De Bono v Victorian WorkCover Authority
[2018] VCC 997
•29 June 2018
| IN THE 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 MISSO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 June 2018 |
DATE OF JUDGMENT: | 29 June 2018 |
CASE MAY BE CITED AS: | De Bono v Victorian WorkCover Authority |
MEDIUM NEUTRAL CITATION: | [2018] VCC 997 |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – pain and suffering consequences conceded – whether loss of earning capacity consequences are “serious” – failure to discharge onus under ss38(g) – whether capacity to return to alternative or suitable employment
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Plaintiff’s claim for loss of earning capacity is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr C A Sidebottom | Hounslow Lawyers |
| For the Defendant | Mr B R McKenzie | Minter Ellison |
HIS HONOUR:
Introduction
1 The plaintiff is a thirty-six-year-old father of two children who suffered an injury to his lower back in the course of his employment with Baytech Industrial (Vic) Pty Ltd on 12 May 2011.
2 The employer concedes that the plaintiff suffered a compensable injury to his lower back, and that the pain and suffering consequences of the impairment of the function of his lower back are “serious”. What remains for me to determine is whether the loss of earning capacity consequences of that impairment are “serious”.
3 Mr C Harrison QC appeared with Mr C Sidebottom of counsel for the plaintiff. Mr B McKenzie of counsel appeared for the defendant.
The incident
4 On 12 May 2011, the plaintiff lifted a 25-kilogram bag of salt from a pallet jack up onto his shoulders for the purpose of pouring its contents into a bucket sitting on the top of scales. As he lifted the bag and twisted, he felt severe pain in his lower back, something like someone sticking a knife into his lower back.
5 The plaintiff reported the incident. He was taken to first-aid at the employer’s premises. He was overcome by the severe pain. He immediately felt pain in both legs.
The Plaintiff’s medical treatment
6 Despite the concessions made by the defendant, it is nonetheless necessary to trace through the plaintiff’s medical treatment to determine whether he retains a residual capacity for alternative or suitable employment.
7 The plaintiff attended the Melton Hospital. He was treated as an outpatient. He was given a prescription for painkillers and it would appear he was then told to see his family doctor. The plaintiff then saw Dr Pawar, general practitioner, and it would appear that was the next day.[1]
[1]Plaintiff’s Court Book (“PCB”) 28
8 Dr Pawar did not provide a conventional medical report. The closest he came to that is a “General Practitioner Comprehensive Report” dated 22 November 2011.[2] He referred the plaintiff to have a CT scan, which was taken on 19 May 2011. The radiologist reported that there was a disc herniation at L5-S1 with neural compression on the left side.[3] Dr Pawar also referred the plaintiff to have an MRI scan, which was taken on 20 July 2011. The radiologist reported a left paracentral disc protrusion contacting the traversing S1 nerve root, and a small posterior annular fissure was noted within that disc.[4]
[2]PCB 56-60
[3]PCB 160
[4]PCB 161
9 Dr Pawar considered that the plaintiff had suffered an L5-S1 disc prolapse with left S1 nerve root compression. As at 22 November 2011, he considered that the plaintiff was unfit for any work. He treated the plaintiff with medication, namely Ibuprofen, Lyrica, Panadeine Forte, Norgesic and Diazepam. He also referred the plaintiff to Mr Lo, orthopaedic surgeon. Dr Pawar ceased treating the plaintiff in about April 2012.[5]
[5]PCB 61
10 The plaintiff saw Mr Lo probably on 30 August 2011. He wrote to Dr Pawar on 30 August 2011 advising that the plaintiff should pursue conservative treatment, have hydrotherapy and should see a rheumatologist.[6]
[6]PCB 62
11 The plaintiff then saw Dr Stockman, rheumatologist, probably on 23 May 2012. It is not clear whether he was the rheumatologist Dr Lo had in mind, but in any event, the plaintiff was referred to him by Dr Pawar. Dr Stockman referred the plaintiff to have a further MRI scan, which was taken on 1 June 2012.[7] The radiologist reported that there was a mild disc bulge at L5-S1, with a posterior annular fissure, but no evidence of significant neural impingement.
