreter. At times he broke into English, which I was able to understand quite clearly. The plaintiff has a capacity to speak English and to read and write in English, but I accept that his facility with the English language is modest and only sufficient for him to get by, rather than being anything more sophisticated.
33 To the extent that a judge is able to determine anything regarding the creditworthiness and reliability of a witness when evidence is given through an interpreter, it appeared to me that the plaintiff gave his evidence in a reasonable manner. Having read the plaintiff's affidavits carefully and the transcript of his evidence, it seems to me that there was no attack upon his creditworthiness of any significance, and I did not detect anything in his evidence which created any basis for me to doubt the reliability of any of his evidence. I accept the plaintiff's evidence in his affidavits and in his oral evidence in whole.
34 What is very evident from my analysis of the medical evidence is that the plaintiff has suffered discal injury at either one or two levels of his lower back, and more particularly, at the L4-5 and/or the L5-S1 level, with some evidence of compression of the S1 nerve root, and pain radiating into his legs from his lower back. I accept that his mobility is impaired, in that he has difficulty sustaining various postures, such as sitting, standing and being able to walk much more than relatively modest distances.
35 I accept the plaintiff's evidence that he no longer has the capacity to work in his pre-injury employment. It is to be noted that the plaintiff has only had one job since arriving in Australia and that was with the defendant and its predecessors. It must be remembered that he commenced that employment in 1995 and worked without incident until he stopped work altogether on 1 March 2010. That is a handsome working history of some fifteen years. It demonstrates sound motivation and commitment to work, and moreover, a capacity and willingness to undertake hard physical work in a factory environment.
36 It was submitted that the report of Epworth Rehabilitation Dandenong is significant, because it demonstrates that the plaintiff has in some fashion fallen under the spell of the injury to his lower back and lacks the motivation to engage in rehabilitation and retraining, and more particularly, to make a viable attempt to return to the workforce. I do not accept that to be the case, because it is in stark contrast to the opinions of Dr Pragastis, Mr Timms, Mr Boling and Professor Bittar, who essentially are of the opinion that the plaintiff has a poor prognosis. Dr Thomas and Mr Wilde were of the opinion that the plaintiff can work around twenty hours per week in light work.
37 Furthermore, the plaintiff has been obedient to the medical treatment which he has been directed to undertake. Whilst the rehabilitation may not have worked in favour of the plaintiff, there is no other palpable criticism of him from any other medical quarter that he suffers from the restrictions to rehabilitation described by the rehabilitation team at Epworth Rehabilitation Dandenong. In general terms, there are workers who are stoic who press on in the face of the adversity, and there are other workers who fall down under the weight of injury. I think to ignore this fact is a grave mistake. It is for that reason that I reject the submission that the plaintiff should fail in his application relevant to loss of earning capacity consequences because he has not undertaken rehabilitation and retraining, and made attempts to return to the workforce.
38 In the end, I prefer the evidence of the plaintiff's treating and medico-legal medical practitioners to the evidence of the other medical practitioners who believe that the plaintiff can return to alternative employment full time.
39 Firstly, the plaintiff has suffered a major injury to his lower back to either one or both of the discs at L4-5 and/or L5-S1, with compression of the S1 nerve root, although the opinions of the examining medical practitioners vary as to whether there has been a frank compression of the nerve root. However, the plaintiff has had pain radiating into his legs from his lower back.
40 Secondly, the consequences to the plaintiff in terms of pain and suffering and loss of earning capacity are major. He is not able to undertake his pre-injury employment. There is a strong body of evidence which supports the conclusion that the plaintiff is unfit for suitable employment. The other evidence supports the conclusion that he is unfit for his pre-injury employment, and only fit for alternative employment so long as there is compliance with significant work restrictions.
41 Thirdly, the plaintiff has had a significant amount of medical treatment. Although the preponderance of the medical opinions from his treating medical practitioners is that he should pursue conservative measures, Mr D’Urso considers that surgery is an option for the plaintiff to consider. The surgery Mr D’Urso described is major lower back surgery. However, I prefer the preponderance of the medical opinions that surgery is probably not a viable option.
42 Fourthly, the plaintiff has been obedient to the medical treatment he has had. He has a sensitivity to the use of painkilling medication. He is limited to using Digesic for pain relief.[38] He has had physiotherapy, hydrotherapy and the prescription of a variety of other types of painkilling medication. He is currently having acupuncture treatment, which his solicitor is generously paying for.[39] His entitlement to ‘no fault’ benefits to pay for physiotherapy was terminated by notice on 22 February 2010. The only resort he now has to medical treatment is from Dr Pragastis and acupuncture.
[38]PCB 43
[39]Transcript 25
43 Fifthly, the plaintiff has had basic education through an education system foreign to the Australian education system. He left school at a very early age. I referred to his competence with English earlier in these reasons. It is sufficient to repeat that it is modest. Otherwise, his transferable skills appear to be modest.
44 Sixthly, I have read the material which the defendant's medico-legal medical examiners were provided regarding the alternative forms of employment on which they were asked to pass comment.[40] That material is significantly less detailed than the material produced by Ms Schneider, vocational assessor, in her report dated 7 November 2012.[41] Each of the forms of employment appear to involve levels of physical activity which are likely to place unreasonable stress and strain on the plaintiff's lower back.
[40]DCB 65-79
[41]DCB 84-114, and in particular at DCB 100-105
45 Seventhly, I do not accept the submission that the plaintiff has failed to undertake rehabilitation and retraining, and is, therefore, prohibited by ss(38)(g) of the Act from being given leave to recover damages for loss of earning capacity consequences. On the basis that I accept the plaintiff's evidence in whole, and that of the plaintiff’s treating medical practitioners and medico-legal medical practitioners, it occurs to me that he has done all that he has been physically capable of doing to try to rehabilitate himself. I find that he is significantly restricted in what he can do by way of retraining because of his lack of facility with the English language and the fact that he has only ever worked as a factory worker.
46 Eighthly, I have paid due regard to the definition of “suitable employment” in s5(1) of the Act. I am satisfied that the opinions of the medical practitioners whose opinions I prefer demonstrate the nature of the plaintiff's incapacity. The nature of the plaintiff's pre-injury employment is clearly limited to factory work. Although he is a relatively young man, his education, skills and work experience are of a migrant worker with a modest facility with the English language who does not have any realistic transferable skills. The plaintiff has not been able to return to work, and has limited access to medical treatment, given that funding for some medical treatment has been denied.
47 Merging the conclusions I have reached regarding the plaintiff's evidence and the medical evidence in the context of the definition of suitable employment, I am satisfied that the plaintiff is unfit for suitable employment, and therefore, I find that the loss of earning capacity consequences resulting from the impairment of function the plaintiff's lower back meet the statutory test.
Conclusion
48 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
49 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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