De Bono v Victorian WorkCover Authority
[2020] VCC 1342
•21 August 2020
| IN COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-00136
| BRYAN PHILLIP DE BONO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2019 | |
DATE OF JUDGMENT: | 21 August 2020 | |
CASE MAY BE CITED AS: | De Bono v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1342 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – original application brought for leave to bring common law proceedings for both “pain and suffering” and “pecuniary loss” damages for a back injury arriving out of or in the course of employment with Baytech Industrial (Vic) Pty Ltd – plaintiff relied upon paragraph (a) of the definition of “serious injury” in s134AB(37) of the Act (ie permanent serious impairment or loss of a body function”) – concession made by the defendant that the plaintiff had suffered a compensable injury to his lower back and that the pain and suffering consequences of the impairment of the functions of the back were “serious”. The original issue was whether the loss of earning capacity consequences were also “serious” and whether the plaintiff should be given leave to commence common law proceedings for pecuniary loss damages in addition to pain and suffering damages. The initial trial judge rejected the application to commence common law proceedings for “pecuniary loss” damages and granted the plaintiff leave to bring common law proceedings to recover damages for pain and suffering only.
Appeal by the plaintiff to the Court of Appeal against original judge’s order, refusing him leave to commence a proceeding claiming “pecuniary loss” damages – appeal upheld and matter remitted to be heard by a different judge in relation to whether leave should be granted to the plaintiff to bring proceedings for pecuniary loss damages.
Legislation Cited: Accident Compensation Act 1985, as amended
Cases Cited:De Bono v Victorian WorkCover Authority [2018] VCC 997; De Bono v Victorian WorkCover Authority [2019] VSCA 85; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Weldemichael v I D Sales & Repairs Pty Ltd [2019] VSCA 68; Acir v Frosster Pty Ltd [2009] VSC 454; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Hayhill Pty Ltd v Hodge [2006] VSCA 194; Roleff v Chubb Insurance Co of Australia Ltd (2011) 31 VR 235; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Richter v Driscoll [2016] VSCA 142
Judgment: Pursuant to s134AB(16)(b) of the Act, leave granted to the plaintiff to bring common law proceedings for pecuniary loss damages in respect of a lower back injury suffered by the plaintiff on or about 12 May 2011, arising out of or in the course of his employment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Ms J Frederico | John McCrystal Injury Lawyers |
| For the Defendant | Mr D Churilov | Minter Ellison |
HIS HONOUR:
Introduction
1 By way of an Originating Motion, Bryan Phillip De Bono (“the plaintiff”) originally sought leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings for pain and suffering damages and pecuniary loss damages in respect of a lower back injury suffered by him during the course of his employment on 12 May 2011, when lifting a 25-kilogram bag of salt.
2 On the day he suffered his injury, the plaintiff was employed by a recruitment agency, Baytech Industrial (Vic) (“the employer”),[1] as a labourer-process worker at premises controlled by a host employer, Saizeriya Pty Ltd (“Saizeriya”).
[1]In this proceeding, the defendant is the Victorian WorkCover Authority rather than the employer. For present purposes nothing turns on this distinction.
3 The plaintiff relied on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. This paragraph reads:
“serious injury means –
(a) permanent serious impairment or loss of a body function;
… .”
4 The part of the body said to be impaired for the purposes of paragraph (a) was the lower back of the plaintiff.
5 At the original hearing, the defendant conceded that the plaintiff had suffered a compensable injury to his lower back and that the pain and suffering consequences of such impairment of the function of his lower back were “serious” within the meaning of the Act. The issue then before the judge was whether any loss of earning capacity consequences were “serious” and consequently, whether the applicant should also be given leave to commence common law proceedings for “pecuniary loss damages” in addition to “pain and suffering damages”.
6 On 29 June 2018, the judge delivered his Reasons for Judgment[2] and rejected the plaintiff’s application to commence common law proceedings for claiming pecuniary loss damages. On 1 August 2018, the judge made an Order granting the applicant leave to bring common law proceedings and recover damages for pain and suffering only.
[2]De Bono v Victorian WorkCover Authority [2018] VCC 997
7 The plaintiff then sought leave to appeal against the judge’s Order, refusing him leave to commence a proceeding proclaiming pecuniary loss damages. The plaintiff’s proposed grounds of appeal were as follows:
“1.The judge erred in law in failing to disclose a path of reasoning to support his finding that notwithstanding his Honour accepted that the applicant had an intolerance to driving sufficient to preclude him from being an Uber driver, he nonetheless had a capacity to be a courier.
2.The judge erred in law in failing to disclose a path of reasoning to support his finding that notwithstanding his Honour accepted that applicant had an intolerance to levels of sitting, standing, walking and driving, he nonetheless had a capacity to be a car park attendant.
3. The judge erred in law in that, having found the applicant had the capacity to be a courier or car park attendant, he failed to determine whether that capacity was for full or part time employment.
4. The judge erred in law by failing to determine the gross income that he applicant was earning or was capable of earning from personal exertion or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the applicant’s earning capacity had the injury not occurred as required by s 134AB(38)(f)(ii) of the Act.
5. The judge erred in law by failing to assess and determine the amount that the applicant was earning or was capable of earning in suitable employment as at the date of the hearing for the purposes of the comparison required by s 134AB(38)(e), (f) and (g) of the Act.
6. If his Honour concluded that the applicant’s pecuniary loss application should fail on the basis that the applicant’s pecuniary loss consequences could not be described as being ‘at least very considerable’, his Honour failed to provide adequate reasons for reaching that conclusion.”[3]
(Footnote omitted.)
[3]De Bono v Victorian WorkCover Authority [2019] VSCA 85
8 For the reasons set out in De Bono v Victorian WorkCover Authority,[4] the Court of Appeal found that the plaintiff had established each of his proposed grounds of appeal and that there should be a grant of leave to appeal, and the appeal should be allowed. The decision of the trial judge not to grant the plaintiff leave to commence a proceeding claiming “pecuniary loss damages” was set aside and the matter was remitted for rehearing and determination by a different judge in accordance with the reasons set out in the Court of Appeal decision. This is the rehearing of the matter.
[4]Op cit
9 In De Bono,[5] the Court of Appeal sets out the requirements necessary for a plaintiff to succeed in an application for leave to commence a proceeding claiming “pecuniary loss damages”. The Court of Appeal (consisting of Priest, Beach and McLeish JJA) stated, at paragraphs [45]-[48], that:
[5]Op cit
“Section 134AB(17) of the Act provides that a worker who satisfies sub-paragraph (i) of sub-section (38)(b) but not sub-paragraph (ii) of that sub-section, is entitled to bring proceedings in accordance with sub-section (16)(b) for the recovery of damages for pain and suffering only. Sub-paragraph (ii) of sub-section (38)(b) requires a comparison between the consequences of an impairment with respect to loss of earning capacity with other cases in the range of possible impairments. Sub-section (38)(c) requires the relevant loss of earning capacity consequence, ‘when judged by comparison with other cases in the range of possible impairments or losses …, [to be] fairly described as being more than significant or marked, and as being at least very considerable’.
Section 134AB(38)(e) imposes an additional requirement before leave can be given to commence a proceeding for pecuniary loss damages. The additional requirement is that the worker must establish a permanent loss of earning capacity of 40 per centum or more as measured in accordance with sub-section (38)(f).
As the respondent correctly submitted, in order to succeed in his application for leave to commence a proceeding claiming pecuniary loss damages, the applicant had to establish that:
(d)his loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being at least very considerable; and
(e) he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s 134AB(38)(f); and
(f) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.
A failure by the applicant to establish any one of these three matters would, by the terms of the Act, require the dismissal of his application to commence a proceeding claiming damages for pecuniary loss.”
10 It is also worth referring to the comments made by the Court of Appeal in relation to s134AB(38)(g) of the Act, which states:
“For the purposes of the assessment of serious injury in accordance with sub-sections (16) and (19) –
(g)a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.”
11 The Court noted that in attempting to describe the way in which s134AB(38)(g) operates, is not without difficulty. Notwithstanding, the Court of Appeal went on to state:
“In assessing serious injury, paragraph (g) directs the Court to bring into account the possibility of rehabilitation or retraining.[6] Moreover, the section provides that, in assessing the amount a worker is capable of earning in suitable employment, the Court is required to take into account what the worker would have been able to earn if he made reasonable attempts at rehabilitation and retraining.[7] The section does not, however, provide that unless a worker has taken the steps referred to in it then he or she has ‘not established the loss of earning capacity required by s 134AB(38)(b)’.”[8]
[6]Reference was made to Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[7] Reference was made to Weldemichael v I D Sales & Repairs Pty Ltd [2019] VSCA 68 at paragraph [74]
[8]De Bono v Victorian WorkCover Authority (op cit) at paragraph [35]
The evidence of the Plaintiff
12 The plaintiff has sworn three affidavits – the first on 4 August 2017,[9] the second on 14 June 2018[10] and the last one on 30 October 2019.[11] Subject to the following changes, the plaintiff swore that the contents of such affidavits were to his knowledge true and correct.[12]
[9]See exhibit “B” at pages 17-28 Plaintiff’s Court Book (“PCB”)
[10]See exhibit “B” at pages 20-30 PCB
[11]See exhibit “B” at pages 228-235 PCB
[12]T22, L1-2
13 The changes to the affidavits consisted of the following:
(a)in relation to paragraph 12 of the affidavit sworn on 30 October 2019, the plaintiff changed the word “dinner” to “lunch”;
(b)in relation to paragraph 17 of the affidavit sworn 30 October 2019, the following evidence was given:
MR O’DWYER:
Q:“In relation to those affidavits, what’s your reading like?---
A:Pretty minimal.
Q:Did this morning Ms Fred[e]rico, the junior counsel in this case, read those affidavits to you?---
A:Yes.
Q:Following that did you indicate some changes?---
A:Yes.
Q:In relation to your third affidavit, the one sworn on the 30 October, in paragraph 17 you said, about three lines down, Your Honour. My numeracy skills are also limited. I struggle with school work, did you wish to add to that that you repeated Grade Two?---
A:That’s correct.
