Dalton v Korjo Pty Ltd
[2015] VCC 218
•6 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for publication |
SERIOUS INJURY LIST
Case No. CI-14-05161
| MICHAEL DALTON | Plaintiff |
| v | |
| KORJO PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 February 2015 | |
DATE OF JUDGMENT: | 6 March 2015 | |
CASE MAY BE CITED AS: | Dalton v Korjo Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 218 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the neck and/or right arm – pain and suffering and economic loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the plaintiff to issue proceedings at common law for pain and suffering damages and economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton QC with Ms S Gold | Adviceline Injury Lawyers |
| For the Defendant | Mr R Kumar | Thomson Geer |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(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 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 s134AB(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 neck and/or right arm.
6 The plaintiff relied upon two affidavits, sworn 13 May 2014 and 16 January 2015. The plaintiff and Dr Hammond were cross-examined. The defendant relied on four affidavits, two sworn by Ashley Kausman, and affidavits of Michael Telfer and Sean Bowe. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have not summarised all the affidavits and the evidence of the plaintiff and Dr Hammond; however, I will refer to the relevant evidence of the plaintiff, Dr Hammond, Mr Kausman, Mr Telfer and Mr Bowe in my reasoning. I have read all the tendered material.
Relevant legal principles
7 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 s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 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 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 impairments to the neck and right arm 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]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]Section 134AB(19)(b) and 38E of the Act
(a) 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 (f) of s134AB(38) of the Act;[6]
[6]Section 134AB(38)(e)(i) of the Act
(b) 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
(c) that even with rehabilitation and retraining, he will still sustain a loss of 40 per cent or more.[8]
[7]Section 134AB(38)(e)(ii) of the Act
[8]Section 134AB(38)(a) of the Act
10 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, for both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
11 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.
12 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](supra) at paragraph [42]
13 The test for “serious”, as set out in paragraph (b) and paragraph (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
14 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[12]
(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.[13]
[12]Section 134AB(38)(j) of the Act
[13] 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
15 Counsel for the defendant informed the Court that the primary issue was causation.
16 Second, if the plaintiff established he suffered a compensable injury, the Court must consider the effect (and likely effect in the future) of the plaintiff’s pre-existing injuries in accordance with Bezzina v Phi & Anor.[14]
[14][2012] VSCA 161 at [23]
17 Third, the plaintiff must consider the effect of his pre-existing injuries, which he has not done.
18 Fourth, the pain and suffering consequences could not be described as being “more than significant or marked” and meeting “the very considerable” test.
19 Fifth, in respect to loss of earnings, Dr Davison said the plaintiff had a capacity to work and Dr Hammond did not rule out employment in the future.
The Plaintiff’s medical evidence
Dr Tony Hammond
20 Dr Hammond, general practitioner, provided medical reports and letters dated 29 December 2006, 11 July 2009, 11 February 2014, and an undated letter received in December 2014. In addition, Dr Hammond gave evidence and was cross-examined.
21 Dr Hammond impressed me as an experienced general practitioner, who confined his evidence to his area of expertise and experience from treating patients with similar conditions, namely disc problems caused by similar types of work to that of the plaintiff. He was very measured in the views that he expressed.
22 Dr Hammond confirmed that the plaintiff had been a patient since around 2004. On 4 November 2006, the plaintiff first consulted him in relation to neck and arm pain. He recorded:
“Four days pain around his right scapular region. Two days pain right arm. Pain reproduced with neck extension and flexion. Query cervical related.”
23 The plaintiff consulted Dr Hammond through November and December 2006, and on 29 December 2006, Dr Hammond wrote a letter confirming that the plaintiff was recovering well from surgery, being the lung surgery, and his neck problems. He said the plaintiff was fit to work. He imposed restrictions of no overhead work and no lifting of more than 5 kilograms at any one time for the next month. Dr Hammond’s evidence was that the restrictions were imposed because he was aware the plaintiff worked in a store and was involved in manual handling. Further, if there was a problem with the disc, then he could well have aggravated the problem with repeated heavy lifting and particularly overhead lifting.[15]
[15]Transcript (“T”) 83, L17-21
24 In a letter dated 11 February 2014 to the Accident Compensation Conciliation Service, Dr Hammond confirmed that the plaintiff had undergone a cervical fusion at C3-4 and C7-T1. He confirmed that the plaintiff reported that he had developed neck pain during the course of his work. It was his view that the plaintiff’s employment as a storeman, which entailed regular overhead lifting, likely contributed to the development of the cervical disc injuries. He was unable to say when the plaintiff would be fit to return to work, and given his multiple surgeries, protracted recovery and ongoing symptoms, he may not be able to return to work at any time in the future. He confirmed the plaintiff required ongoing medication which contributed to maintaining his level of functioning.
25 In an undated letter to the plaintiff’s solicitor, Dr Hammond stated the plaintiff had very limited work capacity and was certainly unfit for his job as a storeman. He confirmed that the plaintiff had a pneumothorax and a discectomy at L4-5 level. Both of these problems are stable and do not contribute to the plaintiff’s impairment to work or lifestyle.
