Dara v Gallo

No judgment structure available for this case.

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
WORKCOVER LIST

SERIOUS INJURY DIVISION

Case No. CI-09-03477

VICHETH DARA	Plaintiff
v
S C & P GALLO	Defendant

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JUDGE:	HER HONOUR JUDGE KL BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	24 and 25 February 2011
DATE OF JUDGMENT:	13 April 2011
CASE MAY BE CITED AS:	Dara v Gallo
MEDIUM NEUTRAL CITATION:	[2011] VCC 486

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering – loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R McGarvie SC with	J N Zigouras & Co
Mr M O’Connor
For the Defendant	Mr P Elliott QC with	Hall & Wilcox
Mr S Martin
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 5 or 6 February 2005 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. 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 application is the lumbar spine.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

Outline of s.134AB
(i)         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;
(ii)        The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;
(iii)       The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (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 “more than significant” or “marked” and as being “at least very considerable”;
(v)        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;
(vi)       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;
(vii)      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii)     Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix)       Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x)        I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.

The Plaintiff’s Evidence
Background
6          The plaintiff is aged thirty seven, having been born on 10 April 1973 in Cambodia. He left school at the age of thirteen and worked in manual work.
7          The plaintiff first arrived in Australia in 1990 or 1991. He returned to Cambodia for a short while, and eventually came back to Australia permanently in about 1994.
8          The plaintiff does not really have any literacy in English or in his native language of Khmer. He did some English courses when he first came to Australia.
9          The plaintiff has only ever worked in unskilled labouring jobs. He worked in factories and as a farm labourer in the Yarra Valley and at Heatherdale. In about 2000 he relocated to Robinvale where he did seasonal causal farm work and picking.
10        In 2004, the plaintiff first worked for the defendant at Robinvale as a grape picker and a shed hand. He commenced employment with the defendant for the 2005 season on 17 January. At work he spoke English.

The Incident
11        In early February 2005, there were heavy rains in the Robinvale area and there was no picking on the defendant’s property (“the block”) on 2 and 4 February 2005 because it was too wet.
12        On either 5 or 6 February 2005 (“the said date”), the plaintiff slipped outside on the block whilst carrying a box of grapes and suffered injury to his back (“the incident”).
13        The plaintiff described the incident in his affidavit as happening on or about 8 February, (which he changed in his viva voce evidence to 5 or 6 February), when picking grapes using snippers and packing grapes into boxes. The ground surface conditions in and around the vines were very poor and the ground was soggy, muddy and very slippery.
14        The plaintiff deposed that whilst working on the said date, he slipped and fell heavily to the ground, landing heavily on his left side. He was jarred and sore, but brushed himself down and continued working. He recalled complaining to his supervisor that the ground was too wet and soggy to work on picking grapes.
15        The plaintiff left the block at lunchtime and went home and rested. His back was sore and became progressively worse, and he began to experience left leg pain.
16        In cross-examination, the plaintiff could not remember if his boss Paul Gallo had telephoned him a couple of hours after lunch on 6 February at around 2 o’clock. The plaintiff did not tell anybody on 6 February he had hurt his back.
17        The parties agreed there are records of a phone call of 33 seconds duration from Paul Gallo to the plaintiff on 6 February 2005.
18        In examination in chief, the plaintiff said that the injury happened on the first day he went back to work after the rain. The claim form was wrong, because he picked the grapes up outside, not on the floor:
“I picked up the grapes, put them in the box. I lifted the box, walked
forward, and the ground was too wet, and I slipped.”

19        There was lengthy cross-examination about the plaintiff’s various accounts of the incident circumstances. The plaintiff’s answers particularly in relation to the circumstances of the completion of the claim form at his solicitor’s offices were at times contradictory and confusing.
20        The first time the plaintiff reported the incident was at Robinvale Hospital on 6 February 2005. He then presented with severe pain in the lower back, left hip and leg having complained of being out picking grapes when he heard a click in his back. He spoke to the doctors in English.
21        In cross-examination, the plaintiff confirmed he attended the hospital at 7.10 pm. He agreed with the note, “Today out picking grapes and heard click in his back about 11 o’clock” and that he had severe pain in his lower back and left hip and left leg.
22        The plaintiff said he told the hospital that he “went grape picking that morning and I was slip and fell down and I got my left hip pain and sore leg as well”. He confirmed he did mention to the hospital about slipping over. He told the hospital, “I went too quickly and the ground was too wet, so I slipped on the ground”.
23        In re-examination, when asked what the note in the hospital file “happened a.m.” meant, the plaintiff said he had some severe low back pain at 11 am. He slipped at the grape farm where he worked because it was all very wet. He still continued to fill up the box, and then poked his eye with a stalk from the grapevine. He continued working for about fifteen minutes to half an hour.
24        Mr Gallo would have seen him leaving the property at about 11.30.
25        The following night, the plaintiff was driven from Robinvale to Mildura, where he attended the Emergency Department at Mildura Base Hospital at 4 am. There was a history of having “woken yesterday in pain, working (picking grapes), working on block, back pain since 6 am”.
26        The plaintiff agreed he gave the hospital the above history. When asked about the entry in the hospital file of “no history of trauma”, the plaintiff said he did tell the doctor he had slipped and fallen in the vineyard and hurt himself. He agreed he complained of pain in the left part of the body, and remembered telling the doctor that “I work at that great big thing, farm, and the ground was too wet, so that’s where I slipped on the ground”.
27        In re-examination, the plaintiff said that during the consultation at the Mildura Base Hospital, he asked one of the doctors for an x-ray and he was told that it would be two to three weeks before it could be arranged, and that is why the plaintiff was later driven by friends to the doctor in Melbourne.
28        The plaintiff confirmed he had seen Sam Gallo senior in Robinvale a couple of days after the incident, and told him he had hurt himself in the vineyard.
29        The plaintiff never returned to the block as Paul Gallo deposed, to ask for wage details nor was he given any written wage details by Mr Gallo’s wife. The plaintiff did go back to the block and ask about official records, but he did not ask about insurance.
30        Having already attended Robinvale and Mildura Base Hospitals on 10 February 2005, the plaintiff was driven by a friend to Melbourne to see Dr Chan in Springvale, a doctor the plaintiff had previously attended.
31        Dr Pham, a Vietnamese doctor, at Dr Chan’s surgery saw the plaintiff on 10 February and organised a CT scan on that date. She certified him unfit for work, prescribed medication and referred him for physiotherapy.
32        The plaintiff told Dr Pham he went to grape picking “and then I picked the grape, put in the box, and I lift the box and go forward, then I slipped and hurt, I fell and came down on my back”. He did not tell her he was standing on a box.
33        In cross-examination, the plaintiff then agreed he was twisting his back picking grapes and he twisted his back to put the grapes into a box. Then, when it was put to him “So you can remember telling her that you twisted your back to put grapes into the boxes and felt pain immediately”, he said he did not tell her that at all, and what she had written down was wrong.
34        In cross-examination, the plaintiff then agreed he was picking grapes and twisting his back to put the grapes into the box, and he felt a click in his back. The plaintiff later said that was wrong, that when he fell down he heard his back click. He told Dr Pham he slipped and fell.
35        After a few days in Melbourne, the plaintiff returned to Robinvale where he was treated by Dr Khalil at the Robinvale Clinic.
36        The plaintiff sought legal advice from his solicitor Mr Zigouras who helped complete a WorkCover claim form on 17 February 2005. The plaintiff deposed some of the details in that form were incorrect. He did not suffer injury when he slipped on grapes on the floor in a packing shed. The fall occurred outside amongst the vines of the property.
37        The plaintiff was cross-examined at length as to the circumstances of signing the claim form.
38        When he was asked to sign the form, there was no interpreter present. He spoke to Mr Zigouras in English and could explain to him what happened. The plaintiff agreed on two occasions, the only way Mr Zigouras could get the information to put in the form was by the plaintiff telling him about it.
39        The plaintiff agreed that he understood what the declaration on the claim form meant. Mr Zigouras asked him the questions in the form and the plaintiff told him the answers.
40        When it was put to him that he did not work in the shed on 6 February, the plaintiff said that was true, because on that date he was injured already, so he could not work.
41        The plaintiff agreed he later found out through his solicitor that he did not work in the shed on 6 February, but then said he could not remember being told by his solicitor that the claim was being denied on this basis.
42        When asked why Mr Zigouras had put the incorrect details in the form, the plaintiff said:
“Obviously I fell down outside the shed, not on the floor of the shed.
Maybe my English language not enough for understand.”
(sic)

43 When asked why he did not tell Mr Zigouras that he slipped on the ground when he was filling out his claim form, the plaintiff said:
“Because I was worried by myself, and I asked the hospital to have an x-ray for me, but they did not allow me to do that, so that’s why I travelling to Melbourne to have an x-ray.”

