Cole v Fresh Packed Pty Ltd
[2011] VCC 13
•15 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. Cl-10-02073
| DENIS ROBERT COLE | Plaintiff |
| v | |
| FRESH PACKED PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE HOGAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 & 7 February 2011 |
| DATE OF JUDGMENT: | 15 February 2011 |
| CASE MAY BE CITED AS: | Cole v Fresh Packed Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 13 |
REASONS FOR JUDGMENT
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Catchwords: Application pursuant to s.134AB of the Accident Compensation Act 1985. Alleged aggravation of degenerative lumbar disease over course of employment between 2003 and 2006 – alleged impairment leading to consequences which are serious with respect to pain and suffering and loss of earning capacity pursuant to paragraph (a) of the definition of “serious injury”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. S. Monti | Maurice Blackburn Lawyers |
| with Mr J. F. Goldberg | ||
| For the Defendant | Mr N. Y. Rattray | Lander & Rogers |
| HER HONOUR: |
1 The plaintiff, Mr Denis Cole, applies pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings for the recovery of damages. He claims that in the course of his employment as a slaughterman with the defendant between October 2003 and December 2006 he aggravated degenerative disease in his lumbar spine and that this has given rise to a permanent impairment or loss of function in his back which is a “serious injury” within the meaning of paragraph (a) of the definition in s.134AB(37) of the Act. He claims that he suffers a physical impairment with consequences which are serious with respect both to pain and suffering and loss of earning capacity.
2 The plaintiff is presently aged 53 years having been born on 22 April 1957. He left school after completing Form 4 and for the entirety of his working life up until December 2006 he was employed as a slaughterman at an abattoir in Learmonth Road, Carrum. The defendant was his employer at those premises from 1 October 2000 and, in particular, during the period of relevance in this case, namely October 2003 to December 2006.
3 It is not in dispute that the plaintiff’s job on the mutton line for the defendant was heavy, repetitive work. For the first couple of years he worked as a scalper on the line. This would involve him bending down and cutting and pulling the skin completely off the animal (which skin had already been cut by others down to about the neck level). He would then take the head off the animal. There were about 2000 lambs which he would process in this way each day. After cutting the skin off he would have to carry it and drop it down a shute and, if it was wet, the skin alone could weigh up to 50 kilograms.
4 After a couple of years the plaintiff moved to a different job on the mutton line. This involved doing the “fore quartering”. The carcasses would come along the line hanging upside down so that the legs would be as low as the plaintiff’s feet, particularly those of large rams. The plaintiff would bend down to cut the forequarter and then lift the leg of the animal, which weighed about 30 kilograms, up onto the hook. He performed these actions 250 to 300 times per day. The work involved constant bending, lifting and twisting of a repetitive nature.
5 The plaintiff’s evidence was contained in two affidavits, sworn on 23 December 2009 and 1 February 2011 respectively, as well as orally on oath. He had some intermittent back pain with no lasting consequences in the 1990s and worked on performing his full duties as a slaughterman without difficulty until October 2003. In October 2003 the plaintiff was performing his usual work as a slaughterman and, without specific incident, he experienced a very acute onset of what he described as “unbelievable” back pain. He attended his general practitioner, Dr Yueng, on 7 October 2003 with a history of lower back pain radiating down both legs. He was prescribed anti- inflammatories and physiotherapy and hydrotherapy.
6 A CT scan was performed on 24 October 2003. The principal findings were that at L3/4 and L4/5 levels there was a moderate broad-based diffuse annular bulge slightly flattening the anterior aspect of the thecal sac. There was a suspicious left paracentral disc protrusion and slight prominence of the ligamentum flava and slight hypertrophy at the L4/5 level. At the L5/S1 level there was a small posterior central disc protrusion with osteophytic encroachment on the anterior aspect of the thecal sac but no narrowing of the spinal canal or compromise of the emerging nerves.
7 Dr Yueng continued to treat the plaintiff conservatively and certified him as unfit for work until 21 November 2003 when he provided a certificate for modified duties, which apparently meant doing his usual duties on Monday, Wednesday and Friday. The plaintiff later increased his work to four days a week and by 13 April 2004 apparently he felt able to return to fulltime work. The plaintiff stated that he has never recovered from the onset of back pain in October 2003 and reports from Dr Yueng reveal that he would attend him periodically, complaining of flare-ups of pain for which he was given physiotherapy, anti-inflammatories and time off work.
