Collins v Catalyst Recruitment Systems Pty Ltd (Revised)
[2011] VCC 859
•6 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00348
| TREVOR COLLINS | Plaintiff |
| v | |
| CATALYST RECRUITMENT SYSTEMS PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 2 and 3 May 2011 |
| DATE OF JUDGMENT: | 6 May 2011 |
| CASE MAY BE CITED AS: | Collins v Catalyst Recruitment Systems Pty Ltd (Revised) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 859 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lower back – development of a secondary psychiatric condition – the need to disentangle – whether the consequences in terms of pain and suffering and loss of earning capacity met the statutory test: section 134AB (38)(c) and (d).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with | Ryan Carlisle Thomas |
| Mr A Macnab | ||
| For the Defendant | Mr S Smith with | Wisewould Mahony |
| Mr K Galpin | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 2 February 2010 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring a proceeding for pain and suffering and loss of earning capacity.
3 Mr C Harrison SC appeared with Mr A Macnab of Counsel for the plaintiff, and Mr S Smith of Counsel appeared for the defendant.
4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • Dr P Jain, general practitioner, gave evidence and was cross-examined; • Patient details of referrals sheet prepared by Dr Horsley: Exhibit A; • Clinical notes of Dr Jain regarding the plaintiff: Exhibit B; • Letter of instruction to Dr Jain dated 8 March 2011: Exhibit C; • Plaintiff's income summary: Exhibit D; •
The plaintiff's Court Book (“PCB”) pages 5-82; and from the defendant’s Court Book (“DCB”) pages 111-116: Exhibit E;
• The defendant’s Court Book pages 17-110 and 117-126z: Exhibit 1.
The Statutory Scheme
5 The relevant considerations which apply to such an application based upon subsection (37)(a) are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(f)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] (supra)
[4] (1994) 1 VR 436
6 The relevant considerations which apply to such an application based upon subsection (37)(c) not referred to above, are as follows:
(a) Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious” to the extent of being “severe". (e) Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise. (j) In conformity with Barwon Spinners, I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application. 7 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
8 The plaintiff was born on February 1961. He is now fifty years of age. He is either divorced or separated. He has two sons who are in his care.
9 The plaintiff obtained a modest schooling. He last attended the Ballarat North Technical School completing Year 7. After leaving school he worked in factories, service stations, as a cleaner and otherwise has worked as a labourer.
The Incident
10 The defendant is a recruitment agency. The plaintiff registered with the defendant. It found him work at the Geelong Mail Centre.
11 On 2 November 2006, the plaintiff was sorting mailbags which weighed between 25 to 30 kilograms. They were delivered to the point where the plaintiff worked in a stillage.
12 The plaintiff had been working for about one hour. He went to remove a mailbag from a stillage. He described it as a very heavy bag. As he lifted the bag, he was met with very sharp pain in his lower back which went up his spine and also into his left leg.
13 The plaintiff said that the pain was so severe that within a minute or two he had to stop what he was doing. He rested for a little while before attempting to return to work. He was unable to because the pain worsened.
The Plaintiff's Medical Treatment
14 The plaintiff first saw Dr Mahmood, general practitioner. No report was obtained from Dr Mahmood. However, it is probable that the plaintiff saw Dr Mahmood somewhere between 2 and 6 November 2006, because Dr Mahmood referred the plaintiff to have a CT scan which was requested on 6 November 2006 and undertaken on 8 November 2006.[5]
[5] PCB 13
15 The radiologist who took the CT scan reported that it disclosed a small annular disc bulge at L5-S1 which he did not consider being of any particular significance, and which was not causing any neural compromise.
16 It is unclear what medical treatment the plaintiff obtained from Dr Mahmood. The plaintiff subsequently saw Dr Jain, general practitioner, on 25 July 2007. Dr Jain then took over the plaintiff's treatment.
