Chorley v Victorian WorkCover Authority
[2021] VCC 612
•19 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03976
| KHADE ANTHONY JOHN CHORLEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 10 May 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 19 May 2021 | |
CASE MAY BE CITED AS: | Chorley v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 612 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – lower back injury – identification of the injury – creditworthiness and reliability – capacity to undertake suitable employment – competing medical opinions on capacity – assessment of capacity to do proposed alternative jobs – plaintiff under twenty-six years of age – assessment of loss of earning capacity undertaken through common-law principles – satisfaction of loss of earning capacity sufficient for leave for both pain and suffering and loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s225(2)(b), s235(3); Accident Compensation Act 1985 (Vic), s134AB(17), s134AB(38)(b)
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Malec v Hutton [1990] 169 CLR 638
Judgment: Plaintiff granted leave to bring a proceeding at common law to recover damages for both pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC Mr J J Fitzpatrick | Slater & Gordon Ltd |
| For the Defendant | Mr R H Stanley | Russell Kennedy Pty Ltd |
HIS HONOUR:
Introduction
1On 14 December 2017, the plaintiff was working in the course of his employment with Carpet Call (Vic) Pty Ltd (“the employer”) as a carpet layer. He was attempting to remove a large heavy roll of carpet off the roof of a work van with a fellow worker. As he engaged in that task, he took the weight of the roll of carpet, with the result that he suffered injury to his lower back.
2The plaintiff submitted that he has suffered a permanent serious impairment of the function of his lower back. He seeks leave to bring a common-law proceeding for both pain and suffering and loss of earning capacity.
3Mr C W R Harrison QC appeared with Mr J J Fitzpatrick of counsel for the plaintiff. Mr R H Stanley of counsel appeared for the defendant.
The issues
4The defendant literally contested every conceivable issue that could be raised in this application. The staggering extent of the contest potentially requires me to summarise, and then analyse, a very large body of evidence in order to address every issue. After re-reading the evidence tendered by the plaintiff and the defendant, the transcript, and considering the content of the plaintiff and defendant’s addresses, I think this application was rather about less than more.
5I do not propose to rehearse every issue raised by the defendant in every piece of evidence relevant to every issue. I propose to catch all of the issues raised by the plaintiff and the defendant by taking a rather more routine approach by summarising the evidence, analysing it and reaching the conclusions on the issues which are material to my consideration of the application. In that way I will catch all of the issues raised by the plaintiff and the defendant which I consider to be a much more productive way of dealing with this application.
Executive summary
6I have considered all of the evidence, the issues raised by the plaintiff and the defendant, and I have concluded that the plaintiff’s loss of earning capacity consequences meet the statutory test.
7In Advanced Wire & Cable Pty Ltd v Abdulle,[1] the Court of Appeal referred to s134AB(17) of the Accident Compensation Act 1985 which provides that if a worker satisfies ss(38)(b)(i) and not subparagraph (ii), then the worker is entitled to bring a proceeding to recover damages for pain and suffering only. The Court of Appeal noted that there was no analogue to s134AB(17) limiting an applicant who satisfies the loss of earning capacity requirements, but not the pain and suffering requirements from claiming pain and suffering damages.
[1] [2009] VSCA 170 (“Abdulle”)
8The relevant provisions are reproduced in the presently applicable Workplace Injury Rehabilitation and Compensation Act 2013 in the form of s325(2)(b) read together with s335(3). It follows that the decision in Abdulle still applies.
9By concluding that the plaintiff’s loss of earning capacity consequences meet the statutory test, it must follow that the plaintiff must be given leave to bring a proceeding not only to recover damages for loss of earning capacity, but also for pain and suffering.
10The emphasis in my treatment of the evidence is directed to whether it validly supports the conclusion which I have reached relevant to loss of earning capacity.
The Plaintiff’s evidence
11The pain the plaintiff experienced at the time of the occurrence of the incident persisted from the time that the incident occurred. He experienced stiffness and soreness in his lower back to the extent that on the following day, he was troubled by significant pain and discomfort in his back which interfered with his normal level of functioning. His attempt to return to work failed. He left work early and went home.
12The first level of treatment the plaintiff obtained was from Ms Alanna Ianni, physiotherapist, at Bodywell Healthcare. At the time when he obtained that treatment, he was suffering from back pain and a tingling sensation in his left hamstring. He was finding it difficult to sit for long periods of time to the extent that his general mobility was significantly affected. He attended Ms Ianni on six or seven occasions over the ensuing couple of months.[2]
[2] Plaintiff's Court Book (“PCB”) 8
13It would appear that the plaintiff was off work until 27 December 2017, when he attempted to return to work. He lasted about an hour before ceasing work due to chronic back pain. He re-attended Ms Ianni later that day. He experienced little improvement in the condition of his back, which then saw him attend Dr Barenya Das, general practitioner, at the Laurimar Medical Clinic on 16 January 2018.[3]
[3] PCB 8
14Dr Das provided the plaintiff with something akin to a medical certificate. It is undated.[4] He subsequently provided two reports, dated 26 November 2019[5] and 6 April 2021,[6] in which he described first seeing the plaintiff on 16 January 2018, at which time the plaintiff described the mechanism of injury. Dr Das then described the referrals he made for the plaintiff to undergo radiological investigations, and referrals to specialists for assessment and treatment.
[4] PCB 50
[5] PCB 63-64
[6] PCB 67-68
15I think it is an unproductive exercise to summarise the content of Dr Das’ reports because the substance of his reports is rather more an account of the type of referrals I referred to in the last paragraph. The substance of the outcome of the radiological investigations and the assessment and treatment by specialists is better dealt with when I come to summarising what the radiological investigations produced and the treatment provided by the specialists.
16However, what is apparent from Dr Das’ reports is an acceptance that the plaintiff suffered a back injury. Furthermore, that, in his opinion, the plaintiff required referral for radiological investigations and specialist assessment and treatment. He did not provide a diagnosis, but I think it is fair to say that inferentially he accepted the opinions of the specialists.
17Apart from the referrals for treatment, he prescribed the plaintiff Panadeine Forte and Targin. He described the prescription of Panadeine Forte as the starting point, and I assume because of the nature and extent of the plaintiff’s pain, increased the plaintiff’s medication to Targin. He noted that the analgesia he prescribed did not improve the plaintiff’s tolerance to the pain he was experiencing. He noted that the plaintiff became frustrated by the lack of improvement in his back pain, the side-effects he was experiencing with medication, and he asked Dr Das to refer him to a medical cannabis clinic, presumably to see whether cannabis would provide him with any better relief from his back pain.
