Connolly v Austin Hospital and VWA
[2012] VCC 864
•30 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. 11-00583
| ROBERT JOSEPH CONNOLLY | Plaintiff |
| v | |
| AUSTIN HOSPITAL | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 May 2012 | |
DATE OF JUDGMENT: | 30 May 2012 | |
CASE MAY BE CITED AS: | Connolly v Austin Hospital & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 864 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – serious injury application – injury to the lumbosacral spine – capacity to work – credit of plaintiff - leave granted for pain and suffering only
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB
CASES CITED – Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
JUDGMENT – Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with Mr M Riddle | Victorian Compensation Lawyers |
| For the Defendants | Mr I McDonald | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the lumbosacral spine.
6 The plaintiff did not pursue his application pursuant to clause (c) of the definition of “serious injury” defined as meaning permanent severe mental or permanent severe behaviour disturbance or disorder.
7 The plaintiff relied upon four affidavits: two affidavits sworn by himself on 19 October 2010 and 16 April 2012, one sworn by his father, Gerard Patrick Connolly on 16 April 2012 and another sworn by his partner, Laura Monique Klein on 5 April 2012. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1]S.134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the first defendant.[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c)“the consequences” to the plaintiff of his impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, when judged by comparison with other cases in the range of possible impairments…” be fairly described as being more than significant or marked and as being at least very considerable.”[4]
[2]S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]S134AB(38)(b) and (c)
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish.[5]
(i)that at the date of hearing he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (e) of s.134AB(38) of the Act;[6]
(ii)that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[7] and
(iii)that even with rehabilitation and retraining he will still sustain a loss of 40% or more.[8]
[5]S.134AB(19B) and 38E of the Act
[6]S.134AB(38)(e)(i) of the Act
[7]S.134AB(38)(e)(ii) of the Act
[8]S.134AB(38)(a) of the Act
11 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, that is both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at [63]
12 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
13 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10][2009] VSCA 181
[11]Ibid at [42]
14 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[12]
[12]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
15 The test for “serious”, as set out in paragraph (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
16 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[13]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[14]
[13]S.134AB(38)(j) of the Act
[14] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issues
17 Counsel for the defendants informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, and loss of earnings in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
18 Secondly, he does not satisfy the statutory requirements for loss of earning capacity, in that he does not establish that he has sustained a loss of earning capacity of 40 per cent as at the date of hearing.
19 Thirdly, his credit is in issue.
The Plaintiff’s Evidence
20 In his affidavits sworn on 18 October 2010 and 16 April 2012, the plaintiff deposes that:
· He is twenty-nine years of age. He completed Year 12 of high school. He has no other formal qualifications. He lives with his parents.
· In the past he experienced transient episodes of niggles of pain in his back, for which he received treatment. At the time of his injury he was symptom free.
· In or around February 2006, he started work as a spinal technician with the first defendant. This involved transferring spinal patients from beds to trolleys and turning them over every two hours.
· Over the course of his employment from February 2006 to November 2008, he suffered injury to his spine, particularly the lumbar spine, due to the heavy nature of his work.
· Prior to 14 February 2008, he had some pain in his back at work and had received physiotherapy. On or about 14 February 2008 he suffered pain in his back during his shift and went to the staff clinic for physiotherapy. He continued working. On or about 18 June 2008, he noticed pain in his back at the gym. He went to the Austin Hospital staff clinic and the pain went away and he was able to continue with his normal duties.
· On or about 1 July 2008, he was moving a patient when he experienced sharp pain in his back. He took several weeks off work, then returned to work.
· On or about 26 November 2008, he was unable to continue working due to very bad back pain. He required several months off work. Following this incident he was not able to return to full duties except for a short attempt in April 2009.
· In May 2010, the modified duties he was working were no longer available and in September 2010 he was made redundant. He has not returned to work. He has attempted to return to study but experienced difficulties due to the pain and restriction caused by his injury.
· He continues to consult his general practitioner and takes pain medication, including Voltaren and Panadeine Forte.
· He experiences constant, though varied, pain in his lower back. He feels frustrated by his incapacity and injuries.
· He enjoyed his work and is upset that he had to cease work.
· His injury has placed strain on his relationship. Prior to his injury he was living with his partner, supporting her while she studied. After his injury he was no longer able to financially support his partner and has had to move in with his parents. His injury has also interfered with his normal sexual function due to pain.