44        He then said he did tell Mr Zigouras that he slipped outside.
45        The plaintiff later said twice he did not tell Mr Zigouras that he had slipped on some grapes in the shed.
46        When asked about the answer to Question 21 on the claim form which set out the injury occurred because of the state of the floor and it not being cleaned, the plaintiff said he fell over because the ground was too wet. He then said he did not know why “it was written about the floor being dirty, but some grapes were on the ground”.
47        The plaintiff agreed there were no witnesses to the incident, although the claim form set out there were.
48        The plaintiff was asked about the reference in the claim form to witnesses and the notation “two other workers, “Tell boss hurt eye”.
49        The plaintiff explained that on the day of the incident, Cowboy and his wife and Kym were also working. The claim form in fact said “Coverboy”, but it was “Cowboy”. The plaintiff did not tell Mr Zigouras that Cowboy witnessed the incident. The plaintiff told Cowboy that he had a sore eye, and that a branch had plunged into his eye and he needed to go home.
50        The plaintiff then went home because he had had an accident. He “fell down, that was so bad”. He did not tell Cowboy or anyone about falling. He was afraid to tell them because he was scared he was going to lose his job. He “was falling down, but he might be recovering on the next day and going back to work.”
51        The main reason the plaintiff went home was because he fell down and got a sore back “seriously”. He slipped over and then kept on working, and some time after that a branch hit him in the eye. At that early time his eye was worse than his back.
52        On a medico-legal examination in May 2007, the plaintiff denied telling Mr Mangos that he had fallen on a slippery verandah.
53        When asked about the history recorded by Mr Battlay that the plaintiff woke on 6 February 2005 having been doing the grape picking the day before, he said “No”. He told Mr Battlay he went to do grape picking at the farm, “and I lift the box of grapes and go forward, and then I was slipping on the ground because the ground was too wet”.

The Plaintiff’s Progress
54        The plaintiff’s claim for compensation was disputed and, as a result, he was placed on Centrelink sickness benefits.
55        The plaintiff continued to have severe problems with his back and was never free of pain. The pain continued in his left leg with numbness and tingling. The severity of his symptoms fluctuated markedly and caused significant disability.
56        The plaintiff was referred to Mr Gardiner, orthopaedic surgeon, but no further treatment was recommended. The plaintiff continued to take medication, including Codeine, Naprosyn and Temazepam to control his symptoms and he was also prescribed Tramadol which he used for some months.
57        In mid 2006, the plaintiff was referred to Mr Craig Mills, orthopaedic surgeon, but he was unable to recommend any further treatment. In cross-examination the plaintiff agreed he had also been referred to a neurosurgeon Mr Thien.
58        The plaintiff deposed in January 2009, that he continued to suffer from constant ongoing persistent back pain and also left leg pain, but this was not as bad as it was in 2005.
59        The pain and discomfort was made worse by activities such as sitting for prolonged periods or walking or standing for long periods. The plaintiff had difficulty bending, twisting or lifting. He experienced pain on these activities and from time to time he limped.
60        Many domestic activities were harder for him, such as putting on his shoes and socks or making the bed, or other activities requiring bending, flexing and twisting.
61        The plaintiff’s social and recreational activities were affected and he was not as active socially. He was more withdrawn in his social activities because of the uncertain nature of his back problem and the marked changes that could take place without warning.
62        The plaintiff’s emotional health was markedly affected. His mood varied significantly. At times he was quite anxious, irritable and easily upset. He was frequently snappy and believed he was more difficult to get along with than he was before the incident.
63        The plaintiff’s sleep was markedly disturbed and he struggled to get a good night’s rest. He was frequently woken by pain and discomfort and his loss of sleep added to feelings of fatigue, irritability and a feeling of uselessness.
64        In his recent affidavit sworn 4 October 2010, the plaintiff confirmed his back and leg problems and also his emotional problems.
65        The plaintiff’s back pain is constant, but varies. He has back pain when he goes to the toilet. His left leg pain is also ongoing and he has numbness and pins and needles. He also has lower back pain when he coughs hard. He continues to have difficulty putting on his shoes and socks and making the bed.
66        The plaintiff tends to walk with a limp. He still has problems sleeping and wakes in pain and discomfort even though he has taken sleeping pills.
67        The plaintiff lives in a shared, rented house in Noble Park with two other men upon whom he relies to do heavy domestic tasks. The plaintiff feels like it is “no good to ask others to help”.
68        If the plaintiff tries to do something around the house, his back pain and left leg pain get worse, and he has pain even if he is not doing anything. He has to do jobs in stages and often leaves them half finished because of pain and discomfort. Sometimes he tidies up or cleans the house after meals.
69        The plaintiff takes tablets for pain and wears Norspan patches. He also takes sleeping tablets and he gets his housemates to rub his back with Tiger Balm.
70        The plaintiff sees Dr Chan about once a month and last saw him about two weeks prior to the hearing. The plaintiff’s only treatment is prescription medication. The plaintiff has massage or physiotherapy frequently with Eden Law. The plaintiff has been told to do swimming, but he does not feel that he has the energy to do it because his back and leg are sore. He has not been referred to hydrotherapy.

71        The plaintiff used to go dancing at two clubs in Mildura, to the beach in Chelsea and the pools in Robinvale, but now cannot do so. He also used to go to the movies in Mildura and played volleyball and soccer at the park with his friends in Robinvale. Now the plaintiff does not do much any more. He has a coffee and a cigarette and walks around the house and watches some television but cannot sit in the one chair for too long and has to move around. He has difficulty concentrating and he may watch something and then forget what he has watched.
72        The plaintiff might flip through a Cambodian magazine. Sometimes on the weekend, a friend may come over and visit or pick him up and take him to his place for a meal and then drive him home. Other times, the plaintiff may go for a walk in the park near his house.
73        In cross-examination the plaintiff said he watches TV and does some housework, “any job he can do”. He can do the cooking and the vacuuming, as well as cleaning the dining table.
74        Before the incident, the plaintiff was planning to get another job to deal with the out of season time. He had moved to Mildura because he wanted to buy a block to plant his own grapes and eventually own his own business. It was something he could do because he had been doing all the work required and he did not need to know much English.
75        The plaintiff also planned to have his own place and get married and have children. Because of his mood problems and ongoing back pain, his sex life has been significantly affected.
76        The plaintiff has only ever done physical, manual, unskilled work and he thought that he would be a poor candidate for retraining. Since leaving work with the defendant the plaintiff has not been offered any skill based retraining or rehabilitation. He thought, because of his back problems, the chances of obtaining any work were virtually nil.

Work since the Incident
77        The plaintiff has been assessed by CRS, but despite their assistance, he has been unable to find any work which he is capable of doing. He has not had any further education or training and he has not obtained any further trade qualifications or skills and his English is still limited.
78        The plaintiff deposed that he had to fill out numerous forms and go to medical examinations and assessments and tell people what happened to him again and again. He was pressured to look for work, even though he could not then work. He tried to work two or three times, but lasted only about half an hour.
79        The plaintiff has had to move from place to place because he cannot afford to buy or rent a house.
80        Before the incident, the plaintiff was an experienced grape picker, fit and strong and able to work hard. He used to pick about 100 to 180 boxes of grapes by hand. He is now an invalid.
81        The plaintiff is concerned about his ability to work in the future because of ongoing pain and discomfort and he is anxious about the ongoing pain and the effect it has had and will continue to have on his life in the future, and concerned that, as he gets older, it will get worse and he will need an operation.
82        In cross-examination the plaintiff confirmed his affidavit evidence that he tried to work two or three times, but only lasted an hour, because it was very difficult and he had a lot of pain and discomfort. He worked somewhere near Cranbourne maybe in the last year or two, where he did some fruit picking for a contractor and asparagus cutting.
83        The plaintiff was able to pick asparagus for only about half an hour to an hour on two days because the duties caused a worsening of his back pain.
84        The plaintiff also worked at a vineyard, perhaps in Heatherdale, for only an hour or two on one day. The job was arranged by a Cambodian contractor.
85        The plaintiff agreed he was told by Centrelink he had to do some job searching. Now he is off Centrelink payments and getting a disability support pension, there is no need for him to go and look for a job and he is not looking at present. He agreed he had just done nothing for about twelve months. He cannot go back to work at the present time because of his injury.
86        The plaintiff’s doctor told him “if he stayed still he would not be recovering”, so the plaintiff tried to do a lighter job. In the last two or three months he got a job cleaning bricks. He lasted at that job for only fifteen minutes. He sat working with his back supported, but could not continue and his friends took him home.
87        In cross-examination the plaintiff agreed he knew of a big nursery called Chalmers in Euston, near Robinvale, where they did a lot of grafting and pruning of vines. The plaintiff worked there after working for the defendant. The plaintiff was not sure whether he had worked there in November 2005. He worked there twice in June 2006 doing the pruning work and grafting.
88        The plaintiff was then living at 25 Leonora Street, Robinvale, with a number of other Cambodians who worked at Chalmers nursery. The plaintiff agreed there were four contractors who organised Cambodian workers. The plaintiff worked at Chalmers because Dr Khalil and Dr Chan his doctor told him to do some light jobs for his back, to help his body. He worked there a couple of days on two occasions.
89        The plaintiff agreed that Dr Khalil’s note on 10 April 2006 could have been a reference to the job at Chalmers.
90        The plaintiff could not recall on 31 July 2006 seeing Dr Khalil and Dr Khalil advising him to take a week off and he refused. The plaintiff could remember stopping work in 2006 and going onto Centrelink.
91        The plaintiff was asked about work at “Romeos” - a farm in Robinvale and said he was probably referred there by Job Network. The plaintiff could not remember the name of the farm, but said he went to one farm to try to work.
92        When asked about being involved in a fight at that farm, the plaintiff said maybe there was a verbal fight about someone owing him some money for petrol. The plaintiff could not remember whether that was February 2005.
93        The plaintiff did not think he went to Romeos looking for grape picking because the grapes at the defendant’s property were rotten and there was not enough work with the defendant. The plaintiff denied that was why he left the defendant’s farm on the said date.
94        The plaintiff explained maybe there was some work at another farm after he left the defendant, doing pruning work, but he could not recall exactly when it was.
95        The plaintiff was referred by one of the job organisations, and he liked to try to see what his ability was to get back to normal so he performed his duty. He lasted doing that work maybe two or three days. When he was not working, he drove fellow Cambodians to the nursery to work and they would pay for the petrol.

