Cochran v Star Track Express Pty Ltd
[2022] VCC 641
•17 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05029
| JAMES COCHRAN | Plaintiff |
| v | |
| STAR TRACK EXPRESS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 & 8 February 2022 | |
DATE OF JUDGMENT: | 17 May 2022 | |
CASE MAY BE CITED AS: | Cochran v Star Track Express Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 641 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – permanent serious impairment or loss of a body function – function associated with the spine – pain and suffering conceded – whether the Plaintiff satisfies the economic loss test
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Richter v Driscoll [2016] VSCA 142
Judgment:Leave granted to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin SC with Mr A. Hill | Slater and Gordon Lawyers |
| For the Defendant | Ms L. Glass | Wisewould Mahony |
HIS HONOUR:
Introduction
1James Cochran seeks permission to start a proceeding to recover damages for his personal injuries. He does so under s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). He relies on paragraph (a) of the definition of “serious injury” with the body function being that associated with his spine and on the pain and suffering and loss of earning capacity consequences to establish “serious” in the definition of “serious injury”.[1]
[1] Workplace Injury Rehabilitation and Compensation Act 2013 s 325.
2During the course of the hearing, the defendant conceded Mr Cochran’s claim in relation to pain and suffering consequences. His claim in relation to loss of earning capacity remained in dispute.
3Apart from the oral evidence of Mr Cochran, I heard from his general practitioner. Additionally, there were his Affidavits, that of his wife and friend, Kevin Carlyon. As is usual in these cases, there were numerous reports.
Circumstances
4Mr Cochran is now 35. He is married with a child, aged about 23 months.
5He attended a secondary college and completed Year 12 in 2005. Although he passed VCE his tertiary entrance score was very low. This led Mr Cochran to see his future in manual work. He started an apprenticeship in bricklaying after working a year as a bricklayer. The apprenticeship lasted three years. Once completed, he gained employment with the defendant as a freight handler. This was in September 2008.
6Although Mr Cochran suffered back pain from time to time during the course of his employment with the defendant, the critical incident occurred on 15 January 2015 while he was lifting heavy pallets. He felt sharp pain in his lower back and his back “seized up”.
7Pausing there. About the time of the incident, Mr Cochran’s duties involved repeated and forceful pushing and pulling, squatting, crouching and kneeling, sometimes maintaining awkward postures, repeated bending, strenuous reaching, climbing ladders and prolonged standing and walking.[2] It also involved driving a fork lift truck and wrapping pallets.
[2] Report of Dr Altaf dated 28 October 2021 at p 2
8The day after the incident, he saw a general practitioner, Ashraf Manassa, who prescribed Celebrex and certified him fit for light duties. The light duties comprised driving a fork lift truck, collecting paperwork and some manual handling. He started physiotherapy. Dr Manassa arranged for MRI scans of his back. In particular, these scans revealed bilateral pars defects and degeneration at the L5-S1 disc.
9Mr Cochran continued to attend what he calls “company doctors” but became dissatisfied with them. In July 2015, he attended his own general practitioner, Wendy Bernet. Due to his anxiety, Dr Bernet prescribed an anti-depressant medicine, Cymbalta.
10Owing to pain radiating from his lumbar spine into his legs and reaching his ankles, Dr Bernet referred him to a sports physician, David Bolzonello, who prescribed Duloxetine for the radiating pain and, in August and November 2015, injected cortisone into his lumbar spine. These measures did not reduce the level of his pain and he was referred to Dr Neels du Toit, a pain specialist.
11Dr du Toit performed medial branch blocks in February and April 2016 and a discogram in September 2016. The discogram revealed a damaged L5-S1 disc.
12Dr du Toit referred Mr Cochran to a neurosurgeon, Tony Goldschlager, whom he saw on 23 December 2016.
13Meanwhile, during 2015, he performed his light duties in the “flight deck” section of his workplace. He found the work there difficult and was transferred to the “unsortables carousel” scanning items. He found this work difficult physically and needed to sit and rest his back. His hours were reduced to four and a half hours per day. These hours were broken up. He would work for two hours, then lie down for 30 minutes and work for another two hours. He did these duties until March 2016 when told there was no further light work available for him.
14Between October 2017 and May 2018, Mr Cochran undertook a pain management program.
