Dedini v Victorian WorkCover Authority
[2024] VCC 1998
•18 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-02478
| PAUL JOHN DEDINI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2024 | |
DATE OF JUDGMENT: | 18 December 2024 | |
CASE MAY BE CITED AS: | Dedini v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1998 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earnings – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic), s335
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Acir v Frosster Pty Ltd [2009] VSC 454; Richter v Driscoll (2016) 51 VR 91; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Johns v Oaktech Pty Ltd [2020] VSCA 10; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to issue proceedings for pain and suffering and loss of earnings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Mr A J Macaskill | Arnold Thomas & Becker |
| For the Defendant | Mr S Scully | Wisewould Mahoney |
HIS HONOUR:
1The plaintiff, Paul Dedini, was 35 years old when he injured his lower back on 30 March 2022 in the course of his employment as a labourer and driver with Macedon Fencing and Supplies Pty Ltd (“Macedon Fencing”).
2Mr Dedini’s duties involved preparing and packing orders at the warehouse, driving and then unloading a truck at various worksites. The fencing timber, steel and other components were packed by hand and secured by straps, and then lifted by forklift onto a flatbed truck. The finished packs of timber posts and palings weighed several hundred kilograms, more if wet.
3While the system of work at Macedon Fencing involved the packs being loaded onto the truck by forklift, when Mr Dedini arrived at a given site there was no mechanical assistance available. The role required him, on his own, wedging a crowbar under the packs of fencing components, using his body weight to rock the packs to the edge of the truck to tip them off, and manual handling other fencing materials, such as cement bags, cement sleepers, steel fence components, temporary fence blocks and panels, and rolls of wire. The work was extremely heavy, and he worked long hours including regular overtime.
4Mr Dedini experienced significant lower back pain at work during March 2022, which had come on gradually over time; then, on 30 March 2022, he felt an onset of severe pain in the lower back while using a crowbar to unload packs of timber off a truck. The pain extended down his right leg. His return to work on 31 March 2022 was short-lived, and he has not worked since.
5I accept Mr Dedini’s account of the circumstances of his injury suffered on 30 March 2022 as inherently credible. Considering the work system described above, it was hardly surprising.
6Mr Dedini seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act2013 (“the Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering and loss of earning consequences. The body function relied upon is the spine.
7The Victorian WorkCover Authority (“VWA”) made a significant attack on Mr Dedini’s credit. It submitted, by its counsel, Mr Scully, that due to his unreliability as a witness, Mr Dedini cannot establish:[1]
(a) he suffers from any ongoing compensable injury;
(b) the requisite 40 per cent or more loss of earning capacity; and
(c) any ongoing symptoms from his lower back injury satisfy the narrative test.
[1] Transcript (“T”) 5.
8For the reasons that follow, I grant Mr Dedini leave to commence proceedings for damages for pain and suffering and loss of earnings.
Principles
9Mr Dedini bears the onus of demonstrating that:
(a) he suffers from an ongoing compensable injury;
(b) his impairment is permanent, and
(c) the consequences are “serious”.
10He must establish, by reference to the consequences to him with respect to pain and suffering and loss of earnings that, when judged by comparison with other cases in the range of possible impairments or losses of a body function, his injury is fairly described as being at least as “very considerable” and certainly more than “significant” or “marked”,[2] in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at 140.
11To satisfy the requisite threshold in relation to pecuniary loss, I must also be satisfied that Mr Dedini has suffered a permanent loss of earning capacity of 40 per cent or more as set out in ss325(2)(e), (f) and (g) of the Act.
12The measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury” earnings); and
(b) the gross income that the plaintiff was earning or was capable of earning during that part of the period three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred (“without injury” earnings).
13Any such comparison should accord with the observations of Forrest J in Acir v Frosster Pty Ltd,[3] that s 134AB of the Accident Compensation Act1985, the analogue provision to s 325, is:
“… a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of learning capacity sustained by the worker.”
[3] [2009] VSC 454 at paragraph [171].