8 By March 2005 Dr Yueng recorded that the plaintiff wanted to work eight hours a day on four days a week. In his evidence the plaintiff stated that having a rest in the middle of the week enabled him to keep going. He was referred by Dr Yueng to Mr Razif, orthopaedic surgeon, whom he saw on 1 September 2005. In a report dated 22 November 2006 Mr Razif stated that the plaintiff had developed an exacerbation of pre-existing underlying lower lumbar disc spondylosis as a result of what appeared to be changes from Scheurmann’s osteochondrits. Mr Razif thought his work as a slaughterman would undoubtedly be a major contributing factor to his ongoing symptoms in the lower back and it would not be in the plaintiff’s interest to continue work which involved frequent stressing of his lower back with levering as he was doing as a slaughterman. Mr Razif stated that, if the plaintiff continued to work as a slaughterman, it was likely that his lower back problem would gradually deteriorate resulting in increasing debilitating symptoms, which would affect his ability to perform any type of physical work. Meanwhile, he advised that the plaintiff should continue with a back care exercise program, including swimming, deep heat and massage, and try to avoid levering of his back with bending and lifting on a regular basis.
9 The plaintiff in his evidence stated that he found it increasingly difficult to continue with his work. He said he was struggling and by 2006 would be doing a full day of normal duties and then having a day off. In the months prior to ceasing work in December 2006 he varied between working three and four days per week. He found that the repetitive hard work was breaking his body down, specifically his back.
10 The plaintiff had been attending Ms Lisa French, physiotherapist, since October 2003. In her report dated 6 June 2006 she stated that he presented typically as an acute discogenic lumbar injury with acute and severe muscle spasm causing a lumbar kyphoscoliosis convex to the left with inability to straighten to the neutral and a loss of range of other lumbar movements, particularly forward and left-sided flexion. He also had bilaterally reduced sciatic and femoral nerve stretches. She stated that the damage to the plaintiff’s lumbar discs was a direct result of the type of work he had performed as a slaughterman, bending and twisting under the full load of an animal repeatedly over long shifts. She described to the plaintiff how a disc is injured and how best to protect his spine from further damage. She tried to dissuade him from returning to his job as a slaughterman, explaining that bending and twisting with his spine under a load was likely to adversely affect his back. However, she stated that “he was highly motivated and hardworking and determined to fully recover without making any changes to his lifestyle”. She noted that he was very fit and highly skilled in his particular field, which was the only work that he had ever known.
11 The plaintiff’s evidence was that, having reduced his work to three or four days per week over 2006 resulted in his boss approaching him and telling him that he had used up his 104 weeks of WorkCover entitlements. He was told that, unless he resigned and accepted a redundancy package, he would be sacked. The plaintiff said that he felt he had no option but to resign and to accept a redundancy, which he did on 18 December 2006.
12 Following the cessation of his employment with the defendant, the plaintiff, with the assistance of Centrelink, obtained employment in October 2007 with a company known as “Bay Living”. He was initially employed by the proprietor, Peter Brown, to work four hours per day on two days per week as a delivery driver and, apparently, the employer received some form of subsidy through Centrelink. The plaintiff later increased his hours to four hours per day on three days per week.
13 Bay Living imports outdoor furniture from China. The furniture is of a light moulded plastic variety and arrives in flat packs. The plaintiff’s work involves assembling furniture and driving a utility which he helps load and unload. Some three and three-quarter hours of surveillance film of the plaintiff, taken between 22 October 2009 and 12 November 2010, was shown in court. This demonstrated the plaintiff, sometimes alone and sometimes with others, loading up a utility with boxes containing furniture or stacks of chairs, securing the load and unloading it.
14 The plaintiff explained in his evidence that, on the days that he works, usually he does some sweeping and cleaning and assembling of some furniture. The assembling work can be done sitting on a chair and putting the pieces together involves no effort on his part. The furniture is light in weight as it is either hollow moulded plastic or imitation wicker furniture made from resin. He stated that in the surveillance film the chairs, which he is seen carrying in a stack of six, or possibly up to 12, are primarily made of aluminium and that each chair would weigh two or three kilograms. He said generally speaking he would not be lifting weights of more than 15 kilograms, although occasionally the weights might be up to 20 or 30 kilograms. Sometimes there are umbrellas in boxes which might weigh 20 or 25 kilograms. There are tables with glass tops which weigh about 25 to 30 kilograms but these are lifted by him only rarely and, on the film, another person was assisting him lift one of these. Boxes containing two imitation wicker chairs weigh about 15 kilograms and usually when there are heavier items to be lifted he will have assistance. He said there is a young man employed “out the back” and he is available 90 per cent of the time to assist him to do the heavier lifting. The plaintiff stated that many of the items which he is seen lifting in the film weigh only four to six kilograms, which is about one eighth of the weight of the lamb carcasses which he used to lift while working for the defendant.