15In April 2019, after experiencing severe pain in his legs, he had two sets of injections into his hips. The hip pain resolved but the back of his legs remained painful.
16During 2019, he saw Dr du Toit again. On 12 November 2019, he received an L5-S1 PRP injection. Unfortunately, the injection did not improve his condition.
17Dr du Toit referred Mr Cochran back to Mr Goldschlager, whom he saw In March 2020. He recommended a L5-S1 fusion, which was carried out on 26 October 2020.
18By his six-month review following the operation, Mr Cochran had stopped taking medicines. Both he and Mr Goldschlager were keen for him to avoid addiction.
Consequences
Pain
19Mr Cochran suffers constant pain in his lower back with its intensity varying during the day. He suffers severe flare-ups of his pain, which cause him to lie down to ease the pain. The surgery improved the level of the pain but there is daily pain focussed in the middle and sides of his lower back. He experiences aching in his hamstrings.
20He described his pain:[3]
“My back also gets stiff. If my back tightens up, I get a different type of pain. It is like a jolting or stabbing pain. That also happens daily but is not always present like the ache.”
[3] Affidavit sworn 3 February 2022 at paragraph 21.
21He suffers intermittent tightness and aching pain down the backs of his legs.
22The surgery has improved his condition:[4]
“Q: Has it continued to be the case that your back discomfort is nothing like previously? -- … if I manage it, it doesn’t get anywhere near what it was like before surgery”.”
[4] Transcript (“T”) 70
Back and other movements
23In the passage quoted three paragraphs earlier, he experiences two kinds of discomfort: pain and ache. The ache is constant. His back movements are restricted. Flexion and extension increase his pain. An example of the difficulty with flexion is given in this passage:[5]
“Even bending to put my shoes and socks on is a huge problem. I have to sit on the bed and bend down slowly. My back is stiff and if I try and bend too much, I get increases pain.”
[5] Affidavit sworn 3 February 2022 at paragraph 17.
24He cannot sit or stand for any length of time. He constantly moves around, trying to get comfortable. He avoids heavy lifting. He can lift up to 10 kilograms. He avoids lifting his daughter out of her cot or placing her in the cot because of the bending. He understands the need to lift correctly.
Treatment
25Mr Cochran attends Dr Bernet monthly. She certifies his incapacity for work which is presently “no current work capacity”. Each fortnight, he attends a physiotherapist and does exercises at home. For a time, these exercises saw reduction in his pain and his ability to do more exercises. However, these benefits have plateaued.
Sitting, standing and walking
26The notable feature of Mr Cochran’s presentation during the hearing was his very frequent shifting of position. Over the years of my judicial experience, I have never seen the like. His friend, Kevin Carlyon, spoke of it in his affidavit:[6]
“I have observed his movement to be limited and he struggles to stay sitting or standing for a prolonged period of time. For example, we could be at the dinner table and he would need to alternate between standing and sitting frequently. James now struggles to get through a movie as this aggravates his pain.”
[6] Affidavit sworn on or about 30 November 2021 at paragraph 8.
27He can walk for about 30 minutes. A longer walk increases his back pain and what he describes as “tightening of the back”, and causes him to stop walking. To reduce the increased pain he lies down flat on his back and stretches. It take 30 to 60 minutes before the increased pain goes. Usually, he walks once a day, sometimes, twice.
Medicines
28Mr Cochran no longer takes medicines, explaining:[7]
“I hated relying on the medication and it was giving me side effects. I got off all the medication on the advice of my doctors.”
[7] Affidavit sworn 3 February 2022 at paragraph 13.
29He stopped taking medicines about six months after the operation.
Sleep
30Although he can get to sleep, every night, he wakes due to the pain. He moves around to “free” his back and then resumes his sleep. The interrupted sleep leaves him tired.
Domestic activities
31Before his injury, his wife described him as being very active around the house, doing his own maintenance work. Indicative of his usefulness, in the absence of his injuries, Mr Carlyon would have expected him to assist in the erection of a deck at the rear of his home. However, he was forced to employ someone.
32In the garden, he now avoids mowing, planting and digging. He relies on his father or his wife’s father to mow. During one of the lockdown periods, he tried mowing the nature strip. Even though it is a small area of lawn, it left him with increased pain.
33In the house he avoids heavier scrubbing chores. He does light vacuuming and mopping.
