Crowe v Couray Fabrications Pty Ltd (in liq)
[2014] VCC 942
•26 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-0190
| COLIN CROWE | Plaintiff |
| v | |
| COURAY FABRICATIONS PTY LTD (In liquidation) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 June 2014 | |
DATE OF JUDGMENT: | 26 June 2014 | |
CASE MAY BE CITED AS: | Crowe v Couray Fabrications Pty Ltd (in liq) & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 942 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; Lianos v Inner & Eastern Health Network (2001) VSCA 53; Barnett v Malios & Ors (2013)VSC 404
Judgment:Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr S Smith | Slater & Gordon |
| For the Defendants | Mr N Griffin | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the first defendant from March to November 2009 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages for loss of earning capacity, pain and suffering having been conceded during the hearing of the application.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
15 The plaintiff swore three affidavits and gave viva voce evidence. He also relied on an affidavit sworn by Charles McKinna on 19 May 2014; his brother, Craig Crowe, on 17 September 2013 and William Graf on 15 May 2014. The plaintiff’s general practitioner, Dr Chuah, was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
16 The plaintiff is presently aged forty-eight, having been born in May 1966. He is married with three children: two teenagers and the youngest aged four.
17 Having completed Year 11, the plaintiff worked as a timber salesman, intellectual disability services officer, factory worker, prisoner officer, landscape labourer, hotel manager and car salesman.
18 For a short time, the plaintiff ran his own small business, Countryside Plaster Supplies. In that role, he left accounting matters, including BAS statements, to his accountant.[3]
[3]Transcript (“T”) 34
19 As a car salesman at Neil Beer, the job before he commenced with the first defendant, the plaintiff also sold insurance and organised finance for purchasers. He taught himself to use MYOB but had problems in this regard entering the wrong wage data.[4]
[4]T28
20 The plaintiff thought it was probably a little generous to describe himself as having an intermediate skill level with computers as a vocational assessor stated in 2010. The plaintiff denied he had database management skills as the stock controller was responsible for doing entries.[5]
[5]T73
21 The plaintiff thought he was a good salesman and he was able to sell stock that had been on the floor for some time.[6] This was a less lucrative job than his work in 2006 with G and D Daly.[7]
[6]T30
[7]T27
22 The plaintiff last worked in the hotel industry at the Epping Plaza Hotel, where he was assistant manager in 2000. He worked as night manager, supervising a staff of fifteen. He did not manage the roster, he simply filled gaps when someone did not turn up for work.
23 Prior to the subject injury, the plaintiff had generally been in good health. He had suffered a number of injuries throughout his working life, none of which caused long-term problems.
24 The plaintiff had experienced a couple of instances of back pain: in 2001, when lifting a bag of insulation material and in 2002, when swinging a golf club.
25 On both occasions, the plaintiff was treated for a short time with analgesic medication before resuming his normal life. He agreed he attended the Yea Medical Clinic for about six to eight weeks in 2002.[8]
[8]T23
26 In 2006, the plaintiff experienced an onset of back pain associated with work. His pain then lasted for several months but settled and he gradually got better and returned to a full work and sporting life. He made a claim for compensation and was off work for six to ten weeks.[9]
[9]T24
27 The plaintiff was told by his doctor at that time that there was a problem with a disc. They discussed his work future and the doctor told him he should find lighter work.[10]
[10]T52
28 The plaintiff sent a letter, typed by his wife, to the senior review officer in July 2006, describing that he had never been in so much pain in his life. That was how he felt at the time but his pain is greater since 2009 when he has flare ups.[11]
[11]T67
29 Prior to his injury, the plaintiff led an active life, with sport and physical activity playing a large part.
30 The plaintiff coached his daughter’s under 16 soccer team and his son’s under 16 football team in the winter. This involved three training sessions during the week, plus two games at the weekend.
31 In summer, the plaintiff coached his son’s under 16 cricket team. The plaintiff played cricket for Flowerdale in C Grade and opened the batting and bowling. In the 2008 to 2009 season, he won the Best All Rounder for the Seymour District C Grade competition.
32 The plaintiff confirmed that he was not playing cricket for Yea on 12 November 2011 as alleged by an investigator. His brother, Craig, played under the plaintiff’s name, as the team was short of players. Craig scored 39 runs.[12]
[12]T43
33 Before 2009, the plaintiff also enjoyed an occasional bit of fishing or golf when he could. He did all the work in caring and maintaining the house, the lawn and garden on his one-acre property. He collected and split firewood, and also helped out with the cooking.
34 In 2007, the plaintiff started work with a company called PFS, which manufactured, cleaned and maintained spray booths. He was employed as an operations manager. His role involved business development and organising for the performance of work, including staff supervision and associated paperwork.
35 The plaintiff had no problems with his back during this time and he did not need medication.[13]
[13]T41
36 On or about 10 March 2009, PFS was taken over by the first defendant. The plaintiff continued working in his normal role; however, the first defendant experienced problems in retraining and replacing staff, so over time, the plaintiff had to go on the tools increasingly, doing physical work involving a lot of heavy lifting and bending in cramped and awkward conditions and without adequate support. Over that period, the plaintiff began to experience increasing back problems.
37 In 2009, the plaintiff was earning $54,500 per year with the first defendant.
38 In September 2009, the plaintiff attended Yea Hospital because of back pain. He had a further flare up of back pain on 13 November that year when he was attempting to lifting a pressure washer weighing about 60 kilograms with the assistance of a co-worker when the handle broke, causing the plaintiff to take the weight of the machine.
39 On 27 November 2009 at work, the plaintiff was stooped over a table cutting filters when he felt a further increase in his back pain.
40 The next day, when playing cricket, the plaintiff went to pick up a batting glove and felt very severe pain in his lower back and stopped playing immediately. Over the next couple of days, his back pain did not improve and he went to Yea Hospital, where he was given morphine.
41 The plaintiff then consulted his general practitioner, Dr Chuah, who referred him for a CT scan and then referred him to Mr Hunt, orthopaedic surgeon. Mr Hunt advised surgery would not assist, and referred the plaintiff to Dr Lim, a pain management specialist.
42 The plaintiff also underwent physiotherapy and hydrotherapy, which really did not assist his condition, and he also did a pain management course in late September 2011 for about a month.
43 At the time the plaintiff swore his first affidavit in December 2012, he was taking medication, including Panadol, OxyContin and Lyrica. Whilst that assisted in moderating his pain, the medication caused problems with severe grogginess and vagueness and, despite treatment, there had been no improvement with his condition over time.
44 The plaintiff then experienced a constant low back pain which was variable but always there. On a good day, it had an aching quality and on a bad day, it was a sharp pain, radiating into both buttocks and down his left leg. The pain was typically worse during colder weather.
45 The plaintiff’s pain was usually at its best in the morning after a hot shower and over the course of the day, the pain became increasingly bad, such that he was very sore, needing to simply rest and take Panadol by the end of the day.
46 The plaintiff was then very restricted in his ability to use his back in a normal fashion and had great difficulty bending, twisting, crouching, squatting and kneeling. He was not able to sit or stand for prolonged periods. He also found it difficult to lift or carry objects weighing more than about 10 kilograms.
47 The plaintiff’s back significantly impaired his ability to engage in sexual relations with his wife and their intimate relationship had been very adversely affected as a result.