26 In evidence, Dr Hammond said that, based on experience, the nature of the plaintiff’s work contributed to his neck injury. He said manual work can induce disc problems. The weights do not have to be great but repeated lifting above shoulder and above neck height, which involves neck extension, can be a major stressor on, and cause injury to, the cervical discs.[16] From the time of the chest surgery, he was aware of the nature of the plaintiff’s work, as he had been providing the plaintiff with certificates.[17] It was his view that the plaintiff’s neck condition was related to his work.[18]
[16]T87, L7-16
[17]T87, L23-27
[18]T88, L9-12
27 In cross-examination, Dr Hammond was asked whether the length of time the plaintiff was employed would be relevant to an understanding of whether the employment contributed to his condition. Dr Hammond said he took more credence about the nature of the work rather than the length of time he was performing the work.[19] He disagreed with the view expressed by Mr Simm that the three-month period from June to September 2006 was unlikely to influence the underlying condition of the cervical spine.[20] Dr Hammond said he assumed the weights the plaintiff was stacking varied in weight and size, were significant, and thought, at times, they may have weighed 10 kilograms or more.[21]
[19]T110, L5-10
[20]T120, L17-28
[21]T122, L12-15
28 Dr Hammond said the reason he certified a patient with a neck condition as unsuitable for lifting more than 5 kilograms or prolonged postures, was because those sorts of activities are likely to cause problems.[22] The plaintiff was put on restricted duties in January 2007 because, if there was a problem with his discs, which he presumed there was, then the plaintiff could have aggravated that problem with repeated heavy lifting.[23] Dr Hammond said that all else being equal, over time, you could draw a correlation between an increasing level of pain and an increasing level of injury to the disc.[24]
[22]T87
[23]T83, L17
[24]T100, L14
29 In cross-examination, Dr Hammond said, in relation to the MRI scan of December 2006, there can be injuries to a disc that produce symptoms but may not be present on imaging, but may progress to a stage where they are clearly apparent on a later MRI scan.[25] He said if there is an established injury at one cervical level and then injury emerges at another cervical level, then it is probable that it has been injured at the same time.[26]
[25]T112, L11-18
[26]T114, L10
30 In re-examination, Dr Hammond was referred to a letter dated 10 January 2007 written by Dr Arnold of The Alfred hospital to him. Dr Arnold referred to pain down the right arm to the plaintiff’s hand, and stated that she “would have expected to see some cervical spine pathology at a lower level than what he describes”. Dr Hammond said the comment was potentially consistent with an emerging disc injury at C7-T1.[27]
[27]T132, L17-28
31 Dr Hammond was referred to a letter dated 27 February 2007 written by Marc Seifman, medical student of The Alfred hospital, to him. Mr Seifman described the plaintiff attending the Outpatient Clinic presenting with “right upper limb pain extending down the C8-T1 distribution”. Mr Seifman stated that he discussed the plaintiff with Mr Greg Malham, neurosurgeon, who noted the C-spine MRI scan, was aware the plaintiff was having nerve conduction studies for the C3-4 stenosis and recommended a right C8 nerve root injection. Dr Hammond said these comments were consistent with an emerging disc injury at that time.[28]
[28]T133, L8-11
32 Dr Hammond agreed that the MRI scan of December 2006 showed no sign of changes at the C7-T1 level. He was asked to consider the March 2008 MRI scan. He said he could not see anything about the C7-T1 level. He concluded that the report was addressing specific levels, and was confusing.[29]
[29]T133, L20-T134, L15
33 Dr Hammond agreed that the MRI scan of November 2008 commented in relation to the C7-T1 level. When compared with the MRI scan of December 2006, it was his view that the injury had progressed and had been aggravated over the period. He said if the plaintiff was doing the type of work he reported, then the work may well have been a factor in why there has been a progression in the radiological findings during that time. He agreed that on the balance of probabilities, that the plaintiff’s work was in fact a causal factor in the progression of the injury.[30]
[30]T134, L22 – T135, L7
34 Dr Hammond said that pain which flares up during and after activity is related to the activity undertaken and is known as mechanical pain.[31] He was told that the plaintiff’s evidence was that while performing the task of wrapping pallets with his arms outstretched and raised overhead, he experienced the onset of tingling and numbness. Dr Hammond said this evidence suggested that more likely than not, the injury was work related.[32]
[31]T136, L9-11
[32]T136, L16-19
The Alfred Health
35 In February 2014, in a letter, Dr David McDonald confirmed that the plaintiff attended the Outpatient Clinic in 2007 with a history of right upper limb pain extending down the C8-T1 distribution. An MRI scan of the cervical spine showed a C3‑4 stenosis. On 3 April 2007, it was noted the symptoms had improved and required no further investigation. In March 2008, the patient notes indicated that he had experienced a recurrence of his upper limb symptoms.
36 On 1 August 2008, Mr Patrick Chan, neurosurgeon, performed a C3-4 anterior cervical discectomy and fusion. In February 2009, the plaintiff had some residual tingling in his right little finger and mild pain on abducting his shoulder and lifting his hand above his ear. In February 2009, a neurosurgeon performed a right-side L4-5 microdiscectomy.
37 In January 2011, the plaintiff complained of a continued right-side brachialgia, with a C8 nerve root compression demonstrated on MRI scan.
38 In August 2011, Mr Patrick Chan, neurosurgeon, performed a C7-T1 anterior cervical decompression and fusion with rhizolysis of bilateral C8 nerve roots.
39 In May 2012, the plaintiff described persistent neck pain. A bone scan showed increased activity at C7‑T1 level and, to a lesser extent, at the C3-4 level. Based on these findings, there was evidence of non-union at the C7-T1 level. Further surgery was recommended.
40 In September 2012, a proposed revision C7-T1 anterior cervical discectomy and fusion was abandoned, as there were problems with the plaintiff ventilating.
41 On 5 October 2012, Mr Chan performed a C3-4 and C7-T1 posterior instrumented short segment fusion with left iliac bone graft.
42 The plaintiff was last reviewed in December 2013. His neck pain had settled down but he was troubled by right arm pain, which was attributed to chronic pain.
The Alfred hospital records
43 The Alfred hospital records confirm that:
(a) On 1 November 2006, the plaintiff reported that he worked as a storeman and was required to unload containers which required reasonably heavy lifting. He intends to return to work and has some light duties to do.
(b) On 18 November 2006, Dr B McKenzie wrote to Dr Hammond informing him of the following:
(i) The plaintiff presented with intermittent pain in his right arm which radiates to the fourth and fifth digits;
(ii) That Dr McKenzie organised an MRI scan of the C-spine and a referral to a medical surgeon;
(iii) The outpatient notes record two weeks of right arm pain shooting down the inside of the right arm and into the fourth and fifth digits in a C8 distribution. No trauma or neck pain;
(c) On 12 December 2006, the records note the plaintiff was not working, mainly because of the right arm pain.