Daughter
34Mr Cochran is the father of Tahlia, aged nearly two. He does provide some care for her. During the pandemic, his wife worked from home. She undertakes the physical activities for their child including lifting and bathing. His wife describes his activities in somewhat unflattering terms – “James essentially lies down for most of the time and watches her play”.[8] He lifts his daughter but only if it is necessary (e.g. if she had fallen over and was crying). He cannot bath her. His wife puts the child into her car seat. He does prepare her meals. He does play with her but does not clean up her toys.
[8] Affidavit sworn 14 December 2021 at paragraph 17.
35In a candid paragraph of her affidavit, his wife describes the tortured process leading up to the conception of Tahlia:[9]
“Our sexual relationship has changed drastically since the injury. He physically struggles to engage in it. We had to put off having our first child due to his injury. Then when we tried, it was a difficult process getting pregnant as we could not have intercourse as often. I ended up going to a fertility specialist to stimulate ovulation so that it would help us plan when to have sex as he couldn’t engage as frequently which made it hard to fall pregnant.”
[9] Affidavit sworn 14 December 2021 at paragraph 20.
36Although a young child usually inhibits the social activities of his or her parents, his wife points to severe curtailment of his social activities since the accident – bowling, fishing, going to movies, going on long walks on the beach, going on long drives, attending live bands and music festivals.
Driving
37His wife does most of the driving. Whether as a driver or passenger, he is limited to 10 to 15 minutes in a seated position before needing to get up and move around.
38His wife’s parents live in Lara, about an hour’s drive from Wollert. Often the trip there forces him to stay overnight because he needs to recover from this relatively short trip.
Sports
39Before the injury, during the season, on Tuesdays and Sundays, Mr Cochran played competitive basketball in Mill Park at B grade level. Apart from competition, he played basketball with at least Mr Carlyon in a local park. Since the accident, he no longer plays basketball because of the pain it causes.
40He has a gym set up in his garage. He loved working out and did so almost daily. However, he is now restricted in what exercises he can do. He cannot do a “proper workout”. He is restricted to stretching and what he calls “core work”.
41Before the accident, he often fished in country Victoria with Mr Carlyon but not anymore.
Social life
42Mr Cochran has friends who are active with sport and recreation. He is careful with his activities and his social interaction is reduced.
43I have also quoted his wife on their efforts to conceive their daughter. More generally, his intimate relations with his wife have greatly diminished. When he is in too much pain, he wants to be left alone.
Employment
44Since ceasing work, retraining in security work was suggested to him. He looked at, and rejected, work as a protective services officer. He did not believe himself capable of performing security work at, say, a shopping centre. He has never performed administrative work.
45His weekly payments of compensation have stopped.
46During cross-examination:[10]
“Q: And if you felt able to apply for some work opportunities back in 2016, is there a particular reason why you don’t now feel you are ready to apply for some work opportunities? – Because I can’t sit, stand or walk – well, sitting and standing. I can only sit and stand for 10 to 15 minutes, and walking, I can only walk for 10 minutes.
Q: But you are able to manage that by altering your position? – Yes, but it increases gradually over the day.”
[10] Transcript at pages 38 and 39
47I will return to the issue of employment later.
Mental state
48His current position has left him anxious, depressed, frustrated and angry. He takes Cymbalta. On his bad days with depression, he struggles for energy and motivation.
Surveillance film
49During 2015, 2016, 2017 and 2021, Mr Cochran was watched by investigators at the Defendant’s request. There were 61 hours of attempted and actual surveillance. Of the 61 hours, Mr Cochran was seen on a total of 46 and a half hours. Overall, there are five minutes and 38 seconds of film taken of him. Of that period, I saw one minute and 23 seconds of film taken on 12 December 2021; a day when he was observed for 4 and a half hours.
50That piece of film showed Mr Cochran and his daughter. He explained his actions in fielding his daughter because she was heading towards the roadway. That is plausible. His picking her up and, apparently, putting her into the car is less so given the proximity of his wife. However, in the face of such extensive surveillance over such a period resulting in this meagre offering is no basis to doubt what Mr Cochran or his wife say about his disabilities.
Medical and other practitioners
Dr Wendy Bernet
51Wendy Bernet is Mr Cochran’s general practitioner and has been his main general practitioner for 25 to 30 years. She wrote numerous reports. Her last is dated 30 September 2021. Over Mr Cochran’s objection, I allowed Dr Bernet to give oral evidence.