[7]PCB 163
12 Dr Stockman did not consider that there was any particular difference in the two MRI scans. He prescribed the plaintiff a variety of medication including prednisolone, Mobic and Panadeine Forte, and advised him to use a TENS machine and to have physiotherapy.[8]
[8]PCB 90, 91, 92, and 93
13 In a report dated 13 July 2016, Dr Stockman considered that the plaintiff was suffering from lumbar disc degeneration/prolapse at L5-S1 which was aggravated by the lifting incident. He suggested that the plaintiff engage in exercise, hydrotherapy and the use medication. His prognosis was guarded. He considered that the plaintiff’s symptoms would continue “for a long time or indefinitely”, but he expected some improvement, although there would be expected exacerbations. He considered that the plaintiff was a candidate for job retraining in retail, security or in a clerical capacity.[9]
[9]PCB 94-96
14 After leaving the care of Dr Pawar, the plaintiff saw Dr Mendis and then Dr Gurusinghe, general practitioners, who practice from the Scott Street Medical Centre. He was principally treated by Dr Gurusinghe. Dr Gurusinghe accepted that the plaintiff had suffered the injury already commented on by Dr Pawar and Dr Stockman.
15 It would appear that Dr Gurusinghe has treated the plaintiff up to the present time. His treatment has included prescription of medication, referral to physiotherapy and general conservative treatment. He noted that the plaintiff’s lower back injury fluctuated in its “course” and was subject to exacerbations and remissions. It would appear that he considered that bending, lifting, weightbearing, prolonged standing, kneeling, lifting and picking up objects would adversely affect the functioning of the plaintiff’s lower back.[10] He provided a short report dated 14 June 2018 in which he considered that the plaintiff had suffered a broad-based disc protrusion with compression of the S1 nerve root. He considered that the plaintiff had no capacity for employment, and otherwise, that the plaintiff’s prognosis was guarded and uncertain.[11]
[10]PCB 69-70, 72-74, 76-77, 78-79 and 80-81
[11]PCB 228-229
The medico-legal assessments
16 The plaintiff was subsequently examined by a number of medical examiners on a medico-legal basis. The first of those was Associate Professor Goldwasser, orthopaedic surgeon, who examined the plaintiff on 28 June 2017.[12] He considered that the plaintiff had suffered an L5-S1 disc prolapse with pain referred into his lower limbs. He considered that the plaintiff was unfit for his pre-injury work, but had a capacity for “light duty restricted employment”. He did not think the plaintiff could cope with repeated bending, stooping, repeated lifting or repeated twisting activities of his lower back.
[12]PCB 104-117
17 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 17 April 2018. Mr O’Brien had the benefit of a CT scan taken in 2018. He considered that his clinical examination of the plaintiff, together with the radiology he was provided, did not define specific pathology. However, he considered that the degenerative disc disease at L5-S1 suggested that the chronic pain suffered by the plaintiff had a discogenic origin. He considered benefits of the treatment which the plaintiff had been provided, and concluded that he would not be capable of undertaking any form of manual employment, including suitable employment, and was prepared to go as far as considering that the plaintiff was totally incapacitated.[13]
[13]PCB 128-131
18 I will summarise the evidence of the occupational physicians separately.
The occupational evidence
19 The plaintiff was examined by Dr Horsley, occupational physician, on 29 March 2018. The plaintiff told Dr Horsley that his current symptoms are:
· Chronic lower back pain exacerbated by activities such as vacuuming, driving long distances and ample longer walking.
· He needs to lie down a lot of the day to relieve the pain.
· He experiences pain in both legs which radiates down the lateral aspect of both thighs, into the calves and feet. The pain in the right leg can last for a few hours. He experiences paraesthesia intermittently through the whole of his left foot and a feeling of swelling in both feet.
· The pain is four to five out of ten and can increase to ten out of ten.
· Coughing and sneezing in cold weather can exacerbate the pain.
· He sleeps poorly.