15 The plaintiff stated that the film showed the busiest period of the year for the furniture business. He said that the business receives about six or seven containers of furniture each year and they arrive in the period from September through to December. During this period there are six additional staff hired to do the unloading of the container which must take place within 45 minutes, otherwise his employer has to pay a financial penalty. Thus, he said the loading and unloading which was demonstrated on the film shows the maximum period of time during which he would be conducting lifting and carrying of furniture, which would be 45 minutes. Thereafter, the furniture is driven on a half hour trip to another location before the unloading begins so he has a break from lifting and carrying. In any event, he said much of the furniture is extremely light weighing just a few kilograms and he had learned to “lift smart”. He ensures that he bends at the knees and walks or rolls the table or chairs to their position.
16 The plaintiff stated that, generally speaking, for the rest of the year, when containers are not arriving, he is loading or unloading the utility and the weights are under 15 kilograms and often considerably less. Such loading or unloading takes only 10 minutes or perhaps 15 minutes, if he gives himself a bit of extra time. He stated that his boss, Mr Power, is extremely accommodating of his injury. Mr Power was well aware when he took him on that he had limitations and it is not unusual for him to be at the premises for a period of six or even eight hours in order to fulfil what should be achieved in four hours. He said his boss does not mind how long he takes, as long as he gets the work done, and it is not uncommon for him to go out the back and lie down for an hour.
17 The plaintiff stated that, as the boss was unwell over the pre-Christmas period, he accommodated his boss’s request to increase his hours to 16 per week. He found this extremely difficult. At one period he suffered a very severe and acute period of pain in his legs for three days. After working for a period of some six weeks for 16 hours per week, that is four hours per day on four days per week, he then needed two weeks off. His back and leg pain had flared up, his sleep was disturbed, he was exhausted and relations with his wife were strained. He believes that working four hours per day on three days per week is his maximum capacity as he needs the days in between to recover. Accordingly, he works Monday, Wednesday and Friday.
18 The plaintiff said that many years of physiotherapy had taught him what he needed to do in order to protect his back. He also keeps a back brace at home, at work and in the utility in case he is having pain and needs extra support. Although he does not wear it aIl the time, he does wear it much of the time, depending upon the size of materials he is required to lift. In addition, his son, who is a personal trainer, has given him a regime of exercises to do in the morning and also takes him through exercises each afternoon. These exercises take about 45 minutes each day. The exercises maintain core muscle strength in order to protect his injured back. He also swims or does exercises in a pool for about 20 minutes three times per week.
19 The plaintiff said that he is conscientious in maintaining his exercise regime and finds that he does not need to attend his doctor other than about four times per year. On these occasions he gets prescriptions with repeats for Panadeine Forte, but he tries to avoid taking them. He said there might be periods of time, say six times a year, when he needs to take them for some days sequentially. In addition, he takes Mobic, an anti-inflammatory. He does not take it all of the time, but finds it helpful when he gets a flare-up. He manages on a regime of taking 12 fish oil tablets as well as three glucosamine tablets and one Panadol Osteo once per day. He states that he still has a constant nagging pain which radiates into his legs from time to time. He said the flare-up last December and in January of this year was very debilitating. He had never had pain so bad. He described the pain as “unbelievable” and he took Panadeine Forte in groups of two for about ten days. He said that sort of flare-up happens about six times a year. In any event, it is not uncommon for him to come home from his four hours work and need to lie down for a couple of hours.
ANALYSIS OF THE FILM
20 Mr Rattray on behalf of the defendant placed much emphasis upon the film which had been shown to the plaintiff in cross-examination. He submitted that it showed an active man engaging in regularly lifting and carrying items, at times up to 30 kilograms, and there was no evidence of difficulty on his part. He submitted that the plaintiff in his affidavit had understated the extent of lifting and carrying which he did in the course of his current employment and the Court should find that his level of pain is not as bad as he says it is. He submitted that the Court should also find that the plaintiff’s symptoms are not sufficient to meet the “serious” test for pain and suffering, and that the Court should find that the plaintiff is capable of more work than he is presently performing, namely 12 hours per week such that he cannot satisfy the requisite test of 40 per cent loss of pre-injury earnings.
21 I agree with Mr Rattray that the plaintiff’s affidavit, sworn on 1 February 2011, which states that he “occasionally performed deliveries of items such as tables and chairs and other relatively light furniture” does understate what is seen on the film. However, I did not receive the impression that the plaintiff was a dishonest person who was endeavouring to mislead the Court. The plaintiff stated that this description referred to his usual work loading and unloading the utility, rather than the work with the six or seven shipping containers towards the end of the year.