52She diagnosed degenerative disc disease and bilateral pars defects. She noted improvement following the spinal fusion.
53Dr Bernet considered Mr Cochran permanently unfit to resume his pre-injury duties. Since the fusion operation, the level of his pain has improved but has now plateaued. Her certificate of capacity of November 2021 contained restrictions which still apply now: not to lift more than 10 kilograms; not to sit for more than 15 minutes; not to stand for more than 30 minutes. These restrictions are likely to continue. The pain in his leg, due to a nerve root, has resolved. The pain in his gluteals and hamstring is due to muscle tightness. He is doing stretching exercises for that.
54Mr Cochran gave his evidence by way of an audio-visual link. At the end of her evidence I asked Dr Bernet:[11]
“Q: …As you can appreciate in cases like this people in my position watch the plaintiff very carefully. I've had cases where plaintiffs have complained of low back injuries and have sat steadily in the witness box for 90 minutes or two hours or whatever the time took for them to give evidence, one of the things that I've seen with Mr Cochran is he almost always squirming around in the seat. He's changing posture, he seems to be rising to his feet, he doesn't seem to have taken up my invitation to get up and walk around every quarter of an hour but he seems to need to do that at least every half an hour, is that the sort of thing that you've seen when you've seen him face-to-face?--- yes, certain. It's very common, even in just a 15 minute, 20 minute consultation in my rooms, James will often need to stand up and stretch. He'll walk around the consultation room and I've noticed him doing the same as you'd observed. That's completely in keeping with his normal habit.”
[11] At pp 164 and 165 of the Transcript
55As to possible jobs, he may be able to undertake the job of warehouse transport clerk and product tester and assembler. These jobs needed to be part-time. She was uncertain as to full-time work ever. If he did obtain a job, then it should start on a very restricted basis because he needs a rest day between each day of work. She suggested Monday, Wednesday and Friday with Tuesday and Thursday as rest days. On the working days, his hours should be limited to three, she suggested between 9.00am and midday. Dr Bernet rejected the job of price checker because of the bending involved. Owing to the fusion, Mr Cochran has reduced flexion.
Associate Professor Tony Goldschlager
56Tony Goldschlager is a neurosurgeon who examined Mr Cochran at the request of Dr du Toit. He first examined him on 2 December 2016.[12] At that visit, Associate Professor Goldschlager recommended continuing with conservative measures. However, Dr du Toit referred Mr Cochran back and on 5 March 2020, he re-examined him. It was the worsening state of the back, including the emergence of radicular pain, which led to a L5-S1 fusion on 25 October 2020. The surgery was successful.
[12]Reports dated 23 December 2016, 5 December 2018, 3 April 2020, 3 April 2020, 23 September 2020, 25 May 2021 and 12 October 2021
57Associate Professor Goldschlager diagnosed an aggravation of an L5-S1 isthmic spondylolisthesis as the injury suffered by Mr Cochran arising out of or in the course of his employment. He considered Mr Cochran was permanently incapacitated from returning to his pre-injury duties. He envisaged Mr Cochran would be suitable for jobs not requiring extensive manual labour (e.g. security guard).
58The prognosis for the low back pain was uncertain: it depended on his core strengthening program and the effects of his lifestyle and employment.
59As to treatment, Mr Cochran required ongoing physiotherapy and a strengthening programme.
Nash Egan
60Nash Egan is a physiotherapist. Mr Egan first saw Mr Cochran on 19 July 2021.[13] He complained of lower back and lower limb pain. There was a reduced range of movement in his lumbar spine and reduced functional strength through the lower back, core and lower limbs.
[13] Report dated 16 September 2021
61Mr Egan’s treatment consisted of supervised and home core strengthening programs. He considered Mr Cochran would need to do these programs indefinitely.
62Although Mr Egan considered it unlikely Mr Cochran would resume his pre-injury duties, he expressed confidence in him resuming suitable employment in the future.
63The nature of that employment would be moulded by the need to avoid bending, lifting, twisting, stooping; repetitive pushing, pulling, lifting; overhead activities; kneeling, squatting, crouching; and prolonged sitting, walking or standing. These restrictions would last indefinitely.