18Dr Das referred the plaintiff to Mr Ivan Bhaskar, neurosurgeon. The plaintiff first saw him on 13 July 2018. He provided numerous reports, dated 13 July 2018,[7] 7 September 2018,[8] 18 January 2019,[9] 14 February 2019[10] and 8 March 2019.[11] Rather than summarise the content each report, I will summarise the steps which Mr Bhaskar undertook in treating the plaintiff.
[7] PCB 51
[8] PCB 52
[9] PCB 53
[10] PCB 54
[11] PCB 58
19The plaintiff told Mr Bhaskar that he had developed excruciating pain in his back. Within a few days, he developed tingling paraesthesia in his right lower limb along the calf and the dorsum of his foot, and later, left-sided symptoms. He also told Mr Bhaskar that the symptoms just described had reduced, however, he experienced the right-sided symptoms if he sits or stands for a long time. He referred the plaintiff to have a MRI scan and a SPECT scan.
20When the plaintiff next saw Mr Bhaskar, he told the plaintiff that the MRI scan showed dehydrated discs at L3-4, L4-5 and L5-S1, with annular tears in all of those discs.[12] He considered that the discal abnormalities “could be the cause of his ongoing back pain and exacerbations”. He referred the plaintiff to have an epidural injection at the L5-S1 level, which he considered to be the most significantly abnormal level.
[12] PCB 44-45
21Mr Bhaskar reviewed the plaintiff on 14 February 2019, noting that he had undergone an epidural injection at L5-S1 four months previously. The plaintiff told him that it did “not help at all”. Mr Bhaskar noted that the plaintiff had undergone physiotherapy which the plaintiff felt had exacerbated his back injury which resulted in back pain associated with left-sided leg pain radiating into the posterior thigh and causing tingling and numbness in the whole of the left lower limb. He also told Mr Bhaskar that when his back symptoms were severe, his right leg “is also involved”. Mr Bhaskar considered that the plaintiff should undergo a discogram, and he noted that the plaintiff needed stronger analgesia to help with his back pain.
22The plaintiff had the discogram together with the CT scan on 26 February 2019. He was subsequently reviewed by Mr Bhaskar on 8 March 2019. He told the plaintiff that surgery was “not a great option given his age”. He referred the plaintiff to Dr Nick Christelis, who is a pain specialist and anaesthetist. It is not clear what diagnosis Mr Bhaskar arrived at except that inferentially he appears to have accepted that the plaintiff suffered a back injury consistent with the history of the occurrence of the incident.
23The plaintiff first saw Dr Christelis in April 2019. He provided a report dated 11 April 2019.[13] Under the heading of “DIAGNOSES”, he described a number of pathological processes which he considered were appropriate given the history the plaintiff gave him of suffering the back injury. He considered that the plaintiff was suffering from chronic back pain, particularly to the right side, with numbness to both legs and with an emphasis of pain down the left leg. He considered that the plaintiff had multiple pain generators, and in summary, he identified the following – facetogenic pain; discogenic changes in the lower three discs; discogenic mediated pain, significant stiffness, weakness, fear avoidance, kinesiophobia secondary to the injury and prolonged pain, and neural sensitisation. He considered that if the plaintiff had ongoing facetogenic pain, then a diagnostic medial branch block might be appropriate, and an interlaminar epidural steroid, and intervention through a pain program if the plaintiff had refractory post-injury neuropathic pain.
[13] PCB 59-60
24Dr Christelis did not provide a diagnosis as such. He appears to have accepted that the plaintiff suffered injury, but then after identifying each of the features of the plaintiff’s presentation, he proceeded to identify the pathological processes and symptoms which were at work, and the treatment he believed would be beneficial for the plaintiff.
25The plaintiff was referred to the Empower Pain Program. Dr Cohen, physician, described himself as the medical arm of the program. He provided a report dated 4 July 2019.[14] Dr Das was sent a copy of the report, but a copy was not sent to Dr Christelis. I merely make that observation because it is not clear whether that was the pain program contemplated by Dr Christelis. Dr Cohen then recited the plaintiff’s history of injury. He referred to some of the treatment which was provided to the plaintiff, and noted that the plaintiff had been prescribed a significant quantity of medication, namely, Palexia, Norflex, Endone and Gabapentin. The plaintiff told him that he was experiencing pain in his back, tingling in his feet and numbness in his left leg, and that his sleep was affected.
[14] PCB 61-62
26Dr Cohen diagnosed the plaintiff as having nociplastic pain, which he described as pain of altered pain pathways without underlying or identified tissue damage, and probably resulting from a whiplash like injury to the back. He prescribed the plaintiff Endep. The plaintiff commenced the program, but he got little benefit from it and dropped out part of the way through it.[15]
[15] PCB 10
27Dr Das referred the plaintiff to Mr Cunningham, orthopaedic surgeon. The plaintiff saw him on 31 January 2020. He provided a report dated 5 December 2020.[16] He recited the plaintiff’s history of injury, and treatment which the plaintiff had been provided up to the time when he saw him. He was provided with the MRI scan and the discograms, and after examining the plaintiff, said that he was unable to establish a firm diagnosis apart from the fact that the plaintiff reported back pain. He considered that the plaintiff was likely to be suitable for sedentary duties only.
[16] PCB 65-66
28The review I have undertaken thus far is of the medical practitioners who treated the plaintiff. The plaintiff had more treatment than is disclosed in those medical reports. Dr Das refers to that in his second report.
29The plaintiff underwent pain management through Dr Christelis at an organisation known as Pain Specialists Australia. The plaintiff subsequently underwent further pain management through Advance Healthcare. The pain management was undertaken through Dr Malcolm Ong, general practitioner, and involved an eleven-week multi-disciplinary network pain management program. Dr Das did not refer to the dates when the plaintiff underwent the pain management, but he did refer to a discharge summary dated 31 July 2020, and a further report from Advance Healthcare dated 25 January 2021 at a time when the plaintiff was finally reviewed by his pain management team. At the time of the final review, he was consuming significant medication – Norflex, Tramadol, Epilim and Melatonin. He had been weaned off Tapentadol and Oxycodone. His use of Nortriptyline, Lyrica and Endep were discontinued due to their side effects or their inefficacy. He was also weaned off Cymbalta and Mirtazapine and later weaned off Epilim.
30Dr Das considered that the plaintiff fitted the criteria for a diagnosis of chronic back pain. He also considered that the plaintiff will continue to have a certain degree of back pain, and would be very unlikely to return to his pre-injury state.