22 Even without the plaintiff’s explanation as to the weight of the furniture, it appeared to me that the loading and unloading of the furniture was relatively effortless. At times he is seen virtually throwing furniture onto the utility with one hand, and although the size and shape of some of the parcels loaded or unloaded are awkward, it did not appear to me that the plaintiff or, indeed any of the other people who were assisting him from time to time, required great effort to do the job. The plaintiff stated that one of the men, who was seen in the film lifting similar items to himself, is aged 65 years. At another point in the film a female employee, who works in the office, is seen helping to unload several of the aluminium chairs at a time. It was fairly obvious to me on viewing the film that the loads being manoeuvred were of a relatively light nature. Moreover, I believe the plaintiff when he says that he does “lift smart”. It was clear that he keeps his back very straight and, where he does not roll or push a load, he keeps it held close to his body. On a couple of occasions he was seen to bend but seemed to place each foot out to the side to balance himself somewhat before doing so. He was seen at one stage having a rest, sitting on the tray of the utility after finishing a period of unloading. He said that he likes to do that to “take the pressure off everything”. At another time he was seen fleetingly touching his back before entering the utility to drive off with the load. He said that, at times, he suffers some spasm in his back and he just does that to effectively adjust himself.
23 Overall, I thought that the plaintiff came across as an honest, decent, hardworking person who in fact has done well to continue to work. He said that he has “a strong mind” and he works through the pain. I did not find the film to be inconsistent with the pain described by the plaintiff. Nor did I find it to demonstrate a level of capacity greater than that which the plaintiff is presently working. It was conceded by Mr Rattray that from 12 October 2009 until 28 January 2011 the plaintiff had been under surveillance at the behest of the defendant for a total of 124 and three-quarter hours, yet the surveillance film shown was only a total of three and three-quarter hours. Obviously there are large periods of the time of surveillance when the plaintiff’s activity or lack of activity is not shown. There was no explanation given by the defendant as to what had transpired during the remaining 121 hours of surveillance. I infer that whatever was observed of the plaintiff during that time would not have assisted the defendant’s case.
THE MEDICAL EVIDENCE
24 I have already referred to the plaintiff’s regime of medication and the fact that his back condition continues to be overseen by his general practitioner Dr Yueng, albeit only a few times a year. Over the years he has had a number of CT scans taken, the most recent being on 21 July 2010. The report of that scan noted that at L4/5 there is degenerative intradiscal gas with degenerative disc space narrowing. There is a circumferential diffuse annular bulge that just indents the thecal sac centrally. Bilateral facet joint arthrosis is noted and main canal diameters are approaching the lower limits of normal. Minor anterior marginal osteophytosis is present. At L5/S1 there is central disc osteophyte complex that just impinges the ventral thecal sac and both S1 nerve roots. Bilateral facet arthropathy is present. Some of these findings represent a progression of the degenerative disease which was seen on the CT scan taken on 24 October 2003 as, indeed, was predicted by his medical practitioners.
25 Subsequent to the most recent CT scan an MRI scan was taken on 5 November 2010. This took place because the plaintiff was experiencing increasing pain and required a referral to a neurosurgeon, Mr Timms. Amongst other things, the report of the MRI scan on 5 November 2010 noted marked reduction in the height of L3/4 and L4/5 discs and mild to moderate facetal arthropathy at L2/3, L3/4 and L4/5. It also noted moderate to severe foraminal stenosis on the left at L4/5 and mild right L4/5 foraminal stenosis.
26 The plaintiff’s treating general practitioner, Dr Yueng noted as far as back as June 2006, when the plaintiff was still working for the defendant, that his painful lower back was getting worse and that he had difficulty coping with four days work per week. Dr Yueng has consistently expressed the opinion that the plaintiff’s painful lower back is due to his work as a slaughterman, that he has difficulty coping with hard physical labour, that he has a history of being prone to flare-ups and that his prognosis is uncertain. His most recent report dated 22 November 2010 notes a history that the plaintiff gets pain every morning and works four hours a day three days a week in a furniture shop, but takes frequent rest breaks.
27 Mr Timms, neurosurgeon, in his report dated 5 January 2011, stated that the recent MRI scan revealed the severe degeneration at L4/5 and L5/S1 to be the cause of the plaintiff’s symptoms. He noted that the degeneration included an L4/5 disc injury and advanced degeneration with some mild neural compression at that level. He also noted that there was a significant disc injury at the level below, at L5/S1, although the main neural compression was foraminal stenosis, particularly at L4/5. Mr Timms suggested that, if the plaintiff had a persistent flare-up, then a CT guided cortisone injection may be helpful. He stated that, if that was unsuccessful and his symptoms worsen, particularly the sciatica, then he would advocate surgery in the form of a lumbar laminectomy at the levels of L4 and L5. Mr Timms thought that the plaintiff was unable to return to his pre-injury work as a slaughterman, but seemed able to function currently in his role with the furniture business on a part-time basis with reduced hours and a situation where he is able to perform work when he is able and has the flexibility of stopping or reducing his hours when his symptoms are aggravated. He thought that the plaintiff was likely to continue to have persistent regular flare-ups of back pain and sciatica and would suffer further degeneration in the discs at L4/5 and L5/S1 likely to lead to a progression of neural compression, particularly at L4/5. At this stage he said the main measures of controlling his symptoms are intermittent rest as required, regular analgesics and some core muscle strength exercises, although in the long-term, as the compression progresses, he is likely to require surgical intervention.
