Davis v Elverson Distribution Pty Ltd and VWA
[2009] VCC 289
•26 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-01569
| HAYWOOD MORGAN DAVIS | Plaintiff |
| v | |
| ELVERSON DISTRIBUTION PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K.L. BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 and 17 February 2009 |
| DATE OF JUDGMENT: | 26 March 2009 |
| CASE MAY BE CITED AS: | Davis v Elverson Distribution Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0289 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – aggravation of lower back condition – pain and suffering – loss of earning capacity – no need to consider pain and suffering consequences of the injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC and | Ellis Palmos & Co |
| Mr D Gibson | ||
| For the Defendants | Mr P Scanlon QC and | Lander & Rogers |
| Ms M Britbart | ||
| 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 to the lumbar spine suffered by the plaintiff in the course of his employment with the defendant on 16 July 2002 (“the said date”).
Background
2 The plaintiff is presently aged fifty eight, having been born on 5 September 1950. The plaintiff left school at the age of fourteen and his employment thereafter has been of an unskilled manual nature.
3 The last significant back injury the plaintiff suffered prior to the said date was in October 1991. Before that, the plaintiff had some lower back pain and left hip pain on an intermittent basis from which he was able to “bounce back.”
4 On 3 October 1991, the plaintiff suffered injury working at Quality Packaging when he slipped on grease, landing on his backside whilst rolling a 44 gallon drum (“the 1991 incident”).
5 The plaintiff underwent conservative treatment, x-rays, physiotherapy, and he had time off work between October 1991 and July 1994, the amount of which is unclear. It became apparent during cross examination that back pain from this 1991 incident significantly affected the plaintiff’s participation in work and other activities at least until the mid 1990s.
6 Weekly payments of compensation were made between October 1991 and July 2004. Common law proceedings and statutory benefits claims in relation to the 1991 incident were issued and settled.
7 The plaintiff commenced employment with the first defendant in 1989, working mainly as a baker. On the said date, the plaintiff, whilst walking backwards pulling a rack of bread out of the oven, fell on a pallet jack left there by a fellow worker. The plaintiff fell backwards onto the floor, landing mainly on his left side (“the 2002 incident”).
8 The plaintiff was initially treated conservatively by his general practitioner, Dr Clifopoulos, who put him off work, organised a CT scan and referred the plaintiff for physiotherapy and psychological counselling.
9 The plaintiff was first referred to an orthopaedic surgeon, Mr de la Harpe, in November 2002. Over the following years Mr de la Harpe has organised various investigations. He suggested the plaintiff undergo a facet joint injection and fusion surgery but the plaintiff was not prepared to proceed with either procedure because their success could not be guaranteed. In these circumstances Mr de la Harpe has supported continuing conservative treatment. The plaintiff has undergone physiotherapy treatment at various times and he continues to take pain killing medication
10 The plaintiff had limited involvement with a rehabilitation organisation, Donnelly Ayres Consulting, between late 2002 and 2004. He was offered part time cleaning work once in January 2003 which his doctor thought was unsuitable. Since then no recommendation has been made for any further return to work nor has any work been offered to the plaintiff. He has not returned to work since the said date.
11 The plaintiff relied upon two affidavits and gave viva voce evidence. The plaintiff’s general practitioner, Dr Clifopoulos, was required for cross examination.
12 In addition both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13 The plaintiff alleges he has suffered injury to his lower back which is a serious injury within the meaning of s.134AB(37)(a) of the Act. The defendants deny the plaintiff has a serious injury and submit that neither the pain and suffering consequences of the plaintiff’s injury nor the loss of earning capacity consequences meet the statutory definition of “serious”.
Legislative Framework
14 Section 134AB of the Act sets out the circumstances in which a worker may bring proceedings for the recovery of damages in respect of a compensable injury.
15 The plaintiff must establish that he has suffered a compensable injury that is referrable to employment on or after 20 October 1999.
16 In this matter it is conceded that the plaintiff suffered a compensable injury on the said date. The issue in dispute is whether the plaintiff’s injury is in its consequences a serious injury as defined.
17 Leave may be granted to bring proceedings pursuant to s.134AB(16)(b) of the Act if the Court is satisfied, on the balance of probabilities, that the injury is a serious injury.
18 The assessment of serious injury is to be made at the time the application is heard by the Court: see s.134AB(38)(j).
19 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.”
20 The body function relied upon is the lower back.
21 The issue therefore is whether the plaintiff’s impairment from the 2002 incident is serious – namely whether the consequences to the plaintiff of his lower back injury when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than significant or marked and at least as being very considerable – s.134AB(38)(c).
22 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: per Chernov JA in Barlow v Hollis [2000] VSCA 26, at para 29.
23 The word “permanent” means it is likely to last for the foreseeable future: see Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR, at 33 to 34.
24 Sub-section (38)(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
The 1991 Incident
25 The plaintiff was cross examined extensively in relation to the 1991 incident.
26 It was suggested to the plaintiff that he was working after the 1991 incident until 1994 when he was in receipt of compensation payments. The plaintiff refused to answer any questions in that regard on the basis such answers might incriminate him – exposing him to possible action being taken against him by the Victorian WorkCover Authority.
27 The plaintiff agreed when he first saw Dr Clifopoulos after the 1991 incident he had lower back pain which caused particular difficulty in relation to bending. There was also pain going down into his legs and he was only able to get relief by lying down flat. Dr Clifopoulos mentioned to the plaintiff that he had a problem with his spine which was causing pain in his back and down his legs. The plaintiff had physiotherapy and a back brace was ordered.
28 The plaintiff had a fair bit of time off after the 1991 incident. He was sent a letter saying his employment was terminated and he stopped working for Quality Packaging shortly after August 1992.
29 The plaintiff could not remember any medical specialist in November 1992 recommending he lose weight. He thought he had a back brace at that time. He saw a psychiatrist, Dr Piperoglou, in relation to the 1991 incident, who prescribed him tablets.
30 The plaintiff agreed that in March 1994, he had constant pain in his lower back made worse by walking, bending, and any activity involving his back such as cutting the grass. He had lower back pain on and off until July 2002. He had medication for the time he was off work and there were periods when he never took any medication.
31 During 1994 the plaintiff was getting certificates from doctors saying he could not work and he was telling doctors he could not work. He told various doctors that he had been retrenched in March 1993. He agreed, as of April 1994, he was spending his time at home doing very little because of back pain.
32 The plaintiff had a little bit of a problem with incontinence in 1990 and he had some tablets and “it was alright.” He wore pads for a while in 1990. He denied he experienced incontinence/dripping problems between 2000 and 2002. He agreed he had sexual problems because of his back in 1994 continuing through to 2002. Before 2002 he slept in another part of the house because he was having back pain.
33 The plaintiff agreed that in 1994 if he mowed the lawn his back hurt for two days. He did no housework and he watched television. He has never done any housework. He used to get a sore back right up until 2002 using the lawnmower, exercising, walking, and if he did any bending or heavy lifting. He agreed there was pain all the time if he did any excessive bending or lifting or worked in the garden before 2002. Before 2002 he could do a little bit of dancing with pain.