Q:Did you then go on to say, I’ve only had a Year Nine pass and failed Year Ten, which I repeated. Is that incorrect and ought it read that you went to Year Nine but only did part the way through Year Nine?---
A:Can you repeat that, sorry.
Q:Did you go to Year Nine at school?---
A:Yes.
Q:Did you go into Year Ten?---
A:No, I didn’t.”
HIS HONOUR:
Q:“Can we just be clear about this. Paragraph 13, I’m able to read but I am a slow reader and I often have difficulty fully understanding what I am reading. I can work out words. I do not know if I am familiar with the content of what I am reading. Now, where you – I repeated Grade Two, where do you want that put?”
MR O’DWYER:
A:“After I struggle with my school work, Your Honour.”
HIS HONOUR:
Q:“Right. And after that add the words, I repeated Grade Two. Then goes on, I only have a Year Nine pass.”
MR O’DWYER:
Q:“Did you pass Year Nine?---
A:Yes.”
HIS HONOUR:
Q:“And the words - - -“
MR O’DWYER:
A:“And failed Year Ten which I repeated, should be deleted, Your Honour.”
HIS HONOUR:
Q:“Can I just make it clearer. Yes, at Year Nine you completed Year Nine?---
A:Yes.
Q:It (sic) did not go back to school after Year Nine?---
A:I think I did one term into Year Ten and two terms into Year Ten.”[13]
[13]T20, L16-T21, L17
The Plaintiff’s first affidavit
14 The plaintiff is a thirty-nine-year-old single man with two dependent daughters who reside with him and attend school.
15 The plaintiff attended school to the age of approximately sixteen. He described himself as “not a good student”.
16 On leaving school, the plaintiff obtained a job as an apprentice plumber and worked in this capacity for about two years, then left that apprenticeship (having not been completed) to try and earn better money in the construction industry via various recruiting agencies. He describes working with various agencies and with various host employers, interrupted by various periods of unemployment.
17 The plaintiff believes that he commenced employment with the employer[14] in about March 2010 and worked with them until ultimately ceasing work. In the course of his employment with the employer, he worked with various host employers and, in particular, commenced working with Saizeriya in either late 2010 or early 2011.
[14]Baytech Industrial (Vic) Pty Ltd
18 When he initially commenced with Saizeriya, he worked on the production line and after a short time, he was transferred onto the powder line. His work in the powder room involved him sourcing, mixing and delivering various products for use around the plant. In the morning he would obtain a manifest of what was needed to be sourced and supplied and then would go to work. He would access the bags of powder product and then put together the batches in accordance with the orders.
19 On 12 May 2011, during the course of such work, the plaintiff was lifting a 25-kilogram bag of salt and when lifting and twisting such bag, he felt severe pain in his back as though someone had stuck a knife in his back. He was taken to the Melton Hospital and assessed in the Accident and Emergency area and given painkillers. He underwent a plain x-ray the next day and was to attend his general practitioner, Dr Pawar, who then arranged for him to undergo a CT scan on 19 May 2011.
20 Due to ongoing significant back problems, he was later referred to the rheumatologist, Dr Alex Stockman, on 23 May 2012. Dr Stockman referred him for a further MRI scan, which was undertaken on 21 June 2012. Dr Stockman advised him that he should continue with exercises, physiotherapy, hydrotherapy and painkilling medication, and consistent with Mr Lo, Dr Stockman was “not keen on surgery”.
21 At the time of his first affidavit, the plaintiff was continuing to be treated and assessed by his general practitioners and, in particular, Dr Gurusinghe, all of whom were at the Scott Street Medical Centre. After WorkCover stopped paying for his physiotherapy and hydrotherapy treatment, he continued to attend hydrotherapy when he could afford it.
22 At the time of the first affidavit, the plaintiff had been prescribed Valium, Prednisolone, various anti-inflammatories, Panadeine Forte and Lyrica.
23 Following the work incident, the plaintiff was certified off work, and apart from undertaking some light office duties for a limited time as part of a rehabilitation scheme in early 2012, he has not worked. The plaintiff asserts that he has difficulty travelling to his work and at the time he had lost his licence. Because of the pain and the impact of his injuries, he had difficulty coping.
24 In particular, the plaintiff deposed:
“At the time I was injured, I was working about 28 hours a week. I was earning about $665 gross per week. As I am a single parent, I was fitting my work in around my parenting duties. It had been my intention, as the girls got older and more independent, to work greater hours. It was my parenting commitments which meant I was not working full time at the date of the incident.”[15]
(My emphasis.)
[15]The plaintiff’s first affidavit dated 4 August 2017 at page 22 PCB
25 In his first affidavit, the plaintiff described suffering ongoing chronic pain in his back, which varies between good days and bad days. In particular, he describes that there are times when he has spasms in his back and his whole back just locks up, causing extreme pain. The plaintiff asserts that it did not take much to trigger spasm in his back and relatively minor strains, such as sitting in or driving the car may cause back spasms.
26 The plaintiff also has pain down his legs, the left being the worst, and with the right leg pain only being intermittent. He asserts that he suffers from depression and anxiety and continues to be angry and frustrated by his injuries, pain and restriction.
27 The plaintiff continued to attend his general practitioner from time to time on an ‘as needs’ basis and has been advised that there is very little that can be done (apart from undergoing surgery). He continued to take over-the-counter painkillers, such as Nurofen Plus, and tries to avoid prescription medication because of the effect which it has on him. In particular, he is conscious of not taking strong prescription medication, which tended to impact upon his mind and make him drowsy, which impacts on his ability to be a single parent.
28 The plaintiff does not sleep well and wakes regularly during the night, and sometimes goes from the bed to the couch and back to his bed to obtain sleep. He occasionally uses alcohol to try and help him sleep. He finds it very difficult to get comfortable because of his back pain and when he does get to sleep, he often wakes in pain. He describes himself as just being plain grumpy, and angry and frustrated because of the pain and restrictions.
29 In his first affidavit, the plaintiff deposes that he is not able to return to the work that he has done previously, and further states:
“I do not see there is any work which I could reliably undertake. Even very light activity will lead to back spasms or my back locking up”.[16]
[16]See exhibit “B”, paragraph 45 of the first affidavit at page 27 PCB
30 The plaintiff also asserts that when he commenced with the employer, he believed his physical health was very good, although he had suffered some psychological ill health in the past.
The Plaintiff’s second affidavit
31 In his second affidavit, the plaintiff deposes that he continues to suffer from ongoing significant lower back pain, which requires him to continue to see his general practitioner, Dr Gurusinghe, who has continued to recommend painkilling medication. Dr Gurusinghe did refer him for a further CT scan, which was undertaken in January 2018, and he was advised by Dr Gurusinghe that that CT scan showed continuing problems at the L5-S1 disc, with a disc prolapse at that level. He was advised that there was no change in the disc from the earlier scan. He continues to be prescribed medication, including Lyrica, but as he has custody of his children, he tends not to take medication because it causes too many side effects, including drowsiness.
32 At the time of his second affidavit, the plaintiff had not returned to any form of work and continues to receive Centrelink benefits as a single parent.
33 In particular, the plaintiff deposes that he continues to suffer from significant ongoing lower back pain which he experiences on a daily basis – such pain is constant and can become severe, on average, for two days a week. Furthermore, he continues to experience pain radiating down his legs, the left worse than the right, and such leg pain is experienced daily. He continues to suffer from anxiety and depression, which has been exacerbated by the injury.
34 The plaintiff describes himself as unfit for work and having no capacity, and he continues to be certified unfit for work due to the injury.
The Plaintiff’s third affidavit
35 In his final affidavit, which was sworn a day before the hearing of this matter, the plaintiff deposes that he presently continues to live with his two daughters, the older, Tayla, is in Year 10 and aged sixteen years and the younger, Aliyar, is aged eleven and is in Year 6. He continues to attend his general practitioner, Dr Gurusinghe, about once a month and is provided with Certificates of Incapacity. He continues to take over-the-counter medication such as Ibuprofen when he has flare ups, although he tries to avoid taking medication. He has been prescribed Endone, but has not filled the prescription as it affects his ability to function, for example feeling alert enough to drive his daughters to school. He has commenced seeing a psychologist, Ms Patti, which occurs about once a month, and uses a TENS machine every night before going to bed for about twenty to thirty minutes, and also Deep Heat cream.
36 The plaintiff also goes to Melton Waves up to three times a week for hydrotherapy, which he pays for, and also performs exercises, as taught to him by the physiotherapist, including stretching, walking and using the floating devices. He continues to suffer from lower back pain on a daily basis, and such pain is situated above his belt line and moves across his back, and then down into his buttocks and both legs, with the pain stronger down his left leg as compared to the right leg. He has pain all the time, which increases with activity and, in particular, has flare ups of pain, which he says occurs every couple of days. Such increasing pain is often related to activity and there are days when he is confined to bed because of his pain.
37 The plaintiff finds it difficult to stand for long periods of time, sit for long periods of time, bend over on a repetitive basis and lift heavy weights. He gives the example that after doing some shopping he suffers increased pain.
38 The plaintiff describes being restricted in all activities because of his back pain, which requires him to pace himself with everything he does.
39 The plaintiff describes his daily life being limited by pain. In particular, he describes how he usually drives his daughters to school, does some limited housework, cooking and shopping, although he relies on his daughters to help him with the home duties, including cooking, vacuuming, mopping and hanging out the clothes. On occasion, he goes to the local golf club for lunch if his back is not too sore. On most days, he has to lie down during the day to manage the pain. During the day, he has to lie down to rest his back.
40 The plaintiff deposes that he has had problems with alcohol use and marijuana in the past, although his use of marijuana has been reduced to about once a month. He has also reduced his intake of alcohol, drinking now about once per month. The plaintiff also deposes that he has a history of mental health problems dating back to 2005, when he was referred to North Western Mental Health and also the Western Hospital. In 2008, he deposes that he suffered a nervous breakdown when his wife left him, causing him to become suicidal and take an overdose of tablets.