48 The plaintiff found back pain to be very troublesome when he wanted to sleep and was frequently woken during the night with back pain. He did not think he got more than about two or three hours sleep at night and felt tired in the morning when he woke up.
49 The plaintiff’s sleep continues to be affected by his back pain –“big time”. He gets a maximum of two to three hours’ sleep per night.[14]
[14]T17
50 The plaintiff was then restricted in his ability to drive, particularly with his problems sitting for any length of time and he could only drive for about 20 minutes before needing to rest.
51 The plaintiff was very restricted in his ability to do things around the home. He was no longer able to mow the lawns and garden, and had to pay someone else to do it. He relied on his son to split and carry the firewood, although he would carry a couple of very light pieces if no one else was around.
52 The plaintiff agreed he attended Dr Chuah on 21 June 2013 complaining of having hurt his back picking up wood. He also attended on 31 August 2012 after hurting his back trying to split wood when his son was not there to help him.[15]
[15]T65
53 The plaintiff was restricted to only very light forms of cooking and could not help with vacuuming and mopping. He struggled to try and bathe or pick up his young daughter.[16]
[16]Attendance on Dr Chuah on complaining of pain lifting his daughter on 12 July 2013
54 The plaintiff was no longer able to play cricket, go fishing or play golf because of his back. He had to give away coaching girls’ soccer and boys’ cricket because he was not able to be as active as he needed to be. He still coached boys’ football but did so with a lot of help from other parents who did the more active components of the coaching.
55 After the plaintiff’s injury, he returned to work in March 2010, certified by Dr Chuah to work with restrictions on bending, prolonged postures and lifting. However, the first defendant did not comply with those restrictions and required the plaintiff to do work involving too much lifting and bending.
56 The plaintiff had to attend Yea Hospital in April 2010 because of a flare-up in back pain brought on by work activity. He needed to have time off regularly after he returned to work because of ongoing flare-ups of back pain brought on by work. He was made redundant in September 2010.
57 The restrictions on the plaintiff’s ability to drive meant he was basically limited to the local Yea area in terms of seeking work. All the work in the area was a manual labouring quality. There was no way he could do it, given the state of his back and his restrictions. He could not think of any work which he would be able to do, given the state of his health.
58 In his supplementary affidavit sworn on 20 May 2014, the plaintiff confirmed he continues to suffer the symptoms and restrictions previously deposed to; however, he feels his symptoms are worsening.
59 The plaintiff suffers from constant low-back pain and buttock, groin, left leg and foot pain. He also suffers from pins and needles and numbness down the left leg into his foot. His leg and foot symptoms come and go during the day; however, his back pain is constant and is generally worse with physical activity. Sometimes he suffers flare-ups for no apparent reason. When the pain is really bad, he takes extra painkillers and needs to rest for lengthy periods. His condition is worse in the colder weather.
60 The plaintiff has never been free of back pain since 2009.[17]
[17]T17
61 The plaintiff agreed there had been some occasions when he saw a doctor when he had not been able to sit or stand. That was probably after a flare up. The plaintiff denied he was exaggerating his symptoms.[18]
[18]T86
62 Flare ups occur maybe once every ten to fourteen days but the plaintiff can have a flare up of two days’ duration. He cannot tell what is a good or bad day until a flare up happens. He has to take his medication, lie down on his side with a pillow between his legs and wait for it to get better.[19]
[19]T17
63 The plaintiff takes OxyNorm, Tarwin, valium and Panadol to help him cope with his symptoms. He takes a minimum of two Targin a day and on average one or two OxyContin, and could take up to four if he has a bad flare up. He takes both medications every day. Sometimes, he also takes Mobic.[20]
[20]T16
64 The plaintiff also tries to manage his condition by walking as much as he can and performing stretching exercises. Otherwise, he continues to experience difficulties when moving and using his spine, and getting around, as previously deposed.
65 On a bad day, the plaintiff has pain down the back of his leg that is really severe and causes him to limp.[21]
[21]T19
66 Because of his back injury, the plaintiff has now also given up coaching football. Sporting activities were a large part of his identity and it was a great social outlet for him, but that had all been lost.
67 The plaintiff was offered the job as senior midfield coach at Euroa this season but he could not take up the role as he could not physically do it, whereas he could get away with coaching the thirds. The plaintiff had coached Yea under 18s and also Euroa under 18s until that time.[22]
[22]T18
68 The plaintiff has had further investigations of his lumbar spine, including an MRI scan on 4 October 2012 and 9 November 2012 and an x-ray on 12 November 2012.
69 In December 2012, the plaintiff was also administered three epidural injections but they provided only short-term relief.
70 The plaintiff continues to consult with his general practitioner at least once a month.
71 In about mid 2012, the plaintiff attempted to return to work, performing basic furniture upholstery work for about a week; however, he was unable to cope. Thereafter, in late 2012, he attempted bar work at a hotel. However, after about three or four weeks, he was unable to continue and was hospitalised for some three weeks due to severe pain. He was working alternate nights at the pub when they needed him.
72 When cross-examined about future employment, the plaintiff denied he had worked in project management, which he understood to involve running building sites or union sites. He just supervised what happened within his own business.
73 Sarah from Work Able applied for the jobs on the plaintiff’s behalf. He thought there was no chance of getting jobs like purchasing stock or stock controller given the skill base required.[23] He had not had anything to do with those jobs. They were fairly high powered and the plaintiff felt they were a lot more than he could probably do. Work Able told him application would still be made as the jobs were available.[24]
[23]T75
[24]T76
74 The plaintiff did not know what monitoring production of departmental schedules and expediting purchases in accordance with lead time requirements meant, when described in the role of a stock and purchasing officer.[25]
[25]T82
75 The plaintiff also applied for jobs in the local area in 2011-2012.
76 The plaintiff agreed he could do sales work if he was trained and taught about the products.[26] He agreed he was pretty good at picking things up.
[26]T79
77 The plaintiff did not understand what was involved in coordinating business quality systems and website development. He disagreed he had strong administrative and computer literacy skills and strong analytical and reporting skills.[27]
[27]T81
78 No doctor has suggested to the plaintiff that he needs retraining or that he should return to work on a graduated hours’ basis, starting working a small number of hours. He had tried that already but his body “just did not work”.[28]
[28]T83
79 The plaintiff explained it would be a lot different working a few hours a day and building them up than doing his activities at the football club. If he had a flare up he could not lie down on a bed and put a pillow between his legs and he could not take OxyContin, Targin and valium at work. It would be a lot different.[29]
Given the extent of his symptoms, the plaintiff remains unfit to work and doubts he will ever be able to return to the workforce in the future.
[29]T87
Surveillance
80 The plaintiff was shown eighteen minutes of film taken on 1 February 2012 during which he attended a Laundromat. He was not surprised at the level of his activity in the film.[30]
[30]T21
81 The plaintiff agreed he was shown repetitively bending, putting three baskets of washing in the washing machine. He later returned and put the washing in the dryer. Later that day he came back with a friend and they both took the dry clothes from the dryer and folded them. The friend then carried the baskets to the car.