Dr Gavin Weekes
64Gavin Weekes is a pain specialist. On 25 October 2021, he examined Mr Cochran at the request of his solicitors.[14]
[14] Report dated 25 October 2021
65Dr Weekes diagnosed persistent post-operative lumbar surgery pain behind which lay spondylolisthesis due to a pars defect at L5-S1. The spondylolisthesis has compressed the right L5 nerve root.
66As to capacity for work, Dr Weekes identified restrictions on Mr Cochran’s activities. These restrictions either precluded or restricted Mr Cochran’s activities: repetitive pushing, pulling, lifting, bending, twisting or stooping; lifting overhead; prolonged driving distances; kneeling; squatting; and crouching.
67To Dr Weekes, there was no capacity to perform his pre-injury duties. Moreover, Mr Cochran could not perform suitable employment because of his functional limitations and his inability to work on a reliable and consistent basis. His incapacity for suitable employment is permanent.
68His prognosis was poor in that he will suffer some degree of pain and disability for the foreseeable future.
Dr Khayyam Altaf
69Khayyam Altaf specialises in occupational medicine. On 22 October 2021, he examined Mr Cochran at the request of his solicitors.[15] He also considered a large number of reports from practitioners, of MRI and other scans and from vocational assessors.
[15] Report dated 28 October 2021
70Dr Altaf diagnosed Mr Cochran suffered an aggravation of his asymptomatic lumbar spine degeneration.
71From an organic perspective, Mr Altaf found Mr Cochran could not bend or lift safely from the ground. He could lift with each arm between his waist and chest and then only weights less than five kilograms. He could twist and stoop but only in a slow and orderly manner. He should not push or pull with an exerted force greater than 10 kilograms. He should not perform repetitive pushing, pulling or lifting. Other than short overhead tasks, he should not do repetitive or more strenuous overhead tasks. He should not drive beyond 15 minutes and not get into and out of a vehicles repetitively. He should not kneel, squat or crouch. He should not sit, walk or stand for prolonged periods.
72Dr Altaf considered Mr Cochran unfit to resume his pre-injury duties and that would continue for the foreseeable future.
73As an introduction to a question about “suitable employment”, Mr Cochran’s solicitors explained their understanding of the meaning of that expression. Dr Altaf thought only “sedentary office type occupations” could be suitable subject to two qualifications – the ability to adjust his posture as and when required; and given the increased risk of unpredictable relapses of his lumbar spine condition, the possibility of an inability to provide consistent and reliable service. There were other qualifications relating to where Mr Cochran lived and the need for retraining.
74More specifically, Dr Altaf rejected four of the five jobs put forward by Nabenet as being beyond Mr Cochran’s capacity. As to the fifth, membership consultant, this may be appropriate provided Mr Cochran could adjust his posture as and when required and work in a self-paced manner on reduced hours.
75Again specifically, Dr Altaf considered job options suggested by Recovre in two reports. Mr Cochran had the capacity to perform the jobs of warehouse transport clerk, membership consultant and security officer but to be performed:[16]
“…two to four hours per day, three days per week with a rest day in between each working day, and this could potentially be gradually increased as per his tolerance. He would need to maintain all the above restrictions and adjust his posture from sitting to standing whenever required. He is likely to have a greater than average level of absence from work relating to his lumbar back condition, which would impact his ability to provide a consistent and reliable service for the rest of his career.”
[16] Report at page 20
76His prognosis was decidedly poor with the expectation Mr Cochran would suffer ongoing symptoms and his current disability for the foreseeable future and the long-term deterioration of his condition. He did not recommend further surgery or other medical treatment except for physiotherapy to treat relapses.
Dr Ales Aliashkevich
77Ales Aliashkevich is a neurosurgeon. On 18 October 2021, he re-examined Mr Cochran at the request of his solicitors.
78Mr Aliashkevich is unusual in that he combines certain forms of treatment under the rubric of diagnosis. In a traditional sense, he diagnoses Mr Cochran as sustaining in the course of his employment, including the event of 15 January 2015, aggravation of pre-existing L5-S1 spondylosis, aggravation of right L5 lamina stress type fracture, chronic pain syndrome and depression.