28 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff at the request of his solicitors on 22 September 2010. In his report, dated 24 September 2010, he noted that in the plaintiff’s current work of working four hours on three days per week he is accommodated by his very supportive employer who allows him to take eight hours if necessary to do the four hours work. He stated that the plaintiff’s symptomatic lumbar spondylosis arises from the discs and facets, particularly L4/5 and to a lesser extent, L5/S1. He accepted that that is related to his many years of work as a slaughterman. He described the plaintiff’s exercise regime on a daily basis as admirable and appropriate but stated that his problem over the long-term is likely to progressively worsen and his days of bending and lifting and twisting are very limited, as such activity will aggravate his condition. He stated that, given his current employment requirements, he is working at the peak of his potential.
29 Dr Clayton Thomas noted that if the plaintiff were to be given a position that involved working at bench height allowing him to sit or stand, then his working capacity would be increased.
30 The most recent medical opinion obtained by the defendant is from Mr John Hart, clinical associate professor of surgery, embodied in his report dated 19 December 2009. It is not clear from the report upon what date Mr Hart saw the plaintiff. He noted that the plaintiff has a congenitally narrow canal due to short pedicles and there is canal stenosis at L3/4 and L4/5. He also noted that there are mild broad-based disc bulges which would normally not cause problems but because of his narrow canal may be significant. He considered that the plaintiff did not have a work capacity for his pre-injury work as a slaughterman but he did have a capacity for “suitable employment”. He did not suggest any particular job but stated that “he would certainly be suited to a variety of positions where he did not have to bend repetitively, lift more than 15 kilograms at waist level and push and pull” and that he would be able to work fulltime “in an appropriate position”.
THE ISSUE OF WHETHER THE PLAINTIFF HAS A PERMANENT IMPAIRMENT
31 It is apparent that the plaintiff had some pre-existing degenerative changes in his lumbar spine prior to October 2003. However, it is not in dispute that they were asymptomatic at that time, that they were rendered symptomatic when the plaintiff experienced “unbelievable” pain while performing his slaughterman duties in October 2003 and have been ongoing ever since. I am satisfied that his heavy work as a slaughterman up until December 2006 aggravated the underlying degenerative change and has perpetuated the symptoms relating to it. It is not in dispute that the aggravation of the pre- existing degenerative disease has given rise to pain and limitation of movement which render the plaintiff incapable of returning to his pre-injury work as a slaughterman. Hence, there is no dispute that the plaintiff has suffered a permanent impairment. The defendant has not sought to argue that the plaintiff would have ended up in his current plight regardless of continuing to work as a slaughterman. Rather, the defendant takes issue with the nature and extent of the plaintiff’s impairment and argues that it does not meet the test of a serious injury in respect of either pain and suffering consequences or economic loss consequences.
THE ISSUE OF WHETHER THE PLAINTIFF HAS PAIN AND SUFFERING
CONSEQUENCES WHICH ARE SERIOUS32 Pursuant to s.134AB(38)(c) in order to be “serious” the pain and suffering consequences of the impairment or loss of body function, when judged by comparison with other cases in the range of possible impairments or losses of a body function, must be able to be fairly described as being more than significant or marked and as being at least very considerable.
33 I am satisfied that prior to October 2003 the plaintiff did not have a painful lower back. He was able to work in his very physically demanding job as a slaughterman fulltime without difficulty and to perform heavy manual tasks around his home. The plaintiff is now 53 years of age and has suffered pain constantly in his lumbar area since October 2003 and has been subject to debilitating flare-ups, particularly with pain radiating into both legs, which may last for days at a time. There are many such flare-ups documented in Dr Yueng’s reports and it is clear that one such flare-up warranted the referral to the neurosurgeon, Mr Timms, in August last year and that there was another serious flare-up December 2010 and in January of this year. The medical opinions before the Court are that the plaintiff’s degenerative condition will progressively worsen and produce greater symptoms. He may eventually require surgery to his back.