14I am required to assess Mr Dedini’s capacity for employment as at the date of the hearing of this application.
15I must also consider whether he has any realistic capacity to return to full-time employment which might otherwise be suitable, having regard to his age, education, skills, work experience or other matters.[4]
[4]Richter v Driscoll (2016) 51 VR 91 at paragraphs [74]-[97]; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188.
16In serious injury applications, the credit of the applicant is of great importance.[5]
[5]Johns v Oaktech Pty Ltd [2020] VSCA 10.
17In considering Mr Dedini’s evidence, I have had regard to the authorities in dealing with credit on occasions of this type, to the effect that the Court must analyse and give appropriate weight to all the evidence, including objective evidence.[6] Further, that an adverse finding concerning credibility is not by itself sufficient to justify the refusal of the serious injury application.[7]
[6]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108.
[7]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104, at paragraph [49].
Background
18Mr Dedini was diagnosed with dyslexia as a child. He struggled at school and left before completing Year 8. His mother died when he was 13 years of age. After staying with his aunt for a year, he became a ward of the state and lived in foster care.
19He has had a number of previous injuries:
(a) a transport accident in January 2010 which caused pain in his neck, ribs and chest. These symptoms eventually settled down;[8]
(b) a back injury in 2011 when lifting a chemical drum at work. Investigation at the time disclosed a mild degree of disc bulging at L3-4 and L4-5 levels, with no disc protrusion or affected neural structures.[9] Mr Dedini did not disclose this history when examined by various doctors for the purpose of this proceeding; and
(c) an injury to his left hand, fingers and neck when he fell off a ladder in June 2018.
[8] Second affidavit of the plaintiff sworn 2 November 2024 at paragraph [8](a).
[9] Defendant’s Court Book (“DCB”) 111.
20He also had occasional lower backache and stiffness when working at his wife’s takeaway food business which caused him to attend physiotherapy in September 2018 and June 2021. Although his duties mainly involved cooking and serving customers, he also regularly handled boxes of stock weighing up to 20 kilograms.
21In the context of his previous employment in largely manual-handling-type roles, Mr Dedini’s history of lower back symptoms, including an injury to his lower back in 2011, is unremarkable. There is no evidence he was incapacitated by lower back symptoms at the time he commenced employment with Macedon Fencing in August 2021.
Work events following injury
22Although Mr Dedini did not seek medical treatment on 30 March 2022, he says he reported his injury to the office manager, Ms Snezana Mladenovic,[10] and made an appointment to see his general practitioner for the following day.
[10] Second affidavit of the plaintiff sworn 2 November 2024 at paragraph [12]
23Ms Mladenovic denies Mr Dedini reported the injury to her, instead asserting that Mr Dedini did not report that he had a sore back until after an altercation on 31 March 2022 between him and another worker, Mr Tony Zacharias.[11]
[11] Affidavit of Snezana Mladenovic sworn 5 September 2024 at paragraph [7]
24It is unclear who instigated the altercation on 31 March 2022,[12] but I accept it occurred. Mr Dedini had attended work for a couple of hours, despite his lower back pain, because he had been requested to assist loading orders onto a truck with the forklift. He told his employer he had an appointment with his general practitioner later that day for his back.
[12]Second affidavit of the plaintiff sworn 2 November 2024 at paragraphs [14]-[16]; affidavit of Tony Zacharias sworn 16 September 2024 at paragraph [5]
25Macedon Fencing’s director, Robert Bogoevski, alleges that after the altercation, Mr Dedini called him and said, “I guess you are going to sack me I will just go on WorkCover as I have hurt my back”.[13] Mr Dedini denies making this statement.