· He has trouble sleeping and often wakes due to pain. His has difficulty bathing and dressing due to pain and it takes him longer to do these tasks.
· He has difficulty standing, sitting, reclining and walking for prolonged periods. He has difficulty stooping, squatting, getting up after kneeling, reaching and bending as well as repeated or prolonged twisting and leaning. He experiences increased pain with repeated or prolonged carrying, lifting, pulling, climbing and exercising.
· Prior to his injury, he volunteered with the Victorian Country Fire Authority, which he can no longer do. He also played in a basketball team and was a keen golfer. He is now unable to play basketball and golf increases the pain in his lower back. He continues to go to the gym but is limited in what he can do. He has developed an exercise regime to strengthen his back. He is restricted in his ability to perform activities in the home including cleaning gutters, cooking, mowing and cleaning.
21 In his affidavit sworn on 17 April 2012, Mr Gerard Connolly deposes that:
· He is the father of the plaintiff.
· He has observed the difficulty the plaintiff has performing tasks, including household duties, and that he adjusts his posture frequently.
· He has noticed the plaintiff is more withdrawn and quiet since the injury.
22 In her affidavit sworn on 5 April 2012, Ms Larah Klein deposes that:
· She is the partner of the plaintiff.
· There are times when she has had to take the plaintiff to doctors and the chemist for medication because his pain was particularly bad.
· Since the injury, her relationship with the plaintiff has more tension in it and the plaintiff has more difficulty performing sexual activity.
The Plaintiff’s Evidence in Cross-examination
23 The plaintiff was cross-examined and gave the following pertinent evidence:
· He agreed that before he commenced work at the Austin he had a sore back for which he took anti inflammatory medication.
· After leaving school he started work as a barman at the RSL Club in Greensborough, working full time for approximately two years.
· He studied a criminal justice course at RMIT for a semester. He continued to work as a barman and started a course at the William Angliss in management, which he ceased because he did not attend. He then worked casually as a court recorder with Legal Transcripts for approximately two or three years and stopped because there was insufficient work. He continued his part time works as a barman.
· He was unemployed for approximately twelve months before he commenced work at the Austin Hospital.
· He returned to light work duties in early 2009 alternating between two different jobs.
· By March 2009, he was working 30 hours per week, increasing to 38 hours per week in April 2009. In November 2009, his hours reduced because of the unavailability of work. He continued to work light duties until May 2010, when his services were terminated in September 2010. He would have continued working if there had been work available.
· He has sought employment but has not been successful.
· He agreed he pursued weight training at the gym prior to February 2008. he now weight trains to build up his core muscles in accordance with a program suggested by the physiotherapy department at the Austin provided after the February 2008 injury.
· In January 2010, he first suffered episodes of epilepsy for which he takes Epilim daily.
· In March 2011, he enrolled in a Bachelor of Exercise and Sport Science at RMIT.
· In April 2011, he had a significant seizure, followed by a further episode.
· In April 2011, he applied for, and was granted, special consideration based on his epilepsy. He did not resume his studies and in August 2011 he deferred until 2012. He agreed that until April he had been undertaking the course satisfactorily.
· In late December 2011 or January 2012, he re-enrolled for 2012. He said for the past couple of months he has been thinking of withdrawing. He withdrew last week because he can’t go through with it, it’s a waste of his money because he will fall behind. He said he can’t sit for long periods either in lectures or in front of the computer because of his back injury. He agreed his epilepsy was a factor.
· He agreed he decided to give up his course at RMIT in the last week without discussing his decision or seeking advice from a doctor.
· He agreed when he saw Mr Mangos in April 2012 he was optimistic about studying full time.
· He agreed he had not told Dr Jackson and Dr Kaplan (psychiatrists) about his seizures in April 2011. He agreed he told Mr Kaplan in March 2012 that studying was beneficial for his psychological outlook.
24 In re-examination, the plaintiff said:
· Ayres Management told him he was unsuccessful in obtaining suitable employment because of his back injury.
· When he re-enrolled for 2012, he ceased receiving WorkCover payment, he was broke and did not have $2,500 to pay for the course.
· While he was studying in 2011, he had severe headaches and his back was getting a little bit aggravated.
Investigations
25 On 1 August 2008, a CT scan of the plaintiff concluded:
“Bilateral pars defect at L5-S1 with minor spondylolisthesis and diffuse disc bulge. Narrowing of the right exiting neural foramina on the right side with possible nerve root impingement at this location.”