82 The plaintiff was able to get through this activity, having picked up a mate to give him a hand to collect the laundry.[31]
[31]T46
Summary of Income Tax Returns
Financial Year Ending Gross Income from
Personal Exertion30 June 2006 $25,995 30 June 2007 $48,558 30 June 2008 $49,382 30 June 2009 $50,483 30 June 2010 $55,231 30 June 2011 $47,357 30 June 2012 $45,800 30 June 2013 $17,176
The Plaintiff’s lay evidence
83 Charles McKinna, the plaintiff’s father-in-law, who has known him for twenty five years, swore an affidavit on 19 May 2014.
84 Since 2009, the plaintiff’s has had persisting back problems and he struggled to attend to general maintenance around the house.
85 Prior to his injury, the plaintiff certainly enjoyed all sports and was a highly competitive and keen cricket player, footballer and golfer. He also enjoyed coaching cricket and football and the girls’ soccer team.
86 The plaintiff derived much pleasure and satisfaction, not only from participating in these activities, but also from his interaction with members of the community and with children and their parents. He was greatly respected by the children.
87 Since the plaintiff’s injury, his enjoyment of those physical and social activities had been severely compromised and Mr McKinna had noted the plaintiff’s increasing frustration with himself as he struggled to come to terms with his limitations and restrictions. He sensed that by reason of his work injury, the plaintiff had lost part of his identity.
88 The plaintiff’s brother, Craig, swore an affidavit on 17 September 2013, setting out that on 11 November 2011, he played in a cricket match for Flowerdale Cricket Club against the Yea Tigers Cricket Club at Yea.
89 Craig Crowe was not a registered player with the Seymour District Cricket Association C Grade, and played under the plaintiff’s name and scored 39 runs.
90 The plaintiff did not play in that match.
91 Mr William Graf swore an affidavit on 15 May 2014. In 2011, he was a member of the Flowerdale Cricket Club.
92 Mr Graf recalled on or about 12 November 2011, he played in a cricket match against the Yea Tigers at the Yea Recreation Reserve, playing until approximately 2.30pm.
93 Mr Graf confirmed the plaintiff did not play cricket while he was in attendance that day and he recalled that the plaintiff’s brother, Craig Crowe, played that day.
Investigations
94 Dr Chuah organised an x‑ray of the plaintiff’s lumbar spine in June 2006. It was reported there was a mild degree of L5-S1 disc space narrowing.
95 A CT scan of that date showed at L4-5 a mild degree of central and lateral recess canal stenosis due to a broadbased disc bulge. There was also a small left-sided peri central disc protrusion indenting the proximal left L5 nerve root. The facet joint appeared slightly enlarged and there was mild congenital shortening of the pedicles. At L3-4, there was minor broadbased disc bulge shown, with minor narrowing of the canal and minor shortening of the pedicle.
96 A CT scan of the lumbar spine was organised by Dr Chuah in December 2009.
97 It was reported there was lower lumbar disc disease, in particular at L4-5 and L5-S1. There was “broad paracentral disc protrusion indenting upon the left proximal L5 nerve root ? –clinically symptomatic”.
98 Mr Hunt organised an MRI scan of the plaintiff’s lumbar spine in December 2009.
99 It was reported there was a moderate degree of localised L4-5 and L5-S1 lumbar spondylosis. There was L4-5 central canal stenosis related to a lobulated paracentral/central disc protrusion.
100 Mr Hunt organised an MRI scan of the lumbar spine in August 2010.
101 It was reported there was disc bulge, asymmetric, with an annular fissure at L5-S1 causing displacement and mild compression of the traversing L5 nerve root. There were background degenerate endplate signal changes at both L3‑4 and also L4-5.
102 Mr Hunt organised an MRI scan of the lumbar spine in October 2012.
103 It was reported there was small left paracentral disc protrusion at L4-5 with a midline annular fissure abutting the left L5 nerve root.
104 There was an MRI scan of the lumbar spine organised by Dr Zavala in November 2012. It was reported there was lower three-level disc degeneration. At L3-4, there was mild to moderate central canal stenosis.
105 At L4-5, there was minor posterior displacement but no frank impingement of the traversing left L5 nerve root and there was minor central canal stenosis.
106 Compared to the previous MRI scan of the lumbar spine of October 2012, it was noted the degree of central canal stenosis had apparently increased at the L3-4 level (due to prominence of the epidural fat), otherwise, there had been no appreciable change.
107 Dr Chong organised an x‑ray of the lumbar spine in November 2012. It was reported vertebral bodies were all in normal alignment and disc height was well preserved. There was no bony lesions seen and the sacroiliac joints were normal bilaterally.
Treaters
108 The plaintiff attended the Yea Hospital on 22 September and 30 November 2009 complaining of back pain.
109 The plaintiff was an inpatient at the Northern Hospital from 7 November to 21 November 2012 where he underwent epidural steroid injection in his back following an acute exacerbation of back pain after bending forward.
110 Dr Chuah of the Yea Medical Centre reported in 2011, 2013 and 2014.
111 In his first report, Dr Chuah noted the plaintiff had a previous back injury documented in 2002. He saw the plaintiff with back pain which started in 2006 and his more recent back pain related to his work in 2009.
112 In his 2011 report, which detailed attendances until 30 March 2011, Dr Chuah noted in view of the plaintiff’s recent progress notes, there was very limited scope for him to return to full-time or part-time work, that his back problem could be aggravated with movement; this is, putting the slightest load on the spine. There was also pain associated with standing and sitting for more than 20 minutes.
113 Dr Chuah noted that, unfortunately, back pain was a chronic problem that was going to be an ongoing one. With aging taken into consideration, he thought the plaintiff’s back pain was going to deteriorate and at best, there was going to be no change from the pain he was presently suffering.
114 Dr Chuah noted the pain and stress of the plaintiff’s back was enormous on the plaintiff, especially when he was receiving no help from the company and kept on doing the same heavy physical work. There was no doubt the plaintiff was going to require ongoing medical help in the future in the form of psychological, physical, medical and surgical management. He noted the plaintiff had been seen by many specialists in their own field; any further specialist assessment would add little to the management of his problem.
115 In November 2013, Dr Chuah reported he had been seeing the plaintiff for many years and they had had some improvement along the way and managed to get him back to work for short periods. He noted the plaintiff was motivated and keen to get back to work each time. However, every placement failed miserably and ended up with more attacks of back pain and required more rehabilitation. Dr Chuah noted the plaintiff’s pain was then worse with sitting for a mere 20 minutes. He was having constant back pain at the best of times and Dr Chuah was doubtful of any job he would be able to return to in the future.
116 In Dr Chuah’s opinion, the plaintiff had no capacity for any work. He noted the plaintiff was in pain daily and all treatments had been tried and failed, noting the plaintiff was currently under a pain specialist for pain management.
117 In his most recent report of May 2014, Dr Chuah noted the plaintiff was suffering constant back pain with intermittent flare ups of severe back pain and required analgesics to relieve the pain most of the time. He noted the unsuccessful return to work and it was unlikely the plaintiff would return to his pre-injury duties in the foreseeable future.
118 Dr Chuah thought the plaintiff was likely to be restricted in social, domestic and recreational activities, as his back pain was constant and movements such as bending, lifting, twisting, pushing, pulling and prolonged sitting, walking or standing could potentially aggravate his pain. He thought that was likely to continue for the foreseeable future.