(d) On 10 January 2007, Dr Arnold wrote to Dr Hammond, reporting that a recent MRI scan demonstrated a mid-cervical disc prolapse to the right side and the plaintiff’s pain, extended down the right arm to his hand. Dr Arnold said she would have expected to see some cervical spine pathology at a lower level.
(e) On 27 February 2007, Mr N Seifman, medical student in the Department of Neurosurgery, reported to Dr Hammond that the plaintiff presented with right upper limb pain extending down the C8-T1 distribution. Mr Seifman reported the plaintiff claims the pain flares up after lifting heavy weights. The plaintiff worked as a storeman and lifted heavy weights. Further, Mr Seifman reported that he discussed the plaintiff’s case with Mr G Malham, who recommended the plaintiff continue with his nerve conduction studies and undergo a right C8 nerve root injection to help with the pain.
(f) On 3 April 2007, at his review, the plaintiff reported that his right arm pain had decreased. He was working, not lifting much weight. He felt able to gradually lift more as the pain was subsiding.
(g) On 8 August 2007, the plaintiff reported developing some right arm pain around the elbow which is of a slightly different quality and location to the arm pain involved in 2006.
(h) On 5 March 2008, Mr John Leech, neurosurgeon, wrote to the plaintiff’s solicitor, reporting that the plaintiff had experienced a recurrence of his upper limb symptoms, in particular pain, numbness and tingling in his right upper limb, which occurs when his neck is flexed and at night. It was his view the plaintiff possibly had a symptomatic cervical cord compression. He recommended a C3-4 anterior cervical discectomy and fusion which was to prevent neurological deterioration. He confirmed the plaintiff had been placed on a waiting list with Mr Chan.
(i) On 11 March 2008, a pre-admission clinic noted that his symptoms had existed since November 2006. He had increased pain in the neck and an increased tingling hand when looking down, which was interfering with his work and writing letters, and was exacerbated by heavy lifting at work lifting between 5 and 25 kilograms.
Professor Richard Bittar
44 In February, May and July 2014, Professor Bittar, neurological surgeon, saw the plaintiff on referral. Professor Bittar obtained a history of the plaintiff suffering an onset of symptoms which commenced in a gradual fashion in around 2006 during the course of his heavy work as a storeman. He subsequently underwent multiple spinal surgeries at The Alfred hospital, in particular C3-4 and C7-T1 anterior cervical decompressions and fusions which were complicated by a failure to obtain a solid bony fusion. The plaintiff underwent an attempt at revision of the C7-T1 fusion which was aborted due to intra-operative complications. Subsequently, he underwent a posterior decompressive and fusion procedure at both of these levels. It was his view that the plaintiff presented with aggravation of cervical spondylosis.
45 Professor Bittar said, despite multiple spinal surgeries, the plaintiff continues to experience significant symptoms and disability. He said employment has most likely been a significant contributing factor. Further, the plaintiff is totally incapacitated for work, which is likely to be permanent. He recommended ongoing analgesic medication and gentle physiotherapy. He said the plaintiff is likely to continue to suffer from significant pain and disability into the foreseeable future.
46 Professor Bittar said the plaintiff’s present condition is likely attributable to his employment. Specifically, the nature of his employment (heavy physical work) performed from 2006 to March 2008 has been a significant factor to the aggravation of his asymptomatic pre-existing degenerative cervical spine condition. He thought, given the plaintiff’s symptoms and his surgery, it is highly likely that there would be a significant detrimental impact on his domestic, social and recreational activities.
Dr Lesley J Roberts
47 In April 2014, Dr Roberts, neurologist, examined the plaintiff at the request of the plaintiff’s solicitor. At the time of the examination, he had available to him a medical report from Dr Hammond dated 11 February 2014 and Dr Hammond’s medical records. In addition, he had the medical records of The Alfred Hospital.
48 Dr Roberts diagnosed a degenerative spinal disease which had affected at least the cervical and lumbar region. This had resulted in canal stenosis in the upper cervical spine at the C3-5 levels, and foraminal stenosis at the C7-T1 level, particularly on the right side. It was his opinion the plaintiff had an underlying degenerative condition. Based on the history described in the records of The Alfred hospital and provided by the plaintiff, it was his view that there was an underlying and degenerative condition which had been exacerbated by the nature of his employment. He considered the plaintiff’s employment duties performed from between June 2006 and March 2008 produced an aggravation and/or exacerbation of the pre-existing degenerative condition.
49 In relation to the cervical spine, he said the condition will require ongoing treatment predominantly in relation to pain management. He said the plaintiff was restricted in his activities. He has difficulty with housework including vacuuming, cleaning and even washing dishes. He goes out little and spends a lot of his time watching television. His social activities are curtailed because of the pain and he cannot play sport, although he does keep fit using an exercise bike and performing exercises at home. Dr Roberts was not asked and did not express a view on the plaintiff’s ability to work.
Dr Gary Davison
50 In January 2014, Dr Davison, occupational physician, medically examined the plaintiff at the request of the defendant’s insurer. The plaintiff told Dr Davidson that in late 2006 or early 2007, he suffered a spontaneous pneumothorax. Dr Davidson obtained a history of the injury; that the plaintiff suffered injury to his neck and lower back as a result of a workplace activity on 13 March 2008. He was off work for ten weeks and returned to work on full duties, and reported that three weeks or more after returning to work, he experienced intermittent pain in the right arm. Further, that in February 2008, he was loading a pallet when he noticed some numbness and tingling in his right hand affecting the fourth and fifth fingers.
51 Dr Davison described the plaintiff as a pleasant and cooperative historian who gave a good account of himself. He noted that the Waddell’s signs were negative. He noted that the plaintiff had undergone multiple surgical procedures in the cervical spine which included fusion at the C3-4 and C7-S1 segments. He was unable to say what had caused the plaintiff’s injuries which appeared to have developed spontaneously subsequent to a degenerative process. It was his view that the widespread degenerative changes in the cervical spine suggested that it was constitutionally derived rather than a result of a workplace injury. He said the plaintiff does not have a capacity for pre-injury duties, but does have a capacity for alternate duties subject to restrictions of:
§ varying posture regularly
§ avoiding frequent bending or twisting
§ avoiding manual handling greater than 4.5 kilograms in force or weight at desk height
§ self-paced duties; and
§ graduated hours of work.