26 On 22 June 2009, an MRI scan of the lumbar spine showed:
“There is bilateral pars defect at L5-S1 with mild-moderate neural foramen narrowing bilaterally but no nerve root compromise.”
27 On 19 August 2011, an MRI scan of the lumbar spine concluded:
“Mild disc degenerative changes at L4/5. Grade 1 L5/S1 spondylolisthesis. No significant central canal stenosis. Moderate narrowing right L5 foramen.”
28 On 16 March 2012, an MRI scan of the lumbar spine concluded:
“Chronic mildly displaced bilateral L5 pars defects as described, resultant grade 1 anterolisthesis of L5 on S1, central to right paracentral disc protrusion. Mild flattening of exiting right L5 nerve, but no other specific focus of nerve compression.”
The Plaintiff’s Medical Evidence
Dr A Mohtaja
29 In June 2008, the plaintiff consulted his general practitioner in respect to low back pain after lifting weights at the gym. He provided a history of developing low back pain in February 2008 when he was rolling a patient. In July 2008, the pain became worse when involved with a patient and he was on modified duties from July 2008 until 22 August 2008. In August 2008, Dr Mohtaja said the plaintiff had suffered from low back pain due to disc bulge and spondylolisthesis. It was his view the plaintiff may recover in the next two to three months, but would develop lower back pain in the future if he does any heavy lifting. He said the plaintiff had a capacity to work, but no heavy lifting at work or privately.
30 In April 2012, Dr Mohtaja said the plaintiff could not work in any occupations which require heavy lifting and repetitive lower back bending. As the plaintiff’s pre-injury duties required lifting and bending he could not perform his pre-injury employment. He could perform any occupation, social, domestic and recreational activities that do not require lifting and repetitive lower back bending. He expected the plaintiff’s lower back pain to improve over time. He said the plaintiff was susceptible to lower back pain if he accidently lifts, bends or twists his back.
Mr Brian Barrett
31 In July 2011, the plaintiff was referred by his general practitioner to Mr Barrett, orthopaedic surgeon. Mr Barrett said the only solution to his ongoing problem would be a two-level L4-S1 spinal decompression and fusion procedure, which would improve his ongoing symptoms and disability. Even with surgery the plaintiff would still need to avoid all prolonged stooping and heavy lifting because the two-level fusion would tend to put more strain on the upper lumbar discs. He could not return to heavy lifting situations because they caused the lower lumbar discs to rupture in the first place.
Mr Kenneth Brearley
32 On 30 March 2012, the plaintiff saw Mr Brearley, surgeon, at the request of the plaintiff’s solicitors. It was Mr Brearley’s view that the plaintiff had mechanical back pain secondary to L5-S1 internal disc disruption with longstanding mild pre-existing lumbosacral spondylolisthesis with right exited foraminal stenosis. He said the plaintiff was unfit for his pre-injury duties and for any other physical type work. He said he could perform lighter work and referred to the fact that the plaintiff was a full time student of sports science. He said the plaintiff can no longer play competitive basketball or golf. His social outings are restricted because he cannot sit for long periods. He said the plaintiff’s prognosis was not good: he will continue to have pain on attempted lifting, bending and stooping, which restrictions will persist for the foreseeable future.
Dr David Middleton
33 On 2 April 2012, the plaintiff saw Dr Middleton, occupational health and rehabilitation consultant, at the request of the plaintiff’s solicitors. Dr Middleton said the plaintiff suffered an aggravation of previously asymptomatic bilateral pars defects at L5-S1 resulting in derangement at L4-5 with disc protrusions occurring at L4-5 and L5-S1 and possibly increasing the slippage of the Grade 1 spondylolisthesis present, resulting in lumbar instability. He said the plaintiff no longer had the capacity for full time unrestricted manual pre-injury employment. He noted that the plaintiff had not been offered any form of retraining and, despite guidance in job seeking, the plaintiff had failed to gain employment. He said the plaintiff’s injuries had impacted on the plaintiff’s ability to engage recreationally, in that he could no longer participate in sport and similar activities. Domestically, he was not able to support his partner, personally or socially, and he had returned to living with his parents.
34 Dr Middleton said the plaintiff’s prognosis is poor, as the injuries are likely to continue for the foreseeable future and affect his capacity for work and interfere with his enjoyment of life. He was concerned about the plaintiff’s return to study at RMIT in sports and exercise medicine, as the plaintiff reported he avoided practical classes, including exercising, running and contact sports.