Medication and Heroin
96        The plaintiff could not recall having a disagreement with Dr Khalil about tablets on 3 August 2006, or that he was taking someone else’s medication. The plaintiff could remember asking for Tramadol when he had problems with a toothache. He did not know anything about a drug called Subutex.
97        An entry relating to an attendance with Dr Loeffler on 7 July 2008 set out the plaintiff was a drug user and needed help with OxyContin relief for his back, and was given only ten tablets. He needed further treatment with a specialist, but needed to stop drugs first.
98        The plaintiff agreed there was a suggestion that he had to deal with his drug problem before some heavier drugs could be prescribed for his back. He is not using heroin as regularly as before, and he has been using it on and off for many years.
99        The plaintiff did not think taking a low dose of heroin, as he currently does, would affect his work. It sometimes interferes with his concentration if he has a bad day. The plaintiff last had methadone two or three years ago.
100       The plaintiff agreed he has Hepatitis C. He denied, as was set out in a note from St James Clinic on 3 November 2001, he could not work because of that condition saying he could not work at that time because of a stomach problem.

Earnings
101 The plaintiff’s individual tax return for the 2002-03 financial year set out earnings of $7,101 from one employer and DSS payments of $5,984, making a total income of $13,085.
102 In the 2003/04 return, there was income from three other employers with the plaintiff being paid $5,140, $7,539 and $2,261, together with $3,316 DSS payments, making a total income of $18,256. The plaintiff has not put in tax returns beyond 2004 because his employer failed to provide him with group certificates. He agreed he had worked since 2005.

Criminal History
103       The plaintiff has had ongoing problems with heroin that have resulted in a number of criminal convictions.
104       Most of his recent convictions related to fighting and stealing. He stole clothes from a shop eighteen months ago, and was fined. The fighting was two or three years ago and related to drugs.
105       In cross-examination, the plaintiff went into a long convoluted story about how on one occasion he had returned to Robinvale to go fishing when two Cambodian people known to him tied him up, put him in the boot of a car, assaulted him, and left him at a farm property.
106       When asked why he was beaten up, the plaintiff said he thought one of the men was a contractor who wanted to know on which farm he could earn more money. When the plaintiff told the man him to ask for himself, the man got angry. The plaintiff denied that at that time he was in Robinvale looking for work on the farm. These men had know the plaintiff since early 2000, and knew that he was a good worker.
107       The plaintiff agreed he attended Mildura Base Hospital on 8 April 2007 with a laceration when stabbed over his eye as the result of an assault the night before by a group of black men in the street.
108       On 11 September 2007 the plaintiff was convicted of unlawful assault of his then girlfriend and sentenced to three months’ gaol, which was fully suspended. He became violent towards his girlfriend because he could not tolerate his severe back condition. He was really remorseful about what he had done to her.
109       When cross-examined about this matter, the plaintiff became very upset, and the hearing was adjourned briefly.

The Plaintiff’s Medical Evidence
110 The Robinvale District Health Service admission form set out the plaintiff was admitted on 6 February 2005 at 7.10pm and discharged forty minutes later.
111 It was noted:
“Well yesterday, today out picking grapes and heard click in back at 11
am.
Presented with severe pain in lower back, left leg and hip. Happened early this am, but one hour ago severe pain, never had this problem before.”

112 The plaintiff attended the Mildura Base Hospital the following day at 4 am.
113 It was noted the plaintiff was a thirty one year old with sciatica. He was working on blocks:
“Back pain 6am, increased during the day. Worse on movement”

114       It was noted there was no prior history of trauma.
115       On 19 February the plaintiff re-presented at Mildura Base Hospital looking for a WorkCover certificate. The author of the note of that attendance set out he was unable to give him such a certificate and gave the plaintiff a medical certificate.
116       Dr Chan at St James Avenue Medical Centre in Springvale reported in May 2005.
117       The plaintiff first attended the Springvale clinic on 10 February 2005 when he saw Dr Pham, complaining of severe left sciatica. The plaintiff mentioned that he injured his back while picking grapes on 7 February 2005. He was standing on a box picking grapes and twisting his back to put grapes into boxes, when he fell off the box and hurt his back. On the first examination, the plaintiff complained of severe pain in his lower back with pain radiating to his left leg.
118       A CT scan was organised and performed on 10 February 2005.
119       The notes of that first attendance set out a slightly different version of the incident with no mention of a fall from a box.
120       On review at Springvale on 21 February 2005, the plaintiff’s condition remained unchanged.
121       On examination on 4 April 2005, there was a mild improvement in pain. However, there was a reduction of movement because of pain and left sciatica.
122       Dr Chan diagnosed lower back pain and left sciatica and he considered there was a significant relationship between employment and injury. At that time he did not think the plaintiff was fit for any employment.
123       Dr Chan reported in June 2009 that the plaintiff had been attending the Springvale clinic intermittently since 1999. He had a past history of drug abuse and Hepatitis C and no history of any back problem before working for the defendant.
124       Dr Chan reported the work related accident happened on 7 February 2005 while the plaintiff was picking fruit. The plaintiff was standing on a box picking grapes and twisting his back to put grapes into boxes. He fell off the box and hurt his back and had lower back pain and left sciatica ever since.
125       In 2005, the plaintiff presented to the Springvale clinic occasionally for painkillers and medications when he was in Melbourne.
126       The plaintiff returned to live in Melbourne in about July 2008 and then attended Springvale monthly for medication, namely Tramal, Digesic, Serapax, and Nexium.
127       On 5 June 2009, the plaintiff attended, complaining of severe low back pain radiating down the left leg with positive cough impulse. On examination, there was paraesthesia along the left L5 region. There was restricted straight leg raising, particularly on the left, and the plaintiff was tender at L3-L5.
128       As of 2009, the plaintiff complained of depressive symptoms and insomnia and mentioned his psychiatric symptoms related to chronic pain. A diagnosis of depressive symptoms was made.
129       Dr Chan thought the plaintiff’s condition had stabilised and surgery may be considered if the plaintiff agreed. He considered the plaintiff’s prognosis was poor and that he had no capacity to continue in his employment in the foreseeable future.
130       The parties agreed that the plaintiff continued to see Dr Chan. A print out dated 19 February 2011 set out the defendant last paid for an attendance on 26 October 2010, having paid for 24 visits from 29 September 2009. Chemist expenses totalling $912 were also paid for by the defendant, but the drugs paid for were not detailed. Dr Chan’s notes set out a prescription of Tramal in August 2009.
131       Dr Loeffler from the Robinvale Clinic reported on 13 July 2005 that the plaintiff suffered injury to his back during the course of his normal employment with the defendant on or about 6 February 2005. The injury was sustained at work when the plaintiff was carrying a box of grapes weighing six to seven kilos and he slipped on the wet ground with rotten grapes on it.
132       Dr Loeffler considered the plaintiff’s back pain was caused by a disc bulge at L4-5 irritating his nerve roots.
133       Dr Loeffler then thought that the plaintiff had a minimal capacity for work. He considered the plaintiff was unable to go back to full time employment due to back pain. Every time the plaintiff lifted any object or just bent over at the hips to just forty five degrees, he was frozen in his tracks due to disabling pain.
134       Dr Loeffler thought the plaintiff needed treatment, not employment, and that he could not do a sitting job. He considered the plaintiff to be completely incapacitated. Until treatment, he thought that would be permanent and that depended on the defendant taking responsibility for the plaintiff’s compensation.
135       Dr Loeffler considered the plaintiff required neurosurgery which he could not possibly afford and, with that treatment, his prognosis was excellent and, without it, general deterioration of his well being, depression and a life of pain and misery was expected.