Mr Rodney J Simm
52 In December 2014, Mr Simm, orthopaedic surgeon, provided a report based on medical and operational reports, an MRI scan of the cervical spine dated 11 December 2006, an unsworn statement of Ashley Kausman, and the clinical records of the general practitioner. Mr Simm was requested to provide an opinion as to the correlation between the plaintiff’s employment as a storeman and his cervical spine injury. Mr Simm did not consult with the plaintiff personally.
53 Mr Simm was aware that the plaintiff worked with the defendant from June 2006 to September 2006 before ceasing work to undergo lung surgery. He was aware the plaintiff presented to his general practitioner on 4 November 2006 complaining of four days of right scapular pain, two days of pain radiating down the right arm, reproduced with neck movements. He was aware that these symptoms were reported to the plaintiff’s general practitioner after the plaintiff had ceased physically demanding work with the defendant. The symptoms were investigated with an MRI scan on 11 December 2006 and the changes reported at the C3-4 level were longstanding established changes, which he concluded could not possibly relate to the very short period of moderately demanding physical work with the defendant. He noted that the changes were confined to the C3-4 level and could not explain the reported symptoms down his right arm to the little and ring fingers of the right hand.
54 It was not clear to him why the plaintiff had a C7-T1 anterior cervical discectomy and fusion on 16 September 2011, as this level in the cervical spine was reported to be normal on the MRI scan of 11 December 2006. He noted that the difficulty in providing a meaningful opinion in this case was due to the fact that he was unable to establish the pathology responsible for the plaintiff’s cervical symptoms on the basis of the available information.
55 It was his view that there was nothing in the material provided that would lead him to conclude that the plaintiff’s duties as a storeman during the first period of employment have caused or contributed in any way to his cervical spine condition. He noted that the period of employment was moderately physically demanding, but it was short and not likely to accelerate or influence any underlying degenerative condition of the cervical spine.
The Plaintiff’s evidence
56 The plaintiff’s evidence was that he commenced with the defendant as a storeman in June 2006. In August 2006, he suffered a collapsed lung which was unrelated to his work. He was off work and underwent surgery in October 2006. He returned to work on 2 January 2007 on light duties, and ceased work on 11 March 2008. He was on holidays during February 2008.
57 The plaintiff’s evidence was that the duties he performed with the defendant involved repetitive work unloading products from trucks and loading products onto pallets to be delivered to customers. He was required to lift items weighing up to 18 kilograms approximately. When goods arrived on a container on a truck, he would lift them out of the container by hand, then twist around to stack them on a pallet on the ground. The height of the stock depended on the truck’s size. The higher the truck, the more likely he would have to work above shoulder height. His work was manual. Trucks could accommodate pallets up to 2 metres high. On occasions, pallets were stacked to the top, which involved repetitive work above shoulder height.
58 The plaintiff’s duties involved pricing products. He was required to stand at a table at waist height, looking down at products on the table, placing prices on the products. This task put strain on his neck. He was also required to wrap pallets in plastic once they were stacked. This task involved twisting and bending. The task could be difficult, especially when he was working at above head height.
59 The plaintiff’s evidence was that, on average, three to four container loads were delivered to the warehouse each week. The container was on the back of a truck at chest level, and cartons were stacked at shoulder height or just above shoulder height. Cartons varied in weight from 2 to 18 kilograms.[33] The cartons would be stacked on a pallet and some weeks he would be packing only a few, and other weeks possibly twenty or thirty.[34] He would pack cartons onto the pallet to approximately 2 metres high[35] and he thought probably 40 to 50 per cent of the pallets would require packing up to 2 metres.[36] He thought he would have wrapped approximately 90 per cent of the pallets, as he was known to do a good job.
[33]T26, L17-23
[34]T27, L5-8
[35]T27, L10
[36]T27, L15-16
60 The plaintiff’s evidence was that after November 2006, he found his neck and shoulders were tight and he had a sort of dull ache and just felt very tired.[37] In re-examination, he said, when handling the heavier cartons, by the end of the day he would have more pain and stiffness in his neck.[38] He believed work was playing a role in the progression of his symptoms because before he started work with the defendant, he did not experience any problems. Once they started they became worse and worse.[39] When he lifted heavy products he would have a very sore neck after that.[40] By the time he stopped work in 2008, his neck and shoulders were tight, and the twisting in his neck caused pain. He could remember complaining in passing to Sean Bowe, his co-worker. He also recalled telling his supervisor, Michael Telfer, on the bus on the way home from work that he had a really sore neck that day.[41] He informed them that he had neck pain. He said he developed numbness and tingling in his arm which he noticed during 2007, but it became really severe by March 2008. Initially, it was intermittent but by March 2008, it was persistent.[42] By March 2008, he told his supervisor of the pain he was experiencing.
[37]T27, L31 – T28, L2
[38]T77, L27-31
[39]T78, L6-11
[40]T78, L14-17
[41]T28, L9-15
[42]T28, L22-27
61 On 1 August 2008, the plaintiff underwent surgery at the C3-C4 level. In February 2009, he underwent further surgery at the L4-5 level (unrelated to his neck injury), from which he obtained a good result. The neck pain continued and, in 2011, he participated in a multidisciplinary pain management program at the Caulfield Pain Management Clinic. In September 2011, he had fusion surgery at the C7-T1 level of his neck, which was unsatisfactory. In September 2012, he was scheduled for revision surgery.