35 Dr Middleton expressed reservations about the NES jobseeker plan dated 23 September 2010. He did not think employment as a courier was suitable, as the work is physical and involves carrying parcels, bending, lifting, twisting, and running on occasions. Further, it involves driving a vehicle where the seat is often located over the front wheels. He said a postal delivery officer was a form of couriering and therefore unsuitable. In his opinion, the plaintiff required adequate retraining, which he had not been offered.
Mr Peter M Mangos
36 In April 2012, the plaintiff was referred to Mr Mangos, general surgeon, by his solicitors. Mr Mangos said that the plaintiff had suffered an injury to his back, namely a ruptured L5-S1 lumbar invertebral disc. He thought the cause of the plaintiff’s injury was his congenital spondylolisthesis which had been severely aggravated by the work he was performing. He said the plaintiff was totally and permanently incapacitated for full time unrestricted manual or pre-injury employment and was unable to return to his pre-injury work or any similar work which involved bending and lifting. He accepted that the plaintiff’s injuries interfered significantly with his social, recreational, domestic and sporting activities. He said his prognosis for work related injuries was poor. He said there was no indication that surgery was required.
The Defendants’ Medical Evidence
Dr Michael Bowles
37 Dr Bowles, occupational physician, medically examined the plaintiff in January and April 2009 and January 2010 at the request of the defendants’ insurer. He said the plaintiff was at risk of further back problems and a permanent redeployment should be considered. He said it was unlikely he will return back to spinal tech work in an unrestricted basis in the foreseeable future. He said the plaintiff should remain on modified pre-injury hours and duties and imposed restrictions relating to non-repetitive back bending or lifting of more then 10 kilograms. He recommended that the plaintiff be referred to a vocational rehabilitation expert with the view to an occupational rehabilitation program.
Mr Anthony Buzzard
38 On 13 May 2010, the plaintiff was medically examined by Mr Buzzard, general surgeon, at the request of the defendants’ insurer. Mr Buzzard said the plaintiff had a Grade 1 spondylolisthesis of L5 on S1. He thought the injuries of 1 July 2008 and 26 November 2008 represented aggravation of pre-existing spondylolisthesis. He recommended a regular and self-administered exercise program for the plaintiff. Mr Buzzard said the plaintiff’s height of 198 centimetres was a significant factor in considering his employment potential. He said if the plaintiff has symptomatic spondylolisthesis, then it is reasonable to accept he ought not be working in a job involving that of a spinal technician. He imposed a lifting limit of 10 kilograms without frequent bending and stooping. He said this would not preclude him from many other jobs.
Dr Malcolm Brown
39 In January 2011, the plaintiff was medically examined by Dr Brown, occupational physician, at the request of the defendants’ solicitor. It was his view that the plaintiff did not have capacity to return to his usual work tasks, due to the regular bending required. He said he had capacity to do work which did not involve regular bending, heavy lifting, or standing constantly throughout the work shift. It was his view that the plaintiff’s low back pain was likely to have been due to constitutional aspects and contribution from bending tasks at work. He said the plaintiff was capable of undertaking suitable employment. He did not think his work capacity would change significantly in the next few years.
Dr Tim Hwang
40 In March 2011 and February 2012, the plaintiff was medically examined by Dr Hwang, consultant occupational physician, at the request of the defendants’ insurer. It was Dr Hwang’s view that the plaintiff had an aggravation of pre-existing, previously asymptomatic L5-S1 bilateral pars defect. His prognosis was good. He said the plaintiff will be susceptible to back discomfort which was due to the presence of his underlying condition. He said the plaintiff was not suited for work involving repetitive bending which he felt was due to the plaintiff’s natural susceptibility as a result of the naturally occurring/development pars defect, as well as his tall stature. He said his work related aggravation had rendered him symptomatic, but that the work related factors had not resulted in any significant loss of body function or impairment.
41 Dr Hwang reviewed the NES refresher assessment report and plan by Ayres Management Services dated February 2011. It was his view the plaintiff could perform suitable employment options identified in the report; namely, retail sales assistant, rental sales person, courier, information clerk/officer, and order picker/assembler.