17 Dr Jain referred the plaintiff to have a plain x-ray and a CT scan of his cervical spine which was undertaken on 27 July 2007. It would appear that she referred him to have the x-ray and CT scan, because when the plaintiff first saw her he was complaining of pain in his neck, shoulders and lower back, which he told her he had suffered since the occurrence of the incident.
18 The x-ray and CT scan did not disclose any significant abnormality which is relevant to this proceeding. The CT scan did disclose considerable spondylitic degenerative change in the cervical spine. However, the plaintiff's application for serious injury is not based on any impairment of function of the cervical spine.
19 Dr Jain then referred the plaintiff to have a CT scan of his lumbar spine which was undertaken on 25 February 2008. The radiologist who took the CT scan reported that there was minor disc bulging at L3-4 to L5-S1 with a slight narrowing of the left lateral recess at L4-5 secondary to the disc bulging, facet joint and ligament and flavum hypertrophy.[6]
[6] PCB 13B
20 Dr Jain said that the plaintiff saw her approximately once a month, mainly to obtain prescriptions for analgesics. Dr Jain’s clinical notes were tendered in evidence.[7] The notes reveal that the plaintiff did attend approximately once a month and was provided a variety of analgesics, including Panadeine Forte.
[7] Exhibit B
21 Dr Jain then referred the plaintiff to Dr Muir, pain specialist. The plaintiff first saw Dr Muir on 27 March 2008. Dr Muir provided the plaintiff with medial branch blocks on 9 October 2008.[8] He told Dr Muir that he experienced a 50 per cent reduction in the pain in his lower back.[9]
[8] PCB 36A
[9] PCB 34
22 Dr Muir organised for the plaintiff to have a course of further branch blocks which were undertaken on 20 November 2008;[10] 29 January 2009,[11] and 12 March 2009.[12] The plaintiff told Dr Muir that the blocks were of little benefit. It would appear that the plaintiff also had an epidural steroid injection, presumably under the supervision of Dr Muir, which the plaintiff told Dr Muir had made his lower back pain worse.[13]
[10] PCB 36B
[11] PCB 36C
[12] PCB 36D
[13] PCB 34
23 In Dr Muir's most informative report, dated 28 March 2011, he also refers to the plaintiff being prescribed Lyrica, which was to help him sleep and to treat his left leg pain, and Oxycodone for pain relief at a time when the use by the plaintiff of Durogesic patches was withdrawn.
24 Dr Muir was ultimately of the opinion that the plaintiff was suffering from non- specific lower back pain. He considered that the plaintiff had probably suffered an injury to the lumbar discs which were the most probable cause of his pain, and that there was a component of radicular irritation which I presume he considered to be the cause of the plaintiff's complaints of left leg pain.
25 Dr Muir was also of the opinion that the plaintiff would not be able to undertake his pre-injury duties in the foreseeable future. He then painted a gloomy picture for the plaintiff's future employment prospects when he said that he did not consider that the plaintiff was fit for suitable employment. However, he saw a role in a vocational assessment to determine whether the plaintiff had any potential to return to suitable employment.[14]
[14] PCB 35
26 The plaintiff last saw Dr Muir in May 2009. However, he continued seeing Dr Jain.
27 The plaintiff's lower back pain and disablement persisted during 2006, 2007, and 2008 and into 2009. By about November 2009 it worsened. The plaintiff saw Dr Jain on 23 November 2009. He complained of worsening back pain; pins and needles in both legs with numbness. She made a note that the plaintiff's analgesics were to be increased. She also wrote a letter of referral to Mr Carey, orthopaedic surgeon.