Certificates
136 There were a number of certificates from Dr Wearne at Robinvale certifying the plaintiff unfit for any duties from 6 February to 6 March 2005. The initial examination was on 17 February 2005.
137 The first certificate (witnessed by Mr Zigouras) on 22 February 2005 set out:
“Picked grapes and slipped and fell.”

138 Certificate from Dr Chan following examination on 21 February and 7 March 2005 set out:
“Fell off box and hurt back.”

Medico-Legal Evidence
139       Mr John O’Brien, orthopaedic surgeon, first examined the plaintiff on behalf of the defendant on 15 March 2005 and later in December 2005.
140       On the first examination, the plaintiff told Mr O’Brien, with the assistance of an interpreter, that on 6 February 2005 he was working as a grape picker. He lifted a box to move to another area and as he did so, slipped, he thinks on grapes on the ground, which resulted in him describing a fall on his left side.
141       On examination, the plaintiff was ambulating with a marked antalgic left sided limp, despite the use of crutches. Passive straight leg raising was to 80 degrees on the right and 70 degrees on the left, with a mildly positive Lasègue's sign and he complained of some left leg pain. The plaintiff was capable of active straight leg raising and performed an active sit up without difficulty.
142       There was a significant reaction in the plaintiff in relation to the left buttock, there being no mid line lumbosacral tenderness. The plaintiff described some mild alteration to sensation in the first and second toes and Mr O’Brien noted there appeared to be no motor weakness in reflexes and the lower limbs were intact.
143       Mr O’Brien thought the CT scan of February 2005 did in fact demonstrate a left sided lateral disc protrusion at the L4-5 level.
144       Mr O’Brien considered the plaintiff’s condition was then not stable, and despite reports of significant improvement in his leg pain there were signs which suggested mild nerve root irritation.
145       Mr O’Brien thought the plaintiff then certainly presented with moderate disability being significant illness behaviour with the use of crutches. In Mr O’Brien’s view there was no doubt then the plaintiff could not return to his pre- injury employment, but thought then his pathology should improve. He accepted the plaintiff’s description of the mechanism of the injury would suggest his employment being a significant contributing factor.
146       On re-examination in December the plaintiff presented without any walking aids and was noted to have a normal gait.
147       There was restricted lumbar movement. Passive straight leg raising was to 70 degrees on the right and 50 degrees on the left with a mildly positive Lasègue’s sign. The plaintiff described some very mild altered sensation over the later aspect of the calf with perhaps some very slight weakness of the extensor hallucis longus on the left side. Reflexes were intact.
148       Mr O’Brien noted with fairly minimal conservative treatment, the plaintiff now reported significant improvement in the severity of pain. There were mild signs of nerve root irritation and some very minimal signs indicated L5 nerve root dysfunction on the left side. This certainly correlated with the CT scan findings of an L4-5 left sided disc herniation.
149       Again, he thought the clinical condition was not stable, as the plaintiff continued to report symptoms. He thought, given time, the pathology would resolve. He then considered the plaintiff was mildly disabled, as it appeared he had regained reasonable spinal function. He did not think the plaintiff would be capable of doing his old job, however, he considered he was currently not incapacitated and he would be fit for light duties.