Michael J Dooley
42 In May 2011, the plaintiff was medically examined by Mr Dooley, orthopaedic surgeon, at the request of the defendants’ solicitors. It was his view that the plaintiff was suffering from an underlying structural defect of the lumbar spine; that is, spondylosis, at the L5 level, with a probable Grade 1 spondylolisthesis at the lumbar-sacral level. He said that the plaintiff had aggravated his underlying condition during the course of his work as a spinal technician. He said the plaintiff was avoiding aggravating activities, modifying activities and undertaking regular low impact exercise. He said it was appropriate that the plaintiff continue studying his current course, planning to work in sports psychology, or sports science. He said, if the plaintiff continued to treat his condition as he currently is, then his symptoms will remain stable.
43 He described the loss of lumbar spine function as mild to moderate and said the loss will persist for the foreseeable future. He said the plaintiff will continue to have intermittent low back pain and can reduce the frequency and intensity of these episodes by regular low impact exercise and sensibly modifying his activity. He said he was unfit to perform regular heavy physical work or work that involves a lot of bending and lifting but was capable of undertaking lighter physical work and clerical duties.
Vocational Assessments
44 In February 2011, an NES refresher assessment report and plan was prepared. The plaintiff was examined by Dr Malcolm Brown and the author of the report had available the latest certificate of capacity from the plaintiff’s general practitioner. The plaintiff was consulted for the preparation of the report. It was noted that the plaintiff had excellent verbal English skills, good English reading and writing skills, good numerical skills and adequate computer keyboarding skills, including Word, email and internet skills. A number of transferrable skills were identified. The following jobs were identified: sales assistant, rental sales person, for example equipment, storage, courier, information clerk. At the time of the report, the plaintiff was studying full time and was seeking casual employment to fit in with his full time study program.
Video Surveillance
45 I was shown 6.25 minutes of video taken on 10 February 2012 showing the plaintiff getting into and out of the driver’s seat of a motor vehicle and walking at a shopping complex. The video showed the plaintiff walking normally. The significance of the video was that the plaintiff is currently unlicensed.
46 The defendants admitted to conducting surveillance of the plaintiff for a period of 15 hours on four days in January and February 2012.
47 The video did not assist the defendants.
Credit of the Plaintiff
48 Counsel for the defendants said the plaintiff’s credit was in issue for a number of reasons. First, I was referred to paragraph 29 of the plaintiff’s first affidavit where he deposed that his mobility and reliability is affected. The plaintiff said he only drives locally because he avoids sitting in the car for longer periods because of his back pain. The plaintiff was cross-examined about this paragraph on the basis that he had concealed the fact that he had lost his licence. The plaintiff admitted in his second affidavit that he could not drive because of the loss of his licence.[15] I do not accept that the plaintiff concealed that he had lost his licence. I accept that driving whilst disqualified is a breach of the law but does not affect the plaintiff’s credit.
[15]paragraph 32 of the plaintiff’s affidavit sworn on 16 April 2012
49 Second, the plaintiff had convictions for driving whilst exceeding the blood alcohol limit, refusing a breath test, and assault. Counsel submitted those convictions suggest he is a lawless and unlawful person which affects his credit. I do not accept that the convictions affect the credit of the plaintiff. None of the conviction related to truthfulness. The convictions indicate a breach of the law.
50 Third, the plaintiff pleaded guilty to a breach of the community-based order imposed for the assault. In re-examination the plaintiff said the community-based order required him to perform work that he could not perform because of his back injury. The community-based order was removed and no further penalty was imposed. This does not affect his credit.
51 Fourth, the plaintiff withdrew from the RMIT course approximately a week before the court case commenced. He had not discussed his intention to withdraw with any of the doctors whom he recently consulted.[16] In fact, all doctors except Dr Middleton who saw him in the past twelve months referred favourably to the plaintiff’s studying. Dr Middleton was concerned as to the plaintiff’s ability to perform the physical component of the course. Counsel for the defendants suggested that the plaintiff withdrew in order to advance his case. There was no evidence to support the defendants’ submission. I found the plaintiff’s decision to withdraw confusing, but I accept that his lack of funds was a significant reason for his withdrawal. Consequently, I am not persuaded that the plaintiff’s credit was impugned.
[16]Dr Brearley in March 2012, Dr Middleton in April 2012, Mr Mangos in April 2012, Dr Hwang in February 2012 and Mr Dooley in May 2012
52 The plaintiff said the reason for seeking special consideration in his course in 2011 was due to the back injury, yet the paperwork confirmed it was due to his epilepsy. At no stage did the plaintiff complain to any medical witness that his back injury affected his ability to study. Accordingly, I do not accept the plaintiff’s evidence on this aspect.