The pre-existing back condition
31Before reviewing the medico-legal opinions, it is relevant to turn to the evidence of the plaintiff’s pre-existing back condition. A summary of it is as follows:[17]
[17]The defendant filed two court books. From the first Court Book (“DCB1”) it tendered pages 1-31, 41‑55, 62-63 and 70-132, and from the second Court Book (“DCB2”), it tendered pages 137-160
· Premium Care Medical Centre clinical records – 12 February 2011 - back pain for one month after lifting a microwave hurt his left paraspinal lower back.[18]
[18] DCB1 115
· Worker’s Injury Claim Form dated 18 December 2017 – the plaintiff denied suffering an injury/condition relating to the back injury.[19]
[19] PCB 1
· TAC Claim Form dated 21 July 2012 – in paragraph 43 of the Claim Form, the plaintiff referred to suffering back pain resulting from the transport accident which occurred on 30 May 2012.[20]
[20] DCB2 148
· Premium Care Medical Centre clinical records – 26 October 2012 - back pain after bending to pick something up to years [ago].[21]
[21] DCB1 113
· Premium Care Medical Centre clinical records – 13 February 2013 - recurrent low back pain. Onset last week after bending down to pick something up off the ground. Prescribed Panadeine Forte.[22]
[22] DCB1 112-113
· Premium Care Medical Centre clinical records – 19 February 2013 - a suggested lifting limit of 5 kilograms advised to a corrections officer.[23]
[23]DCB1 112. The plaintiff was sentenced by being placed on a Community Correction Order to perform 100 hours of community service for driving and assault charges - at Transcript 25-26
· Premium Care Medical Centre clinical records – 25 March 2013 - flareup of lower back pain. Prescribed Panadeine Forte.[24]
[24] DCB1 112
· Premium Care Medical Centre clinical records – 13 May 2013 - recurrent low back pain for two days. Prescribed Voltaren.[25]
· Premium Care Medical Centre clinical records – 27 May 2013 - carpet laying - back pain for one week. Treated with Panadol, and prescribed Panadeine Forte.[26]
· Premium Care Medical Centre clinical records – 29 July 2013 - carpet laying - on light duties due to mechanical back pain.[27]
· Premium Care Medical Centre clinical records – 7 October 2013 - recurrent back pain.[28]
· Premium Care Medical Centre clinical records – 6 November 2013 - back pain at age seventeen years bending over to pick up a piece of metal. Back pain recurs every month. Pain down to the right knee. Rated pain 9 out of 10 to 5 out of 10. Prescribed Panadeine Forte - two per day - and Brufen.[29]
· Premium Care Medical Centre clinical records – 13 November 2013 - back pain 2 out of 10 at rest, aggravated with bending and leaning. Relieved with Panadeine Forte and Voltaren.[30]
· MRI scan taken on 13 November 2013 of back.[31]
· Premium Care Medical Centre clinical records – 27 November 2013 - advice to corrections officer about back condition.[32]
· Premium Care Medical Centre clinical records – 24 December 2013 - left-sided back pain down to left thigh with pain 10 out of 10 to 6 out of 10. Taking three Panadeine Forte per day and two Nurofen per day.[33]
· Caroline Springs Superclinic – 21 October 2015 - lower back pain - antalgic gait.[34]
[25] DCB1 111
[26] DCB1 111
[27] DCB1 110
[28] DCB1 105
[29] DCB1 107-108
[30] DCB 107
[31] PCB 40
[32] DCB1 107
[33] DCB1 105
[34] DCB1 90
32Under cross-examination, the foregoing history of the plaintiff’s lower back condition was put to him. It was my impression that the plaintiff agreed that if the attending medical practitioner noted complaints of back pain, that it was probable that what they recorded was an accurate account of the nature and extent of the prior back condition and the treatment which was provided for it.[35]
[35] Transcript 24-36
33The clinical records demonstrate that the plaintiff had the emergence of back pain in 2011, and by October 2012, it became a more serious problem for him. In particular, he was asked about the clinical record for 6 November 2013 and whether he suffered back pain recurring monthly from 2009 when he was seventeen years of age over a period of four years to 2013. The plaintiff did not deny that he suffered back pain recurring monthly, although, he appeared to doubt it was that often. He added that he suffered a significant weight problem during those years. He reduced his weight by 40 kilograms, with the result that his “back was a lot better”.[36]
[36] Transcript 29
34Additionally, the clinical records demonstrate that from late 2012 to at least late 2013, the plaintiff was experiencing significant problems which saw him obtain medical treatment reasonably frequently complaining of significant back pain requiring the use of strong painkilling and anti-inflammatory medication.
35Part of the cross-examination was directed to a carpet laying job which the plaintiff undertook in 2013, and whether the condition of his back through 2013 was the reason why he ceased carpet laying work, and also whether his history of difficulty doing carpet laying work bodes poorly for the future in that work. I propose to quote from the transcript of the relevant cross-examination to capture this important part of the evidence:
Q:“And can you remember having – well, firstly, can you remember doing carpet laying back in 2013?---
A:Yes, I did it with my ex-partner’s brother.
Q:And can you remember you were having back pain when doing carpet laying with your ex-brothers partner?---
A:Obviously, it’s, ah, very heavy and demanding work, so yeah, there was muscle pain there, but yeah, nothing like now.
Q:It’s apparent from the history that we’ve just taken you through, you had a back that was somewhat problematic and the carpet laying tested it?---
A:Yep, and I continued to do it for another eight months, so.
…
Q:Right. And it’s got there, ‘Carpet layer, but mainly does office work at present’. Are you sure that’s not referring to your carpet work?---
A:Yes, so I was doing most of the invoicing and stuff.
Q:And you were doing that invoicing because your back was no good for the heavy work?---
A:Not at all. I was still doing heavy work.
…
Q:The office works that you were doing was for your brother-in-law’s business or this carpet business that you were working?---
A:Yes.
Q:The reason why you were doing office work not the carpet work was because of your back?---
A:No, it was because we didn’t have much work on, so he gave me the small jobs and I did the paperwork.
…
Q:But the carpet work was definitely causing you increases in back pain when you were doing that work in 2013?---
A:Yeah. It’s a very physically demanding job.”[37]
[37] Transcript 27-29
36I will return to the issue of the plaintiff’s prior back condition later in these reasons, and the defendant’s submission that not only did the plaintiff have a shabby work history which did not bode well for well for his future, but did not bode well at all for his future in heavy work such as carpet laying, leaving him to only be able to pursue work of a much lighter nature.
The medico-legal assessments
37The plaintiff was examined by a number of medical practitioners on a medico-legal basis. I now propose to summarise their evidence, and in particular, through the prism of the defendant’s criticism of the plaintiff’s case relevant to a diagnosis of his injury, his failure to give a full history of his past work, and his failure to disclose his prior back condition. I will firstly turn to the plaintiff’s medical evidence.