150       Mr O’Brien saw the plaintiff again on 15 September 2009 with the aid of an interpreter.
151       The plaintiff, on examination, was observed to walk with a left sided antalgic limp. There was some mild muscle spasm in the thoracolumbar spine. There was limitation of lumbar flexion and extensions with the plaintiff describing pain on these movements. Tenderness was described at the lumbosacral level. Passive straight leg raising was 70 degrees on the right and 60 degrees on the left, with a mildly positive Lasègue’s sign. Power, sensation and reflexes all appeared normal in the lower limbs.
152       Mr O’Brien noted that signs again indicated a rather irritable lumbar spine with marked restriction of movement and reproduction of leg pain on flexion. There were continuing signs of mild nerve root irritation, but on this occasion there did not appear to be any specific evidence of nerve root dysfunction.
153       Mr O’Brien considered the plaintiff continued to demonstrate signs related to a left L4-5 disc herniation and that employment remained a significant contributing factor to the current pathology.
154       Mr O’Brien thought the plaintiff’s condition would now have to be regarded as stable. He suggested the prognosis was poor and it appeared now the plaintiff had chronic back and left leg pain.
155       Mr O’Brien thought the plaintiff would not be capable of a return to his pre- injury occupation. He noted the plaintiff had not made any attempt to return to gainful employment. Mr O’Brien thought, given the long history of unemployment and the nature of previous employment, it would suggest the plaintiff was currently unlikely to return to the workforce.
156       Purely from a physical perspective, however, he suggested the plaintiff continued to have a capacity to undertake work which involved very light duties. There was no doubt, however, in Mr O’Brien’s view, that the plaintiff’s continuing pathology was the cause of restriction to his general social, domestic and recreational activities and this may well be a permanent situation.
157       Professor Marshall examined the plaintiff on 9 March 2006 and, more recently, on 30 April 2009.
158       On the first visit, the plaintiff gave Professor Marshall a history of acute low back pain and left leg sciatica occurring during work at Robinvale while working for the defendant as a grape picker.
159       On examination the plaintiff’s gait was normal. There was no deformity on examination of the spine and no sacroiliac tenderness. The plaintiff had painful limitation of lumbar movement. He could straight leg raise to 80 degrees on either leg and there were no positive nerve tension signs in either leg. There was no sensory loss; motor power and co-ordination and tone were normal and there was no wasting.
160       Professor Marshall diagnosed acute work-related low back strain with disc prolapse and persisting discogenic and mechanical low back pain with no current evidence of radiculopathy.
161       Professor Marshall thought the plaintiff had sustained an acute low back strain injury with persisting low back pain and sciatica and imaging confirmed evidence of a disc prolapse at L4/5.
162        At that stage, he thought the plaintiff was currently still incapacitated from labouring work, but that he would be able to resume light duties with a ten kilogram lifting limit and no repeated bending and stooping. If the plaintiff were to resume his pre-injury occupation, a further assessment in another three months was suggested. He thought at that stage the plaintiff was not permanently totally incapacitated for his pre-injury employment and he was fit for light work on the basis of the outlined restrictions.
163       On re-examination on 30 April 2009, the plaintiff gave further details of his injury describing how he slipped on wet ground and crushed grapes while carrying a box of grapes weighing about seven kilograms and fell on his left side and injured his back.
164       The plaintiff could straight leg raise his right leg to 70 degrees, but on the left only to 30 degrees with discomfort. He had limited mobility in the thoracolumbar spine with pain on movements of extension, flexion and rotation. He walked with a limp, favouring his left leg. There was no deformity on inspection of the spine. There were no neurological abnormalities in the lower limbs of the sensory and motor system and no vascular abnormalities.
165       Professor Marshall diagnosed acute work strain and low back injury/disc prolapse lumbar spine/persisting discogenic low back pain without evidence of radiculopathy.
166       He believed the plaintiff was incapacitated for his pre-injury duties on a permanent basis and was only fit for work with a ten kilogram lifting limit and bending and stooping restrictions.
167       Professor Marshall thought the plaintiff was left with a permanent partial impairment and incapacity derived from his physical and organic injuries and that his condition had stabilised.
168       The plaintiff saw Mr Mangos, general surgeon, at the request of his solicitors in May 2007.
169       The plaintiff told him it had been raining for two or three days and the verandah was slippery and, on 6 February 2005, he was lifting a box and slipped on the ground, falling heavily backwards.
170       The plaintiff’s complaints then were mainly back pain across the lower back radiating into the buttock and the left leg.
171       On examination, the plaintiff walked slowly with a slight antalgic left gait. There was no obvious wasting or deformity. The thoracolumbar spine revealed a rather irritable back with a normal alignment and some loss of lordosis. There was some restriction of movement on straight leg raising. Reflexes were equal and active in the lower limbs and there was no wasting. Sensation was diffusely dull to pinprick and touch below the knee to the foot and the power of the foot was satisfactory.
172       Mr Mangos noted a CT scan of the lumbar spine taken February 2005 revealed a left lateral disc protrusion of L4/5 impinging on the left L4 exit foramen and the L5 nerve root.
173       Mr Mangos considered the plaintiff suffered a ruptured intervertebral lumbar disc and had left sided sciatica consistent with the incident injury. At that stage, the plaintiff’s condition was stabilised and he certainly was not fit for his pre-injury work.
174       Mr Mangos thought the prognosis was poor for return to pre-injury work and also for regular restricted work as it may be accepted that substantial improvement of the plaintiff’s back would not occur in the near future. He thought the plaintiff had some capacity for light work but would have to avoid any form of strain and back bending.
175       In Mr Mangos’ view, such lighter work would begin with three to four hours in a day of work which was done mainly at waist level, avoiding bending or lifting heavy weights over two to three kilograms, and with the plaintiff using mainly his hands and in a seated position.
176       Mr Michael Flaim, surgeon, examined the plaintiff for medico legal purposes in May 2009.
177       The plaintiff told him that on the said date he was grape picking and it had been raining. He was apparently carrying a box of fruit when he fell on the wet ground, falling onto his bottom.
178       The plaintiff complained to Mr Flaim of some mild pain present in the back constantly in relation to the left leg. He told Mr Flaim he had no disturbance of activities of daily living. He was independent in that respect and he had no particular problem with driving or travelling.
179       On examination, the plaintiff moved freely and had a normal gait. He had restriction of movement in the back by about 30 degrees in flexion, but his posture was normal. There were no abnormal neurological signs in his legs and straight leg raising was normal.
180       Based on the history, physical examination and investigations, Mr Flaim concluded the most likely diagnosis was one of L4/5 disc prolapse causing pressure upon the left L4 and L5 nerve roots, resulting in the left leg symptoms and low back pain. He noted there were no objective signs of radiculopathy.
181       Mr Flaim commented that there had been physical and psychological effects from the incident.
182       Mr Flaim thought the plaintiff’s condition had stabilised and that there was very little prospect of him requiring operative treatment as there were no objective signs or signs of continuing severe sciatic radiation.
183       Mr Flaim thought the plaintiff’s prognosis was poor as he had poor language skills, very little education relevant to the Australian employment scene and had a long history of back pain. Mr Flaim considered the plaintiff’s capacity to be engaged in work as a fruit picker was certainly limited because of the heavy nature of that work.
184       Mr Klug, neurosurgeon, examined the plaintiff on 8 July 2009. Mr Klug noted the plaintiff had a reasonable command of English but did, to some extent, rely on the interpreter.
185        The plaintiff told Mr Klug on the said date he sustained injury when the ground had been wet for two or three days. While carrying a half full box of fruit from one tree to another, he apparently slipped on the wet ground and noticed immediate pain in his back.
186       On examination of the spine, the posture appeared to be normal in the upright position. There was restriction of movement which the plaintiff attributed to pain felt in the lower lumbar region spreading to either side. The lower limbs appeared to be normal on the right side and there was no restriction of straight leg raising. On the left, there was some mild restriction which was attributed to back pain and some referral of pain to the back of the left thigh.
187       Mr Klug found no objective abnormality in each lower limb. There were no signs of impaired motor or sensory function. He considered the plaintiff was not suffering from a radiculopathy or cauda equina syndrome.
188       Mr Klug thought it most probable that the plaintiff was suffering from a disc disorder at the level L4/5 level which was responsible for back pain with referral of pain into the lower limb without, however, evidence of a radiculopathy.
189       He believed the plaintiff did suffer genuine symptoms related to this disorder and that, as such, there would be some lessening of his enjoyment of the activities of daily living. He thought the plaintiff’s condition, which had continued for an extended period, was stable.
190       Mr Klug thought the plaintiff required an up-to-date MRI to find the exact nature of his condition and that such investigation could indicate whether or not the plaintiff would benefit from surgery.
191       Mr Klug thought the plaintiff’s prognosis would be considered guarded. It was still possible that there would be some improvement in his condition, but he suspected the plaintiff would continue to have symptoms of variable intensity for an extended period of time.
192       Ignoring psychological and psychiatric consequences, Mr Klug believed the plaintiff had a genuine physical disorder which would be responsible for some restriction in regard to his capacity to undertake types of employment placing undue strain on his low back.
193       Mr Klug believed it would be difficult for the plaintiff to undertake any types of employment involving the need to bend, lift and twist on a repetitive basis. He did believe the plaintiff could undertake light physical activities such as working at a bench top with some flexibility in the workplace.
194       Dr Castle, occupational health and rehabilitation specialist, saw the plaintiff on 4 August 2009. The plaintiff told him on the said date, while grape picking, he was carrying a box of grapes. The ground was slippery and he dropped the box of grapes, which weighed more than ten kilograms, and fell and landed on his back.
195       On examination, straight leg raising was to 80 degrees on the right and 40 degrees on the left. There was some left calf wasting with the right calf measuring 31 centimetres and the left 30. Muscle power was decreased for left foot dorsiflexors and plantar flexors. Reflexes were equal, symmetrical and normal and sensation was normal in both lower limbs. Femoral and sciatic stretch tests were both positive on the left and negative on the right. There was some restriction of lumbosacral movement.
196       Dr Castle noted the CT scan showed an L4-5 intervertebral disc lesion pressing on the L5 nerve root. The findings on examination were consistent with this imaging appearance.
197       Dr Castle thought the diagnosis was clear that the plaintiff had a left lateral L4 intervertebral disc lesion impinging on the L5 nerve root.
198       Dr Castle considered the prognosis was poor, noting the plaintiff had so far not responded to treatment which Dr Castle thought had been incomplete without adequate physiotherapy or a pain program. He did not think the plaintiff’s injuries had stabilised and he thought he could have further treatment along the lines suggested.
199       Dr Castle thought the plaintiff had no capacity for his heavy pre-injury employment. He did not think the plaintiff had any prospects for suitable employment at that time, noting significant pain, limited sitting, standing and walking tolerance, his poor English and a history of manual work.
200       Mr Kevin King, orthopaedic surgeon, examined the plaintiff in October 2009. The plaintiff told him, while working as a grape picker on 8 February 2005, the conditions were wet and unpleasant and the ground was slippery and muddy. The plaintiff told Mr King he was carrying a ten kilogram box of grapes in his arms when his feet suddenly slipped from beneath him on the muddy surface and he fell very heavily onto his buttocks and back.
201       On examination, the plaintiff complained of constant aching in the low back region always present, fluctuating in intensity, but always of at least moderate severity with periodic severe flare ups. He also complained, to a lesser extent, of constant aching in the left buttock, thigh and calf.
202       On examination, Mr King could detect no element of significant exaggeration. There was quite marked limitation of thoracolumbar spinal movements by pain spasms (approximately one third of the normal range of all movements were present). There was no neurological abnormality of the lower extremities and straight leg raising was to 80 degrees on the right and 70 on the left.
203       Mr King thought there was a significant degree of generalised trauma to the lumbosacral spine in the incident which would have resulted in damage to the lumbar discs and associated ligamentous structures at several levels. Such soft tissue injuries, in his view, would adequately explain the immediate onset of the plaintiff’s low back pain and left sided sciatica and the persistence of those symptoms thereafter.
204       Mr King noted, although the plaintiff seemed to display some signs of tension and anxiety, his overall impression was that there was no significant psychological overlay as such, and the plaintiff seemed to be genuinely disabled by organic injury. Mr King thought conservative treatment only was indicated.
205       He considered the plaintiff was totally and permanently incapacitated from returning to the sort of work he had done throughout his adult life and light duties did not seem to be a possibility at that stage. Mr King thought the impairment was permanent and the plaintiff’s condition had stabilised.
206       Mr King reported further, having seen the radiologist’s report on the MRI of 25 November 2009, which set out:
“At L4-5 there is a shallow broad based disc bulge … at L5-S1, the disc is degenerative and showed posterior annular fissuring … there is no appreciable nerve root compression or significant canal stenosis.”

207       Mr King noted that that MRI was performed almost five years after the original injury and that the original CT scan of 10 February 2005 showed a moderately large central left-sided generalised disc bulge.
208       Mr King considered the new MRI findings were consistent with what he would expect to be shown on an MRI five years after the original injury and his view did not change.
209       Mr Stan Schofield, orthopaedic surgeon, first saw the plaintiff on 27 October 2009 on referral from Dr Chan.
210       The plaintiff told Mr Schofield that the incident occurred when he was lifting and carrying a heavy box laden with fruit.
211       Mr Schofield noted initial x-rays showed lumbosacral degeneration.
212       On the day of examination, Mr Schofield arranged x-rays which demonstrated evidence of disc degeneration confined to a lumbosacral disc, with the L4-5 disc appearing normal in height and alignment without any abnormal movement on functional view. An MRI scan was also arranged.
213       On examination, the plaintiff had an antalgic gait affecting the left leg and there was marked restriction of spinal movement. He had restricted straight leg raising, which was positive on the left to 40 degrees, associated with two centimetres wasting of the left thigh and one centimetre wasting of the left calf, as well as reduced sensation over the outer leg. The plaintiff had slightly reduced eversion of the left foot but normal reflexes.
214       On the available evidence, Mr Schofield thought the plaintiff suffered injury to the L4-5 disc as a result of a fall whilst fruit picking on the said date. He diagnosed a prolapse at L4-5 causing left sciatica and radiculopathy.
215       Mr Schofield thought the plaintiff was unlikely to be able to resume fruit picking and may need to restrict his physical work activities in the future.
216       If the plaintiff did not improve with conservative treatment, Mr Schofield thought he may eventually be a candidate for surgery, the nature of which could not be specified at that moment. He thought the plaintiff’s prognosis was guarded. He considered the injury had affected the plaintiff’s capacity to undertake his pre-injury employment and alternative employment.
217       When last seen by Mr Schofield on 9 March 2010, the plaintiff was taking Tramadol and using Norspan patches. He complained of persistent low back pain and sciatica to the left calf and a positive cough impulse.
218       Clinical signs revealed moderate lumbar stiffness in flexion and extension. There was restricted straight leg raising on the left to 70 degrees with the same degree of wasting as was previously noted. There was also weakness of eversion and dorsiflexion of the left foot and numbness over the lateral left thigh.
219       Mr Schofield concluded the plaintiff had no capacity for pre-injury duties or any suitable duties on an indefinite basis.