53 The plaintiff was consistent in reporting the injury and its causes to doctors whom he saw. There were some inconsistencies in some of the psychiatric reports.
54 The plaintiff answered all questions put to him in a direct and frank manner and made appropriate concessions.
55 Overall, the plaintiff impressed me as a credible witness.
Analysis of the Evidence
56 The parties accepted that the plaintiff suffered a compensable injury arising out of, or in the course, of his employment with the first defendant.
57 All of the medical witnesses accepted that the plaintiff had pre existing lumbosacral spondylolisthesis which had been aggravated by his work with the first defendant. A number of the doctors mentioned his stature being of some significance.
58 The Court must consider what the evidence discloses as to the prior condition of the worker and determine whether the additional impairment was “serious”. In Petkovski v Galletti,[17] the Full Court said that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment. Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting after February 2008 was serious.[18]
[17][1994] 1 VR 436. Petkovski concerned s.93 of the Transport Accident Act. Its application to s.134AB was affirmed in Guppy v Victorian WorkCover Authority & Anor [2010] VSCA 164 at [18]-[19]
[18]ibid
59 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically-based: see Barwon Spinners Pty Ltd & Ors v Podolak.[19]
[19](supra) at paragraph [70]
60 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and
(b) loss of earning capacity.
61 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[20] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[21] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[22]
[20]S.134AB(38)(b) and (c)
[21]S.134AB(38)(e), (f) and (g)
[22]Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at [63]
62 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
Loss of Earning Capacity
63 The medical opinion was that the plaintiff could not return to his pre-injury employment. Most of the medical witnesses imposed restrictions of no lifting, bending or twisting. A number of the witnesses imposed a restriction of lifting no more than 10 kilograms.[23] Both counsel accepted the plaintiff could not return to pre injury employment.
[23]Dr Bouwles and Mr Buzzard
64 The issue was whether the plaintiff has sustained a loss of earning capacity of 40 per cent or more at the date of hearing measured by reference to paragraph (e) of s.134AB(38)[24] and whether after the date of hearing he will continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[25] The plaintiff was under twenty-six years at the date of injury.
[24]S.134AB(38)(e)(i)
[25]S.134AB(38)(e)(ii)
65 In addition, the plaintiff is required to satisfy the narrative test set out in s.134AB(38)(b) and (c).
66 It was agreed between counsel that the plaintiff’s gross income for the year ending 30 June 2008 was $39,509 being a gross amount of $759.70 per week. For the purpose of this exercise, the figure was rounded up to $760 per week. Sixty per cent of that figure is $456 per week.
67 Most of the medical evidence said that the plaintiff could return to suitable employment. In April 2012, his general practitioner, Dr Mohtaja, the only medical witness whom the plaintiff regularly consulted, said “he can perform any occupation that does not require heavy lifting and repetitive lower back bending.” Mr Brearley said the plaintiff was fit for some lighter work but he had decided to pursue a different career and is a full time student of sports science. Dr Middleton did not address suitable employment directly, but said the plaintiff had been offered no form of retraining and despite guidance in job seeking, he had failed to gain employment. He said that the injuries suffered by the plaintiff materially contributed to his ability to remain in employment. He was also concerned about the plaintiff’s ability to perform the practical aspects of his course which included running, contact sports and exercise. In April 2012, Mr Mangos said the plaintiff could not return to full time unrestricted manual or pre-injury employment or any similar work which involved bending and lifting. I infer that the plaintiff could return to suitable employment.
68 The defendants relied upon reports from Mr Malcolm Brown, who, in January 2011, said the plaintiff could perform suitable employment which did not involve regular bending, heavy lifting or standing constantly throughout the work shift. In February 2012 Dr Hwang said he had reviewed the Ayres Management Services report dated 15 February 2011 and considered the employment options listed were within the plaintiff’s capacity. Mr Michael Dooley said the plaintiff was capable of undertaking light physical work and clerical duties. He thought a career in sports psychology or sports science was appropriate.
69 Not all of the plaintiff’s employment has been physical: the plaintiff worked two years as a court reporter. The plaintiff completed Year 12 at school. He attempted study: a criminal justice course at RMIT, a management course at William Angliss and his current course in sports science. I accept that the reason for ceasing the current course was mainly due to his financial position brought about by the termination of his WorkCover payments.