79Although warning that he was not a qualified occupational specialist, Mr Aliashkevich considered Mr Cochran restricted for certain activities: lifting and carrying weights over 10 kilograms; regular or vigorous pushing and pulling; using heavy tools; heavy dragging and carrying; driving for more than 15 minutes; stooping, bending, kneeling and crouching, prolonged sitting, standing or walking over 15 minutes; tolerating static postures for longer than 15 minutes; exposure to jarring vibrational forces; and repetitive or sustained bending to reach below his knees.
80He considered Mr Cochran could not return to his pre-injury duties for the foreseeable future. As to suitable employment, he agreed with Dr Boffa’s view on 2 September 2021 that Mr Cochran could perform suitable part-time duties, with part-time limited to 12 hours per week. He also agreed with Associate Professor Goldschlager’s views of 12 October 2021 of his possible suitability for security work depending on training.
81His prognosis was guarded.
Associate Professor Umberto Boffa
82Umberto Boffa is an occupational and environmental physician. At the request of an authorised agent or the Defendant’s solicitors, he has examined Mr Cochran on 9 August 2017, 7 December 2017, 19 February 2019, 2 September 2021 and 25 November 2021.[17]
[17]Reports dated 9 August 2017, 7 December 2017, 19 February 2019, 2 September 2021, 28 November 2021 and 24 December 2021
83At his last examination, Dr Boffa found mildly reduced movements of the lumbo-sacral spine in the sagittal plane.
84Dr Boffa found Mr Cochran needed to change his posture and avoid or limit repetitive bending, twisting, pushing and pulling. Additionally, he should avoid lifting and carrying more than 10 kilograms. If he returned to work, he should initially work 12 hours per week.
85Of the four proposed jobs, Dr Boffa considered those of warehouse (transport) and despatch clerk, certain security officer roles and radio clerk/truck despatcher as suitable.
86In a supplementary report, Dr Boffa expanded on his reasons for those jobs being suitable employment for Mr Cochran. In relation to each, he considered Mr Cochran would attain full-time hours within eight weeks of starting in the job.
Dr Greg Etherington
87Greg Etherington is a spinal surgeon. At the request of an authorised agent, he examined Mr Cochran on 12 August 2020.
88As Dr Etherington noted, his examination of Mr Cochran was prompted by questions from the surgery advisory panel. Presumably, among those questions was one regarding the advisability of a the proposed posterior L5-S1 fusion and decompression. That operation occurred on 26 October 2020 after Dr Etherington’s examination.
89Dr Etherington considered the proposed surgery had a “very good chance” of significantly improving the leg pain and the axial lumbar pain.
90Given the longevity of his symptoms, Dr Etherington considered Mr Cochran had chronic pain and would require, after surgery, pain management and rehabilitation.
Mr Roy Carey
91Roy Carey is a consultant orthopaedic spine surgeon. On 9 May 2017, 8 February 2019 and 31 August 2021, he examined Mr Cochran at the request of either an authorised agent or the Defendant’s solicitors.[18]
[18] Reports dated 9 May 2017, 18 February 2019, 18 May 2020 and 31 August 2021
92After his last examination and to a detailed question about occupational restrictions, Mr Carey replied generally:[19]
“As far as I am concerned, once the fusion has been pronounced as sound, Mr Cochran may do as he wishes within the limits of discomfort at home, socially, recreationally and indeed at work.
It seems obvious that after his long-term problems culminating in major spine surgery, the outlook now is guardedly optimistic, and if appropriate re-training is provided for him, as recommended by an occupational therapist or occupational physician, there is no reason to expect that he will not be able to appropriately re-enter the workforce in the future, although at present he is acting as a ‘stay at home father’.”
[19] Report dated 31 August 2021 at pages 5 and 6
93From that examination, the only abnormal findings related to the spine with forward flexion to the upper patellae and extension, lateral flexions and rotations uniformly restricted to about 50% of the normal range of such movements. Mr Carey noted these restrictions were expected after the operation performed on Mr Cochran.
Recovre
94Janette Ash is an occupational therapist and injury management consultant. She did not interview Mr Cochran for her initial report in 2018 or for the two supplementary reports in 2021. In her third report, she examined three jobs – product tester and assembler, machine operator and a price checker in a retail store.
95In March 2021, Ms Ash examined a job, encompassing three roles within the gas meter testing division of a business which assembled and tested electricity and gas meters. Overall, these rotating positions involved the tasks of loading meters for testing, final assembly and final pressure testing.