[13] Affidavit of Robert Bogoevski sworn 16 September 2024 at paragraph [4]
26By letter dated 31 March 2022, Macedon Fencing terminated Mr Dedini. The letter specified Mr Dedini assaulting Mr Zacharias as the reason for his dismissal.[14]
[14] Plaintiff’s Amended Court Book (“PCB”) 51
27On 1 April 2022, Ms Mladenovic emailed Mr Dedini asking him to provide an incident report of the altercation between him and Mr Zacharias. On the same day, Mr Dedini provided Macedon Fencing with two letters: one in relation to his workplace injury on 30 March 2022, and another giving his account of the altercation.[15]
[15] PCB 48-50
28Mr Dedini submitted a Worker’s Injury Claim form dated 4 April 2022,[16] which was accepted on 9 May 2022.[17]
[16] PCB 52
[17] PCB 55
Treatment post injury
29On 31 March 2022, Mr Dedini attended his general practitioner, Dr Ayman Michail. Dr Michail recorded: “Lower back pain due to lifting by using cro[w]bar for 9 months. Stiff and painful back. … Back: tender, restriction present.”[18] Dr Michail referred Mr Dedini for a CT scan of his lumbar spine.
[18] DCB 202
30On 4 April 2022, Dr Michail reviewed Mr Dedini with the lumbar spine CT scan result, which showed disc bulges at L3-4 and L4-5, mild impingement of the exiting right L4 nerve root and severe degeneration of the L1-L2 facet joint.[19]
[19] PCB 150
31Mr Dedini again attended Dr Michail on 19 April 2022 for his back pain, which was affecting his sleep. Dr Michail prescribed Mobic, 15 milligrams, once daily, and Panadol Osteo SR, 665 milligrams.[20] Dr Michail later also prescribed Endep, 10 milligrams.
[20] DCB 201
32In May 2022, Mr Dedini commenced seeing physiotherapist, Dr Samantha Teo. Dr Teo diagnosed L2-L5 discogenic back pain.
33On 9 September 2022, Dr Kenneth Tee performed a CT-guided right L4-L5 transforaminal epidural injection with corticosteroid.[21] This procedure provided minimal and only short-term relief from Mr Dedini’s pain.[22]
[21] PCB 151
[22] DCB 197; PCB 122
34On 9 March 2023, Mr Dedini saw Dr Clayton Thomas, consultant in rehabilitation and pain medicine. Dr Thomas recorded tenderness throughout Mr Dedini’s spine, especially in the lower lumbar spine. Mr Dedini’s range of movement was severely limited, with axial compression and pelvic rotation producing strong lower back pain.[23] Dr Thomas referred Mr Dedini for an MRI and a bone scan.
[23] PCB 132
35The MRI scan of the lumbar spine performed 13 April 2023 showed:
“Shallow diffuse disc bulge at L3/4 and mild to moderate bilateral facet joint hypertrophy at this level contribute to minor narrowing of the subarticular recesses where there is gentle abutment of the descending L4 nerve roots. No features of impingement here or elsewhere.”[24]
[24] PCB 153
36The regional bone scan with SPECT dated 19 April 2023 did not show any features of lumbar facet joint arthropathy.[25]
[25] PCB 155
37Upon review of the radiology results, Dr Thomas recommended Mr Dedini undergo a multidisciplinary pain management program.[26]
[26] Report of Dr Clayton Thomas dated 11 May 2023, PCB 130
38On 4 August 2023, Mr Dedini consulted with Dr Priya Arvind, specialist pain medicine physician, as part of the pain management program with Advance Healthcare. In Dr Arvind’s opinion, his symptoms were “suggestive of an S1 radicular pain pattern and a cervical pain with radicular pain pattern to the hand”.[27] Dr Arvind recommended treatment which included Gabapentin, 100 milligrams, and Nortrip, 100 milligrams.
[27] PCB 122
39On 18 December 2023, Mr Dedini consulted Dr Michail, who reported:
“… [ceased] gabapentin due to side ef[f]ects, felt nausea and stomach upset…
on Panadol and voltaren gel.
not sleeping well.
can drive up to 30 minutes
sit or stand 30 minutes
can not manage to carry a bag of shopping
going to the pool and spa 3-4 times a week
having physiotherapy every 2 weeks.”[28]
[28] DCB 190
(sic.)