119 Dr Chuah considered the prognosis for the plaintiff’s back condition was not optimistic. He thought there was an increased risk of developing arthritis in the future as it was almost certain in cases with back pain. He thought the risk of increased pain was almost inevitable when arthritis developed in the future.
120 Dr Chuah thought the plaintiff might require surgery and other medical treatment in the future, and noted it was important for him to have a pain specialist to manage a complex case, even more so if the back pain worsened in the future.
121 In examination-in-chief, Dr Chuah confirmed the current prescription of medication is indicative of a high pain relief regime.[32] Having seen the video, it did not cause him to alter his opinion concerning the plaintiff’s level of capacity.[33]
[32]T94
[33]T93
122 Dr Chuah sees the plaintiff at least monthly for certificates and prescription of medication.
123 In cross-examination, Dr Chuah agreed that attendances in January and February 2012 were much the same as usual and medication was prescribed along the same lines as at present.[34]
[34]T98
124 Dr Chuah thought the surveillance film was consistent with the plaintiff’s complaints to him and his observations of him since February 2012. He was not surprised by any of the activities shown on the film. Whilst he was shown bending, Dr Chuah thought that the plaintiff would have a problem bending throughout the day and could probably do a maximum of 20 minutes of the sort of activity seen on film.[35] The slightest load would aggravate his back condition. Being at work was different to the activity at the laundrette.
[35]T100
125 If he could, Dr Chuah would impose a “no lift rule” as he had seen the plaintiff in agony and preferred him not to lift anything at all. He described how sometimes the plaintiff would come in and wait for an appointment and then he would collapse on the floor. A wheelchair would be required and he would be wheeled to the hospital. That had happened many times throughout the years.[36]
[36]T101
126 Dr Chuah could not predict when a spasm was going to come on and it could be very intense.
127 Dr Chuah confirmed the plaintiff had complained of back pain on lifting his daughter, lifting wood and splitting firewood.
128 Dr Chuah thought that the plaintiff had recovered from the 2006 injury.[37]
[37]T104
129 Dr Chuah explained that radiculopathy is a variable finding.[38]
[38]T105
130 Dr Chuah agreed that some of his patients with similar findings to the plaintiff do not present in the same way with extreme symptoms. Different people have different responses to pain and that is why pain management specialists are relevant. They use medication like Ketamine, and that is what Dr Chuah suggested for the plaintiff but funding had been denied.[39]
[39]T107
131 The plaintiff was prescribed Avanza in March 2011 because he was depressed. Dr Chuah does not prescribe anything for sleep.
132 In re-examination, Dr Chuah confirmed that when he saw the plaintiff on 19 October 2012, he noted that the plaintiff had been working for four weeks, three days a week for five and a half hours a day. Each time after work, he had worsening back pain. It was now coming to the stage where the plaintiff had been taking OxyContin for pain which was not helping and, also, pain was in the lower back, radiating to the left buttock, calf and toe (and paraesthesia in the toe), with it being sensitive, even with touching it. A certificate was given for the plaintiff to stop working.
133 The plaintiff was later seen on 23 November 2012 on his discharge from hospital.
134 Mr Hunt, the plaintiff’s treating orthopaedic surgeon, first saw him in December 2009 with regard to his lower back and left leg pain.
135 On examination, the plaintiff walked with a very stooped posture and had a muscle spasm in the lumbar region of his spine. His limbs were neurologically intact, although he had severe pain on straight leg raising of the left leg.
136 Mr Hunt noted the CT scan of December 2009 showed evidence of degenerative disc disease in the lower lumbar spine with a left paracentral disc protrusion on the left side at L4-5.
137 Mr Hunt thought the plaintiff had severe lower back and left leg symptoms as a result of the work injury and advised an MRI scan and suggested the plaintiff try OxyContin, 20 milligrams. Mr Hunt also considered a CT-guided epidural could be a reasonable way to try and improve the plaintiff’s symptoms.
138 On review in January 2010, the MRI scan confirmed the plaintiff had an L4-5 disc prolapse with irritation of the L5 nerve roots. Noting the plaintiff was going to have an epidural, Mr Hunt considered it would ideal if he underwent a physiotherapy program to maximise his mobility.
139 On the next attendance in August 2010, Mr Hunt ordered another MRI scan which showed a central disc bulge at L4-5 with an annular tear which was not neurally compressive. That explained the plaintiff’s ongoing symptoms of chronic lower back pain and his acute exacerbations.
140 Mr Hunt noted, unfortunately, there was no simple solution, and the plaintiff was left with recurrent disabling back pain symptoms. He recommended the plaintiff have pain management with Dr Lim regarding the best way to manage his chronic, disabling, recurrent back symptoms.
141 Mr Hunt thought the plaintiff had sustained an aggravation of pre-existing lumbar spondylosis, as well as an acute disc injury at L4-5 motion segment with a central disc protrusion and associated annular tear as a result of his work.
142 Mr Hunt considered the plaintiff’s condition had substantially stabilised. He required analgesics and there was no easy solution to his current situation and management was difficult; that was why there was a referral to Mr Lim.
143 At that stage, Mr Hunt thought the plaintiff would have restrictions with regard to bending, lifting, twisting, stooping, pushing, pulling, repetitive pushing, pulling and lifting, prolonged sitting, walking and standing and walking up inclines and down inclines. He noted the plaintiff suffered debilitating flare ups of back pain and he was significantly restricted at all times due to the ongoing remitting nature of his lower back and left leg symptoms.
144 Mr Hunt then thought the plaintiff did not have the capacity to do pre-injury employment or any other duties due to the ongoing and severe nature of his symptoms. It was possible that could persist permanently. He did not think the plaintiff had an ability to perform suitable employment, with severe unremitting pain making it difficult with activities of daily living.
145 Mr Hunt noted the plaintiff perceived a high level of disability and he would agree that the plaintiff had a significant level of incapacity which would preclude him from employment at that time. He noted the plaintiff was profoundly affected in terms of his social, domestic and recreational activities as a result of back and leg symptoms and all facets of his life had been affected by those symptoms.
146 Mr Hunt thought the prognosis was poor and conservative management was appropriate. He considered the plaintiff required a rehabilitation assessment to determine whether a trial of rehabilitation may benefit him or not.
147 The plaintiff was referred back to Mr Hunt and saw him in September 2012.
148 The plaintiff then felt his leg and back symptoms were worsening and he had difficulty sleeping and struggled to cope with increasing symptoms. On examination, there was some reduced sensation over the dorsum of the left foot and straight leg raising was positive for both back and leg pain reproduction.
149 Mr Hunt noted the previous imaging which had demonstrated some degenerative changes in the lumbar region, the most significant pathology shown at the L5-S motion segment with an annular fissure at L5-S1 compressing the transversing L5 nerve root.
150 When last seen, the plaintiff was experiencing ongoing mechanical lower back pain symptoms across the lumbosacral junction with radiation into his legs and prolonged postures tended to exacerbate his symptoms. Mr Hunt thought activity modification, avoiding aggravation of the lumbar spine was the mainstay of treatment.
151 Mr Hunt did not think the plaintiff had the capacity to do pre-injury duties. He may have some capacity to perform suitable employment without exacerbating his symptoms excessively. He noted working at reduced hours in a supportive environment in a role which allowed the plaintiff to move as his symptoms required, performing light physical work or sedentary work would be optimal, and those restrictions were permanent.