38Dr James Chan, occupational physician, examined the plaintiff on 31 August 2020. He provided two reports, dated 31 August 2020[38] and 19 April 2021.[39] Dr Chan was provided with the plaintiff’s affidavit and a significant volume of medical reports.[40] It was from what he was provided that he understood something of the plaintiff’s prior back condition, but not as full as what I have summarised above.[41] He summarised the plaintiff’s past medical history, current medication, social history, educational and occupational history, history of current problems and current symptoms, before undertaking a clinical examination and summarising radiological investigations and reports. None of that seems to be at all controversial.
[38] PCB 69-77
[39] PCB 79-86
[40] PCB 69
[41] PCB 70
39Dr Chan was then asked a series of questions. He considered that the plaintiff had suffered an aggravation of the underlying degenerative changes in his back, demonstrated in the relevant radiology, and then went on to develop a secondary Chronic Pain Syndrome and anxiety and depressive symptoms. He did not consider that further treatment would be likely to significantly change the plaintiff’s medical condition. He considered that the plaintiff would be precluded or restricted in employment which involved a range of physical movements which he summarised under Question 4. He considered that the plaintiff’s restrictions and functional limitations were such that he did not have the capacity to return to his pre-injury duties as a carpet layer, and that incapacity was likely to last for the foreseeable future and is therefore permanent.
40Dr Chan was then asked to consider the plaintiff’s residual capacity for work. It would appear that he looked at that through the prism of what constitutes “suitable employment” by having regard to his age, education, place of residence, skill and work experience. On the basis of his analysis, he considered it was highly unlikely that the plaintiff would be able to find and obtain suitable employment unless he obtained improvement in his pain levels, vocational assistance and retraining.
41Dr Chan ultimately considered that the plaintiff did not have a current work capacity. He considered that he was at increased risk of developing further degenerative changes which may require treatment between conservative treatment and surgical treatment. He considered that his prognosis was poor.
42Dr Chan was subsequently provided with the reports of Dr Mary Wyatt, occupational physician, dated 7 February 21 and 31 March 2021, engaged by the defendant; the vocational assessment report of Nabenet dated 9 February 2021, a report of Flexi Personnel engaged by the plaintiff dated 23 March 2021 and multidisciplinary pain management review reports dated 18 February 2020 and 5 May 2020. Dr Chan repeated aspects of his previous report before analysing the defendant’s vocational evidence that the plaintiff was fit for work as a customer service officer in the carpet industry; as a site welfare officer in Ballarat; as a warehouse despatch clerk; as a salesperson in steel distribution, and as a weighbridge operator.
43The jobs identified by the defendant are to be found in the report of Nabenet dated 9 February 2021.[42] The descriptions of each job and the physical requirements of each of them are lengthy, so I have not set them out here in any more detail than is contained in the reports of Dr Chan and Dr Wyatt.[43]
[42] DCB1 70-83
[43]The defendant cross-examined the plaintiff whether he could work as a spare parts interpreter. It was not a job identified in the Nabenet report nor commented on by Dr Chan nor Dr Wyatt – Transcript 84-85
44The following is a summary of Dr Chan’s opinion whether the plaintiff had a capacity to engage in any of those forms of employment:
· Customer service officer in the carpet industry – he is likely to be able to perform a significant majority of the tasks required in that role except that the plaintiff would be likely squatting and have significant difficulty if he was involved in bending and squatting and lifting heavier carpet samples from the floor. He considered that the plaintiff would not be able to sustain full-time employment until he was sufficiently work conditioned and showed that he could cope with the tasks required in that role.
· Site welfare officer – one of the tasks involves “spotter” duties. Dr Chan considered that the plaintiff would be unable to perform those duties which required 3-4 hours of continuous standing; they would have difficulty with stairs, and would have difficulty lifting up to 20 kilograms, and would otherwise have difficulty with offenders who came on site and other duties, such as providing first-aid. Furthermore, he considered that the plaintiff would have difficulty performing a twelve-hour shift required of a person working in that role.
· Warehouse despatch clerk – the duties are mainly sedentary and office-based. Dr Chan considered that the plaintiff would be able to perform those duties with training and if he was able to vary his posture by sitting and standing; however, he considered that he would be able to perform those duties part time initially, and then build up his hours as tolerated. Ultimately, he did not think the plaintiff could sustain full-time employment undertaking those duties even if he was work conditioned.
· Salesperson – steel distributor – the duties are mainly sedentary and office-based. Dr Chan considered that the plaintiff would be able to perform those duties with training and if he was able to vary his posture by sitting and standing; however, he considered that he would be able to perform those duties part time initially, and then build up his hours as tolerated. Ultimately, he did not think the plaintiff could sustain full-time employment.
· Weighbridge operator – the duties are mainly sedentary and office-based. Dr Chan considered that the plaintiff would be able to perform those duties with training and if he was able to vary his posture by sitting and standing; however, he considered that he would be able to perform those duties part time initially, and then build up his hours as tolerated. Ultimately, he did not think the plaintiff could sustain full-time employment. Despite his opinion which I have just summarised, he ultimately did not think the job was suitable.
45Dr Chan placed a rider on his overall opinion on the suitability of the proposed jobs. He noted in both reports that the plaintiff is consuming a significant load of medication – Epilim, 100 milligrams; Norflex, two tablets daily; Tramadol, 50 milligrams as required, and Endep 200, milligrams daily. He obtained that summary of the plaintiff’s use of medication from Dr Wyatt’s second report. He considered that any jobs which might be suitable for the plaintiff would need to take into account the medication he is taking, and the side effects of that medication. He added that if the plaintiff required stronger medication at the end of a shift because of increased pain, that would be a concern relevant to driving.
46Professor Richard Bittar, neurosurgeon, examined the plaintiff in March 2021. He obtained a brief history of the plaintiff’s prior back condition limited to suffering a lower back strain in February 2011, seeing a general practitioner on one or two occasions subsequently, experiencing occasional mild lower back pain over the following two years and having an MRI scan in November 2013, after which he understood that the plaintiff’s back pain settled which permitted the plaintiff to engage in work in a variety of heavy physical jobs without restriction or significant symptoms. I do not consider that to be a full history of plaintiff’s prior back condition. However, it did alert Professor Bittar to the fact the plaintiff had a measure of a prior lower back condition which his treating medical practitioners considered required investigation through an MRI scan.