40On the same day, Mr Dedini underwent a further epidural injection,[29] which did not result in any long-term improvement. He ceased pain management around this time as it was not helping him.[30]
[29] PCB 156
[30] Second affidavit of plaintiff, sworn 2 November 2024, paragraph [5]
Credit
41Mr Dedini presented as a relatively straightforward but unsophisticated man, consistent with his difficult background.
42To his credit, Mr Dedini completed several TAFE courses over time, including in woodwork and commercial cooking. He has quite a varied employment history as a kitchenhand and cook in various fast-food outlets, but his principal employment background is in labouring and driving jobs, including forklift driving in warehouses and factory contexts. He also worked for a couple of years in his partner’s takeaway food business.
43Mr Dedini says the symptoms in his lower back after the injury in February 2011 settled down after a few months.
44His affidavit evidence included the following consequences:
(a) the presence of constant lower back pain, with spasms and occasional right leg pain;
(b) he cannot fully bend and he struggles with lifting anything other than light items. Lifting anything beyond 2 or 3 kilograms results in low back pain;
(c) his ongoing use of strong prescription pain medication since the injury;
(d) sleep interruption; and
(e) difficulties with driving, domestic chores, gardening and other activities of daily living, including interacting with his young children and walking his huskies.
45His partner of twelve years, Thi Ngoc Hien Nguyen,[31] confirmed his account of his injury and ongoing symptoms. She was cross-examined as to other matters, but not challenged on this evidence.
[31] Affidavit sworn 2 November 2024
46Under cross-examination, Mr Dedini’s evidence included:
(a) he did not report the February 2011 work incident injury and previous symptoms to any later doctors, because he had forgotten about it;
(b) he experienced lower back pain, extending into his right buttock and leg in 2011;
(c) before the incident on 30 March 2022, he had stiffness in his lower back, but no major pain. He had treatment from a physiotherapist from time to time for this condition during his employment with Macedon Fencing;
(d) his lower back pain was worse now than any he had experienced in the past;
(e) he limps all the time due to pain in his lower back and/or his right leg, and usually wears a back brace;
(f) his leg pain had improved, but not his lower back pain;
(g) he continued to experience the consequences he set out in his affidavits;
(h) while he can do some tasks, he is sore afterwards;
(i) he provided a history to Dr Michail that he was “unable to sit or stand for … prolonged periods of time, he cannot bend or lift any weight more than 2- 3 kg. He will never be able to do labouring jobs”;[32] and
(j) he provided the histories recorded by Dr Eman Awad, consultant occupational medicine physician; Professor Paul D’Urso, neurosurgeon; Dr Symon McCallum, pain physician and specialist anaesthetist, and Dr Andrew Muir, consultant in pain management (anaesthetics).
[32] PCB 133
47The VWA submitted that:
(a) Mr Dedini exaggerated his symptoms in his histories to doctors and in his affidavit material;
(b) surveillance video depicted him performing tasks which exceeded the histories he had given to various doctors as to his current capacity; and
(c) he is unlikely to have forgotten the work incident in February 2011, which resulted in a number of medical assessments and the lodgement of a WorkCover claim.
48Taking those matters in turn, I accept that on occasion Mr Dedini minimised his current capacity in providing histories to certain doctors. I am not persuaded that this was deliberate, having regard to his frank concessions in the witness box. It is more likely to be consistent with the inclination of a person in his circumstances, with an acrimonious history with his former employer, and chronic pain, to tend towards an account favourable to his claim. Nevertheless, this gives rise to issues as to the reliability of his evidence, and the need to carefully consider the evidence overall, in particular, the objective evidence.
49A short sequence of surveillance on 22 August 2024 shows Mr Dedini walking without a limp, which did not accord with his oral evidence. This is an example of exaggeration of his symptoms.
50Surveillance video of Mr Dedini taken 2 September 2024 depicts him driving a Hilux ute with a trailer to a cabinetmaker’s business in Campbellfield. He was able to climb into the trailer and lay cardboard on its base to protect the ultimate load, being foam-packed cabinets. He was observed sliding cabinets along the base of the trailer and across one another, and securing the load with straps.