34 Between 1992 and 1994 the plaintiff received Centrelink payments whilst he was receiving weekly payments of compensation. He has had to repay those Centrelink benefits.
35 The plaintiff was cross examined about the history given by him to Mr Hooper in August 2002 that he had had no back problem before the 2002 incident and that he had many or several falls at work over the years. The plaintiff agreed such a history would be false. The plaintiff said he did not think it was relevant to tell Mr Hooper of his previous back problem and that he does not disclose all his personal medical details to the doctors.
36 The plaintiff deposed that between 1997 and July 2002 he had little in the way of back pain, but, as time went on, with the heavy work he was performing and with prolonged hours of work during the last two years before July 2002, he suffered some episodes of pain, but not generally to the extent he needed to take time off work.
37 Over the two years to July 2002 the plaintiff frequently worked long hours, even more so in the months leading up thereto. During that period he suffered some increased aches in his lower back and left hip down to his left leg from time to time, but he was able to keep working and undertake his usual leisure activities.
38 In the five years before July 2002 the plaintiff had the odd day off work because of back pain. His pain did not cause his work to be modified. In the six months before July 2002 he did not have any time off work. He worked 30 to 32 hours a week, and at other times 45 hours a week and as many as 60 hours per week. The plaintiff was paid an hourly rate. Whilst he worked long hours he was not paid overtime or loading, nor did he receive sick pay or holiday pay.
The 2002 Incident
39 After the 2002 incident, the plaintiff immediately felt lower back and left hip pain. He experienced pins and needles down his left leg, and to a lesser extent his right leg, and he also felt some pain in the back of his neck in between his shoulders.
40 At the insistence of his employer, Mr Elverson, the plaintiff continued work. He took two Panadol. In the performance of his duties that afternoon the plaintiff felt a sharp pain in his lower back and down his left leg. When he got home he had increased pain and stiffness in his back. He took further Panadol and rubbed Deep Heat into his lower back.
41 Over the next few days the plaintiff continued working with increasing lower back pain. He was having problems sleeping because of pain and he took increasing amounts of Panadol.
42 The plaintiff usually worked in the company of Mr Elverson. The plaintiff saw him at work most days. If the plaintiff required time off or needed medication at work, he would ask Mr Elverson.
43 On 21 July 2002 the plaintiff had severe lower back pain. He spent most of the day in bed and could not go to work. The following day he attended his general practitioner, Dr Clifopoulos, who put him off work and organised for a CT scan which was carried out on 6 August 2002. Dr Clifopoulos prescribed painkilling medication and referred the plaintiff to a psychologist, Bill Efremidis.
44 About two months after the 2002 incident, Dr Clifopoulos referred the plaintiff to a physiotherapist whom the plaintiff initially saw three times a week with some temporary relief but not ongoing benefit. The plaintiff continued regularly attending his psychologist, and Dr Clifopoulos also provided the plaintiff with an anti-depressant. For a few months after the 2002 incident the plaintiff had a reduced appetite because of stress.
45 As he was getting no ongoing relief from physiotherapy, Dr Clifopoulos referred the plaintiff to Mr de la Harpe, orthopaedic surgeon, whom he first saw on 8 November 2002. Mr de la Harpe organised an MRI of the plaintiff’s back which was undertaken on 20 November 2002.
46 Shortly thereafter, Mr de la Harpe recommended the plaintiff undergo hydrotherapy in addition to physiotherapy. Liability for this treatment was not accepted by WorkCover.
47 In December 2002, the plaintiff was referred to a rehabilitation organisation, Donnelly Ayres Consulting. The plaintiff attended his workplace with their consultant in about December 2002. In January 2003, the plaintiff was offered part-time duties involving cleaning and office work. Dr Clifopoulos was of the view that job was not suitable for him. The plaintiff saw Donnelly Ayres a few more times during 2003 and 2004, but to his knowledge no recommendation was made for any further return to work, nor was any work offered.
48 In February 2003, Mr de la Harpe suggested the plaintiff undergo a nerve block injection in his back. Having discussed the procedure with Dr Clifopoulos, who advised it would only be of temporary benefit and would be quite painful, the plaintiff did not go ahead with it. At that time the plaintiff started using a TENS machine, which gave him temporary but not ongoing benefit.
49 During 2003 and 2004 the plaintiff had regular physiotherapy and attended upon his general practitioner and psychologist, and also saw Mr de la Harpe about every six months or so. Mr de la Harpe raised the issue of a possible fusion operation but indicated he could not give the plaintiff any guarantee of success. The plaintiff decided not to proceed with surgery, having discussed the procedure with Dr Clifopoulos.
50 During that time the plaintiff was also having annoying and embarrassing urinary problems. He had some tests and was prescribed medication which did not help a lot. A further CT scan was undertaken on 10 May 2004. The plaintiff commenced wearing a back corset which gave him some support.
51 Because of disturbed sleep as a result of back pain, in January 2005 Dr Clifopoulos referred the plaintiff to Dr Goudge at La Trobe University, however the plaintiff could not afford the proposed treatment. Having initially lost some weight after the 2002 incident, the plaintiff put on weight because of his back injury and restrictions upon his activities. By August 2003 he was about 15 kilograms heavier than at the time of the incident when he weighed 95 kilograms. The plaintiff has had continued problems with his weight. In March 2005, Dr Clifopoulos suggested he undertake a gym program and see a dietician and wear a thermal belt for support.
52 Dr Clifopoulos referred the plaintiff to a public hospital as WorkCover was not prepared to pay the costs of seeing a dietician. The plaintiff saw a dietician at the Austin Hospital in July 2008 but has not heard further about an appropriate program. Since January 2009 Dr Clifopoulos has prescribed Xenical weight loss tablets as a result of which the plaintiff has lost 3 kilograms and now weighs a bit less than 125 kilograms.
53 For a while between late 2004 and mid 2005 the plaintiff went for several months without any physiotherapy, as his physiotherapist had stopped practicing. In mid 2005, he was referred by Dr Clifopoulos to Mr Lincoln, physiotherapist, whom he attended until WorkCover stopped funding in September 2006, about which time he also ceased psychological counselling because funding ceased.
54 In February 2007, the plaintiff was referred back to Mr de la Harpe for a further MRI but this could not be undertaken given the plaintiff’s weight. The plaintiff underwent a further CT scan on 1 October 2007, after which his general practitioner suggested he continue with the conservative treatment.
55 Five sessions of physiotherapy during 2008 from Mr Lincoln gave the plaintiff quite a lot of relief. When the plaintiff saw Mr de la Harpe in November 2008, he suggested the plaintiff continue conservative treatment and try and reduce his weight.
56 The plaintiff continues to see Dr Clifopoulos, who monitors his condition and prescribes medication. The plaintiff regularly takes Panadol Osteo for pain relief. He frequently takes Digesic and Panadeine Forte at times of more severe pain and he continues to take Zoloft. The plaintiff uses a heat pack when he goes to bed and during the day. He no longer wears a corset as he cannot find one that fits him.
57 The plaintiff has persistent lower back pain radiating down to his left leg. Prolonged driving, walking, sitting and standing all tend to aggravate his pain and he tries to avoid these activities. Sneezing and coughing tend to cause sharp pain in his lower back.