· His sitting tolerance is thirty minutes. His static standing tolerance can be five to ten minutes and as much as thirty to forty minutes. His walking tolerance is five to ten minutes and can be up to twenty to thirty minutes. His dynamic standing tolerance is five to ten minutes and can be up to twenty to thirty minutes. His driving tolerance is forty minutes in an automatic vehicle.[14]
[14]The account of the plaintiff’ pain and suffering consequences recorded by Dr Horsley is, broadly speaking, consistent with the plaintiff’s evidence in his affidavits at PCB 25-36 and 224-227
20 After examining the plaintiff and the relevant radiology, Dr Horsley considered that the plaintiff had suffered a significant injury to his lumbar spine. She appears to have accepted a diagnosis consistent with disc prolapse at L5-S1 demonstrated on the MRI scans.
21 Dr Horsley considered that the plaintiff’s opportunities for redeployment in the workforce were limited, and in that respect, she referred to his work history, literacy skills, limitations on being able to pursue retraining and the disadvantage that he laboured under by reason of his limited education. She also considered the report of Vocational Directions Pty Ltd dated 21 October 2017 which she summarised, noting that the author of that report did not consider that the plaintiff had any demonstrable vocational skills or experience in a wide range of industries.[15]
[15]PCB 125, and the report of Vocational Directions Pty Ltd is a report of Mr Hartley at PCB 206-223
22 Dr Horsley considered what work restrictions she would place upon him and his functional tolerances. The thrust of her opinion is that the plaintiff presents as a poor prospect of being able to return to alternative or suitable employment. She considered that whether he could or not would depend on formal literacy and numeracy assessments to determine whether there was a possibility that he could upgrade his skills to a vocational level which would improve his vocational options.[16]
[16]PCB, 119-127, and in particular 125 to 127
23 Mr Hartley, vocational assessor, interviewed the plaintiff on 30 June 2017 for the purpose of undertaking a vocational assessment. In a very lengthy report (16 pages excluding his CV) dated 21 October 2017,[17] he considered the plaintiff’s medical treatment, general functioning, vocational skills, transferable skills and ultimate employability. He noted that the plaintiff had not participated in a multidisciplinary rehabilitation program. He considered that the plaintiff needed vocational counselling, and educational/retraining potential assessment, and the provision of appropriate retraining. He added that he did not consider that the plaintiff, if left to his own devices, was capable of returning to the workforce.[18]
[17]PCB 206-223
[18]PCB 208
24 Dr Yong, occupational physician, examined the plaintiff on 4 April 2018. He undertook a similar process as was undertaken by Dr Horsley, but did not obtain as detailed a history of the plaintiff’s presenting complaints as Dr Horsley. However, he appears to have been armed with sufficient instructions to properly understand the nature and extent of the plaintiff’s lower back injury and the manner in which the plaintiff says he has been affected by that injury. The plaintiff informed him that he could sit for twenty minutes, stand for ten minutes, walk for twenty minutes and drive for ten to twenty minutes, although on the day of the assessment, he drove for forty minutes with a break.
25 Dr Yong appears to accept that the plaintiff suffered an injury to his lower back, demonstrated on the MRI scans. He referred to his diagnosis as lumbar dysfunction with radicular symptoms from an initial discal injury. He said that he had succeeded in placing workers with a similar injury back into the workforce.[19]
[19]Defendant’s Court Book (“DCB”) 11-18
26 In a supplementary report, Dr Yong was asked to consider whether the plaintiff could work as an Uber driver, courier, road traffic controller or as a car park attendant. Those jobs were referred to in a report of CoWork Pty Ltd dated 21 May 2018 (“the CoWork report”).[20] He considered each job in turn:
[20]DCB 74-114 - Uber driver at 98-100; pathology courier at 102; traffic controller at 103-108, and car park attendant at 109-114
· Uber driver – despite the plaintiff’s limited driving tolerance, he considered that he was capable of using a mobile computer system and radio network; picking up passengers; assisting passengers with luggage and collecting fares and processing payments. Initially, he considered that the plaintiff could commence working two hours, two days per week and could progressively increase his hours on a graduated basis with a reassessment after three or four months.[21]
[21]DCB 21
· Courier – he considered that the plaintiff could perform the tasks of a courier which are essentially picking up and delivering items using a vehicle.[22]
[22]DCB 21
· Road Traffic Controller – he did not consider it was suitable because of the need to handle signage or bollards, and to stand for extended periods of time.