Claim Documentation
220       The claim form was signed by the plaintiff on 17 February 2005 and witnessed by his solicitor Mr Zigouras.
221       It set out that the plaintiff was injured when “lifting box of grapes and slipped grapes on floor”. The plaintiff “slipped fell to one side (left) on floor hit left hip low back. Falling as a result of slipping on grapes on floor.”
222       In answer to a question 21 what caused or contributed to the injury, it set out – “floor unswept of grapes that are trimmed non-cleaning.”
223       The claim form set out the plaintiff was working seven to eight hours a week being paid $14.50 and $1 per box. His pre-injury average weekly earnings were $900. His occupation was described as a grape picker and shed hand.
224       It was noted that the injury was reported on 6 February at noon to “two other workers- tell boss hurt eye.” “Yes” was answered as to anyone witnessing the injury – “I don’t know names known as Coverboy.

225 The employer’s version of the form signed on 28 February 2005 set out the plaintiff did not suffer injury at the workplace and the injury was not reported to the employer. It set out that the plaintiff worked 10.75 hours per week and was paid $14 per hour. His pre-injury average weekly earnings at the time of injury were $684.80.
226 Sam Gallo wrote to GGU WorkCover on 1 March 2005. He advised he wished to dispute the plaintiff’s claim as the plaintiff did not work in the shed on the day of the said injury occurring and therefore could not have slipped on the concrete floor - a full time employee will testify to that, Further, Mr Gallo advised the plaintiff was contacted by his son after the plaintiff was noticed missing from the fruit property and at that time the plaintiff did not advise of any injury but only stated he did not wish to return to work until sultana crop picking started.

Pay Records
227 The plaintiff’s pay records indicate that he picked seventy boxes on Saturday, 5 February and seventy seven boxes on Sunday, 6 February.
228 An extract from the Bureau of Meteorology – February 2005 daily weather observations set out there was rain every day between 2 February and 5 February 2005.

Vocational Evidence
229       Flexi Personnel provided a report dated 20 May 2009, after having interviewed the plaintiff.
230       The author, Ms Mealak concluded that the plaintiff would have great difficulty in finding suitable alternative employment because of his inability to perform full-time, unrestricted work duties due to pain and restrictions, his skills and work experience being only unskilled manual work, and the aggravation of his physical condition resulting in high absenteeism and lost production. Ms Mealak thought the plaintiff was limited to performing sedentary work due to his injuries and pain affecting his inability to sit or stand, his long term unemployment record and his medicated state and fatigue.
231       Ms Mealak set out if the plaintiff were to obtain suitable work in a factory, he would be paid $14.31 per hour. If he had not been injured and was still working in his pre-injury position, based on his 2004/5 taxable income, the plaintiff would be earning $18,906 per annum and would also be eligible for 9 per cent superannuation.
232       The author did not believe the plaintiff had any transferable skills that he was currently physically capable of performing to an adequate standard which was considered acceptable in the workplace.

The Defendant’s Medical Evidence
233       A report was provided by the Mildura Base Hospital, dated 15 July 2005.
234       It set out that on 7 February at approximately 4.00 am the plaintiff was admitted to the Emergency Department.
235       The plaintiff stated he had awoken the previous day with pain in the back at approximately 6.00 am and had difficulty walking. He had been to work, which involved picking grapes, but because the pain got acutely worse, he went to Robinvale Hospital and was subsequently brought to Mildura Base Hospital. The pain was worse on any movement and the back pain also radiated down his left leg. He was kept under observation, given suitable analgesia and subsequently discharged home.
236       A diagnosis was made of acute back pain and right sided sciatica and the plaintiff was referred to his general practitioner for follow up and no x-rays were taken.
237       Mr Peter Scott examined the plaintiff on 19 May 2006. The plaintiff told him that on 6 February 2005, while carrying a box of grapes weighing between six and seven kilograms, he slipped on wet ground where there were rotten grapes, and he fell onto his left side and injured his back.
238       Mr Scott accepted the plaintiff had sustained acute back strain or muscular ligamentous syndrome together with irritation of intervertebral disc lesion at L4-5, with some left sided lumbosacral nerve root irritation resulting from the incident. He noted the plaintiff may well have developed an anxious exaggerated response which may be magnifying the overall presentation.
239       Mr Scott thought the plaintiff was perfectly fit for a wide range of light duties not requiring him to perform any prolonged standing, sitting, repetitive bending or lifting more than about ten kilograms, and he was not fit for his pre-accident job.
240       Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff on 2 May 2007. The plaintiff told him he awoke with pain on 6 February 2005, having done grape picking the day before.
241       Mr Battlay noted the plaintiff had a sciatical limp favouring the left leg. There was no measurable left calf wasting and Mr Battlay noted discrepancies between the plaintiff’s level of movement on examination and when observed informally.
242       Mr Battlay reported that the plaintiff gave a history consistent with him having developed an L4-5 disc derangement under compensable circumstances and he had had his claim accepted and now had a stabilised permanent impairment of his back.
243       Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 24 September 2010.
244       The plaintiff told him on 6 February 2005 he was working as a grape picker. It had been raining and the ground was wet, too wet to work. The plaintiff told Mr Dooley he carried out grape picking until around lunchtime and while doing so, fell and noted pain in his back and advised his work colleagues he was gong home.
245       On examination, the plaintiff walked with an exaggerated left sided antalgic gait. There was tenderness of the low lumbar spine in the mid line. There was restriction of flexion and extension, lateral flexion and rotation, with complaints of pain.
246       Straight leg raising on the right was to 50 degrees and on the left 40 degrees, at which level the plaintiff noted pain in his lumbar spine. Power, tone, sensation and reflexes were intact in the lower limbs. There was no wasting.
247       Mr Dooley noted plain x-rays and an MRI scan of November 2009 with a report of a CT scan of February 2005, which showed a left sided L4-5 disc prolapse.
248       Mr Dooley thought the plaintiff suffered from naturally occurring degenerative disc disease of the lower lumbar spine. He thought in the incident, the plaintiff sustained a left sided L4-5 disc prolapse on the background of disc degeneration which would have accounted for his initial low back pain and left sided sciatica.
249       Mr Dooley noted the incident, however, happened over five years ago and he could not explain the constant ongoing low back pain and left lower limb pain on the basis of the organic injury.
250       Mr Dooley considered the plaintiff had developed a chronic pain syndrome and the constancy and intensity of his ongoing pain were out of proportion to the injury sustained.
251       Mr Dooley commented the natural history of a disc prolapse is steady improvement with time, following which patients will note some ongoing intermittent low back and lower limb pain.
252       The plaintiff’s clinical examination revealed no evidence of objective neurological deficit affecting the left lower limbs. There were signs of abnormal illness behaviour.
253       Mr Dooley thought from a practical point of view, the plaintiff did not require regular ongoing formal conservative treatment and surgery was not warranted.
254       Mr Dooley thought the plaintiff needed to increase his general activity and fitness. Orthopaedically he was capable of carrying out light physical work and clerical duties. In Mr Dooley’s view, the plaintiff presented as more disabled than one would expect to see for his condition.
255       Mr Dooley expected the plaintiff to note some ongoing intermittent low back pain and occasional lower limb pain and would not expect his condition to deteriorate.
256       He believed the plaintiff was unfit to carry out regular heavy physical work, or work that involved a lot of bending and lifting, and from his overall wellbeing it was very important he returned to work.

Certificates
257 Following examination on 10 March 2005 Dr Khalil certified the plaintiff unfit for any duties until 7 April. Dr Khalil did not describe the mechanism of injury in the certificate. Dr Chan certified the plaintiff totally unfit from 1 April to 29 April 2005 after examination on 4 April.
258 Following examination on 12 September 2006 Dr Khalil certified the plaintiff unfit for all duties from 30 April to 7 November 2005 noting the plaintiff injured his back whilst picking

Clinical Notes
259 The clinical records from the Robinvale Clinic commenced on 9 February 2001.
260 On 17 February 2005, the plaintiff saw Dr Wearne. The note read:
“? will become WorkCover. At least three medical problems. Back injury
at work, tooth abscess, leg pain, need ultrasound.”