41 The plaintiff also deposes that he has criminal convictions and had been subject to an intensive corrective order when he was about eighteen or nineteen for stealing some plant. Furthermore, he had a number of drink-driving charges and driving without a licence, and had an interlock for four years. The most recent issue with driving was in mid 2012, when he was caught driving without a licence, which meant he was only be able to continue performing minimal duties with the employer (when he returned on rehabilitation).
42 The plaintiff also describes that although able to read, he is a slow reader, and he has difficulty fully understanding what he is reading. His numeracy skills are also limited and in general, he struggled with his schoolwork and had to repeat Grade 2. He completed Year 9 and one or two terms of Year 10, when he left school for good. The plaintiff comments generally that he has always struggled with learning. The plaintiff also deposed that his computer skills are limited – he does not do internet banking and relies on his elder daughter to help use the internet. Sometimes he places a car for sale on Gumtree and is able to search the internet, but relies on his daughter to upload details of any cars he wants to sell. He does arrange for people to see such cars by telephone.
43 The plaintiff notes that he has bought and sold cars as a hobby, up to three cars a year, and in some years none at all. These cars are kept in his backyard, although he is unable to service or clean them. At the time of his last affidavit, the plaintiff deposed that he presently owns the following vehicles:
– a Toyota Landcruiser, which he purchased six months ago for $4,800, which is being presently advertised for sale for $15,000.
– a Holden VEA 2007, which he bought in 2017, but he is unable to sell this vehicle as he is not able to service it.
– a Holden Cruise, which he bought approximately eight months ago for approximately $3,200, which he is holding for his daughter. Such car was bought on the proceeds of a car he sold last year, a VY Crewman Commodore 2003, which he sold for $3,800 after buying it for $1,200.
– he has a VTS Holden Commodore 2001, which his father bought for him eight years ago, before he was injured, and he has no plans to sell that.
44 In this affidavit, the plaintiff commented on some of the jobs which he has been offered and I shall refer to such comments later when those jobs are identified.
45 The plaintiff again refers to his intention about returning to full-time work and in in particular, he states:
“My intention at the time I was injured was to continue working at least twenty-eight hours a week. I was hopeful that when my youngest child went to school I would be able to increase to full time work as the school has before and after child care. I believe I was considered a good worker. I was taken off the production line and worked in the powder room because I was considered a good worker.
After the difficult years after my wife left me and having custody of the children, I was determined to turn my life around and be a good father for my children. I reduced my intake of alcohol and marijuana and no longer had any problem with the law. I believe I would have increased to full time work in a manual labour job. It is the only work I have ever done and the only work to which I believe I am suited.”[17]
(My emphasis.)
[17]See exhibit “B”, paragraphs [25]-[26] of his last affidavit at pages 234-235 PCB
The medical treatment of the Plaintiff
46 Initially, I refer to the various radiological reports relied on by the plaintiff:
(a)a plain x-ray of the lumbar spine undertaken by the plaintiff on 13 May 2011 arranged by Dr Chris Irwin at Melton Health. At that time, Dr Irwin noted that the plaintiff was lifting 25 kilograms when twisting and was suffering left-sided sciatica. The radiologist reported:
“Minimal lumbar scoliosis with concavity towards the right is seen. Lordosis is maintained. Minimal reduction in L5/S1 disc span. The rest of the disc spaces are maintained. No spondylolisthesis or pars defect is seen. Vertebral collapse is evident. S1 joints appear normal.”[18]
[18]See exhibit “B” at page 84 PCB
(b)a CT scan of the lumbosacral spine undertaken by the plaintiff on 19 May 2011 at the request of Dr Parwar at the Westcare Medical Centre. The radiologist reported, in part:
“L1/2, L2/3, L3/4: No disc prolapse is seen at these levels. There is no apparent compromise of canal contents and existing nerve roots.
L4/5:There is a minimal annular bulge with no neural compression evident.
L5/S1:There is a large disc prolapse at this level. It is broad-based with a prominent central and left paracentral component which is impinging upon the passing left S1 nerve root. Exiting L5 nerve roots are clear.
Conclusion:Disc herniation at L5/S1 with neural compression on the left.”[19]
[19]See exhibit “B” at page 85 PCB
(My emphasis.)
(c)an MRI scan of the lumbar spine undertaken on 20 July 2011 at the request of Dr Pawar. The radiologist reported:
“Chronic degenerative disc changes with L5/S1 disc. A left paracentral disc protrusion is seen at this interspace. The protrusion contacts the traversing S1 nerve root. Small posterior annular fissure noted within this disc.”[20]
[20]See exhibit “B” at page 86 PCB
(My emphasis.)
(d)an MRI scan of the lumbar spine undertaken on 1 June 2012 at the request of the treating rheumatologist, Dr Alex Stockman. The radiologist reported, in part:
“Mild disc bulge at L5/S1, in association with a posterior annular fissure. No evidence of significant neural impingement within the range of the study.”[21]
[21]See exhibit “B” at page 88 PCB
(My emphasis.)
(e)a CT scan of the lumbosacral spine undertaken on 16 January 2018 at the request of Dr Gurusinghe. The radiologist reported, in part:
“L5/S1 disc degeneration with broad based left paracentral disc protrusion with no interval change since November, 2016.
… .”[22]
(My emphasis.)
[22]See exhibit “B” at page 89 PCB
47 Although I will briefly refer to some of the reports of early treating doctors, it must be borne in mind that there is no issue in this proceeding that the plaintiff has suffered a compensable lower back injury to his L5-S1 disc. Furthermore, given that the assessment of serious injury is to be made at the time the application is heard by the Court,[23] and, accordingly, the more contemporaneous medical reports, particularly in respect of capacity for work generally, have greater significance.
[23]See s134AB(37)(j) of the Act
48 Seemingly, the plaintiff was initially treated by the general practitioner, Dr Pawar, at the Westcare Medical Centre in Melton West. Dr Pawar noted that a CT scan undertaken by the plaintiff[24] demonstrated disc prolapse at the L5-S1 disc level, causing S1 nerve root compression. Dr Pawar also noted that initial examination suggested his symptoms were worse on the right and the plaintiff ultimately developed neurological symptoms in both legs. He was treated with physiotherapy, hydrotherapy and medications, but has failed to improve.[25]
[24]Probably the one undertaken on 19 May 2011 – see exhibit “B” at page 85 PCB
[25]See generally report of Dr Pawar, exhibit “B” at page 37 PCB
49 Dr Pawar referred the plaintiff to a neurosurgeon, Mr Patrick Lo, who consulted with the plaintiff on or about 30 August 2011. Mr Lo confirmed the plaintiff was suffering from lower back pain and bilateral leg pain with no bladder disturbance or gait abnormality. Mr Lo was of the opinion that a conservative approach be undertaken involving self-directed hydrotherapy and also referral to a rheumatologist.[26]
[26]See exhibit “B” at page 46 PCB
50 Dr Pawar also referred the plaintiff to the rheumatologist, Dr Alex Stockman. Dr Stockman initially consulted with the plaintiff on 23 May 2012 and at that time, the plaintiff gave a history that since May 2011, he had been complaining of lower back pain, somewhat more to the left of the midline, and pins and needles and numbness in both legs following lifting a 25-kilogram bag of salt at work.
51 Dr Stockman subsequently saw the plaintiff on 22 June 2012 and lastly on 25 July 2012. During that time, he arranged for the plaintiff to undergo an MRI scan of his lower back.[27] In a report dated 13 July 2016, Dr Stockman stated that he was of the opinion that the plaintiff suffered from lumbar disc degeneration/prolapse at L5-S1, caused or aggravated by the lifting episode in May 2011. He noted that the plaintiff had been prescribed an exercise program, hydrotherapy, analgesia and anti-inflammatory medications.
[27]See scan dated 1 June 2012, exhibit “B” a page 88 PCB
52 Dr Stockman was of the opinion that the plaintiff’s prognosis was “guarded” and symptoms are likely to continue for a long time or indefinitely, but he would expect some improvement with “light work and regular exercises and the treatment outlined”.[28] He also accepted that conservative measures sometimes fail and consideration would have to be given to spinal fusion surgery.
[28]See report dated 13 July 2015, exhibit “B” at page 82 PCB
53 As at the date of his last examination (on 25 July 2012), Dr Stockman was of the opinion that it was “most unlikely” that the plaintiff would be able to return to heavy physical work because of his back condition; however, Dr Stockman stated “given his youth, he would be a candidate for job re-training, for example in the retail, security or clerical capacity”.[29]
[29]See report dated 13 July 2015, exhibit “B” at page 83 PCB
54 Dr Stockman also noted that the plaintiff is compromised in his ability to perform heavy housework or drive his vehicle for any length of time.[30]
[30]See generally report dated 13 July 2016, exhibit “B” at pages 81-83 PCB
55 Although not entirely clear, it would appear that the plaintiff changed general practitioners on about 23 April 2012, when he commenced consulting Dr J Gurusinghe at the Scott Street Medical Centre at Melton. Dr Gurusinghe continues to be the treating general practitioner.
56 In his final report dated 22 October 2019,[31] Dr Gurusinghe reported that the plaintiff suffers from a lower back injury due to work-related repetitive heavy lifting. In particular, Dr Gurusinghe was of the opinion that the plaintiff had suffered an L5-S1 disc prolapse with left S1 nerve root compression, as seen on a CT scan on 24 November 2015 and an MRI scan. He also notes that the plaintiff has suffered depression and anxiety following his incapacity to work and being unfit for any duties.
[31]See exhibit “B” at pages 71A-71C PCB
57 In particular, Dr Gurusinghe is of the opinion that the plaintiff is:
“Unfit for any duties at present. This includes pre-injury work modified work of (sic) alternative work.”[32]
[32]See exhibit “B” at page 71C PCB
58 Furthermore, in relation to his future prognosis, Dr Gurusinghe states:
“Prognosis appears poor. Currently patient is suffering from severe to moderate pains with limitation of movement. Previous surgical management attempts have failed. Therefore prognosis appears guarded and uncertain at this stage.”[33]
[33]See exhibit “B” at page 71B PCB
59 Dr Gurusinghe describes the treatment undertaken by the plaintiff to include analgesics, hydrotherapy, physiotherapy, rheumatology specialist, neurosurgeon, antidepressants, psychotropic drug and psychological counselling from time to time over the last year since the injury. Furthermore, analgesics have included Endone, Brufen, Panadeine Forte, Cymbalta, Valium, Seroquel and epidural injections attempted in 2012.