152 Mr Hunt thought the plaintiff does in fact have arthritis of his lumbar spine. He has a degenerate motion segment at L4-5, including annular tear and broadbased disc bulge, and it is likely that degenerative changes in his lumbar spine may well deteriorate.
153 The activities on the DVD that Mr Hunt observed the plaintiff performing did not in any way change the views he had expressed in the medical report.
154 In January 2011, Dr Lim thanked Mr Hunt for referring the plaintiff.
155 On examination, Dr Lim noted the plaintiff was in severe pain and he had a terrible posture due to his muscles being in spasm. There was also evidence of muscular triggerpoints distributed regionally and reflecting the development of central sensitisation which was amplifying as well as perpetuating the persistence of the plaintiff’s pain.
156 In those circumstances, Dr Lim thought the plaintiff would certainly benefit from attending the NERC pain rehabilitation program and noted in the meantime he had commenced a trial of Lyrica, aimed at reducing the amplification of pain due to central sensitisation.
157 Dr Lim reassessed the plaintiff in December 2012 and requested funding for a three-week program. He noted the plaintiff’s difficulties returning to work as a barman and then ending up in the Northern Hospital and having three epidurals.
158 Dr Lim noted the plaintiff was on strong high dose analgesics which had not been efficacious in reducing the severity of his pain.
159 On examination, Dr Lim found the reason for the plaintiff’s persistent severe and disabling pain was due to an increase in the severity of his persistent muscular spasm which had caused a major exacerbation in his postural deformity. As well, he had evidence of severe paraspinal muscle spasm.
160 The plaintiff told Dr Lim he had applied for about fifteen jobs in the Yea area. However, he was unsuccessful as prospective employers had some knowledge of his condition.
161 Dr Lim noted the reason for the persistence and severity of the muscle spasm and pain was due to the development of central sensitisation which had been driving the plaintiff’s chronic pain state from previously, and evidence of that condition was certainly present on the initial assessment in January 2011. Dr Lim noted bending over to pick up a towel recently was the trigger for exacerbating the plaintiff’s pain.
162 In the circumstances, Dr Lim planned to admit the plaintiff to NERC as an inpatient and commence a Ketamine infusion involving a three-week patient admission. He thought at that stage, if the plaintiff remained in his current state, which was probable if no treatment was undertaken, he would not have a work capacity.
The Plaintiff’s medico‑legal evidence
163 Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff in April 2014.
164 On examination, there was no specific nerve root weakness. The plaintiff had significant difficulty straightening up and mobilising, and there was quite considerable spasm in his back.
165 Mr Doig noted the report of a CT scan of December 2009 and MRI scans of August 2009 and November 2012.
166 Mr Doig thought the plaintiff had what sounded like a gradual process type injury resulting in low-back pain as a result of multiple heavy lifting, pushing, pulling and carrying at work.
167 Mr Doig thought the plaintiff had suffered an exacerbation of a pre-existing asymptomatic disc bulge at L4-5, materially contributed to by the injury suffered at work. Mr Doig considered the prognosis was very guarded.
168 As a consequence of the physical injury to his back, he considered the plaintiff would be restricted in employment involving lifting, pushing, pulling, carrying, doing those actions repetitively, or prolonged sitting, walking or standing to a moderate extent.
169 Mr Doig thought as a consequence of the clinical examination and history and the radiological examinations, the plaintiff does not have the capacity to perform his pre-injury duties and it is likely that this will last into the foreseeable future. He thought it difficult to state whether the plaintiff had the capacity to perform suitable employment or not. Certainly, with the way he presented on examination, Mr Doig thought suitable employment would be very difficult.
170 Mr Doig commented the way the plaintiff presented on the DVD, which is now over two years old, he would be capable of suitable employment but Mr Doig noted the age of that film and also the plaintiff stated there was a significant exacerbation of his pain and disability in December 2012 after the DVD. Further, the plaintiff had unsuccessfully attempted to work as a barman and ended up being taken to hospital.
171 Mr Doig did not think the plaintiff had the ability to be a front office manager or manager of a hotel or motel. He did not think he could be a stock and purchasing officer or project coordinator, because those jobs all required lifting and carrying. He thought the plaintiff may be capable of doing a finance officer job if he had training to do so, but he did not consider he would be able to do that full time at the moment. Certainly, if he did a pain management course again, he might be able to do that sort of a job on a part-time graduated basis.
172 Mr Doig did not think at the moment the plaintiff was capable of working consecutive days. He did not think the other suggested jobs were within his ability.
173 Mr Doig noted the interference with sport resulting from the plaintiff’s back condition.
174 Mr Doig did not consider surgery had a role to play and the pain management program suggested was appropriate, proper and correct. He concluded the radiological evidence fits in with the clinical findings.
175 Mr Brownbill, consultant neurosurgeon, examined the plaintiff in April 2014.
176 On examination, the plaintiff was cooperative, appearing anxious, standing intermittently but without apparent embellishment. There was repeated facial grimacing. There were a few degrees only in extension; half full in lateral flexion and three quarters of full in other directions, with pain. There was palpable guarding of the muscles to both sides of the lumbar spine. There was no wasting. Power was full and equal, reflexes were present and symmetrical and there was no abnormality to touch.
177 Mr Brownbill noted the CT scans of June 2006 and December 2009, the MRI scans of August 2010, October 2012 and November 2012. Radiology had shown two lower lumbar intervertebral disc derangement with disc protrusion at L4-5 and an annular fissure at L5-S1.
178 Mr Brownbill confirmed he had seen the DVD, which demonstrated a man using an ATM, walking freely, getting in and out of a four-wheel drive and at a laundromat handling clothes with bending and twisting. There was, however, no forced spinal mobility or heavy lifting.
179 Mr Brownbill noted the examination had shown restriction of thoracolumbar spinal movements with pain on standing up from a bent position. There were no signs of radiculopathy.
180 On probability, Mr Brownbill thought the plaintiff sustained aggravation of lumbar spine degenerative changes in 2009 with associated intervertebral disc derangement.
181 Mr Brownbill noted the plaintiff’s demeanour (and noting other consultant observations) indicated he had developed in response to that pain, an emotional reaction component with likely anxiety that may be accentuating and perpetuating his own perception of pain.
182 Mr Brownbill thought in the future, the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged sitting or standing. From a physical neurosurgical point of view, it would be reasonable for him to return to work avoiding those actions (including the sedentary occupations outlined in the vocational assessments) in a graduated fashion. The number of hours the plaintiff could work would be dictated by his responses. However, noting the plaintiff’s overall clinical condition, Mr Brownbill considered he would probably have difficulty continuing in any such alternative employment in an ongoing or reliable fashion.
183 Mr Brownbill anticipated pain would continue in a fluctuating manner.
184 Mr Brownbill thought the DVD was consistent with the described history and examination findings.
185 In Mr Brownbill’s view, there was a permanent incapacity for pre-injury duties and probability the plaintiff would have difficulty pursuing any employment in an ongoing or reliable fashion. He thought it reasonable for the plaintiff to attempt a return to work program, with the suggested restrictions, and that should be on a structured plan, the plaintiff’s hours being dictated by his response.
186 Mr Brownbill also thought the plaintiff was likely to be restricted in relation to social, domestic and/or recreational activities to a moderate extent for the foreseeable future.