51Mr Dedini frankly conceded in the witness box that the cabinets weighed 15 to 20 kilograms. Although obscured in the video, he said he loaded the boxes into the trailer with the assistance of a staff member from the cabinetmakers. He then unloaded them at home with the assistance of his wife and a neighbour.
52Mr Dedini’s evidence that he had pain after handling the cabinets was not challenged.
53When put to him, Mr Dedini accepted this activity was inconsistent with some of his histories to doctors about his current capacity.
54His partner, Ms Nguyen, was cross-examined in relation to the surveillance video. She said it was the first and only time Mr Dedini had lifted a heavy cabinet since his injury in 2022. Although it was not mentioned in her affidavit sworn 2 November 2024, she said she was aware Mr Dedini had purchased a wardrobe for their son. She said it was a “one off”. I accept this evidence.
55I find that Mr Dedini collected a cupboard from a cabinetmaker on 2 September 2024, and loading and unloading the cabinets with assistance of others resulted in pain.
56Ms Nguyen confirmed that Mr Dedini cannot bend over fully. Nothing in the surveillance video was inconsistent with this evidence.
57While the video showed Mr Dedini engaged in moderate physical activity, it was on a one-off basis, and resulted in pain. Although this specific activity was not disclosed to Dr McCallum or Dr Boffa, who examined him after September 2024, the relevant histories that he “avoids” lifting more than 3 kilograms were not inconsistent with this activity. It is consistent with his history to Dr Lewis in August 2024 that he “struggles to lift heavy items.”[33] I accept his explanation that it was to supply a wardrobe for his children. Nevertheless, the surveillance tends to support the VWA’s submission that he exaggerated his symptoms to certain doctors.
[33] PCB 106
58The lack of disclosure of the 2011 work incident to examining doctors is potentially problematic in terms of his credit, but on balance, I accept Mr Harrison’s submission that I ought to accept Mr Dedini’s explanation he forgot about it.
59Firstly, the incident occurred a long time ago. Secondly, when presented with the relevant documents in the witness box, he readily accepted the fact of it. Thirdly, his account of eventual return to full-time employment in various roles involving heavy manual handling since 2011 was not disputed by the VWA.
60I accept that Mr Dedini had put this injury behind him. Since 2011, he has worked in construction as a labourer, in his partner’s business delivering trailers to customers, unloading containers by forklift or by hand, worked in warehouses driving forklifts and helped run the family roast-chicken business prior to his employment with Macedon Fencing. He also had a side business in 2021 selling sheep manure to farms, involving manual handling.
61I find that although at times Mr Dedini was unreliable, to an extent, in his account to doctors of his capacity to conduct his ordinary activities of daily living, I substantially accept Mr Dedini’s evidence.[34] I make this finding for the following reasons.
[34]Cakir v Arnott’s Biscuits Pty Ltd (supra)
62Ms Nguyen’s evidence corroborated Mr Dedini’s account of his difficulties at home. Her evidence included that she had known him since 2011 and they commenced a relationship in 2012. They have two children together, aged five and ten. Mr Dedini told her that he hurt his back at work moving a pack of timber. She does not recall him complaining of back pain before this incident, when he was very active. She spoke of his pain and restrictions, and difficulty when:
(a) playing with his children,
(b) sitting in a car for long periods,
(c) standing for too long
and the strain the injury had placed on their relationship.
63Mr Dedini is no longer able to help as much as he used to around the home, as he has difficulty lifting heavier items of shopping. Before the injury, he attended the gardening and now Ms Nguyen has to mow the lawn and often has to ask friends or family to help her in the garden. Her evidence that her mother has been coming regularly from Vietnam to stay with the family and help out was not challenged.
64Ms Nguyen corroborated Mr Dedini’s account of having physiotherapy during his employment with Macedon Fencing to manage his back pain. She has observed him in pain.
65Mr Dedini has not worked since March 2022.
66Since his injury in March 2022, his treating doctors have prescribed Mr Dedini strong prescription pain medication.