60 It is also to be noted that one of the other doctors at the Scott Street Medical Centre – Dr Mendis – initially referred the plaintiff to a psychologist, Ms Krista Patti, who initially interviewed the plaintiff on about 29 May 2012, at which time she describes him as “struggling mentally”.[34]
[34]See report of Ms Krista Patti, dated 23 October 2019, exhibit “B” at page 76A PCB
61 The plaintiff’s doctors prescribed ongoing painkilling medication and he was referred for physiotherapy. As his condition was not improving, he was referred for an MRI scan in July 2011. It was organised for him to be assessed by the neurosurgeon, Mr Patrick Lo. On meeting Mr Lo, surgery was discussed, but he was advised that it would be better for him to avoid surgery if possible and to continue with physiotherapy treatment.
62 Ms Patti prepared three reports dated 21 September 2012, 21 July 2019 and 23 October 2019.[35] Having initially attended on 29 May 2012 and two further attendances in July 2012, the plaintiff did not attend a booked session in August 2012.
[35]See exhibit “B” at pages 72-76B PCB
63 Subsequently, the plaintiff was referred back to psychologist, Ms Krista Patti, on 8 February 2019 for psychological counselling. In her report dated 23 October 2019, Mrs Patti states:
“Bryan clearly presented to me in 2012 with symptoms of anxiety and depression and represented in 2019 with the same symptoms but worse. He is even more frustrated by the workcover process and indicates he is seeking counselling support due to his shit moods from his back pain and is frustrated he cannot get this assistance. He is frustrated it has been around 7 years since his injury and he is frustrated and depressed that his previous lawyer did not finalise his claim. He feels used, more depressed than before, often presents very anxious at the start of sessions talking fast and discussing his back pains and depression levels. Bryan is finally seeking counselling support and should be assisted with this
DASS {depression, anxiety and stress scale} test results from 10/07/19 note an ‘Extremely severe’ level of Depression, ‘Mild’ Anxiety and ‘Extremely severe’ level of Stress. I have made multiple requests by email/letters to Workcover provider Xchanging in 2019 at Bryan’s request so that he can access support for counselling related to his injury-these have all been denied. Bryan being unsupported in this way, to access counselling treatment he feels he needs related to his physical injury, leaves him feeling even more frustrated with the system and lacking trust in same. Bryan has requested support, has been help-seeking and his chronic pain and moods are affecting his functioning related to his back injury.
At this stage, his injury occurred in 2011 and 8 years later his workcover claim is not yet finalised, associated psychological symptoms have continued post injury and are now chronic in nature.
Prognosis:
While I do recommend a Pain management program for treatment, his mental health condition is chronic in nature and unlikely to improve in the future.”[36]
[36]See report of Ms Krista Patti, dated 23 October 2019, exhibit “B” at page 76C-76D PCB
The medico-legal reports relied on by the Plaintiff
64 The plaintiff relied upon the following medico-legal reports:
(a)a report dated 30 June 2017 from the orthopaedic surgeon, Associate Professor Myron Goldwasser, who examined the plaintiff on 28 June 2017;[37]
(b)the reports dated 29 March 2018 and 26 August 2019 from the occupational physician, Dr Robyn Horsley, who examined the plaintiff respectively on 29 March 2018 and 26 August 2019;[38]
(c)the reports dated 17 April 2018 and 22 June 2019 from the orthopaedic surgeon, Mr John O’Brien, who examined the plaintiff on 17 April 2018 and 15 July 2019;[39]
(d)the report dated 27 April 2018 from the consultant neuropsychologist, Mr Doogal Phillips, who examined the plaintiff on 4 April 2018;[40]
(e)the report dated 14 May 2018 from the consultant psychiatrist, Dr Robert Athey, who assessed the plaintiff on 3 May 2018.[41]
[37]See exhibit “B” at pages 90-104 PCB
[38]See exhibit “B” at pages 175-192 PCB
[39]See exhibit “B” at pages 193-201 PCB
[40]See exhibit “B” at pages 202-214 PCB
[41]See exhibit “B” at pages 214-227 PCB
65 On 28 June 2017, Associate Professor Goldwasser obtained a full history from the plaintiff, and made an examination of him and was provided the following radiological examinations: an x-ray of the lumbar spine performed on 13 May 2011; a CT Scan of the lumbar spine performed on 19 May 2011; an MRI scan of the lumbar spine performed on 30 July 2011 and an MRI scan performed on 1 June 2012.
66 Associate Professor Goldwasser was requested to answer various questions, and in this respect, I refer to the following:
“1. Your diagnosis of our client’s back injury.
Mr Debono suffered an injury to his lower back, including an L5/S1 disc prolapse and this is consistent with the history given of an injury to his back ln May 2011.
2. Whether you consider our client’s current condition is materially contributed to by the injury on the 12th May 2011.
Mr Debono’s symptoms have persisted since the original injury, which occurred at work and I consider that Mr Debono’s current condition is materially contributed to by the injury on 12 May 2011.
3. Whether out client remains unfit to perform his pre-injury employment as a process worker in a food processing factory.
Having examined Mr Debono and obtained the history and noted the radiological reports, I consider that he remains unfit to perform his pre-injury duties as a process worker in a food processing factory. In particular, he has difficulty with activities requiring movements of his back and he has difficulty with prolonged sitting or standing and he has difficulty with attempted heavy lifting. I consider he is unlikely to cope with repeated bending, stooping, repeated lifting or repeated twisting activities of his back.
4. Whether such incapacity is predominantly due to the organic injury suffered by our client.
I consider that the incapacity is predominantly due to the organic injury suffered by Mr Debono.
5. Whether our client has a capacity for light duty restricted employment, bearing in mind his education, training, experience and injury.
From an orthopaedic point of view, I consider Mr Debono does have a capacity for light duty restricted employment. In fact, he did do light duties for about a month before not continuing with them because of lack of a driver’s licence.
I consider he is mentally alert and is likely to be able to cope with employment, which is light duty employment not placing a heavy stress on his back and allowing him to alter-his posture frequently.
I am not an occupational physician and I would refer you to an occupational physician for a more detailed response to this question.
6. Whether our client requires ongoing treatment for his medical condition and in particular, do you consider it is likely our client will need to undergo surgery in the short or longer term.
I consider. currently there is no indication for surgical treatment. It would have been reasonable to offer him surgical treatment in the acute early presentation. However, now his condition appears to have largely stabilised and it is unlikely to change significantly in the foreseeable future.”[42]
(My emphasis.)
[42]See exhibit “B” at pages 102-103 PCB
67 When initially seen by Dr Robyn Horsley on 29 March 2018, Dr Horsley also obtained a full history, made an examination and had available the x-ray of the lumbar spine dated 13 May 2011, the CT scan of the lumbar spine dated 19 May 2011, the MRI scan of the lumbar spine dated 30 July 2011 and the MRI scan of the lumbar spine dated 1 June 2012.
68 In her initial report dated 29 March 2018, Dr Horsley stated:
“Diagnoses:
• Mr De Bono sustained a significant injury to his lumbar spine on the 12th May 2011, An MRI on the 13th May 2011 confirmed ‘a large disc prolapse at L5/S1. It was broad based with a prominent central and left paracentral component impinging upon the passing left S1 nerve root. There was also evidence of an annular fissure at the same level.’ He was treated conservatively.
• An MRI on the 1st June 2012 confirmed that ‘the disc prolapse had decreased substantially in size. It was now classified as a mild disc bulge at L5/S1 with no impingement on the traversing S1 nerve root. The posterior annular fissure persisted.’ This is likely to be the ongoing pain generator.
• Mr De Bono presents with ongoing mechanical back pain, referred bilateral leg pain, with no clinical radicular features except some reduction in muscle bulk on the right side (he has left sided radiological pathology and primarily left sided symptoms). He has a reduced right knee reflex, but no other signs.
• A Beck Depression Inventory today gave a score of 43, suggestive of severe depression with no suicidal ideation. A Beck Anxiety lnventory gave a score of 25, suggestive of moderate anxiety.
• Mr De Bono presents as in an unsophisticated manner with psychosocial disadvantage.
Prognosis:
Given the length of time since the injury and the ongoing nature of the symptoms, I believe that the symptoms are likely to persist. Mr De Bono is only 37 years of age. He has been out of the work force since he was 29 years of age. I note his alcohol history, his cannabis history, and his psychosocial disadvantage. He is a vulnerable individual with Year 8 education, and significant literacy issues. His only qualification is a Forklift License. He has always worked as a Labourer.
He has an annular fissure noted on MRI at L5/S1. He previously had a substantial disc prolapse which has resorbed to a considerable extent. The annular fissure is likely to be the ongoing pain generator and this is likely to continue into the foreseeable future.
Mr De Bono’s opportunities for re-deployment are very limited, given his chronic back pain and his manual working history and his literacy issues, which are likely to limit re-training options, and his current psychosocial situation.
Mr De Bono’s Beck Depression Inventory suggests severe depression with a score of 43, with no suicidal ideation, and a Beck Anxiety Inventory gave a score of 25, suggestive of moderate anxiety. I rely upon my Psychiatrist colleagues for expert opinion about work capacity into the short, medium, and longer term.
For Mr De Bono to even consider re-training, a formal evaluation of his numeracy and literacy is required, to determine the level of upgrading of his literacy skills to a vocational level that is required, before further re-training can proceed. Also, Mr De Bono’s mental health would need to be substantially improved to address potential concentration and attention- span issues, before embarking on any formal literacy upgrading. I rely upon my psychiatrist colleagues for expert opinion about capacity for retraining given his mental health issues.
Mr De Bono is significantly disadvantaged. On the basis of his educational background and his resistance to consulting a Psychologist and engaging in cognitive behavioural strategies, he is unlikely to be appropriate for a pain management program. He may benefit from a functional restoration program, Physiotherapist supervised, in a water or gym based environment, to try and improve his functional tolerances and quality of life. He may benefit from an Occupational Therapist coming to his home and reviewing his manual handling techniques on the home front, to try and improve his quality of life and reduce aggravating factors.