28 The plaintiff then saw Mr Carey. No report was obtained from Mr Carey. However, in one of Dr Jain’s reports dated 17 March 2010,[15] she referred to the occasion when the plaintiff saw Mr Carey. Mr Carey referred the plaintiff to have an MRI scan which was undertaken on 11 January 2010. The radiologist who undertook the MRI scan reported that there was minor posterior disc bulging at L3-4 to L5-S1.[16]
[15] PCB 20
[16] PCB 14-15
29 Mr Carey reported back to Dr Jain. He informed her that the plaintiff should attend a pain management clinic for treatment for a chronic spinal pain syndrome, and that the spinal condition was absent any radiculopathy.[17]
[17] PCB 20
30 Dr Jain continues to prescribe the plaintiff medication. Her clinical notes revealed that in 2011 she prescribed the plaintiff Lyrica. I infer that the Lyrica was prescribed to achieve the same purpose for which it was prescribed by Dr Muir. She has also prescribed the plaintiff Zoloft for a secondary psychiatric condition, and when she saw the plaintiff in March 2011, she provided him with a referral to see Dr Black, psychiatrist. No report was obtained from Dr Black.[18]
[18] Exhibit B
31 What is clear from the reports of Dr Jain; from her clinical notes; her oral evidence; and the reports of Dr Muir is the emergence of a secondary psychiatric condition in the plaintiff's presentation.
32 Mr Smith cross-examined Dr Jain on a number of issues relevant to the defendant’s challenge to the basis of the plaintiff's application for serious injury. In particular, he concentrated his cross-examination on the worsening of the plaintiff's lower back injury in 2009 when compared with what it was like in 2007 and 2008; the plaintiff's abuse of alcohol and illicit drugs; and whether that was associated with the worsening of his lower back injury in 2009, and whether the source of the pain and disablement complained of by the plaintiff was also produced by his psychiatric condition.
33 Dr Jain essentially gave the following evidence on each of the issues identified in the last paragraph:
•
The plaintiff's drinking and use of illicit drugs was not associated with the worsening of his lower back pain in 2009;[19]
•
She considered that it might have been that, when the plaintiff's pain worsened, he started drinking more;[20]
•
She considered that because of the plaintiff’s back pain, he was unable to do anything at his home and as a consequence, his depression increased;[21]
• She considered that the plaintiff was not fit to go back to work;[22] •
She considered that the cause of his lower back pain and disablement was more physical than driven by his psychiatric condition.[23] However, she did qualify that opinion by saying that she was not a psychiatrist, and by that I understood her to mean that her lack of specific specialised training in psychiatry was an impediment to her giving an unequivocal opinion whether there was any psychiatric component to the plaintiff's presentation of lower back pain and disablement.
[19] Transcript 52
[20] Transcript 53
[21] Transcript 54-55 and 57
[22] Transcript 56
[23] Transcript 60
34 Dr Jain considered that the plaintiff was suffering from a psychiatric condition so she referred him to see Dr Black. She also referred the plaintiff to Ms Handsjuk, psychologist, who the plaintiff first saw on 9 October 2007. Ms Handsjuk saw the plaintiff mostly in 2007 and 2008, and last on 7 April 2010.
35 Ms Handsjuk obtained a history from the plaintiff of fairly serious social discord in his home life, much of which emanated from the plaintiff’s background of unlawful conduct; the fact that he was caring for three teenage boys; his abuse of tobacco and alcohol and his use of prescription painkillers, and also the fact that he was suffering from lower back pain and disablement. Ms Handsjuk concluded that she was not able to put into effect any plan to treat the plaintiff because of the severity of his depressive symptoms.[24]
[24] PCB 21-27, and particularly at PCB 27
36 What emerged from the cross-examination of the plaintiff; Dr Jain's clinical notes; the cross-examination of Dr Jain, and the medical reports of Dr Horsley, occupational physician, is a picture of the plaintiff who had abused alcohol and illicit drugs to a very significant degree. The best summary of that is contained in the history taken by Dr Horsley that over a three-week period, the plaintiff could spend up to $800 on alcohol, and had engaged in binge drinking.[25] Dr Jain's clinical notes reveal that the plaintiff had used amphetamines and LSD at various times since the incident.[26]
[25] PCB 51
[26] Exhibit B
37 Dr Jain was cross-examined, particularly about the plaintiff's illicit drug habit. It was her impression that the plaintiff’s resort to drugs of that kind was occasional, although it is clear that the basis for her understanding was obtained from the plaintiff and not from any independent source.[27] The plaintiff was candid in his admission that in the latter part of 2009, he resorted to using illicit drugs to help him deal with his lower back pain.[28] He said he is no longer using illicit drugs.[29]
[27] Transcript 49-50
[28] Transcript 14-15
[29] Transcript 83
Other Medical Opinions
38 The plaintiff has been examined by number of medical practitioners on a medico-legal basis. With one exception, there seems to be unanimity in the opinions of those medical practitioners that the plaintiff has suffered an injury to his lower back; however, the opinions relevant to the extent of the injury vary.