Credit of the Plaintiff
62 The plaintiff gave his evidence in a quiet and thoughtful manner. He answered questions directly. He did not overestimate or exaggerate in any sense. He made concessions throughout his evidence. For example he was asked about his memory in relation to months and years and replied he was pretty vague.[43]
[43]T25, L29-30
63 Counsel for the defendant submitted that the plaintiff was not a wholly reliable witness, as he did not have a good recollection of the relevant period of employment. The relevant period commenced on 7 June 2006. Counsel relied upon a number of examples. For example the plaintiff said his memory in relation to months and years was pretty vague;[44] he could not recall his initial consultations with Dr Hammond[45] or at The Alfred hospital;[46] he could not recall when he discussed with Dr Hammond any relationship between his condition and employment;[47] he could not recall when he formed a belief that his condition was work related; he could not recall discussing other medical problems with Ashley Kausman,[48] and he could not be sure whether he told his supervisor why he would not be returning to work.[49]
[44]T25, L29
[45]T35, L13
[46]T36, L17
[47]T64, L2
[48]T50, L3
[49]T35, L13 and T36, L17
64 Whilst the plaintiff agreed that he had a vague memory of dates, his evidence as to the sequence of events was consistent. I formed the view that his failure to recall certain events, such as his initial consultations with Dr Hammond and The Alfred hospital,[50] were not unreasonable given the elapsed time since those events. He accepted that the dates recorded by Dr Hammond and The Alfred hospital were accurate.
[50]T35, L13 and T36, L17
65 Given that the examples of some events occurred many years ago, which, when taken into account with the level of medication the plaintiff has been taking since 2006, it is not surprising that he could not remember such events. A number of the examples of failed memory were not central to the issues I have to determine. Further, these examples were concessions made by the plaintiff which reflected favourably upon his credit.
66 It was noted that the plaintiff did not submit a claim form for injury for many years. I accept that the plaintiff was not claims focused. He said it was only recently, after hearing a radio advertisement by a solicitor, that he obtained legal advice and became aware that he could make a claim.
67 Counsel for the defendant referred to the plaintiff’s evidence concerning a referral to Professor Richard Bittar, neurological surgeon. The plaintiff thought Dr Hammond suggested attending Professor Bittar, and that it was for further treatment.[51] Dr Hammond’s evidence was that he thought the referral was sought by the plaintiff on the advice of his solicitor.[52] Professor Bittar stated in his report that he saw the plaintiff for treatment purposes, rather than for medico‑legal purposes, when responding to questions asked by the plaintiff’s solicitor. Further, he saw the plaintiff on three occasions and provided only one report. Given the state of the evidence, this is not a matter I take into account in respect to the plaintiff’s credit.
[51]T70, L19
[52]T126, L23
68 No medical witness suggested the plaintiff was not genuine. Dr Davison said the plaintiff was a pleasant and cooperative historian and gave a good account of himself. In cross-examination, Dr Hammond said the plaintiff was uncomplaining, he self-managed and self-assessed, based on what he could do in the workplace, trying to fulfil his obligation to his employer.[53] There was no suggestion of any non-organic reaction. The plaintiff was consistent with his complaints to all medical practitioners whom he consulted.
[53]T99, L5-11
69 In considering the credit of the plaintiff, I must consider the evidence as a whole. Overall, I formed the view that the plaintiff was genuine. He did not overestimate or exaggerate his evidence in any sense. On a number of occasions, he made concessions against his interests. I accept that at all times, he was attempting to give an honest version of events.
Analysis of the evidence
Causation
70 The defendant submitted that the Court should not accept that the plaintiff’s employment during the three months from June to September 2006, and then between 2 January 2007 and 11 March 2008, was a cause of injury to the plaintiff’s neck and right arm for the following reasons:
(i) The plaintiff was an unreliable witness;
(ii) The plaintiff’s right arm and/or neck symptoms commenced in or about the beginning of November 2006 during a period when the plaintiff was not working;
(iii) The period of employment with the defendant before the onset of symptoms was short – from June to 1 September 2006;
(iv) The plaintiff delayed associating his condition with his employment and lodging any claim;
(v) The nature of the plaintiff’s employment;
(vi) The medical evidence of Dr Davison and Mr Simm, as well as concessions made by Dr Hammond, do not support the causal connection.
71 In considering the above matters, I am reliant in large part upon the evidence of the plaintiff and the medical witnesses.
72 As to the plaintiff being an unreliable witness, I have already dealt with this issue under the plaintiff’s credit. The plaintiff did not dispute the fact that his memory was somewhat vague as to months and years. I concluded that his evidence as to the sequence of events was good. There were events he could not remember, but on the whole I did not consider that detracted from the issues I had to determine. Further, there was independent evidence in the nature of contemporaneous medical records of The Alfred hospital and Dr Hammond.
73 In view of my findings in relation to the credit of the plaintiff, I accept the plaintiff’s evidence that when he commenced employment with the defendant, he had suffered no neck and/or arm symptoms, either with his prior manual work or before starting work with the defendant. I accept the plaintiff was symptom-free. This is consistent with what he told the medical witnesses.
74 Further, I accept that the work tasks outlined in the plaintiff’s affidavit, and upon which he was cross-examined, put strain on his neck and/or arm. I rely upon what the plaintiff was reporting to Dr Hammond and The Alfred hospital from November 2006 until the plaintiff ceased work in 2008. This is consistent with Dr Hammond’s letter to the employer in December 2006 which imposed lifting restrictions of 5 kilograms upon the plaintiff’s return to work.[54]
[54]PCB 34
75 The plaintiff reported this to The Alfred hospital at his first visit in November 2006. The notes record:
“Storeman … unload containers-reasonably heavy lifting.”[55]
[55]Page 47, Extracts from The Alfred hospital notes
76 In February 2007, Mr Seifman of the hospital, in a letter to Dr Hammond, refers to the plaintiff as follows–
“… a storeman and lifting heavy weights caused him pain in his upper limb although he does admit to having to lift normal strength. He claims that the pain flares up after lifting heavy weights. The patient also notes a tingling sensation in his hand and medial 2 fingers in the 8 distribution.”[56]
[56]Page 9, Extracts from The Alfred hospital notes
77 On 3 April 2007, on review, the hospital records note:
“Mr Dalton feels arm pain is improving – is working but not lifting much weight – feels is able to gradually lift more as pain is subsiding.”[57]
[57]Page 66, Extracts from The Alfred hospital notes
78 On 11 March 2008, the hospital records record at the pre-admission Clinic:
“↑ [increasing] pain neck / ↑ [increasing] tingling hand when looking down. Interfering w[ith] work, writing letters, worse looking down + to (L) [left]. exac[erbated] by heavy lifting @ work 5 -25 kg travel goods.”[58]
[58]Page 127, Extracts from The Alfred hospital notes
79 Further, I accept the plaintiff’s evidence that his work duties were associated with neck pain which worsened. This is consistent with the records of Dr Hammond. I note that throughout the period from January 2007 to March 2008, when the plaintiff returned to work he was on strong medication to assist with the pain.