261 There was an attendance on Dr Khalil on 10 April 2006. It was noted:
“General advice, reassurance. Watch and wait for developments. Not to carry heavy weights while going back to work and should inform the employer about your back injury so that he can give you a suitable job to do.”

262       There was a further attendance with Dr Khalil on 31 July 2006 when the plaintiff was advised to take one week off work for his chronic back problem and he refused.
263       The plaintiff saw Dr Khalil on 3 August 2006 when it was noted there was some disagreement with the plaintiff about him using someone else’s medication and having problems with a toothache.
264       On 7 July 2008, when seen by Dr Loeffler it was noted the plaintiff was a drug user who needed help with Oxycontin relief for back pain.
265       Various clinical notes from the St James Avenue Medical Centre were also tendered commencing sometime in perhaps 1999.
266       The notes of the first attendance with Dr Pham on 10 February 2005 set out:
“Acute back pain with left sciatica no better, was twisting back when picking grapes, twisted box to put grapes into box and felt pain immediately.”

267       The plaintiff attended at Southern Health on 21 February 2005 complaining of toothache and left hip pain. It was noted that he was argumentative when speaking to a nurse in English.
268       The plaintiff attended Robinvale Hospital for left leg pain in May 2005 and for lower back pain on 27 and 28 March 2008. He was involved in a methadone program at the hospital during 2005.
269       On 15 October 2009, the plaintiff was treated at the Monash Medical Centre following a fall at home, suffering lumbar region pain:
“Patient walking outside when fell down on steps slippery from rain, fell onto back, no loss of consciousness. Patient able to walk inside. Ambulance called.”

270       The plaintiff attended Monash Medical Centre at Clayton on 29 October 2009. He was then complaining of chronic back pain and having no relief from Panadeine Forte. It was noted the plaintiff’s doctor was not giving him Oxycontin and he wanted further analgesia.
271       It seems the plaintiff was then an inpatient in November 2009 because of his back. There was a referral for physiotherapy on 1 November 2009.
272       An MRI scan of the lumbar spine was carried out at Dandenong Hospital on 25 November 2009. It was reported there was some lower spinal degenerative disease with minor nerve root contact. There was no appreciable nerve root compression or significant canal stenosis.

Lay Evidence
273       Paul Gallo, partner of the defendant company, swore an affidavit on 9 June 2010.
274       During the 2005 picking season, the defendant employed four grape pickers. They were paid either by the box of grapes, or if they did shed work, $14 per hour. Picking usually commenced at about 7.00 am and took place seven days a week, depending on the weather.
275       The plaintiff was one of the pickers in that year. He had worked for the defendant the previous year and was a good picker.
276       At the start of February 2005, there was a lot of rain in the region and picking did not commence until 5 February 2005 on which day the plaintiff picked about seventy boxes. The quality of grapes had become bad as they started to rot. The picking was slower and that meant the pickers could not make as much money.
277       On 6 February 2005, the plaintiff worked at the vineyard. He had not shown up for work in the shed on the weekend. He packed seventy seven boxes of grapes that day and did not do any shed work. Wages records to the effect were tendered.
278       On 6 February Mr Gallo went to the vineyard at about 11.30 am, when he saw the plaintiff leaving in his car.
279       A couple of hours after lunch, he rang the plaintiff and asked him where he was because he needed him to continue picking grapes. The plaintiff gave him the impression he did not want to work any more because of the poor quality of grapes and Mr Gallo said to him, he would ring him again when they were ready to pick another variety of grapes.
280       The plaintiff did not mention to Mr Gallo during that conversation he had hurt his back while at work. At no time had the plaintiff approached him about the ground being too wet for picking. In any event, it would not be in the defendant’s interests to do any picking under those conditions because the boxes would get muddy and cause other problems with grapes.
281       A couple of days after 6 February, Mr Gallo’s father saw the plaintiff in Robinvale. The plaintiff was on crutches. Mr Gallo senior asked him what happened and the plaintiff told him, he fell at the vineyard. This was the first time Mr Gallo knew about the injury.
282       About a week later the plaintiff came back to the vineyard and asked if he could have details of the total wages paid to him as he wanted to apply for the dole. Mr Gallo’s wife wrote the details on a piece of paper and Mr Gallo told the plaintiff he was able and willing to verify the plaintiff’s employment should Centrelink wish to contact him.
283       Three or four days later the plaintiff attended the vineyard and asked questions about picking grapes and whether official records like tax file numbers and wage records were kept. Mr Gallo advised him that was the case.
284       The plaintiff asked if the defendant had insurance, in response to which Mr Gallo told him, “Car insurance”, and the plaintiff said, “No, insurance like if he was run over by a tractor.” He said to the plaintiff, “Where are you going with all this? Of course we have insurance.”
285       On 23 February 2005, Mr Gallo received a call from Mr Zigouras, who was acting on behalf of the plaintiff.
286       On 28 February 2005, a claim form was received. It set out the plaintiff slipped on the floor in the shed because it was not swept.
287       Mr Gallo, having looked at the wage records, noticed the plaintiff did not perform any shed work on 6 February 2005 and only picked boxes of grapes. The only people working in the shed that day were Mr Gallo, his mother, his father and Kym Phan, all of whom had been spoken to by Mr Gallo and no one had said they had seen Sam (the plaintiff) in the shed that day.
288       Mr Gallo did not complete any register of injuries, as there was no injury reported to him at that time by the plaintiff, nor has he made any alterations to the system of work since.
289       Melissa Gallo, an owner of the defendant company, swore an affidavit on 9 June 2010. She deposed as to the plaintiff’s employment with the defendant and described the manner in which grapes were picked and collected by a tractor on the road
290       There is no picking when the conditions are wet. Both the grapes and ground must be dry, otherwise the grapes will become damaged in the box, and the tractor cannot move down the rows. It is also important that the ground is dry so the tractor does not cover the grapes with mud.
291       The fact that there was grape picking on 6 February meant that the ground conditions must have been dry. Workers would be sent home if it was wet, as picking could not be carried out.
292       There may have been a few grapes that had fallen on the ground, but they would have been very minimal. The grass is mowed right down and well maintained so it does not become muddy.
293       The plaintiff worked for the defendant for three days a week for a total of four weeks, because on the other days it was too wet for picking.
294       The plaintiff was paid $1.20 for every box of grapes picked and $14 per hour for shed work.

The Plaintiff’s Criminal History
295 The plaintiff’s most recent recorded offence was unlawful assault in September 2007 where he was imprisoned for three months wholly suspended. Other court appearances include:

• Mildura, 23 October 2006 – use threatening words in a public place- fined,
• Dandenong, 27 February 2002 – burglary, theft, attempted burglary and possessing article of disguise, go equipped to steal;- 6 months imprisonment concurrent served by way of intensive correction order;
• Melbourne, 6 August 1998 – failing to comply with CBO, theft from shop, use heroin; fined and CBO
• Box Hill, 7 February 1996 – unlawful possession- without conviction fined.
296 In 2002 and 2007, the plaintiff was involved in family violence incidents.

Overview
297       The first issue for consideration in this case is whether the plaintiff has suffered a compensable injury on or after 20 October 1999.
298 Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.
299       Thus, it is incumbent on the plaintiff to establish by probative evidence and with some specificity:

(a) What injury is relied upon;

(b)

Further, that that injury is referable to employment on or after 20 October 1999.
300       Counsel for the defendant submitted that the plaintiff had not sustained a compensable injury in this case and that his conduct was fraudulent having invented the involvement of work in a back complaint reported to the Mildura Base and Robinvale Hospitals.
301       It was submitted that I cannot be satisfied that there has been a compensable injury in any circumstances.
302       The incident was not witnessed nor was it reported to Mr Gallo or anyone else on the said date. The plaintiff had every opportunity at that time to report the incident to Mr Gallo. Further he told the staff at the hospitals he attended in the days following the incident that he was injured picking grapes at work, not that he slipped and fell as he now alleges.
303       Dr Pham noted on examination on 19 February 2005 that the plaintiff was twisting his back whilst lifting at work and later reported he suffered injury when he fell off a box- a history subsequently adopted by Dr Chan.
304       Further medico legal examiner Mr Mangos, took a history of the plaintiff suffering injury after falling off a veranda and Mr Battlay was told simply the plaintiff was hurt grape picking.
305       Counsel for the defendant relied heavily upon the contents of the claim form completed by Mr Zigouras on 17 February 2005 which set out the plaintiff slipped on grapes on the floor of the shed. It was suggested the plaintiff later changed this version when it became clear he did not work in the shed on the said date.
306       I do not place too much weight on the claim form. It was completed without an interpreter being present. Clearly the plaintiff’s ability to speak English that could be readily understood is limited, as evidenced by his viva voce evidence. I accept such difficulties were experienced by Mr Zigouras when he referred to “Coverboy” in the claim form when the plaintiff in fact was referring to a fellow worker “Cowboy”.