47Professor Bittar examined the plaintiff by Telehealth rather than in his rooms. He acknowledged the difficulties in undertaking an examination in that way, however, armed with the history provided to him by the plaintiff and the relevant radiology taken subsequent to the occurrence of the incident, he considered that the plaintiff had suffered an aggravation of lumbar spondylosis, and that his pain was likely to be discogenic. He considered that the plaintiff’s prognosis was for continued experience of significant pain and disability for the foreseeable future. He considered that he was incapacitated for work as a carpet layer. Professor Bittar answered a number of questions which, among other things, went to the issue of the restrictions on certain physical activities, and like Dr Chan, he set them out in his report. He considered that he could undertake sedentary work on a part-time basis, but would require a level of retraining to be able to return to work in the open labour market.
48I will now turn to the defendant’s medico-legal evidence. The first in time was Dr Joseph Slesenger, specialist occupational physician, who examined the plaintiff on 17 April 2018. He provided a report dated 20 April 2018.[44] He was provided with very little relevant evidence of the kind provided to other medico-legal assessors who examined the plaintiff much later, and for that reason, I do not think that his opinion carries much weight. However, it was tendered by the defendant for reasons which I will come to shortly. On the basis of his examination of the plaintiff and the CT scan dated 30 January 2018, he considered that the plaintiff had suffered a mechanical injury to his lumbar spine, chronic lower back pain and the possible aggravation of degenerative disease in his lumbar spine. He considered that the injury was “a new injury” as opposed to being an aggravation or exacerbation of a pre-existing degenerative condition, although, he did not exclude the fact that the injury might have been an aggravation of a pre-existing condition.
[44] DCB1 1-9
49Dr Slesenger was asked to assess the plaintiff’s capacity to work in jobs different from the jobs referred to in the relevant Nabenet report. The only relevance of Dr Slesenger’s opinion is that he either cautioned against the plaintiff returning to any of those jobs or advised against the plaintiff returning to those jobs. I should add that all the jobs appear to have significant physical demands.[45]
[45] DCB1 8-9
50Dr Tim Hwang, consultant occupational physician, examined the plaintiff on 26 November 2018. He provided a report bearing the same date.[46] He was provided as little evidence as Dr Slesenger, and for the same reasons, I think his opinion does not carry much weight. On the basis of his examination of the plaintiff and the CT scan dated 30 January 2018, he considered that the plaintiff had suffered a back injury. He did not think that the annular tears were caused by the occurrence of the incident, although, he considered that it was possible that the plaintiff suffered an injury to one level of his lumbar spine, and he suspected that the symptoms described by the plaintiff were likely to be discogenic.
[46] DCB1 10-17
51Like Dr Slesenger, he was also asked to assess the plaintiff’s capacity to work in jobs different from the jobs referred to in the relevant Nabenet report. He considered that all of the jobs were suitable, however, it is not possible to make an assessment whether his opinion is acceptable or otherwise because the jobs were referred to in a Return to Work Job Seeking Plan dated 12 September 2018 which was not tendered by the defendant.
52Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 20 November 2019. He provided a report dated 27 November 2019.[47] It is not clear what evidence he was provided because he does not refer to any in the body of his report. He examined radiology which the plaintiff brought with him, and examined it online. He considered that the plaintiff had suffered non-specific backache with some radiation of pain into his left leg intermittently. He considered it to be a new injury, in the sense that it was an aggravation which continued to contribute significantly to the plaintiff’s condition. He considered that the plaintiff did not have a capacity to return to carpet laying, but did have a capacity to return to suitable employment, however, he did not refer to the jobs he believed the plaintiff could undertake, and indeed, he was not provided with any alternative or suitable forms of employment as were Dr Slesenger and Dr Hwang.
[47] DCB1 18-22
53Dr Anthony Menz, orthopaedic surgeon, examined the plaintiff on 11 December 2019. He provided two reports, dated 11 December 2019[48] and 20 January 2020.[49] It is not clear what evidence he was provided because he does not refer to any in the body of his report. He had the MRI scan taken on 24 August 2018. He identified the fact that the plaintiff had abnormalities at L3-4, L4-5 and L5-S1 with annular disc tears. He found it difficult to determine whether the annular tears predated the occurrence of the incident or whether they were aggravated in the incident or they were caused by the incident. He added that he thought it was possible that the plaintiff’s injury was an aggravation of pre-existing degeneration or a new injury. He considered that the plaintiff had no current work capacity at the time when he examined him.
[48] DCB1 23-30
[49] DCB1 31-32
54Dr Wyatt, occupational physician, examined the plaintiff on 2 February 2021. She provided two reports, dated 7 February 2021[50] and 31 March 2021.[51] She was provided with the plaintiff’s affidavit and a significant volume of medical reports, and, importantly, the clinical records of the Premium Care Medical Centre and the Caroline Springs Superclinic. Dr Wyatt followed a similar process as Dr Chan by recording the history of the condition and progress, current status, medical and social history and occupational history before undertaking a clinical examination and summarising radiological investigations and reports. None of that seems to be at all controversial.
[50] DCB1 41-48
[51] DCB1 49-50
55Dr Wyatt specifically addressed the plaintiff’s prior back condition. It was something emphasised by the defendant as being a dramatic prior history, and that the plaintiff’s failure or deliberate refusal to disclose it to a number of examining medical practitioners is a matter of very serious importance going to the plaintiff’s creditworthiness and reliability, and the reliability of the medical opinions on which he relies. Dr Wyatt said:
“Mr Chorley has had prior back complaints. Information included within the paperwork refers to him having back pain since about the age of 17 though it has not been particularly disabling in the past. He had [a] recurrent episode of back pain, managed conservatively.”
56Later, when answering specific questions, Dr Wyatt repeated that the records referred to episodic back pain from the age of seventeen onwards, and, importantly, she considered that the plaintiff’s prior back condition “does not seem to have been disabling for more than short periods of time in the past”. She considered that the plaintiff’s prior back condition had been exacerbated (she later used the word aggravation) by the occurrence of the incident. She noted on several occasions that his presentation was complicated by a number of factors which she summarised as his “focus on the problem, reduced activity levels and gradual deconditioning”. However, she considered that the exacerbation/ aggravation continued to be a contributing factor. She considered that the exacerbation/aggravation would cease over the next year or two when the plaintiff engaged in work and moved into a better routine.
57Dr Wyatt considered that the plaintiff was capable of re-engaging in work offered of a not particularly demanding type. She considered that carpet laying was unsuitable. She considered that jobs like forklift driving, spray painting, machine operating and welding would be suitable, and that he would be capable of working full-time hours.
58Dr Wyatt was provided with the relevant Nabenet report. She considered each of the jobs on which Dr Chan also commented, and considered that all of them were suitable, and that the plaintiff could work full-time hours.
59Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 8 February 2021. He provided two reports, dated 24 February 2021[52] and 6 May 2021.[53] He did not refer to whether he was provided with any of the material that was provided to Dr Wyatt, and indeed, the text of his first report demonstrates that he either did not turn his mind to any such material or was ignorant of its existence. However, the solicitors for the defendant wrote to him by letter dated 5 May 2021. The letter was not produced; however, it would appear that Mr Dooley was asked to consider material that was provided which he described as “the attached documentation that you have previously provided”. It was in his second report that he then considered the very same material which Dr Wyatt considered regarding the plaintiff’s prior back condition.
[52] DCB1 51-55
[53] DCB2 159-160
60Mr Dooley was provided with the CT scan taken on 30 January 2018, and the MRI scan taken on 24 August 2018, although, he did not state that he actually examined the radiology or just the reports. In any event, he considered that the plaintiff had naturally occurring degenerative changes in his lower lumbar spine, and that the occurrence of the incident resulted in the plaintiff sustaining a soft tissue injury to his lumbar spine which involved some aggravation of underlying degenerative disc changes. He considered that the disability described by the plaintiff is greater than he would have expected, and that led him to say that he believed there was some psychological reaction on the part of the plaintiff which was influencing his ongoing symptoms.
61Mr Dooley considered that the plaintiff had the physical capacity to carry out light physical work or clerical work. He considered that he would be capable of returning to suitable work on a graduated basis and that ultimately, he would have a physical capacity to work full time.
62When Mr Dooley was asked to consider the attached documentation which he had been previously provided he noted the treatment which the plaintiff obtained for his prior back condition between 2011 through to the end of 2013. He considered that the cause of the problems the plaintiff was experiencing at that time were related to his underlying degenerative disc changes. He accepted the plaintiff’s account that what he was experiencing during that period “was muscular in nature”. He was asked whether the plaintiff’s prior back condition would have interfered with his capacity to work as a carpet layer. He acknowledged difficulty in making statements about “the future/prognosis in relation to many degenerative musculoskeletal conditions”, but he then did so as far as he could and said “I believe that it would be reasonable to state that he might have had difficulty maintaining employment as a carpet layer on a regular and reliable basis”.
Creditworthiness and reliability
63The defendant made an attack on the plaintiff’s creditworthiness and reliability by isolating occasions when the plaintiff made denials, false reports or gave inaccurate histories of matters which the defendant said are so important that collectively they dramatically infect the plaintiff’s creditworthiness and reliability.
64I propose to summarise that attack following the way in which the defendant undertook it in its submissions:
· the plaintiff’s denial that he had ever made a WorkCover claim made to an investigator. The plaintiff had in fact made a WorkCover claim in 2011 when he worked with Harris Scarfe.[54]
· the plaintiff was involved in a collision when riding a motorcycle on 31 May 2012. He was removed from the scene of the collision by ambulance and taken to the Royal Melbourne Hospital. The defendant submitted that the account he gave that he was unlicensed and sped away from police driving at 180 km/hr is in stark contrast to what he wrote on the TAC Claim Form, that a car ahead of him pulled out without indicating, resulting in the collision, and that the cause of the collision was the other party’s fault and not his dangerous riding.[55]
· the plaintiff’s denial that he had suffered any pre-existing medical or psychiatric condition in a statement to an investigator.[56]
· the plaintiff’s denial in the Workers’ Injury Claim Form dated 8 January 2018 that he had not previously suffered a back injury.[57]
· the defendant submitted that the plaintiff misled a number of examining medical practitioners by giving an inaccurate history that he had a prior back condition – Dr Slesenger;[58] Dr Hwang;[59] Dr Clayton Thomas;[60] Dr Menz,[61] and Mr Cunningham.[62]
· understating the nature and extent of his prior back condition in his affidavit when compared to a full summary of his prior back condition taken from the clinical records of his treating medical practitioners.[63]
[54] The statement is as PCB 23, and Transcript 16
[55]The ambulance record is at DCB1 116-117 and the details of the occurrence of the collision on the TAC Claim Form is at DCB 135-136
[56] The statement is at PCB 23
[57] PCB 1
[58] DCB1 3
[59] DCB1 11
[60] DCB1 20
[61] DCB1 24
[62] PCB 66
[63] PCB 6
65Under cross-examination, each of the references to what the defendant submitted were denials, false reports or inaccurate histories were put to the plaintiff. In response, the plaintiff gave evidence that he did not think he had been asked questions about his prior medical history, and later, that he did disclose his prior medical history, and later, that it was not something that he remembered each time he had been examined by a medical practitioner.[64] The defendant submitted that these explanations were disingenuous.
[64] Transcript 40 and 43
The Plaintiff’s work history
66The defendant submitted that the plaintiff’s work history demonstrates that he had a track record of being unable to hold down work for any significant period of time, and that track record was likely to be a predictor of his future track record. The defendant submitted that I should ultimately conclude that the thesis advanced by the plaintiff that he would have continued with his carpet laying apprenticeship and would have earned a significant income is unsustainable.
67The work history which the defendant relied on to demonstrate what it urged upon me is as follows:
· Dimmeys & Forges – October 2007 to December 2009. Taken from the plaintiff’s résumé.[65]
[65] DCB 134
· Harris Scarfe – December 2009 to 2011. Taken from the plaintiff’s résumé.[66]
· Ford Motor Company – 2011 to 2012 . Taken from the plaintiff’s résumé.[67]
· Motor mechanic (dates unknown) – apprenticeship, completing four months.[68]
· True Class Rendering – about six months in 2012 to 2013. Taken partly from the plaintiff’s résumé.[69]
· AUS REO – January to April 2012.[70]
· Designer Concepts Pty Ltd – 2012 to 2013. Taken from the plaintiff’s résumé.[71]
· Apprentice plumber – (dates unknown) for one-and-a-half months.[72]
· Harry the Hirer – (dates unknown). Taken from the plaintiff’s tax return for the year ending 30 June 2016.[73]
· Kevin Dennis Motors – six months. Taken from the plaintiff’s tax return for the year ending 30 June 2016.
· Brightway window cleaning – (dates unknown). Taken from the plaintiff’s tax return for the year ending 30 June 2017.[74]
[66] DCB 134
[67] DCB 134
[68] PCB 71
[69] DCB 133 and PCB2 147
[70] DCB2 147
[71] DCB1 133
[72] DCB1 44
[73] The plaintiff's tax returns are at DCB2 151-156
[74]There are other summaries of the plaintiff's work history to be found elsewhere in the court books, however, my compilation of his work history appears to be reasonably accurate, and comprehensive enough for the purpose served by having such a summary
68Under cross-examination, the plaintiff conceded that he had worked in each of these jobs, and had not held down many of those jobs for any significant period of time except for the jobs with Dimmeys & Forges and Harris Scarfe. He also conceded that he had experienced significant periods of unemployment.[75]
[75] Transcript 52- 60
Back to carpet laying
69The plaintiff commenced an apprenticeship as a carpet layer in September 2017 with the employer. He was about three months or so into his apprenticeship when the incident occurred. There is nothing in the evidence to suggest that he had any particular difficulty undertaking carpet laying work during that time, nor any difficulty which suggested that he would have any difficulty in the short, middle or long term, except for the defendant’s submission that, essentially, the plaintiff’s back was vulnerable to the stresses and strains of heavy work.