Without significant improvement in his mental health and significant improvement in his literacy and numeracy, his opportunities for re-deployment are going to remain very limited. He is likely to remain out of the work force into the longer term, despite his youthful age.
Opinion:
I believe that the events as described on the 12th May 2011 and the clinical presentation are consistent. I believe that work has been a significant contributory factor.
I believe that the following work restrictions apply:
• Avoidance of repetitive over reaching;
• Avoidance of repetitive pushing and pulling;
• Avoidance of working in awkward and confined spaces;
• Avoidance of truncal rotation;
• Avoidance of static postures Involving the lumbar spine;• Avoidance of lifting Items greater than 8 to 10kg except on an occasional basis;
• Avoidance of lifting Items up to 8kg on a repetitive basis;
• Good manual handling technique, even when lifting light items;
• Avoidance of using tools with a vibratory component. He is unfit to work on a forklift unless on a very smooth surface and only for short periods.
Mr De Bono’s functional tolerances include:
• A sitting tolerance of up to 30 minutes;
• A static standing tolerance that varies from 5 to 10 minutes to 30 to 40 minutes;
• A walking tolerance that varies from 5 to 10 minutes up to 20 to 30 minutes;
• A dynamic standing tolerance that varies from 5 to 10 minutes up to 20 to 30 minutes;
• A driving tolerance of 40 minutes in an automatic vehicle.
Mr De Bono presents with significant disadvantage, despite his youthful age at 37 years. He has now been out of the work force for seven years. He has Year 8 education. He has significant literacy and numeracy issues. He has negligible computer skills. He has always worked in the physical realm as a Labourer, Picker/Packer, and Furniture Removalist. He has ongoing chronic mechanical back pain. He has MRI evidence of an annular fissure at L5/S1, which is likely to be an ongoing pain generator.
Mr De Bono requires a formal literacy and numeracy assessment to determine whether it is possible to upgrade his skills to a vocational level, to help Improve options for further retraining and to increase vocational opportunities into the longer term.
Mr De Bono’s Beck Depression Inventory and Beck Anxiety Inventory today suggest severe depression and moderate anxiety, which are likely impacting upon his concentration and attention span and motivation. I note that he spends a lot of his days lying down. He is seriously deconditioned. Mr De Bono is unlikely to be an appropriate candidate for a pain management program. l rely upon my Psychiatrist colleagues for an expert opinion to determine if his mental health issues can be addressed, to enable him to potentially upgrade his literacy skills. l rely upon my educational colleagues to undertake an assessment of his literacy and numeracy, to determine whether his numeracy and literacy and academic skills are able to be upgraded realistically, to a vocational level.
Mr. De Bono has been told by a disability employment service through Centrelink to apply for a Disability Support Pension. Mr De Bono has realistically no current capacity for work. This is likely to continue into the foreseeable future. He may benefit from a functional restoration program that is Physiotherapist supervised, to try to improve his functional tolerances, once his mental health issues are more actively managed. I note his resistance to consult a Psychologist and pursue pain strategies from the cognitive behavioural perspective.
Mr De Bono presents with significant disadvantage. He is at risk of having no capacity for work into the foreseeable future.”[43]
(My emphasis.)
[43]See exhibit “B” at pages 181-183 PCB
69 When Dr Horsley re-examined the plaintiff on 28 August 2019, she had a variety of other reports which had been forwarded to her. She obtained an up-to-date history from the plaintiff, made an examination and reviewed some vocational assessment reports.
70 Under “Diagnoses”, Dr Horsley states:
“• Mr De Bono sustained a significant injury to his lumbar spine on the 12th May 2011. An MRI on the 13th May 2011 confirmed ‘a large disc prolapse at L5/S1 with some impingement on the left S1 nerve root with evidence of an annular fissure.’
An MRI on the 1st June 2012 confirmed ‘resolution. The disc prolapse had decreased substantially in size. There was no impingement on the left S1 traversing nerve root. The posterior annular fissure persisted.’
Mr De Bono presents with ongoing chronic mechanical back pain, chronic radicular left leg pain, and referred right leg pain intermittently. Clinically, he has a reduction in muscle bulk on the left side at the calf but he has a reduced right knee reflex not left knee reflex. He has no other radicular features.
• Mr De Bono again presents in an unsophisticated manner with psychosocial disadvantage. … .
Prognosis:
Given the length of time since the injury and the ongoing nature of the symptoms, I believe that the symptoms are likely to persist. Mr De Bono Is 38 years of age. He has now been out of the work force since 2011 -eight years. l note his psychosocial disadvantage.
Commendably, he ceased using cannabis approximately 12 to 13 months ago. I note his alcohol history. He presents as a vulnerable individual with Year 8 education, significant literacy issues. His only qualification is a Forklift License.
He has always worked as a Labourer. His back Injury, and in particular the annular fissure on MRI at L5/S1, remains a pain generator and restricts his manual working capacity.
Mr De Bono’s opportunities for deployment are therefore very limited.
I note the PSYAX assessment[44] which confirms ‘literacy issues on history and his mild Intellectual disability. His cognitive profile suggests that he would struggle with white collar work that relied on conceptual knowledge. He would be better with manual hands on tasks but given his back Injury there are significant physical limitations. The overall conclusion is that he has no realistic capacity for employment, either now or into the foreseeable future.’”[45]
[44]That is the report from neuropsychologist, Mr Doogal Phillips
[45]Exhibit “B” at pages 190-191 PCB
71 Again, Dr Horsley expressed her opinion as to various work restrictions relevant to the plaintiff because of his lumbar spine injury and the various functional intolerances which he considers have diminished further.
72 Dr Horsley notes that such functional tolerances would impact upon his reliability at work and if there was any opportunity to return to work in any capacity with the restrictions outlined above, his functional tolerance would need to improve. In particular, Dr Horsley referred to a vocational assessment which suggested that the plaintiff could be a:
·Uber driver
·courier – Uber Eats, spare parts, pharmacy, dental, floristry, pathology
·road traffic controller
·carpark attendant.[46]
[46]These suggested employment options are the ones put forward in the report from Vocational Assessment Labour Market Analysis of CoWork dated 11 October 2019. See exhibit 1 at pages 164-194 DCB
73 Dr Horsley went on to say:
“At this point in time, unless his functional tolerances improve, all four options are unlikely to be possible. At this point in time, he presents with no capacity. All four options on a very part time basis, with an improvement in functional tolerances may be possible in the vicinity of 10 to 15 hours per week. The reality, I believe, is that he will remain out of the work force Into the longer term. He has been out of the work force now for eight years. His level of disability has increased since my last review, with a reduction in functional tolerances.”[47]
(My emphasis.)
[47]Exhibit “B” at page 192 PCB
74 When seen on 17 April 2018, the orthopaedic surgeon, Mr John O’Brien, obtained a history, and in particular, a description of the injuries. He also made a physical examination and had a report of a CT scan undertaken of the lumbar spine on 16 January 2016.
75 Under the heading “Discussion”, Mr O’Brien stated:
“This patient now describes a work-related incident resulting in severe back and leg pain, occurring some seven years ago. The patient states that this was treated conservatively with no positive result, and as a result he describes unchanged constant back and left leg pain.
Current physical signs are entirely subjective with painful restriction of lumbar movement. There are no signs to suggest nerve root compromise or radiculopathy. It is noted recent CT scan of the lumbar spine was reported as demonstrating L5/S1 disc degeneration with a broad-based left paracentral disc protrusion. Indeed, currently there is no suggestion of any nerve root pathology associated with the reported disc protrusion.
Indeed, I would consider the clinical and radiological signs do not define specific pathology underlying pain generation. The description of degenerative disk disease confined to the L5/S1 level does suggest that chronic pain m[a]y be discogenic in origin.
This history would indicate that employment remains a significant contributing factor to what is now chronic low back and left leg pain.
Historically the clinical condition is stable, with the patient reporting no substantial change in relationship to the nature, distribution or severity of pain over the years since injury. Treatment has been conservative and somewhat limited. It being noted that the patient declined injections and I note there has been no involvement in a multi-discipline chronic pain management program. Currently I would consider that indications for ongoing conservative treatment now would appear to be minimal considering the apparent lack of funding. Nevertheless, it does appear the patient will require at least some ongoing analgesic medication for pain control. There is now no clinical indication for further investigations or invasive treatment.”[48]
(My emphasis.)
[48]Exhibit “B” at pages 195-196 PCB
76 Under the heading “Prognosis”, Mr O’Brien goes on to say:
“I would now consider the prognosis is poor as this patient has well-established chronic pain.
The patient indeed reports moderate disability associated with his chronic low back pain. Indeed, physically the patient was not capable of returning to his pre-injury work, which involved a lot of heavy lifting. In fact, I would consider on the basis of his current presentation, the patient would not be capable of undertaking any form of manual employment. Indeed, the presence of chronic pain, when considered in the light of the patient’s employment history, would suggest that he is not capable of undertaking suitable employment. The patient does remain somewhat restricted in his general, social, domestic and recreational activities and this will certainly be ongoing.”[49]
(My emphasis.)
[49]Exhibit “B” at page 196 PCB
77 On re-examination on 15 July 2019, Mr O’Brien obtained a subsequent and current history from the plaintiff and made a further physical examination. Mr O’Brien stated, in part:
“Physical signs have basically remained unchanged since my initial examination. The signs are subjective with quite marked restriction of movement in the lumbar spine and in particular lumbar extension. There are however no signs to suggest the presence of nerve root compromise or radiculopathy.
Clinically these signs would suggest the ongoing presence of chronic non-specific low back and leg pain. This however in the light of investigations would appear to suggest the presence of lumbosacral disc pathology. Indeed I would suggest that the described nature and distribution of pain and the current signs would be compatible with ongoing discogenic symptomatic pathology.
Historically it would appear that the patient’s described work-related lifting incident remains a significant contributing factor to the current clinical condition.
Considering the described nature, distribution and severity of back and leg pain I would regard the clinical condition as stable. Treatment does remain conservative and basically self-managed with the assistance of some analgesic medication. I would consider that this form of conservative treatment will continue. There is no current indication for further investigations or as previously indicated any invasive treatment.