58 The plaintiff regularly suffers from severe episodes where he experiences pain at the base of his lower back, which feels very tight, and he has pain radiating to the left hip and down the left leg. Sometimes he feels a cramping feeling in the left leg, pain in the big toe and under the foot, and at times some pain radiating down the right leg to a lesser extent. When these episodes occur the plaintiff cannot do anything. His wife gives him a heat pack and he lies on the floor and takes medication. These episodes usually last for two hours or so. The episodes are more frequent the more the plaintiff tries to do.
59 The plaintiff deposed that the pain and restricted use of his back since the 2002 incident is a huge contrast to what it was like between 1997 and 2002. During that time he did not suffer from persistent pain in the lower back and left leg but only occasional and short-term pain or discomfort. Generally, his sleep was alright and he was not restricted by his back in relation to various activities. He was able to work and enjoy his leisure activities – some of which were restricted because he had to work weekends.
60 In cross examination, the plaintiff agreed that the situation in 1991 was exactly the same as his experience after the 2002 incident – he had an x-ray; he was told there was a problem with his spine; he underwent physiotherapy; he was prescribed medication and there was radiation of pain into his legs. Since the 2002 incident, the pain is now in a similar place; however, it is more severe than in 1991.
Social and Domestic Activities
61 The plaintiff deposed that before the 2002 incident he attended to his garden and he had no difficulty cutting the grass – evidence he resiled from in cross examination, where he admitted having had back pain every time he mowed the grass from 1994.
62 The plaintiff continues to try and do things in the garden. Since the 2002 incident he can only cut one small section of the grass at a time. In 2008 he tried to cut the grass with a whipper snipper, but after a while he had to lie down on the floor because of pain. He prefers to use the whipper snipper to the mower because it requires less bending and he does not have to start it with a pulling motion.
63 In the five years before the 2002 incident the plaintiff used to go to Melbourne Football Club matches as often as time permitted. He also went to the races, dogs and trots. He has not attended any of these sporting events since the 2002 incident because of problems with travelling, walking, using stairs and sitting for prolonged periods.
64 In cross examination, the plaintiff said he could take public transport to sporting events if he did not have pain. He last went to the dogs a “real long time ago” and he had not been to the races for a long time – a couple of years. He goes to the TAB very rarely, and he has not had a bet for a long time, perhaps once last year.
65 The plaintiff can drive himself into the city to see his solicitor. It would be a fair distance for him to walk from Richmond Station to the MCG but he has not tried. In re-examination, the plaintiff said that if he walked from his home to public transport he would have to stop and sit and have a rest on the way. The walk would take him about an hour or so, and by the time he got there he would be in pain and feeling horrible as if he “wanted to kill someone or something”. If he got to the football he would not be interested in watching the game. He would have problems negotiating the steps at the ground and it would be very uncomfortable sitting for the duration of a game.
66 Prior to the 2002 incident the plaintiff was able to engage in his hobby of vintage cars. He attended swap meetings at places such as Dandenong, Bendigo and Shepparton. He has not done so since the 2002 incident because of the travel and walking involved. As the car parts are usually laid out on the ground he would have problems inspecting them or bending to pick them up.
67 The plaintiff deposed that in the five years before the 2002 incident he enjoyed attending monthly dances organised by the Filipino community. He also attended concerts about once or twice a year and a dinner dance on Melbourne Cup Eve. He has not been able to go to those functions since the 2002 incident. In cross examination, the plaintiff agreed he had pain dancing before 2002. He thought he had attended a dance in 2000 and in 2001.
68 The plaintiff did not really stop dancing, mowing or lifting before the 2002 incident because of pain but he has not been prepared because of his pain to re-engage in those activities since that time.
69 The plaintiff last visited his mother, who lives in Castlemaine, a couple of years ago. Prior to the 2002 incident he visited her about every three to four months, less frequently during 2001 because of work demands. The last time the plaintiff drove to see his mother he had to stop a number of times each way because his back and leg were stiffening up and causing pain.
70 Since the 2002 incident, the plaintiff has had to refuse social invitations including family weddings because of difficulty travelling with back pain which he experiences after about an hour and a half. It is now too far for him to go near Pakenham for barbeques.
71 Because of his back pain, it is now too far for the plaintiff to drive to Werribee for cards and Mah-jong which he enjoyed before the 2002 incident.
72 Occasionally the plaintiff tries to go for a walk with his wife and daughter but cannot keep up with them.
73 The plaintiff tries to avoid prolonged driving. When he and his wife go out in the car he prefers to drive so he can slow down and he can brace himself for speed humps and try and avoid any bumps and holes in the road.
74 During 2008, the plaintiff suffered increased back and leg pain as a consequence of driving his daughter daily to school in Fitzroy. After picking up his daughter, he frequently had a long hot shower to give his back some flexibility. He felt it was his obligation to drive his daughter because his wife works night shift and she and his daughter do the bulk of the housework. The plaintiff will have to continue these driving duties in 2009.
75 The plaintiff deposed that he previously enjoyed getting recipe books and experimenting with cooking cakes. He did his share of the housework, such as vacuuming, cleaning, polishing the furniture and taking the dog for a walk. He is now very restricted in these tasks and he finds even washing dishes after a short time causes increased pain. He tries to help with cooking, sitting down and cutting up vegetables, but generally his wife and daughter do the bulk of the work at home.
76 In cross examination, the plaintiff agreed that he did not do the housework in 1994 and he still does not do the housework.
77 The plaintiff deposed that his sexual relationship has been adversely affected since the 2002 incident. Because of pain he has difficulty maintaining an erection. The plaintiff deposed that from about late 2006, he has generally slept in a single bed so he does not disturb his wife. In cross examination the plaintiff agreed that since 1991 he had slept in a single bed with a firm mattress so as to not disturb his wife.
78 The plaintiff gets up at least once a night three to four nights per week and puts a heat pack on his back and frequently takes Digesic or Panadeine Forte before going to bed. He continues to require a sleep during most days.
79 The plaintiff’s sleeping pattern was monitored at the Austin Hospital on two occasions during 2008. He was advised to obtain a CPAP machine to assist sleeping. He has requested WorkCover pay for the machine which costs $1500.
80 The plaintiff deposed that he has to rely on his wife to put his socks on and he has a sock aid which he usually uses. He cannot dry his feet properly and after going to the toilet he needs to have a shower as he cannot wipe himself.
81 The plaintiff was cross examined about attendances between 1998 and 2002 with doctors at West Heidelberg whom he was seeing in addition to Dr Clifopoulos.
82 In March 1998 Dr Chong sent the plaintiff for x-rays and for some tests relating to his prostate. The plaintiff underwent a procedure in 2001 for bowel problems and he also had kidney stones. He had difficulty explaining the type of pain he had from the kidney stones.
83 The plaintiff was sent for x-rays in May 2001 because he was feeling sore in his left hip. On 15 May 2001, he had an ultrasound of his hip. On 24 August 2001, he had a CT scan of his abdomen and pelvis.