34 I accept the plaintiff’s evidence that flare-ups of a magnitude requiring him to take Panadeine Forte for several days occur about six times each year. I also accept that, without warning, he can suffer very distressing pain in his legs, as he did when walking to the court on the last day of the hearing. I accept that the plaintiff is never free of back pain albeit that it alters in intensity. At times it is of a magnitude that necessitates him lying down at work for an hour or so. His present employer accepts that there are times when he cannot complete a four hour work load within four hours. On these occasions his employer allows him to take six or even eight hours to get the work done. Further, when he comes home from work, even if it has only been four hours, the plaintiff needs to lie down. This picture is a very stark contrast to the fit, capable, hardworking, fulltime slaughterman that the plaintiff was prior to the October 2003 injury.
35 The constant pain in the plaintiff’s lower back is a daily intrusion into his sense of well-being. He takes a robust approach to it and has learned to try and cope with it. He said that he had a strong mind and works through the pain because he likes working with his hands and likes doing his current job. In my view, that does not lessen the magnitude of the consequences for him. Indeed, he seems to me to be a classic instance of the type of case to which Nettle JA referred in Dwyer v Calco Timbers Pty Ltd (No 2) (2007) VSCA 260 (17 December 2008) where at paragraph 3 he stated:
“I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim.”
Nettle JA went on to state:
“…it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resign himself to his injury.”
36 The plaintiff impressed me as a man who all his life had prided himself upon being physically strong and being a very capable worker in a heavy, manually arduous job. The tenor of Dr Yueng’s reports is of a man who was very keen to get back to the job even though he was told that it might compromise his physical ability in the long term. The plaintiff appeared to me to be a stoical person who had determined a long time ago to try and get on with life as best he could, but the slaughterman’s work obviously got the better of him. I had the impression that the plaintiff suffered a very real sense of loss in not being able to do the job which he had proudly and skilfully done for 30 years. This, in itself, is a diminution of his essence and of his enjoyment of life of some magnitude. I accept that the plaintiff ceased work because of his level of symptoms by December 2006 and, as stated by him in his affidavit sworn on 23 December 2009, he had done all that he could to enable himself to remain at work as a slaughterman. He loved the job and the camaraderie of his workmates and was a proud slaughterman and unionist.
37 The plaintiff was a strong man used to lifting heavy weights. As mentioned, he described the weights of four or six kilograms, which he most often has to lift in his current work, as being only one-eighth of the weight of lambs which he was used to lifting in his job as a slaughterman. I had a sense that the plaintiff finds it very difficult to grasp that he cannot perform what, compared to his slaughterman duties, is light work, in the four hours allocated to him, and the fact that he needs to lie down at work and lie down every day after work. He is clearly a person who is very oriented towards manual labour and, apart from not being able to perform his chosen job as a slaughterman, he is restricted in the outdoor work which he is able to do on his block of three and a half acres, where he would do building, repairing, maintenance and operate a vegetable garden. He is also limited in the extent to which he can ride a bicycle. I am satisfied that he needs to spend time each morning and each afternoon on an exercise regime to maintain his core body strength as well as swimming three times per week in order to maintain the function of his injured, vulnerable back as well as he can.
38 It is my view that the following factors, in combination, represent consequences of the plaintiff’s impairment to his back which satisfy the requisite test of “very considerable”: the pain which the plaintiff has suffered since October 2003 and which he continues to suffer; the fact that he was a very strong man capable of working in a very physically demanding job fulltime, but now has difficulty working four hours a day on only three days per week and cannot pursue his chosen job of slaughterman in which he had worked for 30 years; the restrictions on activities of an exertive nature; and the need to devote substantial amounts of time each week to exercises to maintain the function of his back.
39 Accordingly, the plaintiff has satisfied the Court that the pain and suffering consequences of his impairment are serious.
THE ISSUE OF WHETHER THE CONSEQUENCES OF IMPAIRMENT ARE
SERIOUS WITH RESPECT TO LOSS OF EARNING CAPACITY40 In order for the plaintiff to establish that the consequences of his impairment to or loss of function of the back are serious with respect to loss of earning capacity he must prove, on the balance of probabilities, that:
(a)
at the date of hearing he has a loss of earning capacity of 40 per cent or more, measured by comparing his annual gross income from personal exertion which he is earning or is capable of earning in suitable employment as at the date of the hearing with his “pre-injury” earning capacity; and
(b)
after the date of the decision or hearing he will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
41 Section 134AB(38)(g) makes it clear that if, after rehabilitation or retraining, and taking into account his capacity for suitable employment after the injury, the plaintiff has a capacity for any employment, including alternative employment or further or additional employment which, if exercised, would result in him earning more than 60 per cent of his annual pre-injury earnings (as defined in paragraph (f)), then he has not established the requisite loss of earning capacity.