67During cross-examination, Mr Dedini regularly made concessions against his interest, including the extent of his activities, which exceeded some histories that he had given to doctors.
68No doctor suggested Mr Dedini is feigning his symptoms, save Dr Boffa, who expressed a speculative opinion about whether or not the work injury occurred at all.[35] I reject this evidence, and rely on my findings above as to the inherent probability of injury in the course of such heavy and unsafe work practices.
[35] DCB 27
69Mr Dedini’s activity in handling wardrobe cabinets in September 2024 was a one-off, and not representative of his overall capacity.
70Taking into account the evidence overall – in particular, his ability to work full time in heavy manual labour prior to his injury – I find that Mr Dedini did his best to give an accurate account of his circumstances as at the date of the hearing. While there was some exaggeration of his symptoms, this unsophisticated man’s apparent inclination to emphasise his difficulties was not a deliberate attempt to mislead.
Other factual findings
71In light of the various contested factual matters at trial, I record my findings below.
72The contemporaneous notes of Dr Michail on 31 March 2022 and 1 April 2022 are consistent with the evidence of Mr Dedini in relation to the fact of injury and the circumstances of his termination at work.[36]
[36]DCB 212-216
73Mr Dedini’s evidence that he had experienced upper back pain for some years, as opposed to his present lower back pain, is supported by the attendance note of 3 August 2020 recorded by Dr Ebrahim Heydari.[37]
[37]DCB 212
74Mr Dedini’s evidence that the pain following the 2011 incident involving his lower back settled down is inherently probable, having regard to the objective unchallenged evidence of his employment in various capacities involving manual labour in the decade which followed.
75Although there is a conflicting account of Mr Dedini’s last day at work on 31 March 2022, there were no witnesses to the initial altercation between him and Mr Zacharias.
76Although the other director of Macedon Fencing, Vlad Bogoevski, denies terminating Mr Dedini,[38] there was no explanation proffered by the VWA as to the letter of termination dated 31 March 2022.[39] I also note Mr Dedini’s unchallenged evidence that a request was made of him to provide an incident report after he had received the letter of termination.
[38] Affidavit of Vlad Bogoevski sworn 11 September 2024 at paragraph [9].
[39] Exhibit to Mr Dedini’s second serious injury affidavit sworn 2 November 2024.
77On the state of the evidence before me, I am unable to find whether the report of the injury resulted in termination, as Mr Dedini contends, or whether he was terminated and then made a responsive report of injury. In any event, I accept that Mr Dedini suffered injury in the course of his employment.
What is the nature of the injury Mr Dedini suffered on 30 March 2022?
78Overall, Mr Dedini’s employment of up to twelve hours a day between 2 August 2021 and 31 March 2022; the contemporaneous and supportive notes of his attendances on his general practitioner at the time, and the medical evidence to which I will refer shortly, are sufficient to establish compensable injury.
79His longstanding general practitioner, Dr Michail, diagnosed a work-related condition of discogenic back pain with right-sided radiculopathy against a background of lumbar spondylosis.[40] As referred to above, the CT scan of his lumbar spine on 31 March 2022 showed facet joint arthropathy at L2-3 and central disc bulges at L3-5, with L4 nerve root impingement.
[40] PCB 114.
80Over time, Dr Michail referred Mr Dedini for physiotherapy, hydrotherapy, pain management, corticosteroid and local anaesthetic injection; and he prescribed Endep (mitriptyline) and Mobic for his lower back pain.
81In March 2023, treating pain specialist, Dr Thomas, recommended Mr Dedini undergo investigation to “elucidate what the nature of the underlying organic component” was to explain his lower back pain,[41] and referred him for pain management.
[41] PCB 132
82Dr Michail’s diagnosis of aggravation of lumbar spondylosis is confirmed by occupational physician, Dr Eman Awad, in June 2024.[42] Dr Awad also diagnosed an adjustment disorder.