39 The following is a short summary of those opinions:
•
Dr Horsley examined the plaintiff on 30 July 2009 and 18 November 2010. She was of the opinion that the plaintiff was suffering from mechanical back pain with some referred pain into his legs.[30]
•
Mr Doig, orthopaedic surgeon, examined the plaintiff in July 2009 and 17 August 2010. He was of the opinion that the plaintiff had suffered an L5- S1 disc disruption. He considered that the plaintiff had suffered some left-sided S1 nerve root compression consistent with decreased ankle jerks on the left-hand side, and he noted some evidence of wasting of the left leg compared to the right and also restricted straight leg raising.[31]
•
Dr Mutton, occupational physician, examined the plaintiff for the defendant on 16 April 2007. He was of the opinion that the plaintiff had suffered an acute musculo-ligamentous strain. He doubted that the plaintiff had suffered a disc injury.[32]
•
Dr Bowles, occupational physician, examined the plaintiff for the defendant on 9 April 2008. He was in some doubt about whether the plaintiff was suffering from mechanical backache because he considered that the examination he conducted was clouded with inconsistencies, and in that respect he meant by the presence of non-organic features.[33]
•
Mr Battlay, surgeon, examined the plaintiff for the defendant on 17 June 2008. He was of the opinion that the plaintiff was suffering from non- specific low-back pain.[34]
•
Mr Shannon, orthopaedic surgeon, examined the plaintiff for the defendant on 10 November 2009 and 22 November 2010. He was of the opinion that the plaintiff was suffering from mechanical back pain associated with disc degeneration.[35]
•
Dr Davison, occupational physician, examined the plaintiff for the defendant on 16 August 2010. I will deal with the opinion of Dr Davison separately because I consider it to be worthy of serious criticism.
[30] PCB 53
[31] PCB 56 and 58
[32] DCB 46-47
[33] DCB 54
[34] DCB 65
[35] DCB 83
40 Dr Mutton, Dr Bowles and Mr Shannon were of the opinion that there were non-organic factors present which made it difficult to determine the organic cause of the complaints made by the plaintiff of lower back and leg pain. Dr Jain expressed a similar opinion in her oral evidence, although she repeatedly said that she considered the plaintiff's presentation was one of more physically-based pain than influenced by non-organic features. Dr Horsley expressed a similar opinion in her oral evidence.[36]
[36] Transcript 22-23
41 However, apart from Dr Bowles, the other medical opinions support the conclusion that the plaintiff at least has mechanical back pain, and at the other end of the spectrum of medical opinion, a discal injury with nerve root compression.
42 Before dealing with what medical evidence I accept, I want to turn to the opinion of Dr Davison. It is expressed as an independent medical examination; however, it is couched in terms which do not impress me that Dr Davison brought an independent mind to that examination.
43 Dr Davison was highly critical of the Medical Panel finding of a 5 per cent whole person impairment. It suggests that because there is a finding contrary to his own, that it is deserving of a rebuke by him. He then referred to the substantial delay in the plaintiff submitting a worker’s compensation claim on the fact that the plaintiff had only been working for one day as a mail sorter, as if to suggest that those two facts cast serious doubt on the efficacy of the plaintiff's claim.
44 Overall, there was a strong thread of cynicism throughout the opinion expressed by Dr Davison. It cannot possibly be the role of an independent medical examiner to stand as a reviewer of other medical examinations or to engage in a forensic analysis of the basis of the claim. It concerns me that these features of Dr Davison's approach coloured the opinions he later expressed.