42 In this case there is no dispute that prior to the acute onset of back pain in October 2003, the plaintiff was fit for full-time arduous work as a slaughterman with the defendant. In the financial year ending 30 June 2004 he earned $52,265 gross and in the subsequent two financial years in which he often had time off work and worked only three or four days per week, he earned $44,204 and $44,367 respectively.
43 Counsel for the plaintiff and defendant agreed that, having regard to the period within three years before and three years after the injury and taking into account earnings of comparable employees, that the figures which most fairly reflect the plaintiff’s earning capacity had the injury not occurred are in a range of $52,250-$55,000.
44 It was also agreed that in order to establish his entitlement under this head the plaintiff would have to establish, pursuant to s.134AB(38)(g), that he would not earn more than 60 per cent of such gross income, namely, a range of $31,350-$33,000 in suitable employment.
45 It is not in dispute that since he commenced his employment with Bay Living, his gross earnings in the year ending 30 June 2008 were $4,340, in the year ending 30 June 2009 were $8,257 and in the year ending 30 June 2010 were $7,800.
46 After the plaintiff ceased work with the defendant it appears that Centrelink provided assistance to him to rehabilitate himself back into the workforce. The plaintiff stated that he had considered whether he might do a real estate agent’s course as he had an interest in the property market through he and his wife having purchased investment properties. However, he stated that when he looked into it and discussed it with others he found that what was involved was beyond him in terms of his educational capacity, he having only completed Form 4 education. He also stated that the hours worked by estate agents could be long and unpredictable and he did not think that he could manage this. He has not sought other employment since taking on the job with Bay Living because he believes that he is working to capacity in that job and the substantial physical setback which he suffered after increasing his duties to four hours per day on four days per week have convinced him that he is correct in that view.
47 As previously mentioned, Mr Rattray on behalf of the defendant submitted that the film tendered by the defendant indicated a capacity greater than that which the plaintiff is presently working, namely four hours per day on three days per week. He also relied upon Dr Clayton Thomas’s view that, if the plaintiff were to be given a position that involved working at bench height allowing him to sit out stand, then his working capacity would be increased. Further, he relied upon the view of Mr John Hart that the plaintiff would be able to work fulltime in an appropriate position where he did not have to repetitively lift more than 15 kilograms at waist level and push and pull.
48 I have already commented upon the limited duration of the film compared to the time over which the plaintiff was under surveillance. Moreover, there is uncontradicted evidence from the plaintiff that in between the episodes of loading and unloading he has a rest from such activity for approximately half an hour while the load is transported and, indeed, at times actually lies down at work for an hour. His employer’s sympathetic attitude enables him at times to take twice as long to do the duties of four hours and to structure his work so that he has a day off to rest after each shift of four hours. The plaintiff has shown a determination to rigidly adhere to an exercise regime to protect his injured back. It seems to me that it is a combination of both these factors that have enabled the plaintiff to keep working at all.
49 As far as Mr Hart’s view is concerned I note that this report is prior in time to the most recent CT scan and MRI scan and also prior to the flare-up which necessitated the plaintiff being referred to the specialist neurosurgeon, Mr Timms, last year and also the flare-up necessitating two weeks off work in January this year, after he had increased his hours from 12 to 16 hours per week over a number of weeks. There is no other report of a recent nature from the defendant, the only other three reports having been compiled in 2005 or 2006.
50 Mr Rattray submitted that the view expressed by Dr Clayton Thomas that the plaintiff could increase his work capacity is an indicator that the plaintiff could be working longer hours such as on a production line. I do not agree. I know of no commercial enterprise where a production line, which by its very nature depends on each worker sequentially performing a task so that a level of production can be maintained, could accommodate someone who would need to go away and rest as required. Mr Timms has emphasised that intermittent rest as required is important for the plaintiff. Moreover, it is the very nature of a production line that it is repetitive and sustained activity and it is these very qualities which make that work unmanageable for the plaintiff.
51 It is here appropriate to note comments of the Court of Appeal in Smorgon Steel Tube Mills Pty Ltd v Miliovj Majkic [2008] VSCA 230. In particular, Buchanan JA stated that in s.5 of the Act the definition of “suitable employment” directs attention to the realities of the labour market. At paragraph 10 he stated:
“I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market rather than a position tailored to meet the particular needs of an individual worker, who is incapable of performing his normal work.”