84 The plaintiff deposed that he did not take any medication during the five years prior to the 2002 incident. In cross examination, the plaintiff agreed that as of September 2000 he was being given many tablets, but he could not remember their names. He was also prescribed Zoloft around that time. In January 2001, he was prescribed medication which might have been Celebrex. In re-examination the plaintiff confirmed he had not taken medication for incontinence or back pain between 1997 and 2002.
Rehabilitation and Attempts to Return to Work
85 The plaintiff was offered a return to work in January 2003 cleaning up walls and under machines. Dr Clifopoulos advised the plaintiff the job was unsuitable. Save for the referral to Donnelly Ayres in 2002, the plaintiff has not been offered any further rehabilitation or alternative employment.
86 In cross examination, the plaintiff agreed that he has never returned to work since the 2002 incident nor has he tried. He has not applied for any job or looked for a job. He has done nothing in terms of a course, reading or improving his literacy skills to get a job. His wife and daughter have not read out advertisements from the paper to him. He agreed there was no prospect of ever getting a job unless he tried.
87 The plaintiff has not asked Dr Clifopoulos his views as to him returning to work, nor has Dr Clifopoulos discussed the issue with him. The plaintiff agreed that if he wanted to work the first thing to do was to discuss a return to work program with his doctor and the second would be to try and look for work. He had not done either as there was “nothing out there.”
88 The plaintiff agreed if work did not involve standing for more than 30 minutes, no lifting of more than 5 kilograms and no requirement to do heavy lifting or bending, that it was exactly what he did at home, just moving around the house, sitting, standing and not doing heavy lifting. If there was such a job he could try and see how he went with it. The plaintiff finally agreed that he had not looked for work and had no intention of looking for work. In re-examination the plaintiff said he did know of any jobs like the one suggested by counsel for the defendants. No jobs had been suggested to him by anyone.
89 The plaintiff cannot read documents without assistance as he does not understand some of the words and he has to have them explained to them. He is able to read road signs and car registration numbers. He can have a look at the racing form guide but he does not understand nor can he read all the horses’ names. He would have problems with foreign names and writing down detailed messages and he would not know how to start if these tasks were required in a job.
90 In re-examination, the plaintiff said the only thing he knew was manual work and he could not do manual labouring now the way he feels, nor has he felt like he could do such work over the last six and a half years. There has been no employment over that period that his doctor has supported or suggested. There has been no rehabilitation offered.
The Plaintiff’s Medical Evidence
91 The plaintiff first consulted Dr Clifopoulos in relation to the 2002 incident on 22 July 2002. He had been the plaintiff’s general practitioner for many years previously. Dr Clifopoulos noted a work-related history of lumbar spine problems in October 1991 treated with certification, WorkCare payments and a full course of rehabilitation.
92 The plaintiff told Dr Clifopoulos he had in fact worked for his current employer for a period of fourteen years. When first seen after the 2002 incident, the plaintiff complained of pain in the lumbosacral area down the back of the left leg to the foot and also numbness of the calf and thigh. At that stage the plaintiff weighed 95 kilograms.
93 The plaintiff was treated with rest and analgesia. He was referred to Mr David de la Harpe, orthopaedic surgeon, and also to Bill Efremidis, psychologist. In October 2003 Dr Clifopoulos noted little had changed and the plaintiff continued to battle with his pain and discomfort and he was unfit for work.
94 Dr Clifopoulos reported in March 2005 that he believed the plaintiff’s obstructive sleep apnoea related to his weight gain as a result of his work- related injury. He noted these symptoms had become progressively more severe as the plaintiff became more inactive. At that stage the plaintiff’s weight had ballooned to 113 kilograms.
95 Dr Clifopoulos reported in March 2006 that the plaintiff had developed some incontinence as a result of his lumbar disc prolapse and at that time he was suffering from significant depression and chronic occupational stress.
96 In May 2007, Dr Clifopoulos was of the view the plaintiff had no capacity for any suitable employment and that he was unable to return to any former duties he was normally accustomed to. Dr Clifopoulos considered that the plaintiff’s incapacity for suitable employment would be indefinite and he was unfit for work at that time. Physical restrictions imposed upon the plaintiff were appropriate rest breaks, not standing for longer than 30 minutes and no lifting of more than 5 kilograms.
97 In November 2007, Dr Clifopoulos reported the plaintiff continued to suffer from work-related injuries with regards to aggravation of his previous spondylosis. He considered the plaintiff not in a fit medical condition to contemplate surgery given his morbid obesity, lack of mobility and poor peri operative risk. He noted the plaintiff also had premorbid conditions of hypertension, urinary incontinence and hyperlipidaemia, all of which mitigated any successful return to work. He felt the plaintiff would remain a permanent invalid.
98 Dr Clifopoulos noted in January 2008 that the plaintiff’s present weight hovered around 125 kilograms as a result of his spinal back injury and his inability to exercise and move.
99 In 2008, Dr Clifopoulos referred the plaintiff for sleep studies at the Austin Hospital which concluded the plaintiff in fact suffered from sleep apnoea as a result of obesity. He requested the defendant pay the costs of a CPAP machine.
100 Dr Clifopoulos continues to certify the plaintiff unfit for any duties. Counsel for the plaintiff tendered a number of certificates given by Dr Clifopoulos during 1992 and 1993 certifying the plaintiff fit for modified duties.
101 In cross examination, Dr Clifopoulos confirmed he had treated the plaintiff in relation to the 1991 incident. He agreed the x-ray taken in October 1991 showed a significant disc protrusion at L5-S1. The protrusion remained on recent studies and had in fact deteriorated. Dr Clifopoulos confirmed that from late 1991 to 6 May 1994 he certified the plaintiff unfit for work.
102 Mr David de la Harpe, orthopaedic surgeon, first saw the plaintiff on referral from Dr Clifopoulos on 19 September 2002. The plaintiff told Mr de la Harpe he had suffered back pain and predominantly left leg pain since the 2002 incident and he had unable to work thereafter. The plaintiff did not mention the 1991 incident.
103 Following an MRI in November 2002, Mr de la Harpe thought conservative treatment was appropriate and he did not wish to entertain surgical options given the plaintiff’s size. He suggested physiotherapy and hydrotherapy continue. A foraminal nerve root block was suggested in February 2003. In August 2003 the plaintiff told Mr de la Harpe he had come to the end of his tether with pain but he did not want to go ahead with the nerve block. Mr de la Harpe recommended continuing conservative treatment.
104 The plaintiff reported worsening pain on 23 February 2004 and told Mr de la Harpe that he had suffered for three days having cut the grass at home some days earlier. The plaintiff was given the option of conservative measures or surgery and to discuss the matters with his doctor. On review in November 2004, Mr de la Harpe suggested continuing conservative management.
105 Mr de la Harpe considered the plaintiff’s injury was that of a pre existing L5-S1 spondylosis with disc degeneration which had been aggravated by the incident. He thought the plaintiff’s capacity for work was extremely limited because of his incapacitating back and leg pain. His capacity for future work was somewhat guarded as his condition had not improved despite extensive conservative management. Mr de la Harpe did not believe the plaintiff would be able to return to his pre-injury level of employment, and believed that his capacity for other employment was somewhat limited.