80 In addition, I accept that by March 2008, the plaintiff was in severe pain, causing him to cease work and undergo multiple surgical procedures for his neck. He was reporting right arm pain to Dr Hammond and The Alfred hospital since November 2006.
81 The defendant relied upon the evidence of Dr Davison and Mr Simm.
82 Dr Davison is an occupational physician. His report is based on an injury to the neck and lower back as a result of workplace activity on a specific date, namely 13 March 2008. Dr Davison did not obtain a history about the nature of the plaintiff’s work activity, in particular whether the work involved particular stress and over what period. He made no mention of the work duties set out in the affidavit of Mr Kausman.
83 Further, it is unclear what documents he had available to him. He refers to a schedule of attached reports and other materials. He reported that the plaintiff provided him with copies of several cervical spine investigations and some operation reports. Further, he stated that he was provided only with the radiological investigations undertaken subsequent to the surgical intervention on the cervical spine. He concluded that he could not precisely say what had caused the plaintiff’s injuries, which appeared to have developed spontaneously subsequent to a degenerative process. Accordingly, for the above reasons, the report is of limited value.
84 Mr Simm, orthopaedic surgeon, did not examine the plaintiff, but based his report upon information supplied by the defendant’s solicitors. Mr Simm listed the documents supplied by the defendant’s solicitor. His report is limited by the fact that he was not supplied with radiological reports subsequent to December 2006. In fact he stated that he was unable to provide a meaningful opinion, as he had not been able to establish the pathology responsible for the plaintiff’s cervical symptoms on the available material. Further, he did not examine or obtain a history from the plaintiff. For those reasons, I found his report of limited value. Mr Simm stated that, based on his view, “the period of work between June and September 2006 could not possibly relate to the very short period of moderately demanding physical work with the defendant”. He said the period of employment was moderately physically demanding, but short, and not likely to accelerate or influence an underlying degenerative change. Mr Simm was in the minority on this view.
85 In relation to the medical witnesses relied upon by the plaintiff, I make the following comments.
86 The only medical witness to give evidence was Dr Hammond, general practitioner. I have summarised the relevant evidence he gave, and have indicated that I found his evidence to be measured, based on his knowledge and experience over a significant period as a general practitioner. His reasoning was logical. Furthermore, he had treated the plaintiff since 2004, but more regularly since 2006. I formed the view that he had a good understanding of the plaintiff, the nature of the plaintiff’s work duties and his condition. Dr Hammond said he disagreed with the view expressed by Mr Simm.
87 Dr Hammond accepted that the plaintiff’s work with the defendant was a likely cause of his neck pain, cervical disc injury, and subsequent need for surgery. He said it is likely that the plaintiff’s work as a storeperson, which entailed regular overhead lifting, contributed to the plaintiff developing cervical disc injuries.
88 In addition to the evidence of Dr Hammond, the plaintiff relied on medical reports of Professor Bittar, and Dr Roberts.
89 Professor Bittar said he was treating the plaintiff, and had seen the plaintiff on three occasions. He obtained a history of the plaintiff’s symptoms, namely that they commenced gradually in 2006, in the course of his heavy work as a storeman. He diagnosed an aggravation of cervical spondylosis and concluded that work had most likely been a significant contributory factor.
90 Dr Roberts, neurologist, saw the plaintiff at the request of the plaintiff’s solicitors. He was provided with the medical records of The Alfred hospital and Dr Hammond, including Dr Hammond’s report of 11 February 2014. Dr Roberts obtained a detailed history of the nature of the work performed by the plaintiff with the defendant. He analysed the hospital records, the radiological findings, and the treatment provided, and provided his answers to the questions put by the plaintiff’s solicitors. Dr Roberts said the plaintiff suffered from an underlying degenerative condition which was exacerbated by the nature of his employment with the defendant. He accepted that the nature of the plaintiff’s employment duties between June 2006 and March 2008 produced an aggravation and/or exacerbation of the pre-existing degenerative condition.
91 Based on all the medical evidence, I prefer the views expressed by Dr Hammond, Professor Bittar and Dr Roberts. I have already stated my reasons for forming the view that the reports of Mr Simm and Dr Davison were of limited value.
92 Dr Roberts was provided with the medical records of The Alfred hospital and Dr Hammond, as well as Dr Hammond’s medical report of 11 February 2014. He had copies of the radiological findings. He also obtained a detailed work history, including the work the plaintiff was performing with the defendant. Dr Roberts diagnosed an underlying degenerative condition exacerbated by the nature of his employment between June 2006 and March 2008.
93 Professor Bittar’s report was consistent with this but, on this aspect, I place less reliance on his report as he did not detail the nature of the plaintiff’s work.
94 Accordingly, I accept that the plaintiff’s employment was a cause of the plaintiff’s condition.
Commencement of symptoms
95 Counsel for the defendant submitted that the plaintiff’s right arm and/or neck symptoms commenced in or about the beginning of November 2006 during a period when the plaintiff was not working. I accept the contemporaneous evidence of the medical records of Dr Hammond and The Alfred hospital confirm that the plaintiff first reported the right arm and neck symptoms at that time. The plaintiff’s evidence was that he suffered neck and arm pain before he ceased work with a collapsed lung condition, which was less severe than it later became[59], when he first reported the pain in November 2006.[60] The plaintiff’s evidence was that is not when the pain first occurred.