· Car Park Attendant – he considered that because the plaintiff would be able to rotate posture through sitting, standing and walking, that he could undertake a return to work program working four shifts for three days a week. He would then need to be reassessed.[23]
[23]DCB 21-22
27 However, Dr Yong considered that the plaintiff would need to participate in an activity-based rehabilitation program to achieve twenty hours of work a week on a graduated basis with a view to increasing his hours of work. He added that given the diagnosis, clinical course and the chronicity of the plaintiff’s lower back condition, that it was unlikely that the plaintiff would be able to return to close to his full pre-injury hours.
Return to alternative or suitable employment
28 The plaintiff was cross-examined at some length that he had a residual capacity for work which he could exploit if he undertook rehabilitation and retraining. The substance of the cross-examination was based upon medical opinions suggesting that the plaintiff needs retraining, and principally upon the thesis advanced by Dr Yong that the plaintiff does have a capacity to return to identified jobs, but subject to rehabilitation and retraining.
29 I should pause to note here that Dr Horsley was not provided with the CoWork report, nor indeed was any other medical practitioner.
30 Essentially, the plaintiff said that he has an actively symptomatic lower back of such a degree that he cannot work. Furthermore, that because of his limited education, he cannot retrain in any material sense.
31 I will deal with what I see the critically important issues are, but not necessarily in the order on which I was addressed about them.
32 There does not seem to be much doubt that the plaintiff has had little formal education and vocational training in the past. His work history demonstrates that he has largely pursued labouring-type work which inevitably involves the need for sound bodily integrity to undertake physical work.
33 The plaintiff considered that the real impediment to him undertaking any retraining was his lack of computer skills, general lack of education and intellectual ability. Essentially, he said that he has been a labourer all his life and has not acquired any skills except for those needed by a labourer.[24]
[24]Transcript 17-19
34 The jobs which have been identified by Dr Yong as being suitable or not are jobs which do not require significant retraining in a technical sense. The particular physical and intellectual requirements of each of those jobs has been identified in the CoWork report. I am left with the impression that what retraining would be required would be more the acquisition of familiarity with the jobs rather than the acquisition of any intellectual know-how. They appear to me to be relatively straightforward jobs.
35 I accept the plaintiff’s evidence that he has an intolerance to levels of sitting, standing, walking and driving. His intolerance to driving would very probably preclude him from being an Uber driver because of the necessity to sit for significant periods of time whilst carrying passengers from one destination to another, and perhaps the need to assist with luggage in and out of the boot of the car. That leaves courier and car park attendant as the more viable jobs consistent with alternative or suitable employment.
36 There is a significant body of evidence capable of leading to a conclusion that there is some prospect that if the plaintiff undertook rehabilitation and retraining, that he would identify a capacity for alternative or suitable employment consistent with courier and car park attendant jobs. That appears to me to be consistent with the opinion of Dr Yong, and consistent with an identifiable theme in the majority of the medical evidence that rehabilitation and retraining, and at least retraining, is something which the plaintiff has needed to pursue.
37 The plaintiff was cross-examined about his efforts to obtain rehabilitation or retraining. I think it is fair to say that he has made little or no effort to obtain rehabilitation or retraining nor any serious efforts to look for alternative or suitable employment. There was some evidence concerning his relationship with Centrelink and a referral to a job agency which deals with disabled people.[25] He has not applied for any retraining through Centrelink or through the WorkCover system.[26]
[25]Transcript 18
[26]Transcript 19
38 The plaintiff appeared to me to rely upon his relationship with Centrelink as if it represented some effort on his part to find work, but it was vague and was left in a most unsatisfactory state. It simply does not demonstrate to me what efforts he has made through Centrelink or any job agency to identify what rehabilitation and retraining he needs and for what purpose, in the sense of the ultimate pursuit of alternative or suitable employment.