106 Mr De la Harpe last reported in May 2007. He agreed with Dr Clifopoulos’s view that the plaintiff needed a weight reduction and gym program and needed to be doing something more for himself in the way of self-directed exercises.
107 The plaintiff underwent physiotherapy from Mr Peter Lesinskis, in Hawthorn, during 2003. From June 2005, the plaintiff received physiotherapy treatment from Mr Lincoln.
108 Bill Efremidis, psychologist, reported in August 2002, detailing attendances in July and August 2002. The focus of those attendances was to work through the psychological impact of the plaintiff’s lower back injury and occupational stress experienced. Mr Efremidis diagnosed major depressive episodes and anxiety at a severe level of intensity. He made similar comments in a report of 27 September 2004.
109 The plaintiff was examined by occupational physician, Dr Sillcock, at the request of the defendants on 17 April 2003. The plaintiff told her prior to 2002 he had had a few falls in the freezer over the years and he had suffered back pain from time to time but never anything serious.
110 At that time Dr Sillcock did not believe the plaintiff was fit for his pre-injury employment, nor for suitable employment, and that he would remain incapacitated for at least another six to twelve months. She thought cleaning duties were too physically strenuous for him and she did not think the plaintiff had the skills to undertake administrative duties. She thought there would be a permanent impairment and that the plaintiff was suffering from a lumbar radiculopathy.
111 The plaintiff was re-examined by Dr Sillcock on 28 August 2003. She added some possible spinal cord compression to her earlier diagnosis. She maintained her view as to the plaintiff’s employment capacity.
112 Mr Jonathan Hooper, orthopaedic surgeon, saw the plaintiff at the request of Cambridge Insurance on 28 August 2002. The plaintiff then complained of pain radiating down his left leg and in the region of his left buttock and hip.
113 The plaintiff told Mr Hooper that he had never had any back trouble prior to the 2002 incident. He told Mr Hooper he had had many or several falls at work over the years but that he had never had any significant back discomfort until a few weeks ago. At that stage Mr Hooper thought the plaintiff was better to return to lighter work than his pre-injury duties.
114 On re-examination on 25 November 2003, the plaintiff reported no change in his condition. He was still unable to work and he was still complaining of low back pain. At that stage Mr Hooper thought the plaintiff was unemployable, and, unless his symptoms improved significantly, the plaintiff would have great difficulty returning to his usual job or getting another job.
115 On re-examination on 27 April 2004, the plaintiff again reported to Mr Hooper that his condition was unchanged. The plaintiff continued to complain of back ache and bilateral leg pain, the left side worse than the right, with the pain radiating to his foot with associated paresthesia. He complained that recently he had been incontinent and dribbling urine.
116 Mr Hooper noted that since last seen, the plaintiff had gained an enormous amount of weight and he now weighed 110 kilograms. Mr Hooper confirmed the plaintiff was quite incapable of doing any work. He could not see that suitable employment could be provided for the plaintiff in his present physical state, and it was his view that the plaintiff was unemployable and may not return to work unless he could lose a significant amount of weight, his back pain ameliorated, and his urinary symptoms were treated.
117 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff in November 2008. The plaintiff told him of back injuries in 1984 and 1991. He told Mr Kudelka that he was off work for a few weeks on both occasions, he took tablets and had physiotherapy.
118 In Mr Kudelka’s view the plaintiff’s current physical condition was back pain, stiffness and weakness due to degenerative changes in the lower three lumbar regions aggravated by the 2002 incident. He considered the plaintiff had a total incapacity for manual employment, although he may respond to appropriate treatment. He thought any incapacity resulting from the back injury as contributed to by the 2002 incident was likely to continue for at least the foreseeable future.
119 Associate Professor John Balla, consultant neurologist, examined the plaintiff on behalf of the defendants in December 2008. The plaintiff told him that he may have been off work for a few weeks or probably more like a few months following the 1991 incident. He then recovered completely and did not have any backache until 2002. Professor Balla described the plaintiff’s previous back injury in 1991 as one “with only transient pain.”
120 Taking into account the investigations available, Professor Balla considered the plaintiff had a developmental abnormality and degenerative changes which would be significantly related to his gross overweight. In his view, this would have been aggravated by the 2002 incident. He considered that some of the persisting pain related to normal degenerative changes, and there may have been some aggravation related to the 2002 incident. He noted there were obvious discrepancies between what the plaintiff told him and what was noted in earlier reports, such as Mr Doig’s examination of the plaintiff in 1993, at which time the plaintiff reported severe pain.
121 In view of significant diffuse changes shown on investigation, the plaintiff not moving his back or legs as one would expect, and a sensory loss which was not anatomical, Professor Balla considered 20 per cent of the plaintiff’s ongoing problem related to the injuries in 1991 and 2002 – each contributing 10 per cent.
122 Professor Balla did not consider the plaintiff capable of any work in that, due to his longstanding difficulties with movement, the plaintiff could not perform any labouring work which was all he had done. Professor Balla considered the situation permanent without any hope of improvement and thought the plaintiff was clearly not suitable for rehabilitation on account of his associated psychological problems as well as the fact he had had pain for six years.
123 The Medical Panel provided an opinion on 4 March 2008 that the plaintiff was suffering from an aggravation of lumbar disc degenerative disease and L5-S1 spondylosis with referred symptoms to the lower extremities but without radiculopathy or cauda equina syndrome relevant to the claimed back injury. In the Panel’s opinion the plaintiff’s incapacity for work was still materially contributed to by the claimed back injury.
Investigations
124 A CT scan of the lumbosacral spine taken on 21 November 1991 showed bilateral L5 pars interarticularis defects were present associated with the spondylosis on L5-S1. An asymmetrical left-sided posterolateral disc protrusion was present at L5-S1 level and the protruding disc material was inseparable from the left L5 nerve root. A congenital anomaly of the posterior neural arch of L4 was demonstrated.
125 An x-ray of the lumbar spine taken on 6 August 2002 showed Grade 1 spondylosis of L5 on S1. There was no disc protrusion or spinal canal stenosis. There was ankylosis of the left L3-4 facetal joint. Ankylosis of the anterior aspect of the upper portions of the sacroiliac joints was noted but no cause for that was identified.
126 A CT of the lumbar spine also taken on that date showed mild L3-4 disc degeneration and Grade 1 spondylosis of L5 on S1.
127 An MRI of the lumbar spine taken on 20 November 2002 showed Grade 1 L5-S1 lytic spondylosis with disc degeneration confined to L1-2 and L5-S1, AP slip and generalised disc bulge resulting in bilateral bony foraminal stenosis for the exiting L5 nerves at L5-S1, much worse on the left than the right, and, clinically, correlation with the left L5 radiculopathy was suggested. There was no definite foraminal disc protrusion. Hypertrophy/dysplastic L3-L5 neural arches were seen with rudimentary facet on the left at L3-L4.
128 A CT scan of the lumbar spine taken 10 May 2004 showed Grade 1 anterior spondylosis at L5-S1 level secondary to chronic L5 pars defect, foraminal stenosis to exiting L5 nerve root, no significant canal stenosis, dysplastic and hypertrophied neural arches of L4 and L5. There was an unsuccessful MRI due to patient’s body habitus.