187 Dr Helen Sutcliffe, occupational physician, examined the plaintiff in April 2014.
188 The plaintiff described his back pain as 7 out of 10. He had right buttock pain and he needed to lie down every day because of the intensity of his pain. He had about three hours’ sleep every night.
189 On examination, the plaintiff had an antalgic gait. There was restricted lumbar movement and straight leg raising to 45 degrees on the right and 20 degrees on the left. Power was decreased in the left leg. There was no knee reflex obtained and ankle reflexes were equal. There was tingling and dyesthesia in the lower leg.
190 Dr Sutcliffe had the CT scans of the lumbar spine of June 2006 and December 2009 and the MRI scans of December 2009, August 2010 and October and 9 November 2012. She also had available the reports from Mr Hunt and the Northern Hospital and the Work Able assessment of 2012.
191 Dr Sutcliffe believed the plaintiff sustained an aggravation of degenerative change in the lumbar spine and derangement with impact on the left L5 nerve root as a result of heavy lifting at work. She thought he had left L5 radiculopathy with persisting radicular pain.
192 Dr Sutcliffe believed the plaintiff had no capacity for employment, either pre-injury, alternate or suitable, as a result of the persisting symptoms relating to the disc derangement and nerve root impingement.
193 In addition to the loss of capacity for employment, Dr Sutcliffe thought the plaintiff had sustained a very substantial adverse impact on his capacity for activities of daily living in domestic, social and leisure activities. Noting the recent admission to hospital, she believed the plaintiff required further assessment by a pain physician for assistance with medication, noting he was reliant on opioid medication.
194 Taking into account s5 factors, Dr Sutcliffe believed the plaintiff was currently unfit for all work, and that would continue permanently. She did not believe he could present in a manner that would be sufficiently reliable, efficient or productive to allow him to undertake work that would satisfy any employer.
195 The contents of the DVD did not alter her opinion.
Vocational evidence
196 Michael Iacovino, occupational rehabilitation consultant with Work Rehabilitation, prepared a vocational assessment report in April 2014.
197 Based on the plaintiff’s current presentation, and in view of the available medical evidence, Mr Iacovino was unable to identify any suitable work. Employment options identified in previous vocational reports had been found to be incompatible and medically contra indicated.
198 Mr Iacovino thought the plaintiff a difficult candidate for redeployment, given his fraught medical status and presentation, and in light of his limited education, work history and transferable skills, it is unlikely he could find and sustain suitable employment in the open labour market in his current state. He considered the plaintiff had no current work capacity and his employability and earning capacity had been severely compromised.
199 Flexi Personnel provided wage details for a worker doing light bench type work in the financial years 2012-2013 and 2013- 2014.
200 In the first year, under Manufacturing and Associated Industries and Occupations Award 2010, the hourly rate was $16.42. For the following year, the rate was $16.85.
The Defendant’s medico‑legal evidence
201 The plaintiff was examined by Michael Dooley, orthopaedic surgeon, on two occasions, initially in February 2012, and more recently in February 2014.
202 On the first examination, the plaintiff tended to alternate between sitting and standing and he flexed and extended his back to help his pain. There was tenderness of the lower lumbar region, reduced range of movement and bilateral straight leg raising to 40 degrees. There were no neurological abnormalities.
203 Mr Dooley had the MRI scans of December 2009 and August 2010.
204 Mr Dooley thought the plaintiff had naturally occurring degenerative disc disease of the low lumbar spine.
205 Mr Dooley thought the plaintiff sustained a left-sided L4-5 disc prolapse on the background of his naturally occurring degenerative disc disease. In association with the prolapse, there will have been some aggravation of the underling degenerative process. He thought there could be intermittent episodes of low back pain and lower limb pain.
206 Accepting all of the above, Mr Dooley, however, thought the constancy and intensity of the plaintiff’s ongoing pain was greater than he would expect for his condition. He noted Dr Lim’s diagnosis to explain the plaintiff’s ongoing pain. Whilst Mr Dooley understood the physiological basis of that diagnosis, it was his view that the plaintiff’s persisting pain related at least in part to a psychological reaction to injury, pain and/or work circumstances.
207 Mr Dooley believed that the trigger for the plaintiff’s Chronic Pain Syndrome related to the fact that he was asked to carry out heavy physical work beyond his capacity.
208 Mr Dooley did not believe the plaintiff was deliberately exaggerating his symptoms. He noted the trigger for a Chronic Pain Syndrome was involuntary and related to a complex, poorly understood interaction between the physical and psychological.
209 Mr Dooley believed the appropriate treatment was for the plaintiff to try and remain generally active and exercise. He did not think surgery would help. He noted, while the MRI scan report suggested the possibility of L5 nerve root compression on the left-hand side, there was no objective neurological evidence to support true radiculopathy.
210 Mr Dooley noted it had been well shown in studies that asymptomatic patients can have large disc prolapses with narrowing of the central spinal canal nerve root compromise and no pain. Looking at the MRI scan results only, and not taking into account the patient as a whole, often led to mismanagement.
211 After the first examination, Mr Dooley thought the loss of lumbar spine function resulting from the compensable injury had been mild to moderate from an orthopaedic point of view and the loss would persist for the foreseeable future. He expected the plaintiff to note some ongoing intermittent low back and lower limb pain and he did not expect deterioration in the future.
212 Mr Dooley believed the plaintiff was unfit to carry out heavy physical work or work that involved a lot of lifting and bending and, from an orthopaedic view, he was capable of carrying out some light physical work and clerical duties.
213 Mr Dooley noted the DVD showing the plaintiff getting in and out of the car without any obvious discomfort, repetitively bending to 90 degrees and twisting without any obvious discomfort.
214 Mr Dooley stated that the DVD would lead him to believe that the constancy and intensity of the plaintiff’s ongoing low back pain was not as great as he described in his history. The film would lead him to believe the plaintiff had a greater range of movement of his lumbar spine than he presented on formal examination.
215 However, Mr Dooley noted that the DVD would not cause him to alter his view that the plaintiff would not be able to carry out heavy physical work on a regular basis. It would confirm his view the plaintiff was physically capable of carrying out at least light physical work and clerical duties and engaging in a wide range of domestic and leisure activities.
216 Mr Dooley thought the plaintiff had the physical capacity to work as a stock purchasing officer, building project coordinator, finance manager and sales rep.
217 On re-examination in February 2014, the plaintiff told Mr Dooley his pain had worsened. He told him of the hospitalisation at the Northern Hospital for seventeen days and three epidural injections.
218 The plaintiff told Mr Dooley he experienced constant low back and bilateral groin pain and he was aware of paresthesia in his left lower limb, especially the foot.
219 On examination, there was tenderness of the low lumbar region and the plaintiff tended to stand in a slightly hunched forward motion. Bilateral straight leg raising was to only 30 degrees with pain. There was altered sensation over the lateral aspect of the left thigh and leg.
220 Mr Dooley noted the report of the 2012 MRI scan with no obvious nerve root compression. Essentially, the diagnosis, clinical opinion and impression and opinion remained the same.
221 As previously noted, Mr Dooley stated the natural history of the plaintiff’s condition was improvement with time and that the plaintiff will note intermittent low back pain and some lower lumbar pain and there may be times when he gets an occasional acute exacerbation.