[42] PCB 81
83The diagnoses of Dr Michail and Dr Awad may be contrasted with that of orthopaedic surgeon, Mr Roy Carey, who conducted an independent medical examination in July 2023. In Mr Carey’s opinion, Mr Dedini suffered from an idiosyncratic psychological response to injury – in other words, a chronic pain syndrome. Mr Carey noted Mr Dedini seemed “a pleasant and straightforward witness to his complaints”.[43] Mr Carey’s prognosis was for continued discomfort into the foreseeable future.
[43]DCB 41
84In June 2024, Professor Paul D’Urso, neurosurgeon, diagnosed a soft-tissue injury of the lumbar spine in the course of employment.[44]
[44] PCB 99
85Following examinations as recently as October 2024, occupational and environmental physician, Dr Umberto Boffa, diagnosed facetogenic pain without radiculopathy, complicated by symptom amplification.[45]
[45] DCB 34.
86On 12 November 2024, anaesthetist and pain specialist, Dr Symon McCallum, confirmed a diagnosis of central lower back pain with both a muscular and facet-joint component, and right-sided leg pain, neuropathic in origin. In his opinion, Mr Dedini had an organically-based chronic pain syndrome, and was undergoing a process of central sensitisation.[46]
[46] PCB 912.
87The absence of a history from Mr Dedini as to the 2011 back injury did not affect the preponderance of medical opinion, because materials relating to the 2011 WorkCover claim were provided to each of Professor D’Urso;[47] Dr Justin Lewis, psychiatrist;[48] Dr Eman Awad;[49] Dr Symon McCallum;[50] Dr Chris Grant, consultant psychiatrist;[51] and Dr Umberto Boffa.[52]
[47]PCB 97.
[48]PCB 104-105.
[49]PCB 78.
[50]PCB 89.
[51]DCB 53.
[52]DCB 25.
88I find that Mr Dedini suffers from an ongoing injury by way of aggravation to underlying lumbar spondylosis, with referred pain into his right leg from time to time. In the alternative, he suffers from an organically-based chronic pain syndrome following the injury to his lumbar spine on 30 March 2022.
Loss of earnings
89I reject the VWA’s submission that Mr Dedini could return to his previous employment, having regard to the nature of his ongoing injury, the extremely heavy duties of a fencer and the unsafe system of work for unloading trucks at sites. This submission was made against all of the medical evidence referred to below. I find Mr Dedini has no capacity for his pre-injury employment as a fencer.
90On the basis that Mr Dedini was incapacitated for his previous employment, certain alternative roles were identified in a 130-Week Vocational Assessment dated 15 February 2024 and a suitable employment report prepared by Recovre dated 22 October 2024:
(a) Courier/Delivery/Truck Driver;
(b) Forklift Driver;
(c) Cashier;
(d) Product Assembler; and
(e) Hire Car rover.
91The role of cashier involves:
(a) counting and recording money received and balancing against register sales; records, and preparing money for deposit in financial institutions;
(b) recording and balancing petty cash disbursements; and
(c) operating a computer terminal to administer the store's financial transaction system.
92At the time of his most recent report of 22 September 2024,[53] Dr Michail reported that Mr Dedini’s back condition should recover reasonably well, but was likely to deteriorate over the years as a result of age-related degeneration and life and work activities. In his opinion, Mr Dedini had a limited work capacity in a suitable job that does not involve physical or mental stress on a graduated basis, with flexible conditions, and noted he may require retraining.
[53] PCB 114.
93In May 2024, Dr Andrew Muir, medico-legal pain specialist, diagnosed a chronic pain syndrome, with no current work capacity for suitable employment. In his opinion, it is unlikely that Mr Dedini will return to work. The prognosis is bleak.[54]
[54]PCB 196
94Occupational physician, Dr Awad, opined that Mr Dedini had no capacity for his pre-injury employment or to retrain to undertake a sedentary role.[55]
[55] PCB 81
95Pausing there, I find that Mr Dedini has no such capacity for retraining. He has limited English skills as a result of his lifelong condition of dyslexia. He has no computer skills. He has difficulty reading and writing, which would make retraining in anything other than a manual role beyond him.