70Under cross-examination, the defendant endeavoured to show that the plaintiff’s work history is evidence of a person who was never likely to settle down into an apprenticeship and long-term work in something like carpet laying. It submitted that if he was ever likely to settle down into a job, it was more likely to be in a job like the one he had with Harris Scarfe. Essentially, he was involved in customer service and worked as a receiving clerk. The plaintiff described doing that work well, to the extent that he received an award and good reviews for his work.[76]
[76] Transcript 65-66
71At the time when the plaintiff commenced his apprenticeship, he described himself as having a very good fitness level. He played football. The plaintiff tendered three photographs, two of which show him wearing football gear.[77] They show him to be trim and athletic. Certainly, not a person who was carrying the significant weight that he says he carried in 2012-2013. He estimates that in that year, he was carrying about 130 kilograms. That certainly is not the man shown in the two photographs. The third photograph shows him out on the field engaged in a game of football. It is difficult to make him out, but I was assured that he is one of the players circled in red on the photograph. No issue was taken by the defendant that indeed that is him.[78]
[77] PCB 29 and 31
[78] PCB 30
72Under re-examination, the plaintiff was asked about his level of fitness when he commenced the apprenticeship. He said:
Q:“And what was your fitness level when you were working for Carpet Call?---
A:It was very good. I played football, road motocross, yes, I was quite physically fit.
Q:You were the worker. What difference did your fitness level make in the two experiences, to your ability to cope with the work?---
A:A very big difference, as I said, I (indistinct) really [scil rarely] experience[d] any back pain whilst I was at Carpet Call.”[79]
[79] Transcript 92
73Under further re-examination, the plaintiff was then asked why he chose to take up an apprenticeship when it paid less than working as a labourer. He said:
Q:“Why did you choose to do a job that paid you so much less?---
A:Ah, well, it was more long-term, so labouring wasn’t constant, it could have been four days one week, and then get one day the next week. It wasn’t like a full-time thing. Whereas carpet laying was full-time with a potential to make 100 plus guaranteed every year.
Q:Is that what attracted you to it?---
A:Yes.
Q:And was that behind your decision to pursue apprenticeships in terms of motor mechanic and you told us what happened with that. And the plumbing, you told us what happened with that?---
A:Yes.
Q:Did you want to have [a] trade?---
A: Yes, yes. I was willing to sacrifice some things for the first years of my apprenticeship and then I knew once my apprenticeship was done, you know, I’d be comfortable so.”[80]
[80] Transcript 92-93
The Plaintiff’s loss of earning capacity claim
74It was common ground that because the plaintiff was under twenty-six years of age at the time when he suffered injury, that his loss of earning capacity is to be calculated in accordance with s325(2)(e)(i)-(ii) of the Workplace Injury Rehabilitation and Compensation Act 2013. It was also common ground that the calculation of the plaintiff’s loss of earning capacity is to be determined by common law principles.
75The plaintiff relied on work as a carpet layer to demonstrate his potential earning capacity if he were uninjured. He commissioned Ms Mary Oliver of Flexi Personnel to answer a series of questions relevant to the likely earnings of a carpet layer after the completion of an apprenticeship. She provided the following analysis:
· the average weekly full-time earnings for a floor finisher/carpet layer in the twenty-five to twenty-nine-year age group is $1,457 gross per week or $75,760 gross per annum.
· the average in the thirty to thirty-four-year age group is $1,629 gross per week or $84,708 gross per annum.
76Additionally, the plaintiff relies on a confidential circumstances investigation report prepared for the benefit of a claims agent dated 5 February 2018. The investigator obtained statements from the operations manager, installation manager and tradesmen/supervisor of the employer. In the executive summary, the investigator provided what appears to be just that, an executive summary based upon information gathered through the statements the investigator obtained. The investigator emphasised that contractors engaged by the employer “may make in excess of $100,000 per annum from Carpet Call and then take on their own private work also”.[81]
[81] PCB 119-122
77The income which can be earned from the jobs referred to by Dr Wyatt and Dr Chan would see the person employed in those jobs earning the following income:
· Customer service – $1,419 gross per week or $73,788 gross per annum.
· Site welfare officer – $1,886 gross per annum or $98,072 per annum.
· Warehouse despatch clerk – a wage rate was not obtained, but an estimate of $40,000-$50,000 was provided.
· Sales person – steel distributor – an estimate of $49,400 gross was provided.
· Weighbridge operator – an estimate of $49,400 was provided.
A synthesis of the evidence
78I now propose to work my way through each of the issues which I have referred to in the summary of the evidence.
79Firstly, I think it is more probable that the plaintiff suffered a back injury resulting from the incident. True it is that the medical opinions vary as to the identity of the injury, however, the preponderance of the evidence demonstrates that the plaintiff did suffer a back injury in the background of the radiological changes demonstrated on the MRI scan taken on 24 August 2018. Whether some of the appearances on the MRI scan resulted from the incident or whether the appearances can be described as degenerative changes is a moot point. I think the preponderance of the evidence demonstrates that those appearances were pre-existing and that the plaintiff has suffered an aggravation of those degenerative changes.
80Secondly, there is little merit in the attack made on the plaintiff that he had a prior back condition of some significance. Both Dr Wyatt and Mr Dooley were provided with the whole of the evidence tendered during the application including the critically important clinical notes. Neither made any telling observations about the prior back condition to suggest that it was something to be brought seriously into account. In short, Dr Wyatt referred to it as not being particularly disabling in the past, and Mr Dooley accepted the plaintiff’s account that what he suffered was mainly muscular.
81Thirdly, this analysis of the plaintiff’s prior medical condition by two specialists relied on by the defendant is important because of the attack made by the defendant that his failure to disclose his prior medical history undermines the opinions of the medical practitioners who did not obtain that prior history. Even if I work on the basis that the plaintiff was deliberately misleading, or at least very careless in the way he answered questions put to him by those medical examiners, I am not persuaded that whether he told them or not is of any particular importance because of the way in which the prior back condition has been treated by Dr Wyatt and Mr Dooley.