[59]T37, L15-29
[60]T38, L23-26
96 The plaintiff agreed that after he lodged a claim in late 2013, he told an insurance investigator that up until August 2006 he had no problems performing his work.[61]
[61]T43, L2-16
97 Dr Hammond’s evidence was that his notes confirmed the reporting of pain in November 2006 relating to that episode.[62] Dr Hammond said he had an understanding of the plaintiff’s work in November 2006 because he was treating him for thoracotomy. Further, in his experience with other patients, Dr Hammond said the three-month period from June to September 2006, when the plaintiff was performing work which involved loading the neck, arms and lifting overhead, can be a cause of cervical disc injury which can happen in a fairly short space of time.[63]
[62]T91, L4-6
[63]T 120, L17-28
98 Accordingly, based on the plaintiff’s medical evidence, particularly that of Dr Hammond, and the evidence of the plaintiff, I reject the submission of the defendant that the plaintiff’s employment during 2006 was not a cause of the plaintiff’s injury.
Delay in lodging a claim for compensation
99 Counsel for the defendant raised the fact that the plaintiff delayed in lodging a claim for compensation until late 2013. In the past the plaintiff had lodged claims for injuries in respect of his back, which were accepted as being minor. It was submitted that this showed a familiarity with the WorkCover scheme. The plaintiff’s evidence was that any past claims he made related to a particular incident. In relation to his neck injury, there was no specific incident. Initially he thought his injury would get better. He also believed he was required to make a claim within twelve months, and by the time he thought his injury was work related, it was well past the twelve-month period. It was not until he heard a firm of solicitors advertising on the radio that he made enquiries about his legal rights with respect to his injury.
100 Counsel for the plaintiff submitted that Dr Hammond was aware early on that the injury was work related.[64] This showed the plaintiff was not claims focused. I accept the plaintiff’s explanation for the delay in making a WorkCover claim. If anything, it does demonstrate the fact that he was not claims focused.
[64]T88, L9
Evidence of other workers
101 Counsel for the defendant submitted that notwithstanding the plaintiff was engaged in manual work, given the affidavits of Mr Kausman, Mr Telfer and Mr Bowe, there is some dispute about aspects of his duties, in particular, the extent to which he performed lifting above his shoulders or head. Even the plaintiff’s own evidence qualified the extent to which his duties may have been problematic. As to that submission, they are not matters I need to decide in this application. Overall, I accept that the plaintiff’s work with the defendant was a contributing factor to the plaintiff’s injury.
102 On the basis of the medical evidence of Dr Hammond, Professor Bittar and Dr Roberts, I accept that the plaintiff’s work between June 2006 and March 2008 produced an aggravation or exacerbation to the plaintiff’s pre-existing degenerative disease.
Aggravation injury
103 In respect of an aggravation to a pre-existing condition, Southwell and Teague, JJ, in Petkovski v Galletti,[65] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[66]
“… 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 … .”
[65] [1994] 1 VR 436
[66](supra) at 443
104 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve a permanent serious impairment or loss of body function.
105 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the work injury was “severe”.
106 The plaintiff’s evidence was, in the mid-1990s, he was a storeman with Linens Unlimited, which involved heavy lifting from time to time. He experienced lower back spasms which would flare up, usually lasting three or four days. He consulted his general practitioner at Chapel Gate Medical Centre. In 1999, he made a WorkCover claim for a back strain caused by unloading stock from a delivery van. He was off work for approximately one week and had chiropractic treatment. In 2001, he made another WorkCover claim in relation to his lower back. He was pushing stock to the back of the shelf. The claim was accepted in relation to medical treatment. Despite the lower back symptoms from time to time, he continued to work. He ceased work at Linens Unlimited when it moved to Port Melbourne. When he ceased employment, he was not restricted in any way at all. He had no pains in his neck or shoulder. He commenced work with the defendant immediately after ceasing work with Linens Limited.
107 The plaintiff’s evidence was that he suffered no neck pain prior to commencing work with the defendant. This is what he told doctors and what he told the Court. Once the neck pain started, the pain gradually became worse and worse.[67] The evidence was the plaintiff was in full-time employment performing manual handling work. He ceased work in March 2008 due to a neck condition and the forthcoming surgery. The plaintiff has not returned to work.
[67]T78 L9-11
108 There was no medical evidence to suggest the plaintiff suffered neck pain prior to commencing work with the defendant. Dr Hammond said that he had treated the plaintiff since 2004 and that prior to the work injury, he had seen him for unrelated medical conditions.
109 Professor Bittar noted that his past medical history was non-contributory.
110 Dr Roberts obtained a past medical history of a fractured left tibia and ankle at age ten, with no residual problems.
111 Accordingly, I accept that at the time the plaintiff commenced employment with the defendant, he was asymptomatic in respect to his cervical spine. The plaintiff’s evidence was that, once he commenced employment with the defendant, the work tasks put strain on his neck by reason of the postural requirements and the height that on occasion they required him to lift things to and from. Further, the work duties were associated with pain and the worsening of pain. I accept that as a result of the plaintiff’s employment he was in severe pain causing him to stop work and undergo significant surgery in relation to his neck at C3-4 and C7-T1.
Bezzina v Phi & Anor[68]
[68][2012] VSCA 161
112 Counsel for the defendant submitted that the Court must look at and consider the effect (and likely effect in the future) of the plaintiff’s pre-existing injuries. The responsibility to establish those matters lies with the plaintiff.[69] So that if I were to accept the plaintiff suffered an aggravation or exacerbation, it is necessary for me to look at and consider the effect (and likely effect in the future) of the plaintiff’s pre-existing condition. Counsel submitted that on the evidence, I cannot do this.