The prognosis does remain poor as chronic pain will certainly persist.
The patient continues to describe significant disability resulting from chronic back and leg pain. There indeed remains significant restriction of movement of the lumbar spine and physically this does result in very definite restriction of the patient[‘]s overall activities. I would again consider that this patient remains incapable of undertaking his pre-injury employment. In fact the patient now is physically unable to undertake any form of significant manual duties. Given his education and employment background and the ongoing severity of chronic pain I would consider this patient is not physically capable of undertaking suitable employment and as a consequence I would thus again conclude the patient is totally and permanently incapacitated. As a consequence this patient will not return to gainful employment. The patient as previously indicated remains restricted in his general, social, domestic and recreational activities and this I believe will be permanent.”[50]
(My emphasis.)
[50]Exhibit “B” at pages 200-201 PCB
78 The neuropsychologist, Mr Doogal Phillips, after performing a neurological assessment, was of the following opinion:
“In my view, Mr De Bono meets the DSM-5 criteria for the following conditions:
• Mild Intellectual disability
• Somatic symptom disorder, with predominant pain
• Major depressive disorder
• other specific personality disorder, mixed personality features (antisocial & borderline traits)
This occurs against a background of anxious symptoms and psychosocial disadvantage.
Impacts to the cognitive profile from past substance use (especially from cannabis and alcohol) could not be excluded, but were not considered the primary aetiology, given the widespread and longstanding nature of Mr De Bono’s difficulties. It is my view that Mr De Bono does not current[ly] meet criteria for a substance use disorder although he likely did in the past.
…
IMPLICATIONS
My responses to the questions outlined in the letter of instruction dated 09/03/2018 follow below:
1. The outcomes of a neurological assessment with respect to our client’s reading and writing skills, concentration and attention skills, comprehension skills, planning and organisation, problem solving skills, emotions and personality, intelligence, behaviour and social skills.
See Findings and Opinion above. Overall, Mr De Bono showed deficits in all the domains listed above.
2. Our client’s capacity for employment from a neuropsychological point of view and in particular what restrictions would you place on his ability to obtain employment.
Mr De Bono’s cognitive profile suggests that he would struggle with ‘white-collar’ work that relied on conceptual knowledge. It indicated he would likely do better with manual, hands-on tasks, but I understand these are no longer an option for him given his back injury and physical limitations, as noted by other workers.
Accordingly, it is my view that Mr De Bono has no realistic capacity for employment at the current point in time or for the foreseeable future.
3. Whether from a neuropsychological point of view our client’s condition is likely to continue into the foreseeable future.
Mr De Bono’s condition is considered permanent and is likely to continue into the foreseeable future.
4. Any other general comments you may have.
Mr De Bono has a number of problematic personality traits - including, but not limited, to difficulties with anger management - although he recognises many of these and has developed a number of strategies to help manage them … .”[51]
(My emphasis.)
[51]See exhibit “B” a pages 211-212 PCB
79 The consultant psychiatrist, Dr Robert Athey, took a history from the plaintiff on 3 May 2018 and made a mental status examination. Ultimately, Dr Athey described the plaintiff, from a psychiatric perspective, to be very frustrated with his injuries, but such a level of frustration is not severe enough to warrant psychiatric diagnosis. Ultimately, Dr Athey was of the opinion that the plaintiff had no diagnosable psychological injury and, accordingly, does require treatment for any such condition.
80 In particular, Dr Athey noted that the plaintiff’s cognitive ability appeared to be within normal limits and that despite the plaintiff’s complaints otherwise, Dr Athey considered his memory to be intact.
The medico-legal reports relied on by the Defendant
81 It is convenient to refer to the various medico-legal reports relied on by the defendant. They consist of the following:
(a)the reports dated 13 May 2018, 29 May 2018 and 29 September 2019 from the consultant psychiatrist, Associate Professor Peter Doherty, who examined the plaintiff on 14 May 2018 and on 17 July 2019;[52]
(b)the reports dated 4 April 2018, 7 June 2018, 24 July 2019, 10 October 2019 and 11 October 2019 from the occupational physician, Dr Dominic Yong, who examined the plaintiff respectively on 4 April 2018 and 24 July 2019;
(c)the reports dated 10 July 2019, 18 October 2019 and 22 October 2019 from the general surgeon, Mr Peter Scott, who examined the plaintiff on 2 July 2019.[53]
[52]See exhibit 1 at pages 12-32 DCB
[53]See exhibit 1 at pages 70-83 DCB
82 When Associate Professor Doherty examined the plaintiff on 4 May 2018, he was provided various documents and obtained a history, which included – the relevant history of the injury, the subsequent worker history, current complaints and symptoms, current treatment and medications and relevant medical and occupational history. Associate Professor Doherty also undertook a mental state examination.
83 On the basis of all that material, Associate Professor Doherty, under the headings “Your diagnosis” and “The prognosis and need for further treatment”, stated:
“3. Your diagnosis.
In my opinion, there is no current diagnosable psychiatric condition.
There is an adjustment reaction that is not disproportionate to the known injury. There is a persistence of pain.
In my opinion, there are not present clinically significant mood symptoms that give rise to distress or interfere with his social or occupational functioning. The criteria for making a psychiatric diagnosis is not present.
In my opinion, the worker’s coping skills and his ability to tolerate frustration, conflict, problem solving, and stress are not well developed. Thus, there is evidence of emotional and conduct disturbance when in stressful situations.
4. The prognosis and need for further treatment.
From a psychiatric point of view, the prognosis is favourable.
There is no diagnosable psychiatric condition currently present. He is not in psychological or psychiatric treatment. In my opinion, he does not need to be.”[54]
[54]See exhibit 1 at page 32 DCB
84 Subsequent to those opinions, Associate Professor Doherty was supplied a vocational assessment and labour market analysis report prepared by CoWork dated 21 May 2018, in which a number of “suitable” jobs and employment options were listed. Such options include Uber driver, courier, road traffic controller and carpark attendant. Associate Professor Doherty notes that he read what the typical duties and physical demands are for each of these jobs.
85 Associate Professor Doherty ultimately expressed the view that from a psychiatric point of view, the plaintiff can undertake all of the duties listed and that, from a psychiatric point of view, the plaintiff could work full hours.
86 When Associate Professor Doherty re-examined the plaintiff on 17 July 2019, he again set out a relevant history of the injury, the subsequent history since his last examination, the current complaints and symptoms of the plaintiff, the current treatment and medications undertaken by the plaintiff and any other relevant medical or occupational history. He also undertook a mental state examination of the plaintiff. In particular, Associate Professor Doherty noted that the plaintiff was alert, aware, orientated and in clear consciousness. He considered there were no cognitive impairments, and no sign of intoxication, drowsy behaviour or sedation. He considered that the insight and judgement of the plaintiff were not impaired by any psychiatric cause.
87 Again, Associate Professor Doherty was ultimately of the opinion that the plaintiff was not suffering any diagnosable psychiatric condition. Although there has been a psychological reaction to the issues occurring following his injury at work, they are not so disproportionate or associated with significant clinical symptoms that cause distress to warrant the making of a psychiatric diagnosis. Again, from a psychiatric point of view, he considered the plaintiff fit to perform full-time work and, in particular, fit to undertake the work identified in the vocational assessment and labour market analysis.
88 When the occupational physician, Dr Yong, initially examined the plaintiff on 4 April 2018, he notes that he had performed independent medical assessments of the plaintiff in 2012 and had forwarded reports dated 16 April 2012, a supplementary report dated 8 June 2012 and a further assessment report dated 27 July 2012. Apparently when the histories taken then were read back to the plaintiff on 4 April 2018, Dr Yong reports that there was “no contradiction to these histories”.[55]
[55]The earlier medical reports were not part of the evidence; see also exhibit 1 at page 39 DCB
89 At the time of the consultation on 4 April 2018, Dr Yong obtained a history from the plaintiff that his back pain had continued since the last consultation on 27 July 2012 and that also he was noticing numbness in both legs, with pain radiating from his back into his legs.
90 The plaintiff informed Dr Yong that he had been referred by the specialist, Dr Stockman, and Dr Stockman did discuss with him about doing a rehabilitation program, but he was not referred to any rehabilitation program. The plaintiff also informed Dr Yong that he had been sent by his general practitioner to a physiotherapist, who he saw for about twelve months, a few days per week. Treatment modalities included acupuncture and ultrasound machines and he also recommended doing exercises in a swimming pool. In particular, the plaintiff informed Dr Yong that he has to continue to do the exercises, and after funding for the physiotherapy had ceased, he continued to go to a swimming pool to do exercise he self-funded, in a pool, for about sixty minutes. Also, the plaintiff did inform Dr Yong the pain had increased about one to two months ago, causing his doctor to refer him for another scan, and he was told this showed the ongoing “disc prolapse”.
91 The plaintiff also informed Dr Yong that at the last review in 2012, he was taking antidepressant medication and seeing a counsellor. The plaintiff stated the antidepressant medication did not last a long time and he did not feel any benefit from having counselling, and this ceased.
92 When queried about his current symptoms, the plaintiff said he had pain in his lower back, which is located more in the midline than down the left, and the pain radiates down his legs, and this has been present for a few years. He said that he has numbness down both legs down to his ankle.
93 The plaintiff confirmed that his treatment includes ongoing exercises in the hydrotherapy pool once a week and using a TENS machine for twenty to sixty minutes on a nightly basis. He was also taking a prescription painkilling medication, which he takes anything from none to a few tablets per week, depending on the nature of his pain.
94 Although the plaintiff did not bring any radiology with him, Dr Yong notes that he had available reports of an MRI lumbar spine scan dated 20 July 2011, an MRI lumbar spine scan dated 1 June 2012, a CT lumbosacral spine scan dated 19 May 2011 and an x-ray of the lumbar spine dated 13 May 2011.
95 The plaintiff confirmed that when last seen by Dr Yong in July 2012, he had recently ceased a return-to-work program after a flare up of pain. At that time, he was working two four-hour shifts per week, which involved office-based duties. The plaintiff also confirmed with Dr Yong that the defendant had not offered any form of suitable duties.