70 In February 2011, the NES vocational report identified a number of transferrable skills possessed by the plaintiff, including high level verbal and written English skills, good numerical skills, adequate word processing skills, good internet and email skills, and the ability to communicate with people and to work with minimal supervision. In considering the employment options identified in the report and the plans by Ayres Management Services dated February 2011, I accept the evidence of Dr Middleton that employment as a courier is not appropriate for the reasons he outlined.
71 I accept that the plaintiff has the capacity to obtain employment in the other occupations mentioned in the February 2011 NES report. All of those positions would provide an income which would exceed the 60 per cent figure of $456 per week.
72 In 2011, the plaintiff reported seeking part time employment to fit in with his study schedule. He said he had applied for jobs, but was unsuccessful due to his back injury. The Court was not told what positions he had applied for.
73 Based on the medical evidence, the vocational report and the fact that the plaintiff returned to work performing restricted duties for in excess of twelve months before his employment was terminated with the first defendant, I accept that the plaintiff has a capacity for alternative employment. All of the positions listed in the NES report would provide an income in excess of the 60 per cent figure of $465 per week.
74 I reject the submission of the plaintiff that the restrictions imposed by the various doctors would translate to no more than about twenty hours a week. There was no medical evidence to support that submission.
75 Accordingly, the plaintiff does not satisfy the statutory test for loss of earning capacity.
Pain and Suffering
76 Mr Connolly, the plaintiff’s father, confirmed that the plaintiff experiences exacerbated pain in his back when sitting down for prolonged periods of time, standing up after sitting, bending or trying to lift items. He said the plaintiff adjusts his posture frequently and is cautious in his movements to minimise the pain he experiences. Further, the plaintiff has difficulty walking long distances and tends to stay home more than before his injury, when he was outgoing and socially active. He said the plaintiff has become retiring.
77 Mr Connolly confirmed that the plaintiff has difficulty performing basic household duties, such as lawn mowing, bringing in fire wood and cleaning the gutters. He confirmed that the plaintiff was no longer able to afford to live with his partner and returned to the family home.
78 Ms Klein, the plaintiff’s partner, confirmed that the plaintiff has ceased volunteering with the Country Fire Authority, that the plaintiff has become pessimistic about life and has few social or recreational interests. She said that the plaintiff tends to become angry with friends and family and lose his temper with the people around him, due to his frustrations. She confirmed that the plaintiff has increased difficulty with performing sexual activity.
79 I accept the evidence of the plaintiff, Mr Connolly and Ms Klein in respect to the consequences of the plaintiff’s injury and its effect upon his life.
80 In accordance with Petkovski v Galletti,[26] I am required to compare the plaintiff’s pre injury impairment with the plaintiff’s post injury impairment and determine whether the additional impairment caused by the aggravation bears consequences of sufficient magnitude (more than significant or marked, and at least very considerable) for the additional impairment to qualify as a “serious” injury.
[26][1994] 1 VR 436
81 The evidence of the plaintiff was that prior to his injury he had niggles in his back, for which he received minimal treatment. He maintained a physically active life playing regular sport since a young age and performing physical work without any difficulty. This was confirmed by his father and partner. He worked in a physical job which involved heavy lifting, bending and twisting, which he can no longer pursue: he had an unrestricted capacity for physical work. In respect to his social and domestic activities, he can no longer engage in activities which involve bending, lifting and twisting; restrictions of which he was not subjected to prior to his work injury.
82 I am satisfied that the plaintiff cannot return to his pre-injury employment, which was a job he enjoyed. He misses that work. He can no longer perform any physical job which involves heavy lifting, bending or twisting. He can no longer participate in sporting activities which were an important part of his life. He experiences constant though varied pain in his lower back. The plaintiff is a young man, which means that the restrictions imposed upon him because of his injuries are a significant loss to the plaintiff, both with respect to his enjoyment of life and self-esteem.
83 In judging the pain and suffering consequences for a young man I can consider the likely period for which those consequences will be experienced. The impairment consequences to this plaintiff might endure for up to forty years, which may be judged as more serious than the same consequences another plaintiff may suffer for a much shorter period.[27]
[27]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at [43]
84 I am satisfied that it is fair to describe the pain and suffering consequences as being more than significant or marked and properly regarded as considerable when judged by comparison with other cases in the range. The plaintiff, therefore, satisfied the narrative test for pain and suffering. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments.[28] No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
[28]ibid at [44]
85 I am satisfied that the back injury is permanent, given the evidence from all medical witnesses.
86 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
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