129 A CT scan of the lumbosacral spine taken 1 October 2007 showed fusion of the spinous processes of L3 and query L4 developmental in origin. Minimal spondylosis of L5 on S1. L5-S1 disc bulging but no disc protrusion or central spinal canal stenosis was shown.
Surveillance
130 Counsel for the plaintiff tendered the section of the index of the defendants’ Court Book setting out that surveillance had been carried out.
The Defendants’ Medical Evidence
131 The plaintiff was examined by Mr J Stephens on behalf of Ryan Carlisle
Thomas (“his former solicitors’) on 30 September 1992. The plaintiff then complained of intermittent discomfort in the lower back with a tendency to radiate into the left buttock region – however, he had long periods of being pain free and found his pain was precipitated only by bending or lifting activities and not troubled by sitting, standing or walking. At that stage Mr Stephens thought the plaintiff was fit to resume work within certain limitations.
132 Mr William Doig, orthopaedic surgeon, examined the plaintiff on three occasions at the request of his former solicitors, most recently on 1 April 1993. At that time the plaintiff said he was getting quite a lot of trouble and he was not really getting all that better with the treatment. He felt a bit better with his brace on. Mr Doig considered surgery at that time but because of the plaintiff’s weight he thought it might be a problem.
133 Dr Piperoglou, psychiatrist, examined the plaintiff at the request of his former solicitors on four occasions, finally on 3 December 1993. At that time the plaintiff told him he could not sleep for more than two and a half hours straight because of pain. He was depressed. He had problems getting an erection, from a pinched nerve in his back, and he had problems holding his urine. He had put on weight because he was not as active as he used to be.
134 Dr Piperoglou diagnosed a mixed anxiety depressive reaction of mild to moderate severity which was a sequel to the plaintiff’s work related injury. At that stage he thought the plaintiff was not fit for his pre-injury employment due to the nature of his physical problem more than his psychiatric reaction.
135 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff at the request of Coltmans solicitors on 14 December 1993. The plaintiff told him that at that time he was not looking for work, having been dismissed in March 1993, and no further light duties were available. The plaintiff complained of pain in the low back, radiating to the left buttock, and pins and needles in the left big toe and a cramping sensation in the sole of the foot.
136 On examination, Mr Shannon noted the plaintiff was obese and all lumbar movements were limited by two-thirds, except lateral flexion, which was limited by a third. Mr Shannon noted the presence of ingrained dirt and some cuts on both hands which indicated the plaintiff was doing some physical work, although the plaintiff told Mr Shannon that he did no gardening nor house repairs, nor could he even do up his old car.
137 Mr Shannon examined the plaintiff on 1 March 2004 at the request of the Cambridge Integrated Services for the purposes of an impairment assessment. The plaintiff told him of the 1991 incident and that he was off work for several months thereafter and that he made quite a good recovery.
138 Mr Shannon did not mention he had seen the plaintiff in 1993.
139 On examination, the plaintiff complained of ongoing pain in the low back radiating to both legs, particularly the left, as far as the big toe, and he sometimes got cramping in the left calf. He could walk for about 10 minutes and he was limited by both leg and back pain.
140 Mr Shannon thought there would be some argument for decompression and spinal fusion but the plaintiff was a poor candidate because of his considerable obesity and because of a significant non organic component superimposed upon genuine symptomology. He noted the plaintiff described some urinary incontinence but apparently had fairly normal bladder sensation.
141 Mr Ian McNicol Smith examined the plaintiff at the request of Coltmans solicitors on 29 March 1994. At that stage the plaintiff told him he had constant low back pain made worse by walking or bending, or indeed any activity involving the back, such as cutting the grass. He complained of radiation to the left buttock, calf and big toe.
142 Mr McNicol Smith thought the plaintiff was unfit to return to his old job or any work which involved repeated bending or lifting more than 10 kilograms.
143 The plaintiff was examined by Dr Nigel Strauss, psychiatrist, at the request of Coltmans on 21 April 1994. The plaintiff told him that he was retrenched in March 1993 and had not worked since. The plaintiff complained of low back pain and his left hip hurt if he was too mobile or spent too much time on his feet. He spent his day doing very little. He tried to exercise but spent a lot of time resting. If he mowed the lawn it hurt his back for two days. He did no housework. He watched television. Dr Strauss noted that the plaintiff was unable to read or write and it appeared he had always been illiterate. Dr Strauss diagnosed mild anxiety and depression.
144 Dr Clive Kenna, consultant in musculoskeletal pain management, assessed the plaintiff on 9 May 2007. He was not given any history of the 1991 incident. In his view the plaintiff had pre existing spondylosis at L5-S1. He considered the plaintiff not fit for employment but due to substantially non-work-related conditions. Whilst he accepted that the pre existing condition may have been aggravated by an incident at work, he considered, in regard to the plaintiff’s current clinical presentation, his overall general health was playing a substantial role or part in preventing any realistic possibility of re-entry into employment as he had a history of labouring work and his educational presentation levels were low.
145 Dr Kenna believed the plaintiff’s capacity for employment was so marginal that on a practical basis he was unfit for employment, not specifically due to his back condition but due to his overall general health and morbid obesity.
146 Dr Kenna provided a supplementary report in September 2007, having been provided with further material from Dr Clifopoulos. He noted a letter dated 22 March 2006, in which Dr Clifopoulos acknowledged there had been persistent lower back pain and substantial non-work-related factors impeding the plaintiff’s progress.
147 Dr Kenna thought there was a general recognition by Dr Clifopoulos that there was a wide range of other factors which explain the plaintiff’s prolonged absence from the workforce.
148 Mr Syme examined the plaintiff on 3 March 2004. The plaintiff told him that some months after the 2002 incident he became aware of urinary symptoms. Mr Syme considered the plaintiff’s injury in the 2002 incident was a significant cause for his current pain and L5 radiculopathy. He thought the plaintiff’s urinary symptoms were consistent with the possibility of cauda equina irritation and that they deserved investigation. He could not find a neurological cause for the plaintiff’s sexual dysfunction.
149 The Medical Panel, on 30 August 2005, found that the plaintiff’s urinary condition had not resulted from nor was materially contributed to by the 2002 incident.
Vocational Evidence
150 In its vocational assessment dated 3 May 2004 Donnelly Ayres concluded that consideration of potential areas of work was a moot point, as all available opinion indicated the plaintiff had no work capacity and his prognosis was poor, thus no employment was suggested for him.
The 1991 Claim Documents
151 By writ dated 1 June 1992, the plaintiff brought common law proceedings against Quality Packaging Services for the injury suffered in the 1991 incident. The plaintiff alleged injuries to his back and spine, development or aggravation of disc degeneration in the back and spine with neurological involvement, injuries to the left shoulder, hip and side, and pain and shock. It was claimed that the plaintiff had had long periods of incapacity since the incident and that that situation was likely to continue in the future. However, no claim was made for economic loss by reason of the provisions of the Act.