52 In this case there is simply no evidence that there is in the real world a job which would enable the plaintiff working at bench height to sit or stand as required and to take a rest if he was having one of his flare-ups. As I have said, it seems to be the very sympathetic and accommodating nature of his employer in his current job, in particular permitting him to rest and take longer than necessary to perform his four hour workload, that enables the plaintiff to keep working. It is highly unlikely that every employer will be so accommodating. The same reasoning applies to the suggestion put forward by Mr Rattray in cross-examination of the plaintiff that he could work longer hours as a delivery driver. This was canvassed, in particular, by Ms Katrin Green, psychologist, in a vocational assessment report dated 19 November 2010. Ms Green stated that having regard to the medical opinions and the physical demands of the core duties of a warehouse assistant/storeperson he had a partial capacity to perform such job on three days per week for four hours per day but the likelihood of him securing employment (outside his current sympathetic environment) is low. Similarly, she said he would have the capacity to perform the inherent duties of a delivery driver on three days per week for three hours per day but, again, thought the potential for him securing such employment was low. In all the circumstances, I accept that as an opinion which accords with reality.
53 I have already commented upon the plaintiff’s stoicism. The plaintiff worked in a physically arduous job at the same work site for 30 years. Despite his excellent work history, the employer did not find it realistic to retain his services as a result of the subject injury and the restrictions it created. Further, despite the loss of that very long term employment experience, the plaintiff found other work of a manual nature that falls within his now reduced physical capabilities. The plaintiff himself in the witness box and all objective factors convince me that he is a man who, since the receipt of his injury and today, has exercised his ability to earn to the maximum.
54 All medical opinions before the Court indicate that he is unfit for his job as a slaughterman and that his lumbar function is likely to deteriorate with the progression of time. My clear impression was that this is a man who, if capable of working more than the 12 hours that he currently works, would, in fact, work more. I believe him when he said that working 16 hours over the Christmas period was debilitating and he obviously suffered for it with severe leg pain going into his foot and disturbed sleep for a number of days on end. This, indeed, has been the pattern of his back injury ever since it first presented in a very acute form in 2003. All of the medical evidence is that this is the nature of his degenerative disease, that it will continue to deteriorate and he will be prone to flare-ups. The plaintiff said that he needed to work from a financial point of view as he has outstanding debts of $1.25M which include the mortgage on his house and on a number of investment properties in which he and his wife, who works fulltime, have dabbled since the 1990s.
55 I am satisfied that the plaintiff has undergone as much rehabilitative treatment as could be reasonably required. There is no suggestion that any medical treatment will increase the function of his back or reduce his pain level. The prognosis is for progressive deterioration and increased symptoms. In these circumstances, particularly given that the plaintiff has only recently worked increased hours for a period of six weeks, which caused him a great deal of physical grief, I cannot accept that he could work increased hours. I think it is fanciful to consider that a 53 year old man who has a level of education to only Form 4 level and has only ever worked as a slaughterman for some 30 years with a progressive degenerative back would have the ability to undertake retraining for some more sedentary occupation which would enable him to work longer hours and earn more than he is earning.
56 The plaintiff was a very frank witness who said that it is not that he cannot lift and not that he cannot bend but he simply cannot manage the sustained effort involved and this would be so whether he was sitting for prolonged periods of standing for prolonged periods. In my view it does not accord with reality that an employer in the competitive labour market would be prepared to create a position tailored to meet the particular needs of this plaintiff whose level of pain is unpredictable and whose need to rest when his pain is bad is very real and, indeed, put as an essential requisite by his consultant specialist, Mr Timms. The employment which the plaintiff is now doing is very light compared to what he was used to performing as a slaughterman. It allows substantial periods where he is not lifting and bending because he is driving in the utility to another destination or sitting on a chair assembling furniture or lying down out the back, yet still the plaintiff can only effectively manage 12 hours work per week. Indeed, he often struggles to complete the work required of him in that time.
57 In all of the circumstances I do not see why the higher of the range of figures, namely $55,000 should not be taken as reflecting the plaintiff’s pre-injury earning capacity. However, even if the lower figure of $52,250 is adopted, I find that his after-injury work capacity in suitable employment gets nowhere near 60 per cent of such figure. I find that he is presently working to capacity and that is four hours per day on three days per week. For each of those 12 hours he earns approximately $20 per hour. Even if I were to take the highest earnings that he has made in his employment with Bay Living since he commenced with them, namely $8,257 in the year ending 30 June 2009. It is abundantly clear as a matter of arithmetic that the plaintiff has established a loss of earning capacity of 40 per cent or more. I am satisfied that the loss of in excess of 40 per cent after comparing his after-injury earnings in suitable employment with his before-injury earnings is permanent. I find that there is no further retraining or rehabilitation which would be likely to increase that capacity to result in the plaintiff earning more than 60 per cent of his without- injury earnings. Accordingly, I find that the plaintiff has satisfied me that the consequences of his impairment are serious also with respect to loss of earning capacity.
58 I grant leave to the plaintiff to bring proceedings in accordance with s.134AB(16)(b) for the recovery of damages for pain and suffering and for loss of earning capacity for injury to his back arising out of or in the course of or due to the nature of his employment with the defendant from October 2003 to December 2006.
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