[69]Bezzina v Phi & Anor (supra) at paragraph [23]
113 As to that submission, I take the view that Bezzina v Phi & Anor[70] applies to a different set of circumstances. In that case, the plaintiff had suffered a pre-existing, disabling injury to another body part, namely his back. The plaintiff was involved in a transport accident, injuring his shoulder and neck. The difficulty was assessing whether the degree of impairment caused by the shoulder injury could be described as more than significant or at least very considerable, when superimposed on an already very modified and limited lifestyle due to the pre-existing condition. There were few changes in the plaintiff’s activities since the transport accident. In the present case, the plaintiff was able to work. As a result of his work, his underlying condition was aggravated to the point where he can no longer work.
[70]Supra
114 The issue is whether the aggravation and consequences are “serious”.
115 Accordingly, I must be satisfied, on the balance of probabilities, that the organically-based pain and suffering consequences satisfy the statutory criterion.
116 The Court must examine the consequences of a physical impairment in the separate context of:
(a)pain and suffering; or
(b)loss of earning capacity.
117 As stated, the provisions of s134AB(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.[71] The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[72] 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, for both pain and suffering and loss of earning capacity).[73]
[71]Section 134AB(38)(b), (c) and (d)
[72]Section 134AB(38)(e), (f) and (g) of the Act
[73]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
118 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 in respect to the neck injury.
Loss of earning capacity – the ‘narrative test’
119 If the plaintiff satisfies the test laid down by the Act, then he is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[74]
[74]Advanced Wire & Cable Pty Ltd & Anor v Abdulle (supra) at paragraph [63]
120 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time. Accordingly, I am more influenced by the up-to-date reports and evidence of Dr Hammond, Professor Bittar, Dr Roberts, Dr Davison and Mr Simm in respect to the plaintiff’s earning capacity.
121 Dr Hammond’s evidence was that the plaintiff could not return to storeman duties. His evidence was that he had a very limited work capacity because of the ongoing symptoms with his neck and the multiple neck surgeries. Dr Hammond said there was instability at those levels which makes it difficult for the plaintiff to maintain neck postures for any long periods of time. He said the plaintiff may have a limited capacity in the future; however, he noted that the plaintiff is on heavy medication.
122 Professor Bittar said the plaintiff was totally incapacitated for work, which was most likely permanent.
123 Dr Davison said the plaintiff had no capacity for pre-injury duties permanently, but does have a capacity for alternate duties with the following physical restrictions:
§ Vary posture regularly and at will;
§ Avoid frequent bending or twisting;
§ Avoid manual handling greater than 4.5 kilograms in force or weight at desk height;
§ Self-paced duties; and
§ Graduated hours of work.
124 Dr Roberts and Mr Simm were not asked about the plaintiff’s capacity for employment, and did not express a view.
The Plaintiff’s evidence
125 The plaintiff’s evidence was that after leaving school, he worked as a clerk at the Taxation Department in the 1970s. He commenced work with Telstra as a clerk in the 1980s, performing administrative work and using a computer. He was made redundant by Telstra and after a short holiday, obtained employment in Telstra Technologies in the warehouse, then obtained employment at Linens Unlimited as a storeman and was promoted to warehouse supervisor, where he performed less physical work. The plaintiff’s evidence was that since leaving Telstra, he has hardly used a computer. The plaintiff’s evidence was that he would require training. He gave evidence that he tried sitting at a computer, leaning forward with his hands outstretched, but that he could only do so for ten minutes before the pain became really severe.[75]
[75]T74, L7-9
126 Most of the plaintiff’s employment roles have involved manual work. I accept that the plaintiff’s experience of clerical employment was very basic and occurred in the 1970s, many years ago. Based on his own evidence, he would require training and he would have difficulty sitting at a computer because of the pain.
127 There was no vocational assessment provided by the parties.
128 Given the evidence of Dr Hammond and Professor Bittar, the fact that the plaintiff has been out of employment for almost six years, and based on my impression of the plaintiff’s presentation in Court, I consider it unlikely that he will return to work. I also take into account that all doctors commented upon the level of medication the plaintiff was taking. The evidence of Dr Hammond is that attempts have been made to reduce the medication, but have resulted in increased pain with corresponding increases in the medication.
129 The plaintiff’s evidence was that he misses work and is sad. He enjoyed working, the company of the people he worked with, and the sense of accomplishment of doing a good job.
130 The evidence was that the plaintiff had been in continuous employment, other than for a period when he was overseas for six months, most of which had been as a storeman. The plaintiff can no longer work in pre-injury employment. He has few transferrable skills. Given his age of fifty-nine years, the fact that he cannot return to his pre-injury employment represents a significant loss to the plaintiff, both with respect to his enjoyment of life and self-esteem.
131 I am satisfied that the plaintiff’s impairment is permanent, given the medical evidence, and that it has continued since 2008.
132 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the “narrative test”. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment; indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
133 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
134 Given the medical evidence and that the plaintiff’s injury has continued since 2008, I find that the plaintiff is effectively excluded from any suitable employment as a result of the neck injury and the consequences flowing from that. Accordingly, there is no need to enter into an analysis of wage rates. I do not accept that the plaintiff has any residual capacity, when the medical restrictions placed on him by the medical witnesses are looked at in the context of the real commercial world. The plaintiff has not been offered any retraining necessary for him to obtain administrative-type work. The plaintiff’s evidence was that he has attempted to sit at a computer but after ten minutes, his neck pain increases. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
135 In view of the matters I have described, the plaintiff has discharged the onus with respect to his impairment of the neck regarding his loss of earning capacity.
136 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
137 In accordance with Advanced Wire & Cable Pty Ltd v Abdulle,[76] it follows I grant leave to bring proceedings for pain and suffering damages.
[76]Supra
138 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for economic loss consequences as a result of his employment with the defendant.
139 Accordingly, I will make an order that the plaintiff be granted leave to issue proceedings at common law for pain and suffering damages and economic loss. I accept that the plaintiff’s employment between June 2006 and March 2008 was a cause of the plaintiff’s condition.
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