307       I do not accept the plaintiff changed this version when it became apparent the claim was being denied on the basis that he did not work in the shed on the said date.
308       The plaintiff was not aware that the defendant had declined the claim when he saw Dr Wearne on the 17th February (medical certificate declaration witnessed by Mr Zigouras on 22 February) to whom he gave the current version.
309       The letter from Sam Gallo to CGU was not written until 1 March 2005.
310       When the plaintiff saw Mr Gallo senior in the local street a couple of days after the incident, the plaintiff was on crutches. Paul Gallo confirmed that his father told him that the plaintiff advised at that time he had injured himself at the vineyard. No reference was made by the plaintiff to the incident having occurred in the shed. There was no affidavit from Sam Gallo.
311       An interpreter was not present when Mr Mangos examined the plaintiff. With the assistance of an interpreter, the plaintiff told Messrs O’Brien, Scott and Dooley that he suffered injury on the said date when he slipped on the wet ground.
312       I accept the plaintiff suffered injury to his back at work on the said date which he reported at the hospitals and to Mr Gallo senior some days later. The lack of a consistent description of the incident circumstances is not fatal to the success of this application as long as I am satisfied there is a compensable injury.
313       In Kruisselbrink v Nationwide Maintenance Services Pty Ltd (2010) VSC 260 (18 June 2010) an application was made at trial by the plaintiff to amend the Statement of Claim to allege injury during course of employment, the Victorian WorkCover Authority having given a serious injury certificate in relation to a specific incident.
314 In allowing the amendment, Forrest J stated that Section 134AB of the Act is a gateway provision which must be satisfied before a claim for damages can be brought. A finding that the plaintiff has a serious injury does not finally determine the rights of the parties. The focus is on the nature and effects of the compensable injury and not upon the cause of the action the plaintiff may have.
315       His Honour held that if there is a compensable injury that occurred after October 1999, the consequences of which are serous, the application succeeds. Otherwise the circumstances of employment so far as they are relevant to the damages trial form no part of the consideration of the issue of serious injury.
316 Similar considerations apply in determining this application pursuant to Section 134AB.
317       Taking into account all the evidence, I am satisfied that the plaintiff suffered a compensable injury on the said date.

The Injury
318       The consensus of medical opinion is that the plaintiff suffered a prolapse at L4-5, demonstrated radiologically, with resultant left sided sciatica, in the incident.
319       Of the eleven doctors who hold this view, only one Mr Dooley considered there were non organic factors in the plaintiff’s presentation diagnosing a chronic pain syndrome having found there were signs of abnormal illness behaviour on examination. However he accepted that there had been a mild to moderate loss of lumbar spine function and he would expect the plaintiff to note some ongoing intermittent lower back and lower limb pain.
320       Accordingly I accept that the plaintiff’s back condition is organically based.
321       The impairment to the lumbar spine 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, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
322       The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA at paragraph 29.
323       The weight to be attached to the plaintiff’s account of the pain experience will of course depend upon an assessment of the plaintiff’s credibility per Maxwell P in Haden Engineering v McKinnon (2010) VSCA 69 at para 12.
324       The focus of cross-examination in the present case was on the issue of compensable injury. The plaintiff’s evidence as to his pain and restrictions was not challenged to any degree, save in relation to his work history since the incident.
325       There was no video surveillance or any other evidence which challenged the plaintiff’s evidence in this regard.
326       However I do not accept his counsel’s submission that the plaintiff’s credit was unimpaired and unimpeachable, with appropriate concessions being made, and that he did not seek to hide any aspect of his work activity following the incident.
327        I accept that the plaintiff, who had no previous history of back pain, has had ongoing low back and lower limb pain and restriction since the incident. I do not accept however that the level of pain from which he suffers has led to him getting into arguments and physically assaulting his girlfriend.
328       The plaintiff continues to require painkilling medication in the form of Tramal. Although Dr Chan’s report is now somewhat outdated, the plaintiff continues under his care and that treatment is funded by WorkCover.
329       Mr Schofield is the only specialist who has suggested surgery with treating orthopaedic surgeons Mr Mills and Mr Gardiner recommending conservative treatment. I am unaware of the view of Mr Thien neurosurgeon who has also seen the plaintiff.
330       The consensus of medical opinion is that the plaintiff is unfit for heavy manual work, the only work he undertook before the incident albeit not on a sustained or regular basis.
331       Mr Mangos in 2007 thought the plaintiff had some capacity for light work on a graduated return. Mr Flaim considered the plaintiff was limited in the amount of manual work he could perform. Mr Klug thought the plaintiff was capable of light physical activities. Mr Scott, Mr O’Brien and Mr Dooley shared similar views.
332       Dr Loeffler in 2005 and Dr Chan and Dr Castle in 2009 thought the plaintiff had no capacity for suitable employment – a view shared by Mr King in 2009 and Mr Schofield in 2010.
333       Taking into account all the evidence I am satisfied as a consequence of his back injury the plaintiff does not have a capacity for unrestricted manual employment - a serious consequence for a man with little education or work skills other than in manual seasonal work.
334       In my view this consequence when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
335       Having satisfied the narrative test, to obtain leave in relation to loss of earning capacity, the plaintiff must establish that –

(a) at the date of the hearing he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
336       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.
337 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
338       “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.
339       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.
340       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 (2005) 14 VR 622, at para 70.
341       I am therefore required to determine a “without injury” earnings figure.
342       The parties agreed on a “without injury” earnings figure of $18,906, based on the plaintiff’s earnings in 2003/4 of $14,940 together with the Australian Fair Pay Commission annual increases from 2005 to 2008 with , as set out in the Flexi Personnel report. Sixty per cent of that amount is $11,343.
343       Whilst this figure was agreed, I do not accept that it is the figure which most fairly reflects what the plaintiff would be earning or capable of earning in the relevant statutory period had the injury not occurred.
344       The evidence in relation to the plaintiff’s pre incident employment is scanty and he does not have a solid work history. Tax returns have only been provided for two years with gross earnings of $7,000 in 2002-3 and a total of $14,940 the following year from three separate employers. In earlier years before the incident, the plaintiff’s earnings were also from seasonal work, details of which have not been provided.
345       It does not follow from these figures that the plaintiff would have earned in excess of $15,000 had he not been injured, in the absence of any evidence. In my view the without injury figure should not exceed $15,000.
346       On that basis to succeed in his loss of earning capacity claim, the plaintiff must establish on a permanent basis that he does not have the capacity to earn in excess of sixty per cent of this amount namely $9,000 per annum or $173 per week.
347       Counsel for the plaintiff submitted this was a case where the plaintiff had suffered a total loss of earning capacity. It was submitted the plaintiff’s earning capacity had been destroyed, and that he was a man who did hard physical work until injury.
348       It was submitted that the plaintiff does not have the skills to do clerical work. He could not stand at a bench for prolonged periods as he felt ill when simply standing in the witness box. To be able to work, the plaintiff would have to get a job where he could lie down or move around whenever he wanted to.
349       Whilst the consensus of medical opinion is that the plaintiff is unfit for unrestricted manual work, I consider he does have a capacity for lighter work on a part time basis.
350       Since the incident, the plaintiff has worked in excess of what was set out in his affidavits with work, albeit limited on his evidence, at a vineyard at Heatherdale, an asparagus farm at Cranbourne, Chalmers Nursery in Robinvale and “Romeos” farm, also in that area.
351       It is quite clear from Dr Khalil’s notes that the plaintiff was starting a new job in April 2006 and was working in mid 2006. The plaintiff agreed that at that time his general practitioners had been encouraging him to work. This was at a time when the plaintiff declared in WorkCover medical certificates that he was not engaging in any form of paid employment and no tax returns were filed.
352       In my view, the plaintiff who is a relatively young man is not particularly motivated to look for work at the present time and is in fact not doing so, living on a disability pension. I accept that he is capable of working in light process work not involving heavy lifting.
353       The plaintiff would only have to work on a minimal part time basis working of thirteen hours per week at $14.31 to earn in excess of sixty per cent of the without injury earning figure.
354       Taking into account this low threshold, my view that the plaintiff has some capacity for light work and that he has in fact worked more than the minimal hours he deposed to since the incident at a number of locations, I am not satisfied that the plaintiff has a loss of earning capacity of forty per cent on a permanent basis. Accordingly, his claim in this regard is dismissed.
355       Leave is granted to the plaintiff to bring proceedings for damages for pain and suffering only.

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Citations

Dara v Gallo [2011] VCC 486

Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

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Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33

Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172

Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33

[2011] VCC 486

13 April 2011