96 The plaintiff also confirmed that his past employment had included six years with his pre-injury employer, which was a labour-hire company, which sent him for production work and warehouse duties, he had been a concreter for twelve months, he had done a plumbing apprenticeship for approximately two years and also, he had many short-term roles for labour-hire companies involving forklift driving, storemen tasks and warehouse labouring duties. He had no experience in jobs involving office-based tasks.
97 The plaintiff also confirmed that he completed Year 8 at high school and thought he had reasonable skills in English, reading and writing, but his computer skills were not good. The plaintiff also confirmed that he continued to live in a house with his two daughters, then aged eight and fourteen, and on a daily basis, he would get them ready for school and then drop them at school – this is a two-minute drive. He would then come home, where he would do such domestic tasks such as cleaning up the house.
98 The plaintiff said he was able to do other domestic duties, including cooking tasks, shopping tasks, vacuuming, cleaning the floors with a hand-held steam cleaner, mowing the front lawn only (as the back lawn was too big) and laundry duties, although his daughters helped with this.
99 The plaintiff was unable to do manual-handling tasks, such as cleaning up the garden, and the insurance company funds a service to perform this task.
100 The plaintiff also stated that he was unable to do his hobbies, which included rebuilding cars, renovating houses, riding a motorbike, concreting and landscaping. The plaintiff noted that he used to rent a property of 15 acres, where he ran animals such as cows and sheep, but he is unable to do this now.
101 In relation to this functional ability, the plaintiff said he had the following levels of function:
·Sit for twenty minutes
·Stand for ten minutes
·Walk for twenty minutes
·Driving for usually ten to twenty minutes, although today it was over forty minutes with a break.
102 Examination revealed a limited range of movement of the spine, which was 40 degrees flexion, 10 degrees lateral flexion and 20 degrees rotation. In particular, the plaintiff was not keen to perform extension movements, as this had previously caused pain. Straight leg raising was 30 degrees bilaterally.
103 Neurological examination of the legs revealed that light touch sensation was reduced in the left leg, mostly laterally. The knee and ankle reflexes were normal. The tone in both legs was normal and symmetrical. The power of the lower limbs was reduced bilaterally. The circumference of the upper and lower limbs was equal when measured at an equidistant point from the knee.
104 At that time, Dr Yong was of the opinion that the plaintiff was a man who reported the onset of lower back and leg symptoms after lifting a 25-kilogram bag of salt. Dr Yong was of the opinion that he suffered a current lumbar dysfunction and radicular symptoms from an additional discal injury to his lower back. He did consider that that condition was complicated by psychological comorbidity, but a psychiatrist should comment on that. Dr Yong was of the opinion that the plaintiff has a capacity to perform tasks with the following restrictions:
·Avoid repeated bending and twisting of the back
·Avoid repeated firm pushing and pulling tasks
·Avoid lifting more than 4 kilograms on a repeated basis
·Vary posture regularly between sitting, standing and walking
·Reduction in working hours.
105 At that time, Dr Yong expressed the opinion that he had seen other workers with similar physical conditions and similar restrictions to the plaintiff and they could find some work. He recommended that there be a referral for a vocational assessment.
106 In a supplementary report dated 7 June 2018,[56] Dr Yong recalls that he had been forwarded a list of specific questions from solicitors for the defendant, together with a vocational assessment and labour market analysis report by CoWork, dated 21 May 2018.[57]
[56]See exhibit 1 at pages 19-23 DCB
[57]The CoWork report, together with other documentation from CoWork, is found at exhibit 1 at pages 123-199 DCB
107 That report nominates the following jobs as suitable employment for the plaintiff:
·Uber driver
·courier (light: Uber Eats, spare parts, pharmacy, dental, floristry, pathology)
·road traffic controller
·carpark attendant.
108 I refer to the report of Dr Yong dated 7 June 2018, wherein he seemingly sets out the duties of each of these jobs, no doubt from the report:
“Uber Driver
With respect to the role of an Uber driver, this is described as using mobile computer systems and radio networks to log into waiting passenger information. It describes picking up passengers at designated locations or when hailed, checking passenger destinations and determining most appropriate route. It describes transporting passengers to desired destinations, assisting passengers with luggage. It describes collecting fares and processing fare payments. Also it describes they may collect and deliver parcels. I note Mr De Bono described reduced driving tolerance of usually 10-20 minutes but a driving tolerance of 40 minutes at the time of the consultation. Therefore, a return to work program this could occur with the provision of a graduated return to work program. However, given that this role involve[s] predominantly driving duties, my recommendation would be to initially work 2 hour shifts for 2 days per week and progressively increase the working hours on a graduated basis, aiming to return back to approximately half of the working weekly hours over a 3-4 month period. He would then need reassessment to determine whether he can increase his working hours further, given the nature of the condition.
Courier (Light: Uber East, Spare Parts, Pharmacy, Dental, Floristry, Pathology)
193 Section 134AB(38)(j) of the Act provides that the assessment of a serious injury will be made at the time that the applicant is heard by the Court, save for two irrelevant exceptions. Accordingly, contemporaneous medical opinion at and around the time of the hearing of the matter is particularly relevant. In this respect, the plaintiff relies on a report from his general practitioner, Dr Gurusinghe, dated 22 October 2019;[120] reports from the occupational physician, Dr Robyn Horsley, dated 29 March 2018 and 26 August 2019, who examined the plaintiff respectively on 29 March 2018 and 26 August 2019;[121] the reports of the orthopaedic surgeon, Mr John O’Brien, dated 17 April 2018 and 22 June 2019, and who examined the plaintiff on 17 April 2018 and 15 July 2019,[122] and a report from the consultant neuropsychologist, Mr Doogal Phillips, who examined the plaintiff on 4 April 2018.[123]
[120]See exhibit “B” at pages 71A-71C PCB
[121]See exhibit “B” at pages 175-192 PCB
[122]See exhibit “B” at pages 193-201 PCB
[123]See exhibit “B” at pages 202-214 PCB
194 Contemporaneous reports relied on by the defendant consisted of those of the occupational physician, Dr Dominic Yong, who examined the plaintiff on 4 April 2018 and 24 July 2019, and those of the general surgeon, Mr Peter Scott, who examined the plaintiff on one occasion, on 2 July 2019.
195 I also wish to make comment about the reports of the general surgeon, Mr Peter Scott. Mr Scott examined the plaintiff on 2 July 2019 and diagnosed the plaintiff to be suffering from “chronic lower back pain and an L5-S1 disc lesion”, which he considered the employment was continuing to be a significant contributing factor. At that time, Mr Scott was requested to give an opinion whether the options of Uber driver, light courier driver, road traffic controller and/or carpark attendant were “suitable employment” for the plaintiff. He was of the opinion that the plaintiff could not return to any of the jobs recommended in that vocational assessment, and he premised such an opinion on this evidence:
“Theoretically the worker could return to the workforce at a job which is non-skilled and not requiring him to stand or sit for more than 30 minutes or to bend or twist or turn or lift more than 5 kg in weight.
…
If one considers his symptom complex I believe, at this stage, he is unfit for employment.
I also believe that he should be given the opportunity to have his pain management reviewed in the hope of causing some improvement in his physical and psychosomatic problems.”[124]
[124]Exhibit 1 at page 77 DCB
196 In a later report dated 22 October 2019, Mr Scott opined, without further examination, that the plaintiff would be able to undertake part-time work performing light duties with restrictions already detailed and carry out activities as a courier driver (light), car salesperson, spare parts interpreter or a bicycle mechanic, considering his organic disability alone (L5/S1 disc lesion with non-verifiable radiculopathy).
197 Of course, it is to be noted that Dr Yong considered that the so-called “suitable employment” of spare parts interpreter and bicycle mechanic were inappropriate.
198 In respect to the submission made by counsel for the defendant, I consider that the contemporaneous medical evidence more reflects the plaintiff not having any realistic capacity for work.
199 Section 134AB(38)(f) of the Act provides that for the purposes of paragraph (e)(i) of ss(38) of the Act, a worker’s loss of earning capacity is to be measured by comparing – the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is–
(A) earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
as at that date, whichever is the greater, and the “without injury” earnings.
200 The term “suitable employment” at the time of injury, was defined to mean:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of incapacity supplied by the worker; and
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as a part of the return to work planning and process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i) the work or employment is available; or
(ii) the work or employment is of a type or nature that is generally available in the employment market.”
201 I refer to the Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[125] which was an appeal by a worker following a dismissal by the trial judge of his application for leave to commence proceedings and recover pecuniary loss damages. Factual issues raised at the first instance involved “suitable employment” and permanency of loss of earning capacity. The worker was successful in the appeal and the matter was ultimately remitted to the County Court for rehearing.
[125]Op Cit
202 In talking about “suitable employment”, the Court of Appeal stated:
“… Rather, in the particular circumstances of this case, it was incumbent on the judge to demonstrate by his statement of reasons that he had considered in detail what, if any, specific job or jobs Mr Harris might, in the foreseeable future, be able to do[126] on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after a pain management program and/or a drug treatment program and/or the undertaking of vocational education … .”
(My emphasis.)