96In June 2020, she examined the job of a pasteuriser and machine operator at a factory in Thomastown. The tasks are categorised as milk receiving, machine operation, monitoring, quality checks and administration tasks.
97In April 2019, she examined the job of “quality inspector and price integrity officer”. The tasks remained the same in October 2021. There are price checking tasks, computer tasks and label printing and updating erroneous labels.
Mary Oliver
98Mary Oliver is a human resources consultant employed by Flexi Personnel. She did interview Mr Cochran by video and then phone.[20] Her task was to assess Mr Cochran from the perspective of a potential recruiter.
[20] Report dated 13 December 2021
99On the second page of her report, Ms Oliver noted something which I noted during the hearing – the inability of Mr Cochran to sit still for longer than a short period. I questioned his general practitioner about it and drew my observation to the parties’ attention. Ms Oliver wrote:
“Due to the restrictions imposed by the COVID-19 pandemic, the interview was predominantly conducted by video conference, and I noted at the commencement of the interview James was standing and after 15 minutes he sat and from then on alternated between sitting and standing at approximately 5 minute intervals; his pain was evident.”
100Ms Oliver noted the views of the practitioners, Altaf, Goldschlager, Egan, Bernet, Boffa and Carey, directly and indirectly, on the issue of capacity for work. She quoted at length from the report of Dr Altaf.
101Turning to administrative work, Ms Oliver noted the basic requirements were:
(a) prolonged sitting and general limited opportunity for postural changes at will;
(b) current proficient computer competence;
(c) focussed and accurate attention to detail.
102She eliminated him as meeting industry expectations of a worker in an office or performing administrative duties in a reliable, consistent and productive manner.
103Ms Oliver examined four specific positions.
104She rejected the broad occupation of security guard or security officer. This category has many variations. Depending on the type of position, he would not obtain the necessary certificate through an inability to complete an aspect of the training. Physically, he could not meet the requirements of some security work – security breaches and potentially threatening situations; viewing security monitors.
Legal considerations
105There are two aspects of loss of earning capacity consequence. Mr Cochran must satisfy the test contained in s325(2)(c), the narrative test, and the test in s325(2)(e). The former requires Mr Cochran’s loss of earning capacity consequence to be more than significant or marked and as being at least very considerable when compared with other cases in the range of possible impairments or losses of a body function.
106Essentially, the latter requires Mr Cochran to establish a loss of earning capacity of 40% or more and a loss of 40% or more will continue permanently. The measurement of the extent of his loss of earning capacity is done by comparing two things:
(a)his gross income from personal exertion he earns or is capable of earning in suitable employment, whichever is the greater. Since he is earning nothing at present, one looks at what he is capable of earning in suitable employment; and
(b)his gross income from personal exertion earned or capable of earning from personal exertion within the period three years before and three years after the injury that most fairly reflects his earning capacity had the injury not occurred.
Discussion
Credit
107The Defendant submitted Mr Cochran is an unreliable witness. It did not query his truthfulness. This means it took no issue over what he said to practitioners by way of his symptoms. The Defendant referred to his evidence concerning the extent of his wife’s work at home and his activities with his daughter. It did take cross-examination, including reminding him of what he told Dr Carey, to arrive at the real position. I would not conclude he is an unreliable witness generally. As with most people, he has lapses of memory but responds to prompting. This is certainly no basis for me to prefer the Defendant’s practitioners over others as to his physical capacity.
Capacity for work
108The first thing to observe is Mr Cochran cannot return to his pre-injury duties. None of the medical practitioners suggest that.
109His deteriorating condition necessitated the surgery. Despite it, there is continuing aches and pain, the experience of which is permanent. Through the potential to aggravate the level of his pain, there are widespread restrictions on his activities. According to Dr Weekes, he is either prevented or restricted in engaging in repetitive pushing, pulling, lifting, bending, twisting, stooping, lifting overhead, prolonged driving, kneeling, squatting and crouching. These restrictions will continue into the foreseeable future. In other words they are permanent.
110The surgery did bring some relief. It removed the radiculopathy. It gave Mr Cochran the opportunity to stop taking pain-relieving medicines. However, the improvement has stopped, his state is stable and this will be permanent. No further surgery is available.