45 In any event, there are features of the opinion of Dr Davison which are consistent with the conclusions reached by other medical practitioners that there was a strong non-organic presentation in the plaintiff when he was examined.[37]
[37] DCB 120-121
46 The non-organic presentation of the plaintiff was the basis upon which Mr Smith submitted that the consequences of the plaintiff's lower back pain were contributed to by both the impairment of the function of his lower back and a secondary psychiatric condition, and in the absence of disentangling, the plaintiff's application must fail.
47 However, the need for any so-called disentangling only arises if I am unable to identify the body function said to be impaired and the consequences arising from the impairment. The mere fact that there are non-organic factors apparent in the presentation of the plaintiff does not immediately call for any so-called disentangling: see Records Pty Ltd v Matthew James Jones;[38] Zivolic v Hella Australia Pty Ltd[39] and Jayatilake v Toyota Motor Corp Australia Ltd.[40]
[38] [2006] VSCA 180
[39] [2007] VSCA 142
[40] [2008] VSCA 167
Serious Injury
Pain and Suffering
48 The work undertaken by the plaintiff on 2 November 2006 involved heavy lifting which is the type of activity not uncommonly associated with the occurrence of injury to the spine.
49 I find that the work undertaken by the plaintiff was of the nature likely to cause an injury to the plaintiff's lower back. I accept the plaintiff's evidence that he did suffer an injury in the course of lifting a heavy bag from a stillage. In any event, apart from Dr Bowles and Dr Davison, there seems to be unanimity amongst the examining medical practitioners that the plaintiff did suffer an injury to his lower back.
50 The next matter which arises for consideration is the nature and extent of the injury to the plaintiff's lower back. The plaintiff complained of not only pain in his lower back but also pain in his legs. It suggests a degree of discal injury causing some degree of irritation resulting in referred pain into his legs.
51 Mr Doig was of the opinion that there was a discal injury at L5-S1, with some probable irritation of the S1 nerve root which he considered was an explanation for the plaintiff's complaints of lower back pain. Furthermore, Mr Doig unearthed some objective evidence to support that conclusion, that being, decreased ankle jerks on the left-hand side, and some evidence of wasting of the left leg. Dr Muir was of a similar opinion.
52 The other medical practitioners who were of the opinion that the plaintiff had suffered an injury to his lower back chose to refer to the injury as “mechanical”. Dr Horsley gave a similar opinion, but accepted that there was referred pain into the plaintiff's legs.
53 I considered the evidence of Dr Jain to be of critical importance in understanding the extent to which the plaintiff’s psychiatric condition contributes to the consequences for which he contends.
54 I thought that Dr Jain gave her evidence in a quiet, well considered if not understated manner. Despite being pressed during cross-examination, she repeatedly said that the cause of the plaintiff's lower back pain was more physical than driven by his psychiatric condition. The impression I obtained from her answers during cross-examination was that she considered that the physical component was the predominant cause of the consequences suffered by the plaintiff.
55 On the basis of the foregoing, I find that it is more probable than not that the plaintiff suffered an injury to his lower back giving rise to mechanical back pain, and that the injury is responsible for referred pain into the plaintiff's legs. I also find that the impairment of the function of the plaintiff's lower back is permanent. There is no evidence to suggest the contrary except for the opinions of Dr Mutton, Dr Bowles and Dr Davison, whose evidence I reject on that issue.
56 Having made the findings that I have, I do not see any need to engage in the exercise of disentangling. I have no difficulty in determining the consequences contended for by the plaintiff, as opposed to the consequences which have arisen from the development of a psychiatric condition.
57 The plaintiff swore an affidavit on 16 September 2009. He has difficulty in undertaking simple and routine domestic tasks such as vacuuming and mowing his lawns. He has difficulty lifting, and is otherwise restricted in his general movements. I accept the plaintiff's evidence about these matters.