[126]“We have used the expression ‘be able to do’ (as distinct from, say, ‘be able to get’) advisedly. During the oral hearing, the Court raised with senior counsel for the respondent (at Transcript 52-53) whether ‘employability’ was relevant, having regard to what was said in Barwon Spinners, especially at (2005) 14 VR 622, 652 [74]. Senior counsel’s response, in substance, was that the test was one of physical capacity, not employability: Transcript 53. In his reply, senior counsel for the applicant mentioned ‘employability’ in passing (Transcript 59), but did not develop an argument against, or otherwise take issue with, the respondent’s position in that respect. Since the hearing, this Court (Ashley and Kaye JJA, Osborn JA agreeing) has decided Richter v Driscoll [2016] VSCA 142. That case related to a claim for statutory benefits under the Act in respect of a worker said to have ‘no current work capacity’ (as defined), a statutory concept that involved the same definition of ‘suitable employment’ as applied in the present case. In Richter v Driscoll, at [106], their Honours held that the definition of ‘suitable employment’ was such that the medical panel dealing with the matter in that case was ‘required to consider whether the entirety of the applicant’s relevant personal circumstances — that is, her injury caused incapacity and other relevant personal circumstances which we have discussed — meant that she would likely be unsuccessful in obtaining employment because she had nothing ‘merchantable’ to sell’. Further, there are indications in Richter v Driscoll, especially at [80], that their Honours did not consider that Barwon Spinners required that a different approach be taken to the question of ‘suitable employment’ in serious injury applications. However, for the avoidance of doubt, we confirm that, in the present case, in fairness to the respondent, we have assumed the correctness of the position advanced by the respondent (and not squarely contradicted by the applicant), namely that the test is one of physical capacity, not employability, in serious injury applications. However, the outcome would be the same in the matter before us regardless of the proper approach to be taken to the questions of statutory construction involved. Accordingly, it has not been necessary for us to form any view for ourselves on those questions, and we have not done so.”
203 Obviously enough, the concept of employability or “merchantability” broadens the concept of what is “suitable employment”. Although the decision of Richter v Driscoll[127] dealt with statutory benefits, whereas Harris[128] was dealing with “suitable employment” as used in serious injury applications, there would appear to be no good reason why the same words constituting “suitable employment” should be interpreted in different ways. However, the definition of “suitable employment” makes clear that it refers to employment in work in which the worker is “currently suited”, having regard to a number of matters, and in particular, the worker’s education, skills and work experience.
[127][2016] VSCA 142
[128](op cit)
204 After a consideration of all of the evidence, I am of the opinion that the plaintiff has no realistic capacity for employment, notwithstanding his relatively young age. In this respect I refer and rely on the following evidence:
(a)the evidence of the treating general practitioner, Dr Gurusinghe, who has treated the plaintiff since 2012, who has opined:
“unfit for any duties at present. This includes pre-injury work, modified work of [sic] alternative work.
“His disability appears stabilised with severe incapacity.”
(b)the opinion of the orthopaedic surgeon, Mr John O’Brien, following his last examination:
“Clinically these signs would suggest the ongoing presence of chronic non-specific low back and leg pain. This however in the light of investigations would appear to suggest the presence of lumbosacral disc pathology. Indeed I would suggest that the described nature and distribution of pain and the current signs would be compatible with ongoing discogenic symptomatic pathology.
Historically it would appear that the patient’s described work-related lifting incident remains a significant contributing factor to the current clinical condition.
…
The prognosis does remain poor as chronic pain will certainly persist.
The patient continues to describe significant disability resulting from chronic back and leg pain. There indeed remains significant restriction of movement of the lumbar spine and physically this does result in very definite restriction of the patients (sic) overall activities, I would again consider that this patient remains incapable of undertaking his pre-injury employment. In fact the patient is now physically unable to undertake any form of significant manual duties. Given his education and employment background and the ongoing severity of chronic pain I would consider this patient is not physically capable of undertaking suitable employment and as a consequence I would thus again conclude the patient is totally and permanently incapacitated. As a consequence this patient will not return to gainful employment … .”[129]
(c)In her final report dated 26 August 2019, Dr Horsley, after an examination of the same date, stated:
“At this point In time, unless his functional tolerances Improve, all four options [that is, Uber driver, courier, road traffic controller and carpark attendant] are unlikely to be possible. At this point In time, he presents with no capacity. All four options on a very part time basis, with an improvement in functional tolerances may be possible in the vicinity of 10 to 15 hours per week. The reality, I believe, Is that he will remain out of the work force into the longer term. He has been out of the work force now for eight years. His level of disability has increased since my last review, with a reduction In functional tolerances.”[130]
(My emphasis.)
[129]Exhibit “B” at pages 200-201 PCB
[130]Exhibit “B” at page 192 PCB
205 In my view, any fair reading of the report from Dr Horsley is that she considers the plaintiff to be totally incapacitated and likely to continue into the future.
206 Furthermore, I consider that if there is any residual capacity for work, such is slight. In this respect, I do not consider that the various jobs put forward by the defendant as “suitable employment” are appropriate, in that it cannot be said that any one job would permit the plaintiff to be able to work on a “regular and consistent basis”.[131]
[131]See Harris v DJD Earth Moving Pty Ltd (op cit) at paragraph [49]
207 I consider that the jobs involving driving to be unrealistic, given that the plaintiff suffers increased and significant back pain after short periods of driving. Furthermore, in relation to the Uber driving, he would be required to lift luggage on occasion, all of which would be inappropriate. In relation to the courier driving, it is unrealistic to think there would be small weights involved all the time and furthermore, such job involves driving around the city and no doubt sometimes with some urgency to deliver parcels requested by clients. Furthermore, such a job, as the plaintiff was told on enquiry, can involve walking to take the parcel to its final destination (after driving to wherever), which involves going up and down stairs and maybe walking significant distances.
208 Also, perhaps more so with the Uber driving, the plaintiff has no real understanding as to modern technology, and clearly would have difficulty operating the required Uber equipment. Also, he would be required to handle invoices, and do some paperwork in relation to the courier driving.
209 I consider it totally unrealistic to suggest that this man could work as a car salesman based on his past hobby of doing up a car every now and then and selling it on Gumtree or something similar. The plaintiff has described himself as a loner, enjoying working outside, has difficulty with figures and sometimes losing the train of conversation in circumstances where he has a demonstrated mild intellectual disability and presents in a non-sophisticated manner. In this respect, I do find that the plaintiff is not currently suited to work as a car salesman, an Uber driver and/or a courier driver, having regard to his education, skills and work experience. Furthermore, I do not believe any training would overcome this.
210 On balance, I also consider that the suggested “suitable employment” of carpark attendant is inappropriate. One just has to look at the worksite assessment and task analysis relied on by CoWork of such a job. That assessment was a government generic site describing the following tasks to include patrolling the carpark, customer service, possible fixing faulty ticket machine and reporting carpark incidents and also includes cognitive and psychological attributes, including adequate communication to customers, social skills, basic numerical cash-handling skills, ability to work in a team or independently motivated and unable to work without direction or supervision and flexible availability.[132]
[132]See CoWork report at page 517 DCB
211 Again, bearing in mind the plaintiff’s education, skills and work experience, I consider that he is just not suited for such a job.
212 I refer briefly to paragraph (g) of s134AB(38) of the Act. As pointed out by the Court of Appeal in De Bono v Victorian WorkCover Authority,[133] in attempting to describe the way in which such paragraph operates is not without difficulty. The Court of Appeal did note that the section does not, however, provide that unless a worker has taken the steps referred to, then he or she has “not established the loss of earning capacity required by s134AB(38(b) of the Act”. Furthermore, the paragraph seems to only have relevance to when issues of suitable employment are raised. In circumstances, such as this, when the Court has determined that the plaintiff has no capacity to perform work, it would seemingly have no relevance.
[133](op cit) at paragraph [35]
213 Perhaps more particularly in the circumstances of this case, it also noted that the requirement is to make “reasonable” attempts at rehabilitation and retraining. Again, bearing in the mind the plaintiff’s education, his mild intellectual disability, the test of reasonableness must be at least judged in part by what he has undertaken. I note the following:
(a)the plaintiff has never received any rehabilitation or training from WorkCover. He was sent on a return-to-work program for some months between April and June 2012, and some issue would have to arise as to whether or not this was a real job in all the circumstances, or just providing for the plaintiff due to requirements under the statutory entitlements. In any event, that job came to an end in part because of a flare up of his back and him having to cease work;
(b)there was no evidence on the part of the defendant to retrain the plaintiff and there has been no effort to provide the plaintiff with any alternative work;
(c)the treating psychologist, Ms Patti, who resumed treating the plaintiff in February 2019, notes that she has made multiple requests by email letter to WorkCover insurer Xchanging, in 2019, at the plaintiff’s request, so he can access support for counselling relating to his injuries – she reports all such requests have been denied.[134]
(d)the plaintiff has continued to do hydrotherapy based on what he was originally shown when he went off work. The cost of such hydrotherapy is borne by him. Furthermore, he gives evidence of it, and which I accept, that he has continued to do exercises which he was shown by physiotherapists at the time of going off work;
(e)he has made the effort to become part of this service called “Disability Services”, which although has not got him a job, has given him some assistance in dealing with the problems associated with his back injury.
[134]See report of Ms Patti at page 76C PCB
214 Although he freely admits that he has not sought out a service for assistance, one can perhaps understand this given his background and the efforts he has been making to date. In any event, I am of the opinion that properly construed, the plaintiff has acted reasonably and this in no way should impact on his entitlement to seek leave for pecuniary loss damages (if it be relevant to my fundamental finding that the plaintiff is totally incapacitated for all work).
215 In any event, as I say, I do not consider the plaintiff has the capacity to perform work now and indeed, based on the medical evidence, this will continue into the future and demonstrate clearly, at least a 40 per cent loss of working capacity.
216 Again, going back to the Court of Appeal decision in De Bono,[135] I am satisfied there has been satisfaction by the plaintiff on the balance of probabilities, of the narrative test, a loss of earning capacity of 40 per cent or more at the time of the hearing, and that he will continue into the future to have a 40 per cent loss of earning capacity based on the medical evidence, on which I rely.
[135] Op cit
Disposition
217 Pursuant to s134AB(16)(b) of the Act, I do grant leave to the plaintiff to bring common law proceedings for pecuniary loss damages in respect of a lower back injury suffered by the plaintiff on or about 12 May 2011, arising out of or in the course of his employment with Baytech.
218 I will hear the parties on the question of costs.
- - -
Annexure “A”
1 The plaintiff tendered the following material:
Exhibit “A”
– Certificate of Incapacity dated 20 June 2012, issued by Dr Jude Gurusinghe
Exhibit “B”
– Plaintiff’s Court Book (“PCB”), save for Item 1, running from pages 17 to 235 of the PCB
2 The defendant tendered the following material:
Exhibit 1
– the Defendant’s Court Book (“DCB”) will be tendered, save for Items 2, 3 and 4 and Items 16, 17, 18, 19, 21, 22 and 23
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