222 Mr Dooley remained of the view the reason for the plaintiff’s disproportionate pain was his psychological reaction to his situation. He could not see how a Ketamine infusion would assist in those circumstances.
223 There was no real difference between the CT scans of 2006 and 2009. He was not provided with a December 2012 scan. He commented that one needed to be careful of over interpreting radiological investigation results, as there could be prolapses with no symptoms.
224 One could not explain the constant ongoing low back pain, groin pain, leg jumping, paresthesia on the basis of the organic injury over four years ago on the basis of the radiology or the need for the strong analgesia on the basis of the radiology.
225 From an orthopaedic view, Mr Dooley thought the plaintiff had a physical capacity to carry out light physical work and clerical duties. He would not be able to carry out regular heavy physical work or work that involved a lot of bending, lifting and twisting. The plaintiff would have the physical capacity to work as a sales representative, sales manager, accounts clerk, front of office hotel manager and/or stock and purchasing officer, on the basis of the job descriptions provided.
226 Dr David Barton, consultant occupational physician, examined the plaintiff in February 2014.
227 Dr Barton described the plaintiff was strongly symptom and disability focussed throughout the consultation and he demonstrated a wide range of significant features of abnormal illness behaviour, spending very little time sitting, most of the time standing, and occasionally getting on his hands and knees and leaning against the desk. There was a considerable degree of grimacing, gasping and swearing, as the plaintiff was apparently in severe pain.
228 On examination, there was no paraspinal muscle spasm and there was a normal spinal contour. There was moderate tenderness in the lumbar spine. There was significant restriction of movement and bilateral straight leg raising was to less than 20 degrees. There was a reduction of muscle power throughout both legs and a reduction of sensation around the lateral half of the whole of the left leg.
229 Dr Barton noted the scans over time had shown a range of relatively minor changes and certainly nothing that would account for the severity of the plaintiff’s level of symptoms and claimed degree of incapacity.
230 Dr Barton did not believe the radiological findings were particularly relevant or useful and it was clear the way the plaintiff presented that he had developed a chronic pain problem with a considerable degree of illness behaviour and functional overlay.
231 Dr Barton accepted it was possible that the plaintiff developed a soft tissue injury in the setting of some longstanding and mild degenerative changes that had been complicated by the development of a functionally based problem with a degree of illness behaviour.
232 Dr Barton believed the plaintiff’s prognosis was relatively poor, as he clearly had a strong sense of illness belief and he was strongly committed to being disabled.
233 Ignoring the degree of overlay, Dr Barton could see no particular reason why the plaintiff could not undertake a variety of jobs, including those detailed in the vocational assessment.
Medical Panel
234 In an Opinion of 7 April 2013, the Medical Panel found the plaintiff had a current work capacity.
235 Counsel for the defendants submitted the reasons for the Medical Panel’s opinion should also be considered by the Court in the present application, relying on the recent decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak.[40]
[40][2013] HCA 43
236 In that case, the High Court held that s68(4) of the Act operated to require that the opinion of the Medical Panel be adopted and applied only in the determination of the question or matter in which the medical question arose and in respect of which the medical question was referred to the Medical Panel, rather than for the purposes of determining some other question or matter.
237 The High Court acknowledged that a Court considering a serious injury application is not bound by an earlier decision of the Medical Panel on a question relating to statutory compensation.[41]
[41]Paragraph [40]
238 Whilst Counsel for the defendants conceded the High Court made no mention as to any change in approach by the County Court to take into account the Medical Panel’s reasons, as well as its opinion, it was submitted the High Court considered the Panel reasons were relevant and that a Panel opinion has no context without the reasons and therefore the reasons cannot be separated from the opinion.[42]
[42]T116-7
239 It was submitted the Medical Panel’s reasons should be taken into account as the Panel was made up of qualified members who had seen the film and examined the plaintiff.[43]
[43]T121
240 However, I am not satisfied the decision in Kocak changes the approach previously taken by this Court, as detailed in the Practice Note Number 6 of 2013 which prohibits the inclusion of the Medical Panel’s reasons in the court book.[44]
[44]T136
241 Further, whilst s48 of the Act provides that a certificate or report given by the Medical Panel is admissible in evidence and a Panel member is competent to give evidence as to matters in a certificate or report, the member may not be compelled to give any such evidence.[45]
[45]T134
242 In those circumstances, the opinion of Medical Panel members are unable to be cross-examined, unlike other medical witnesses, whose reports are before the Court.[46]
[46]T135
243 I accept however that in Barnett v Malios & Ors[47], Beach J stated that a Panel member could be asked questions of a general kind which might have the capacity to throw light on relevant issues without infringing Section 48(2) of the Act.
[47](2013)VSC 404 at paras 29 and 31
244 In any event, in determining whether a worker has a current work capacity, the Medical Panel takes into account different considerations than those involved in a finding of the requisite loss of earning capacity for the purposes of s134AB, as was conceded by Counsel for the defendants.[48]
[48]T117
245 I am not satisfied that anything said by the High Court in Kocak displaces the reasons and conclusions of the Court of Appeal in Lianos v Inner & Eastern Health Care[49] where the Court held the reasons of the Medical Panel were not admissible.
[49](2001) VSCA 53 at paragraphs [22]-[32]
246 Accordingly, I do not propose to take into account the Medical Panel’s reasons when deciding this application.
247 Had I done so, the reasons indicate the Medical Panel took an approach similar to Mr Dooley in finding the plaintiff had a current work capacity. However, the Panel did not make any mention of the effect of the plaintiff’s high medication intake on his ability to do the range of jobs suggested.
248 As set out later in my judgment, I accept the plaintiff’s evidence as to his pain, and the resultant effect on his work capacity, and the views of his treaters and a number of medico-legal examiners that the plaintiff does not have a capacity for suitable employment. For the reasons I have stated, I prefer that evidence to that of Mr Dooley.
Surveillance film
249 There was 18 minutes of surveillance film of the plaintiff taken on 1 February 2012 which was shown by Counsel for the defendants.[50]
[50]See Appendix “A” to these Reasons for Judgment
Vocational evidence
250 Work Able Consulting carried out an NES vocational assessment report in October 2010 identifying, in order of priority, the following suitable employment options for the plaintiff:
§ sales representative
§ sales manager
§ finance officer
§ project coordinator; and
§ stock and purchasing officer.
251 A labour market analysis report dated October 2013 set out the weekly earnings, together with jobs specifications of the roles of sales representative ($1,198 per week) and sales manager ($1,726 per week).
Overview
252 Having shown the surveillance film of the plaintiff at the Laundromat on 1 February 2012, Counsel for the defendants requested an indication as to my views of this film in terms of the plaintiff’s credit.
253 As I indicated, the plaintiff was not shown engaged in any heavy, consistent activity. He was shown on three short occasions: initially putting the washing into the machines, returning later and taking it from the machines and putting it into the dryer, and then returning again, with a friend, removing the clothes from the dryer and folding them. The friend then carried the baskets of clothing to the car.
254 This was an activity the plaintiff had to do in looking after his family. It was not an activity under heavy load, as doctors who have seen the film explained.
255 I am not satisfied that the level of activity shown on the film is inconsistent with the plaintiff’s report of his restrictions in his affidavit or to any doctors.