39 It was in the context of what the defendant submitted the plaintiff has not done that it submitted that the plaintiff has not discharged the onus he bears under s134AB(38)(g) which provides that unless the plaintiff has taken the steps referred to, then he has not established the loss of earning capacity required by s134AB(38)(b).
40 I do not accept the plaintiff’s evidence that he cannot acquire the skills necessary to familiarise himself with the two jobs which he appears to have the capacity to undertake. I accept that the preponderance of the medical evidence demonstrates that retraining is something which the plaintiff should have pursued, and should pursue now, which may well put him in a better position to tackle alternative or suitable employment.
41 Before referring to my final disposition of this part of the plaintiff’s application, there are two matters which I need to deal with.
The film
42 The defendant showed the plaintiff film taken on 9 November 2017. It was about nine minutes in total.
43 The film was taken between 8.00am and 10.00am. The principal part of it relied upon by the defendant was of the plaintiff standing on a footpath with another man with a fence of an adjacent property as the backdrop.
44 The plaintiff stood talking to the other man. On at least two occasions he walked down the footpath and back. He waved his arms at one point, at another he raised his arms, and at another he put his hands up against the fence which was equivalent to his head height.
45 The latter part of the film showed the plaintiff driving off from where he had been talking to the other man. He was next seen in a JB Hi-Fi shop in an aisle looking at CDs.
46 The defendant submitted that the film demonstrated that the plaintiff is capable of standing, walking and otherwise moving with some degree of freedom. That is indeed what I saw on the film. However, it is simply not possible to draw any adverse conclusions from what I saw on the film when it is contrasted with the plaintiff’s evidence, and the medical evidence. All of what I saw him doing is within his stated standing and walking tolerances.
Cannabis use
47 The defendant tendered extracts from the clinical notes of the Scott Street Medical Centre. The plaintiff was cross-examined on entries in those medical records. One of the issues on which he was cross-examined were entries between 3 December 2013[27] and 22 January 2018[28] in which Dr Gurusinghe referred to the plaintiff having a history of significant use of marijuana and alcohol, accompanied by the word “abuse”, which I assume was used to demonstrate the degree of use by the plaintiff of those two substances.
[27]Exhibit 2, and at page 24 of the exhibit
[28]Exhibit 2, and at page 3 of the exhibit
48 The plaintiff was rather coy about admitting to his use of cannabis. He did not disagree that if there were records of cannabis use in the clinical notes, that it was probable that he was using cannabis at the times referred to in those clinical notes. He said that he has smoked marijuana since he was about thirteen years of age, but there were periods when he had ceased its use. The defendant referred to the differing accounts given by the plaintiff of his use of cannabis.[29] Despite those differing accounts, I was left with the strong impression that he has been an habitual user of cannabis and has continued to use it up to the present time.
[29]Dr Grant, psychiatrist, at DCB 8; Associate Professor Goldwasser, orthopaedic surgeon, at PCB 109; Dr Horsley, occupational physician, at PCB 120; Dr Athey, psychiatrist, at PCB 149; Mr Phillips, neuropsychologist, at PCB 134; Dr Doherty, psychiatrist, at DCB 28, and CoWork at DCB 84
49 The defendant submitted that the plaintiff’s reliance on cannabis is likely to have interfered with his motivation to take any relevant steps to rehabilitate and retrain himself, and to ultimately find alternative or suitable employment. There is no direct medical evidence which supports that submission. It may be that as a matter of general knowledge, illicit drugs are known to cause a variety of reactions in the user including demotivation, but it is a submission of such serious consequence to the plaintiff that I think it is incumbent on the defendant to produce evidence in support of the submission.
50 The plaintiff did not accept that his use of cannabis has had any impact on his motivation nor his pursuit of rehabilitation, retraining nor capacity for alternative or suitable employment.
Conclusion
51 It is for these reasons that I am not persuaded that the plaintiff has discharged the onus he bears to establish the loss of earning capacity that he claims.
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