58 Although the plaintiff said that he played volleyball, darts and pool before the incident, and is not able to do them now, it became apparent during his cross- examination that he had not engaged in those activities for a significant period of time prior to the incident. In any event, Mr Harrison abandoned reliance upon them given the plaintiff's evidence.
59 The plaintiff was a keen fisherman. He was adept at fixing cars. He has two incomplete car engines in his garage which he was rebuilding. The rebuilding stopped when he was injured. I accept the plaintiff's evidence that he cannot fish any more and his capacity to undertake fixing work on cars is beyond him.
60 The plaintiff struck me as being a relatively poorly educated man who led a modest uncomplicated life in the suburbs of Geelong. He experienced difficulty in his life due to his separation from his wife/partner which left him with the task of raising his two sons, and a third boy who he cared for.
61 After suffering injury, the plaintiff was provided with invasive medical treatment principally by Dr Muir. Firstly, with a regime of conservative treatment, and then changed his medication to see what best suited him. Further, he was given a number of injections for the purpose of either eliminating or at least reducing the pain he was experiencing.
62 Since leaving the care of Dr Muir, he has seen Dr Jain monthly. He remains under a regime of medication which Dr Jain considers to be necessary to assist the plaintiff in dealing with the pain he experiences.
63 It would appear that the preponderance of the medical evidence supports the conclusion that the plaintiff could not engage in his pre-injury work. The preponderance of the medical evidence also supports the conclusion that the plaintiff has retained a capacity for some suitable employment.
64 Dr Horsley was of the opinion that the plaintiff needed to undergo pain management and vocational retraining which would place her in a better position to make an occupational assessment of the plaintiff. Dr Muir was of a similar opinion, that retraining would be required and that vocational assessment would need to be undertaken to determine what potential the plaintiff retains to undertake suitable employment.
65 Mr Doig, who expressed the opinion that the organic nature of the plaintiff’s injury to his lower back was more serious than referred to by other medical examiners, did not suggest that the plaintiff was unemployable. Indeed, he also referred to pain management as the future treatment required by the plaintiff. Mr Carey communicated a similar opinion to Dr Jain.
66 What the foregoing leads me to is a conclusion that the plaintiff is disabled for employment which involves lifting, pushing, pulling and carrying. He may well have the potential to pursue suitable employment with the sort of pain management and retraining referred to above.
67 There are a number of factors present which I consider are consistent with the plaintiff demonstrating consequences which meet the statutory test. He has constant pain. His capacity for full, free and unrestricted movement has been lost. His capacity to undertake movements, such as lifting, pushing, pulling and carrying are limited. He is unable to do simple and routine domestic tasks such as vacuuming and mowing his lawns. He is reliant on medication and fairly constant medical attention by Dr Jain to supervise the treatment of his lower back injury.
68 It occurs to me that all of the characteristics of the impairment of the function of the plaintiff's lower back satisfy the statutory test for pain and suffering. I have reached that conclusion after having made the comparison which I am required to make.
Loss of Earning Capacity
69 I am not satisfied that the plaintiff has satisfied the statutory test for loss of earning capacity.
70 Although Dr Jain, whose evidence I found impressive, was of the opinion that the plaintiff is unable to work, that evidence must be seen against the evidence of Dr Muir and Dr Horsley who are specialists in the field of occupational medicine. Both are of the opinion that with pain management and vocational retraining, the plaintiff may well have a residual capacity for suitable employment which he can exploit.
71 Mr Smith cross-examined the plaintiff regarding a number of jobs which Mr Smith submitted that plaintiff would be capable of undertaking on a part-time basis. The plaintiff said that none of them was suitable, and when the same were put to Dr Horsley, she was equivocal about whether the plaintiff was fit for any of those jobs. It seemed to me that her equivocation was based upon not being in the best position to either make an assessment of the plaintiff, given that he had not undergone pain management and vocational retraining.
72 Having analysed the evidence of all the medical practitioners who have expressed an opinion regarding the plaintiff's capacity for suitable employment, it seems to me that there is a fairly strong theme through that medical evidence that the plaintiff does have a residual capacity for suitable employment.