152 By a release, the date of which is unclear, the plaintiff settled his common law proceedings relating to the 1991 incident for the sum of $17,500.
153 By writ dated 4 August 1993, the plaintiff claimed statutory benefits in relation to the 1991 incident, namely payments for total incapacity from 20 March 1993 to date and continuing.
154 On 29 June 1994, the plaintiff accepted a lump sum of $10,000 pursuant to s.115(1)(b) of the Act.
155 The plaintiff’s former solicitors wrote to Coltmans Solicitors in June 1994 confirming settlement of arrears of weekly payments in the sum of $15,250, together with the lump sum of $10,000. The plaintiff’s former solicitors also advised as the plaintiff had received sickness benefits during the period covered by the arrears, repayment would have to be made to Social Security from the settlement sum before it was forwarded to the plaintiff.
Does the Plaintiff have a Serious Injury?
156 In these proceedings it is not disputed the plaintiff suffered a compensable injury on or about the said date.
157 It seems to be generally accepted that the plaintiff suffers from an aggravation of lumbar disc degeneration and an L5/S1 spondylolisthesis with referred symptoms to the lower extremities.
158 In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2002 incident is serious and permanent.
159 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
160 In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.
161 In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172, provided the plaintiff establishes that the subject compensable injury in 2002 materially contributes to his impairment and its consequences and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
162 Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the 2002 incident is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).
163 There was some discussion as to which party bore the onus of proof in cases such as the present where there was a pre existing condition. Counsel for the plaintiff submitted that it was settled law that the common law principles set out in Watts v Rake (1960) 108 CLR 158 applied to serious injury applications. It was submitted that it was upon the defendant to do the disentangling and to show what was the probable course of a pre existing condition in circumstances of an aggravation.
164 Counsel for the defendants argued the onus rested with the plaintiff and relied upon what was said by Southwell and Teague JJ in Petkovski v Galletti (supra) at 444:
“At this stage of the process the applicant must establish what injury was caused by the accident. Where there is a pre existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function after the relevant injury.”
165 I do not accept the plaintiff’s submission that it is settled law that the defendant bears the onus in such cases. However in the circumstances of the present case, it is not necessary to determine this issue as I am satisfied the aggravation suffered by the plaintiff in the 2002 incident meets the test of seriousness.
166 Obviously when considering the extent of any pre existing condition, the plaintiff’s evidence is particularly relevant. In this case a considerable attack was made on the plaintiff’s credit by counsel for the defendants.
167 The plaintiff’s credit was primarily attacked on the basis of his failure to acknowledge the seriousness of the 1991 incident and its ongoing consequences. Further, counsel for the defendants raised the plaintiff’s failure to mention, and at times specifically deny, the occurrence of the 1991 incident to doctors examining him for the purposes of the present claim.
168 I have significant reservations about the credit of the plaintiff. The level of pain and disability which he finally admitted followed the 1991 incident was neither referred to in his affidavits nor in histories given by him to doctors, or was minimised by him when he actually made mention of it in the context of the 2002 claim.
169 It is clear that the plaintiff has had back pain since 1991. He had problems with sexual and urinary dysfunction from that time. He agreed that in 1994 he also had difficulty doing his gardening, engaging in dancing and participating in activities requiring bending or lifting. His ability to do housework has not been affected as it is a job he has never done.
170 When considering the credibility of the plaintiff, I am not permitted to draw any adverse inference from the fact that the plaintiff claimed privilege in relation to answering questions relating to any work he may have performed between October 1991 and July 1994 when he was in receipt of weekly payments of compensation.
171 I am put in a somewhat difficult position by counsel for the plaintiff, who, whilst not conceding the plaintiff was working during this period, at the same time conceded that there was material upon which an inference could be drawn that there was income being received by the plaintiff during that period but not that it was necessarily from work.
172 In this regard reliance was placed on various documents tendered by the defendants. The plaintiff’s 1991-1992 group certificate showed a gross salary of $8,213.72 paid to him by the first defendant. In 1992-93, the plaintiff was paid a gross salary of $4,343 by the first defendant.
173 A summary of wages paid to the plaintiff by the first defendant was also relied upon. In July 1993, the plaintiff was paid $181.20, $1,000, and $180. He was paid $351.54 in August, $281.23 in September, $418.28 in October and $402.50 in November and December 1993.
174 In January 1994, the plaintiff was paid $402.50 and $150. He was paid $402.50 in February, $322, $75 and $84 in March, $334, $309, $207 and $165 in April, $96, $468, $414, $498 and $195 in May, $674 in September, $400 in October, $486 in November and $346 in December 1994.
175 I am faced with the novel situation where I am being asked by counsel for the plaintiff to accept that the plaintiff was untruthful to doctors between 1991- 1994 when he complained of a total incapacity for work and they recorded a history given by him that he was not working.
176 Further, I am being asked to accept that the plaintiff did in fact have a capacity for work during that period.
177 A typed summary of the medical certificates relating to that period was relied upon in this regard. Whilst the certificates were predominantly for total incapacity, there were certificates for modified duties at various times from February to June 1992, September to December 1992 and also in February and March 1993.
178 Leaving to one side the issue of whether or not the plaintiff worked between 1991 and 1994, significantly from 1995 the plaintiff was able to work full time in a relatively heavy job with the first defendant. A summary of the wages paid by the first defendant to the plaintiff during 1995 and 1996 supports he was working full time.
179 Further, there is no evidence that the plaintiff has required time off work because of back pain since that time until the 2002 incident.
180 The plaintiff’s evidence of his ability to perform his work with the first defendant and the long hours worked prior to the 2002 incident has not been challenged. There was no evidence from his employer and supervisor Mr Elverson in this regard.
181 I find that despite his back condition the plaintiff was working in excess of 40 hours per week undertaking heavy work when he injured his back in 2002. Since the 2002 incident the plaintiff has been unable to return to any work because of back pain – a position supported by all doctors in this case.
182 Whilst I have real concerns as to the plaintiff’s evidence relating to his 1991 incident both as to the issue of whether he was working thereafter – given the limited concession to this effect – and his failure to give a full history of that claim to doctors involved in the present claim – I must take into account all the evidence in reaching my decision.
183 The plaintiff’s evidence as to his present level of pain and disability was not really challenged. Whilst he finally acknowledged he had had back pain since the 1991 incident, his evidence is that since the 2002 incident the pain has been more severe, and his activities, particularly in relation to work, have been significantly affected.
184 There is no surveillance. There is no evidence of the plaintiff being able to engage in a level of activity inconsistent with his evidence of his pain and disability.
185 The plaintiff was not having any treatment in the five years or so before the 2002 incident. I am not satisfied the limited medication he was being prescribed in 2000-2001 was for back pain.
186 I accept that there is a similarity in the nature of the plaintiff’s complaints following both the 1991 and 2002 incidents. His back pain is in the same area, although now more severe; his treatment has been similar, as have been the activities affected. I accept that the plaintiff’s problems were particularly significant from October 1991 until he returned to full time work in 1995 and to a lessening degree from that time to the date of the 2002 incident. The fact remains however that he has been able to work full time and had little or no treatment from 1995 until the 2002 incident.