82Fourthly, I am not prepared to go as far as the defendant wanted me to find that, in effect, the plaintiff is a liar. One of the difficulties in determining issues where the only witness called is the plaintiff is that medical reports then stand to be interpreted, and sometimes that interpretation is difficult. I do not know what questions the medical examiners asked the plaintiff about any prior back condition. I do not know in what context they asked questions of the plaintiff. I am asked to assume that it was something akin to a full interrogation of the plaintiff. It may have been, then it may not have been. The conclusion I have reached, however, is that the plaintiff was probably asked whether he had any prior medical conditions of significance, and he gave answers which are now shown to be inaccurate. I am not prepared to go as far as finding that the plaintiff lied. I am more inclined to accept the plaintiff’s evidence that it was not something which was dominant in his thinking nor at the time when he was questioned by those medical practitioners.
83Fifthly, the other pieces of evidence relied upon by the defendant to try to demonstrate that the plaintiff is a liar are relatively insignificant and certainly do not persuade me that he is a liar. Overall it was my impression that the plaintiff gave a reasonable account of himself, and that he endeavoured through his affidavits, oral evidence and the history he gave to treating medical practitioners and medico-legal examiners to give a good account of himself. There are inevitably occasions when he described things differently, but that would be surprising if he did not, given the number of medical practitioners he saw and the number of occasions he was required to recount events which he may not have considered to be overly important, but in the end are elevated to a state of importance in an application like this. Furthermore, I am fortified in reaching these conclusions because of the evidence of Ms Katie Chorley who swore an affidavit on 21 April 2021 essentially confirming the plaintiff’s evidence of the impact of the back injury on his overall capacity to function.[82]
[82] PCB 32-34
84Sixthly, the defendant describes the plaintiff’s past work history as a poor work record which it endeavoured to elevate to an unrealistic level of importance. The plaintiff had periods of employment of some significance when he was in his late teens with Dimmeys & Forges and Harris Scarfe, after which his working history appears to be patchy. I accept his evidence that his former work as a carpet layer and in an apprenticeship came to an end for reasons unrelated to a lack of motivation on his part.
85Seventhly, the defendant’s submission essentially amounts to the fact that all that is to be known of the plaintiff’s motivation and likely future work is to be judged by the past. I think that is very unrealistic, and indeed, contrary to general experience that there is an occasion when the harder decisions to pursue more worthwhile employment becomes a reality of life. I think that is what the plaintiff faced when he made the decision to pursue a career as a carpet layer by taking on an apprenticeship which paid him less than other work he could have obtained, and obtaining the apprenticeship for the specific purpose of obtaining a qualification with the knowledge that he then had the capacity to earn a very significant income which would enable him to fulfil his ambition to have a life which he could acquire through the income earned as a carpet layer.
86Eighthly, I accept the evidence of Flexi Personnel of the income which can be derived from carpet laying through age grouping, however, my appreciation of the way in which those figures have been arrived at is probably through an averaging, and may not necessarily be representative of what an individual carpet layer can earn. I say that, based upon the executive summary of the investigator who obtained direct evidence from the defendant that a carpet layer can earn up to $100,000 gross per annum. I think that is a more reliable figure to work with because of the sources from which the figure was derived.
87Ninthly, I prefer the evidence of Dr Chan that each of the jobs which he specifically commented upon that the plaintiff could not work, as a site welfare officer and weighbridge operator, would not be able to sustain full-time work as a customer service officer, warehouse despatch clerk or a salesperson. Dr Wyatt has given an opinion directly opposite to that of Dr Chan. I am fortified in preferring the evidence of Dr Chan because when the plaintiff was specifically taken through aspects of all of the jobs in re-examination, it became abundantly clear that he could not engage in many of the tasks which those jobs required. I accept his evidence.[83]
[83] Transcript 88-92
88Tenthly, the further distinction that I draw between the opinions of Dr Chan and Dr Wyatt is that the plaintiff has had a very significant amount of treatment which is so very evident in all of the reports of the treating medical practitioners, and is currently on a significant load of medication. He could only be consuming that significant load of medication if it was the opinion of the prescriber that he needed it for a level of pain which they accepted he was enduring. Dr Chan appears to have considered the level of treatment and the level of the plaintiff’s complaints to be reasonable and acceptable, and he then provided an analysis of each of the jobs and reasoning why he did not think the plaintiff could either do those jobs or could not sustain full-time work. Whereas Dr Wyatt did not undertake the same degree of analysis as did Dr Chan, and did not disclose reasoning which has left me feeling far less comfortable that I should prefer her opinion over that of Dr Chan.
89Eleventhly, I do not accept that there is any need for disentangling. The defendant relied upon the observation made by Doctor Wyatt that the plaintiff’s presentation suggested “the psychosocial factors, beliefs and possibly claim factors are playing a significant role in his presentation.”[84] Although, there are similar observations made by some treating and medico/legal assessors, they have not been as dominant in their reasoning as is apparent from the observations made by Doctor Wyatt.
[84] DCB1 46
90I prefer the preponderance of the medical evidence which demonstrates that the plaintiff suffered an organically based back injury. That preponderant opinion points to there being a substantial organic basis for the plaintiff’s complaints of pain and disablement. To the extent that any disentangling is required here, and I repeat that I am not satisfied that it is required, there is a very clear distinction apparent between the consequences produced by the organic nature of the back injury from what psychiatric/psychological causes might be pointed to as a cause of his pain and disablement,[85] and I am satisfied that those clearly distinguished organically based injuries are, on their own, productive of the plaintiff’s loss of earning capacity.
[85] Meadows v Lichmore [2013] VSCA 201
Loss of earnings analysis
91I accept the plaintiff’s evidence that he had set out on a career path to take up and complete an apprenticeship as a carpet layer and then pursue it as his career. I accept that it was probable that he would have advanced through his apprenticeship and into the working world of a carpet layer with the potential to earn up to $100,000 gross per annum. I repeat that in arriving at that conclusion, I am more driven by the opinions of Dr Wyatt and Mr Dooley, that there really is not much to be made of the plaintiff’s prior back condition. My synthesis of this evidence in determining the probabilities of what he would do in the future is based upon the reasoning in Malec v Hutton.[86]
[86] [1990] 169 CLR 638
92What all of this leads me to is that I do not accept that the jobs of customer service officer, site welfare officer and weighbridge operator are suitable employment. Even if the other jobs were suitable, my conclusion that his likely earning capacity but for the injury is $100,000 means that the jobs of warehouse despatch clerk and salesperson – steel distributor demonstrate a loss of earnings of more than forty per cent.
Conclusion
93For the reasons I have outlined above, I will grant the plaintiff leave to bring a proceeding at common law to recover damages for both pain and suffering and loss of earning capacity.
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