73 The plaintiff's history of employment is at best chequered. I was provided with a schedule of the income earned by the plaintiff for the financial years ending 30 June 2005, 2006 and 2007. The most the plaintiff has earned was $5,245.00 for the year ending 30 June 2005.[41]
[41] Exhibit D
74 The plaintiff said that he was unable to work because he had to look after his sons, but as soon as they were off his hands he intended to return to full-time employment. Mr Harrison submitted that I should, therefore, work on the basis that the plaintiff would be now capable of 38 hours’ work per week at $15 per hour.
75 Mr Harrison submitted that if I accepted that submission, then the plaintiff would succeed in proving the requisite degree of loss of earning capacity to meet the statutory test.
76 I do not accept the plaintiff's evidence that he would have returned to work on those hours. I think it is relevant to look at his past which demonstrates very obviously that the plaintiff's working history was extremely poor. To accept the submission made by Mr Harrison is a quantum leap of faith that the plaintiff would have returned to work of that degree at some stage in the future, and it was only the need to look after his children that prevented him from working much more than to the modest degree reflected in the schedule.
77 For these reasons I reject the plaintiff's claim for loss of earning capacity. Should there be any doubt, it is because he may have a residual capacity for suitable employment given the evidence of Dr Muir, Dr Jain and some of the other occupational physicians, and my rejection of the proposition that he would now be working full-time if he had not suffered injury.
The Psychiatric Condition
78 Mr Harrison submitted that if I rejected any part of the plaintiff's application based upon the injury to his lower back, then I should grant the plaintiff leave to bring a proceeding at common law relevant to pain and suffering consequences and loss of earning capacity consequences based upon the plaintiff's evidence of suffering a secondary psychiatric condition and on the opinion of Dr Jager, psychiatrist.
79 The plaintiff's evidence that he has suffered a significant secondary psychiatric condition is rather subtle. There is very little in his affidavits, save for reference to the medical practitioners who have treated him, in the fact that he is taking medication. He referred to Lyrica as an anti-depressant medication, but my impression from the evidence of Dr Muir and Dr Jain is that Lyrica was used to treat the plaintiff's lower back and referred leg pain.
80 Sure enough there are references in the reports of Ms Handsjuk to the plaintiff’s symptoms of a psychiatric disorder, and also in many of the other medical reports, but little was said about that the plaintiff either in his affidavits or in his oral evidence of any particular significance.
81 In any event, even if I were to treat Dr Jager’s opinion as being supported by the evidence of the plaintiff, I am not convinced that it creates the basis for the submission ultimately made by Mr Harrison.
82 Dr Jager refers to the plaintiff suffering a Major Depressive Disorder; alcohol dependence; Conduct Disorder and a Personality Disorder not otherwise specified. What concerns me is that I am unable to determine whether the plaintiff’s alcohol dependence is a consequence of the impairment of the function of his lower back or as a consequence of these secondary psychiatric conditions; what the conduct disorder really is, save that it is suggested by Dr Jager to be a psychiatric disorder of some kind relevant to the plaintiff’s childhood; and I have no idea what a Personality Disorder not otherwise specified is. Is it related to the impairment of function of the plaintiff's lower back in the sense of being part of the secondary psychiatric condition, or is it independent of both, in other words, entirely coincidental?
83 Furthermore, Dr Jager refers to the alcohol dependence as being non-work- related. I can only assume that statement means it has no relationship with the plaintiff’s impairment of function of his lower back or the secondary psychiatric condition, although I am not confident that conclusion is necessarily a correct one.
84 In any event, I consider that the opinion of Dr Jager does not support the submission made by Mr Harrison. Again, should there be any doubt, there is little evidence from the plaintiff about his psychiatric condition. It seems to me that this application was always based primarily on the injury to the plaintiff's lower back, and otherwise the opinion of Dr Jager does not fit the matrix of paragraph (c) of the definition of serious injury for the reasons outlined above.
Conclusion
85 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant.
86 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
- - -
0
5
0