256 Having given this indication, the issue of pain and suffering was conceded by Counsel for the defendants.
257 As Counsel for the plaintiff later submitted, the 2012 film is of limited relevance, being two-and-a-half years old and, also, later that year, the plaintiff unsuccessfully tried to return to work and ended up in hospital.
258 Having seen the film, Dr Chuah, Mr Doig, Mr Brownbill and Dr Sutcliffe did not change their view as to the plaintiff’s capacity. Whilst Mr Dooley said the film caused him some concern, he did not say he could not accept anything the plaintiff said, but rather said the plaintiff was limited in the type of things he could do.[51]
[51]T136
259 Although pain and suffering was conceded, Counsel for the defendants submitted that whilst it was not put as highly that there was any deliberate embellishment or exaggeration on the plaintiff’s part,[52] there was not a “match” between the plaintiff’s clinical presentation and findings.
[52]T122
260 It was submitted there was no demonstrable radiculopathy, and it had not been suggested that surgery would be helpful. Further, if the plaintiff’s condition had an organic basis, it would have been expected that he would have benefitted from the epidural injections, which was not the case.[53]
[53]T125
261 It was submitted that the anatomical basis of the plaintiff’s “ongoing desperate symptoms was certainly questionable” and that “in the fullness of time, it would be hoped the flagrant symptoms would resolve”.[54]
[54]T123
262 It was submitted the plaintiff could not have been in pain since 2009, as he described, given his activities at the football club.[55]
[55]T130
263 In my view however, the plaintiff’s complaints are genuine and significant. As Dr Chuah explained in cross-examination, each patient has a different experience of pain, and he had observed the plaintiff in considerable distress on a number of occasions in his rooms, such that he required hospitalisation.
264 Further, as was apparent whilst giving his evidence, the plaintiff was in significant discomfort, having to alter his posture frequently and at times, sitting bent forward and at other times, leaning forward, standing, holding the front of the witness box.
265 I accept the plaintiff is a witness of truth who gave evidence in a frank and unequivocal manner.[56]
[56]T136
266 The consensus of medical opinion is that the plaintiff does not have a capacity for manual unrestricted manual work. This is serious consequence for a man who, although having engaged in a wide range of work, has no particular qualifications for more sedentary work.
Loss of Earning Capacity
267 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
268 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
269 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
270 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
271 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
272 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. See Barwon Spinners Pty Ltd & Ors v Podolak.[57]
[57](supra) at paragraph [70]
273 Counsel agreed that $55,000 was an appropriate “without injury” earnings figure.
Medical opinion as to work capacity
274 Dr Chuah, who has treated the plaintiff for many years, confirmed in his viva voce evidence that the plaintiff has no capacity for employment.
275 When he last saw the plaintiff in September 2012, prior to the November 2012 flare up, Mr Hunt thought the plaintiff might have a capacity for suitable employment, working reduced hours in a supportive environment.
276 In late 2012, Dr Lim thought the plaintiff had no capacity for employment, and that was permanent in the absence of treatment.
277 Mr Doig did not think the plaintiff would presently be able to work on consecutive days. If there was improvement following a pain management course, he considered he may improve enough to work part time in a finance role. In his view, the plaintiff did not have the ability to be a front office attendant or manager or stock purchasing officer.
278 Mr Brownbill thought the plaintiff would struggle with employment in an ongoing and reliable fashion. Dr Sutcliffe thought, realistically, that he had no capacity.
279 Mr Dooley considered the plaintiff was fit for a range of light physical work or clerical duties. Ignoring the degree of overlay, Dr Barton could see no particular reason why the plaintiff could not undertake a variety of jobs, including those detailed in the vocational assessment.
280 Counsel for the plaintiff submitted there is no employment for which the plaintiff is suited or, in the alternative, he is fit for only part-time work on alternate days.[58]
[58]T137
281 The primary submission was that the plaintiff’s evidence as to his level of capacity should be accepted, as he has exhibited motivation to try and find work but he has been unable to continue any work he tried because of his back pain.
282 In the alternative, if it was accepted the plaintiff has some capacity for suitable employment, part time on non-alternate days, he would suffer the requisite loss based on the Flexi Personnel hourly rates, with light bench work at $16.85 per hour. This would also be the case if he worked alternate, shorter days (say three days a week).
283 Counsel for the defendants submitted that the plaintiff is a relatively young man with quite a range of transferable skills. He offers the labour market more than just “horse power”.[59] He has had earlier more substantial jobs. He is an intelligent man who is capable of picking up things quickly. He is a man who should not be considered as just being capable of menial work.
[59]T128
284 It was submitted the plaintiff had some capacity for suitable employment albeit initially on limited hours – “but with training, with the confidence that comes from testing himself in a variety of employment opportunities, he at this stage does not satisfy the requirements of the Act”.[60]
[60]T134
285 In my view, the plaintiff does not have a capacity for suitable employment.
286 I accept, given his level of pain and resultant impairment, particularly the occurrence of severe flare ups, the necessity to lie down each day and his high level of medication, it would be unreasonable to suggest the plaintiff could attend a workplace in any reliable fashion. It was unrealistic to think he could participate in suitable employment.[61]
[61]T138
287 The level of activity shown on the surveillance film does not equate to a capacity for manual work to any degree. As Dr Chuah explained, the plaintiff may have the capacity to bend for twenty minutes or so, but he could not do so throughout a day at work.
288 This is not a case where jobs have been suggested and the plaintiff’s capacity for such work is untested.
289 The plaintiff made a genuine attempt to return to work with which he was familiar, working in a bar. Although this was light work, as the plaintiff described, he experienced great difficulty, working only part time over a couple of weeks, his pain worsening to the extent that he required hospitalisation for two weeks, as Dr Chuah confirmed. The attempt at upholstery work was also unsuccessful because of the plaintiff’s back pain.
290 I do not believe the plaintiff would be able to work in a more sedentary role because of problems with prolonged sitting. This would also pose difficulties in a job involving driving. Further, the plaintiff would also have difficulty concentrating, given his high intake of medication.
291 The plaintiff would be unable to work as a stock and purchasing officer, given the lifting and carrying involved.
292 Taking into account all of the evidence, I am satisfied, in these circumstances, the plaintiff has suffered the requisite loss of 40 per cent, and that this situation is permanent.
293 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
294 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
295 Accordingly, I grant the plaintiff leave to bring proceedings for damages for loss of earning capacity.
Appendix “A”
Exhibit 1
DVD Video Surveillance Film of the Plaintiff
Surveillance DVD Exhibit 1 – Length: 18 minutes
| Date | Time | Event |
| 1 Feb 2012 | 1:48pm | Plaintiff filmed in a Laundromat doing washing (often bending, picking up washing and putting it into machine) |
| 1:52pm | Plaintiff leaves Laundromat to collect a basket of washing from his car then returns to Laundromat | |
| 1:56pm | Plaintiff exits the Laundromat and drives off | |
| 2:24pm | Plaintiff arrives at the Laundromat to collect Laundry. Plaintiff is seen lifting a basket on top of the machine, and removing his washing (having to occasionally bend and lean in towards the machine) | |
| 2:31pm | Plaintiff exits the Laundromat and drives off | |
| 2:56pm | Plaintiff enters the Laundromat with another male. They remove laundry from machine and fold it | |
| 3:04pm | Plaintiff and male exits the Laundromat, male carrying baskets. |
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