111Mr Cochran wishes to return to work. He attends physiotherapy regularly. He does his home exercises aimed at strengthening his core.
112Applying the words of the joint judgment in Richter v Driscoll[21], with his widespread limitations, Mr Cochran has next to nothing to sell in the labour market. Dr Bernet suggests two jobs with a very structured start and held out weak possibility of improvement. Dr Boffa considered three jobs with a somewhat similar structured start but rapidly building to full-hours work after eight weeks.
[21][2016] VSCA 142.
113Pausing there, Dr Boffa’s opinion is anomalous. No one else comes close to it. It clashes with what Dr Bernet sees of him as a patient. To think one could take Mr Cochran as he is now and after a very low-level introduction to the workforce find him at full-time hours after eight weeks seems unlikely.
114Dr Altaf considered membership consultant as suitable subject to an ability changing his posture when required with frequent standing and walking around the office. The three clerical positions are in the same position. It is the ability to sit, stand and walk about that might render these jobs viable. To Dr Altaf, these jobs could be worked three days a week, with a rest day between the working days and between two to four hours a day with the possibility of an increase. Dr Altaf’s view is further qualified by his observation Mr Cochran is likely to have greater level of absence from work due to the state of his back.
115My observations of Mr Cochran, together with those of Dr Bernet and Ms Oliver, mean Mr Cochran could sit in the same position for a very short time before he needs to stand and walk about his workplace. Whether adjustable work stations assist is uncertain because of his limitations as to both sitting and standing.
116The defendant criticised Mr Cochran for his failure to seek work after the fusion. This was a serious operation. One could not expect him to seek employment when Dr Bernet is telling him of his incapacity. It would be unwise for him to act contrary to the advice of his medical practitioner after such surgery.
117Associate Professor Goldschlager thought Mr Cochran was being trained as a security guard. He was incorrect. What he understood was involved in that job is unclear. Certainly, Mr Cochran toyed with the idea of a Protective Services Officer until he found out that job entailed. Whether he had in mind the role of a security concierge is also unclear.
118The only job Nabenet identified for Mr Cochran was “signing up for gym memberships”. He approached several gymnasiums and gave them his resume. Nothing came of that. He now believes he could not do what is involved in that job anyway.
119In terms of computer skills, Mr Cochran has few, acquired at work, and none would equip him for employment requiring such skills. Despite what was noted in the Flexi Personnel report, Mr Cochran did not use Microsoft Word or Excel at school. He can use his mobile phone to view emails, search the Internet, navigate Facebook and download job applications. He did some data entry with the Defendant. He has a computer at home but does not use it much. Indicative of his level of skill, his wife does their internet banking.
120He has no administrative skills. His scanning skills are very limited – about the level that customers do at supermarkets.
121If one joins Dr Bernet’s observations with the widespread restrictions recommended by Dr Weekes and others, Mr Cochran presents as a very disabled person. If he found an employer prepared to hire him to work initially on the terms suggested by Dr Bernet, he is motivated to try. I do not accept he could do more initially and I certainly do not accept he would be capable of full-time hours after eight weeks. From what I have seen, heard and read that seems so unlikely. On the preponderance of the evidence, I consider Mr Cochran’s remaining capacity for suitable employment is so low that his “powers of labour as a merchantable article” is virtually nothing and that is a permanent state of affairs.
122The parties differed as to the appropriate figure fairly reflecting his earning capacity if the injury had not occurred. The defendant submitted $68,721 and Mr Cochran about $79,000. In my view, Mr Cochran easily satisfies the mathematical test. With such a large diminution of his capacity for work at such an early age, he plainly satisfies the narrative test.
Retraining
123The defendant raised Mr Cochran’s failure to undertake retraining or study after the fusion. A person would undertake retraining or study if it were directed at a realistic employment option. For example, he could study anatomy with the aim of becoming a personal trainer, which would be pointless given his physical inability to carry out the tasks of a personal trainer. His failure has no bearing on his establishing the required loss of earning capacity.[22]
[22] See s325(2)(g).
Conclusion
124I am satisfied Mr Cochran has suffered a “serious injury” in respect of pain and suffering consequence and loss of earning capacity consequence. I will grant him leave to commence a proceeding seeking damages for both pain and suffering and pecuniary loss.
125I will hear the parties on the form of my orders and any other matter.
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