187 When this point was raised with counsel for the defendants, he submitted that the plaintiff could not overcome the requirements of s.134AB(38)(g). It was submitted that the plaintiff had not attempted to return to work nor did he intend to. The plaintiff had not engaged in any retraining or rehabilitation. In such circumstances it was submitted the Court could not be satisfied therefore that any loss of earning capacity of forty per cent was permanent.
188 Having made these findings as to the plaintiff’s credit and also having considered his pre existing back condition, I propose to consider the loss of earning capacity consequence of the plaintiff’s injury.
Loss of Earning Capacity
189 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 40 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). 190 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. 191 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
192 “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.
193 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.
194 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.
195 I propose to determine the plaintiff’s “without injury” earnings first.
196 Submissions were not made by counsel in this respect.
197 Whilst it was not conceded by counsel for the defendants that the plaintiff has no capacity for suitable employment, this issue was not the subject of evidence or submission. The defendants’ main focus was on matters of credit and the role the 1991 incident played in the plaintiff’s current presentation. Further, in relation to loss of earning capacity, counsel for the defendant relied upon sub-s.(g), submitting that the plaintiff had failed to discharge the onus of proof in relation to retraining and rehabilitation.
198 Copies of the plaintiff’s pay slips from 1 May 2001 to 25 June 2002 were tendered. The plaintiff was paid $14 per hour during this period and on average worked more than 40 hours per week. It appears from these pay slips that the plaintiff was paid the usual hourly rate when he worked overtime.
199 On this limited material I accept that the weekly figure of $600 most fairly reflects the plaintiff’s “without injury” earnings.
200 Having found the plaintiff’s “without injury” earnings figure to be $600, I now turn to consider the plaintiff’s “after injury” earnings.
“After Injury” Earnings
201 S.134AB(38)(f) provides that a worker’s “after injury” earnings consist of the worker’s gross income from personal exertion (expressed as an annual rate) which the worker is earning or is capable of earning in suitable employment as at the date of the hearing of the application.
202 Hence I am required to assess both the worker’s actual gross income and what the worker is capable of earning in suitable employment.
203 The plaintiff’s present gross earnings from personal exertion are nil.
204 I am required to consider what the plaintiff is capable of earning in suitable employment as defined in s.5 of the Act.
205 Donnelly Ayres has carried out the only vocational assessment in this case. In a 2004 report which is now somewhat outdated, it was concluded the plaintiff had no work capacity.
206 The plaintiff’s general practitioner Dr Clifopoulos presently certifies the plaintiff unfit for any duties as a result of the 2002 incident. Dr Clifopoulos was not cross examined in this regard.
207 Save for Dr Kenna, the consensus of medical opinion is that the plaintiff is permanently unfit for any employment as a result of his back condition resulting from the 2002 incident. When he last commented on the plaintiff’s employment capacity in 2004, treating specialist Mr de la Harpe thought the plaintiff’s capacity was extremely limited.
208 I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at para 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
209 Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
210 Whilst medico-legal examiners in this case have either not been told of the 1991 incident or have been given a limited version of it by the plaintiff, they all acknowledge the plaintiff had a degenerative condition which predated the 2002 incident.
211 Having made findings as to the improvement in the plaintiff’s condition such that he returned to full time work in 2005, the lack of a detailed history of the 1991 incident being available to these examiners does not cause me concern in accepting their opinions in relation to the 2002 incident.
212 Significantly, Dr Clifopoulos has had the benefit of seeing the plaintiff for many years. He has treated him following the 1991 incident and in the years leading up to the 2002 incident and thereafter. His view that the 2002 incident continues to contribute to the plaintiff’s total incapacity for employment was unchallenged.
213 Thus accepting the preponderance of medical evidence and taking into account the plaintiff’s very limited literacy skills and his history of only manual work, I accept that the plaintiff has a permanent total incapacity for employment.
214 The difference between the plaintiff’s “without injury” earnings of $600 per week and the plaintiff’s “after injury” earnings of nil obviously represents a total loss of earning capacity. Taking into account all the evidence, I accept that this loss of earning capacity of forty per cent or more is permanent.
215 When considering a claim for loss of earning capacity, I am also required to consider issues of retraining and rehabilitation pursuant to sub-section (g).
216 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied that there is no rehabilitation or retraining which would alter the situation that he has sustained a loss of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of any improvement in his capacity for employment, the plaintiff has satisfied the requirements of section 134AB(38)(g).
Conclusion
217 I am satisfied the plaintiff has established that he has a loss of earning capacity of 40 per cent or more within the meaning of s.134AB(38)(e) of the Act.
218 I am also satisfied that the loss of earning capacity consequence of the plaintiff’s injury is, when judged by a comparison with other cases in the range of possible losses of body function, fairly described as being more than significant or marked and as being at least very considerable.
219 Therefore, I am satisfied the plaintiff has a serious injury.
220 In such circumstances, having made a finding of serious injury in the context of loss of earning capacity, I am not required to consider the pain and suffering consequences of the plaintiff’s injury.
221 S.134AB(38)(b) provides that in order to establish that an injury is “serious” the consequences of any impairment or loss of body function must be considered. That section refers in particular to two types of consequences:
(i) pain and suffering; or (ii) loss of earning capacity. 222 As the word “or” is used disjunctively, a worker need only establish that either the pain and suffering consequence or the loss of earning capacity consequence is serious.
223 The effect of that section is that if a worker establishes that the pain and suffering consequence of their injury is serious, but is unable to persuade the Court that the loss of earning capacity consequence is serious, then they are entitled only to bring proceedings for the recovery of damages for pain and suffering.
224 The Act is silent as to the situation where a worker succeeds in his serious injury application on the basis of loss of earning capacity.
225 However, the Second Reading Speech relating to the introduction of s.134AB(17) into the Act is clear on this point. The relevant passage is as follows:
“The Bill introduces a new concept in relation to the worker having a limited entitlement to bring proceedings if, on the serious injury application, the court is not satisfied the worker has met both the pain and suffering and loss of earning capacity thresholds. If a worker satisfied the pain and suffering threshold but not the loss of earning capacity threshold, then the worker will be limited to an entitlement to bring common law proceedings for the recovery of pain and suffering damages only. If however the worker satisfies the economic loss threshold the worker will be entitled to bring damages for pain and suffering damages and economic loss damages.”
226 Having regard to the statutory context, the Minister’s Second Reading Speech, and the terms of s.134AB(38)(b), it is unnecessary for me to determine the pain and suffering consequences of the plaintiff’s injuries, having found he has a serious injury on the basis of the loss of earning capacity consequence of his injury.
227 This approach has been followed by a number of other Judges of this Court: see De Pasquale v A W Dark (Vic) Pty Ltd [2005] VCC 158, per Judge Higgins; Stevens v Eurest Aust. Pty Ltd & VWA [2007] VCC 1014, per Judge Strong; Becirovic v Melbourne Bus Link Pty Ltd [2007] VCC 1175, per Judge Morrow; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge I J K Ross.
228 Accordingly, I grant leave to the plaintiff to bring proceeding for damages for loss of earning capacity and pain and suffering.
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