96As Dr Awad noted, his occupational history pertains to low-skilled manual labour and he has now been medically restricted from this. This leaves him with very little employment options. The injury has drastically derailed his ability to undertake employment in a reliable and consistent fashion due to his back injury on a background of learning difficulty.[56]
[56]PCB 81
97Dr Awad went on to consider roles identified, and found that Mr Dedini had no capacity for any of them, as the duties exceeded his medical restrictions.[57]
[57]The reports dated 30 October 2024 and 10 November 2024, PCB 84 and 87
98Dr Boffa, occupational physician, set out his opinion that Mr Dedini is not fit for the light delivery, truck or forklift driver roles listed because of unsuitable prolonged driving. In his opinion, he is fit for the cashier/counterhand and light assembly roles if he can alter his position using a high bench stool as required.[58]
[58]Report dated 12 November 2024 at DCB 34
99Dr McCallum considered that Mr Dedini does not have the capacity to perform any of the roles identified and considered in Dr Boffa’s reports. In Dr McCallum’s opinion:
“All of the jobs listed are extremely likely to flare up his pain. Especially the jobs such as a courier, delivery driver and truck driver. They clearly involve activities that Mr Dedini finds painful. They clearly involve activities that would flare up his pain.
When we look at the job title product tester/assembler. It involves standing for a long period of time, walking and reaching. Reaching forward on a repetitive basis is clearly going to flare up his pain.
When we look at the job of a car park attendant. It involves constant standing and walking. Getting in out of a car will flare up his pain. It involves lots of bending.
I think it is quite clear Mr Dedini would not be able to do these job[s] in a regular, reliable manner.”[59]
[59]Report dated 12 November 2024 at PCB 192-193.
100Professor Paul D’Urso, neurosurgeon, found Mr Dedini to be incapacitated for his pre-injury employment, which will continue into the foreseeable future. Further, he would be surprised if any residual capacity would extend past twenty hours per week.[60] He also notes that Mr Dedini’s learning disorder appears to be a major barrier for any occupation that requires significant training or the use of computers or documentation. I accept that opinion. This would preclude a cashier role, which requires record keeping skills.
[60] PCB 100.
101Psychiatrist, Dr Justin Lewis, considers that, as a result of a chronic adjustment disorder consequent to the workplace injury, Mr Dedini has a theoretical capacity of up to twelve hours per week, but in all likelihood is totally incapacitated for employment.[61]
[61]PCB 112.
102Dr Chris Grant, in his report dated 17 September 2024, diagnoses a mild adjustment disorder with mixed emotional features, superimposed upon a pre-existing educational, deprivation or specific learning disorder, possibly dyslexia. In his opinion:
“If one takes his account of his symptoms and activities at face value, then I still think he has no current work capacity, when one takes into consideration his pain, physical restrictions, relative lack of transferable vocational skills for any job not involving physical labour, and the lack of active re-training at this point.
The current incapacity arises from the claimed injury, but arises from his physical symptoms, rather than his mild adjustment disorder.”[62]
[62]Report dated 17 September 2024 at DCB 57.
103Dr Grant noted that condition is likely to improve with the resolution of litigation, but that is speculative at this point.
104In re-examination, Mr Dedini confirmed that he is unable to complete paperwork or handle luggage, and that otherwise the frequent walking or driving would make any job as a driver, including a “rover” assisting with hire cars and passenger requirements, unsuitable. I accept that evidence.
105On the basis of his workplace restrictions, Mr Dedini is unfit for driving, including forklift driving roles.
106His medical restrictions and employment background, together with the requirement for retraining, would likely preclude him from the role of cashier.
107Ultimately, I accept the submission that he has no current work capacity. The VWA has not discharged its evidentiary burden to identify a role that Mr Dedini could perform. This includes roles in light assembly work or any other role involving extended periods sitting or standing, such as a cashier.
108Against that finding, a full-time position as a product assembler at $33.71 an hour, or $1,281 per week is less than both the higher agreed 60 per cent pecuniary loss threshold of $1,767 a week, and the lower alternative figure of $1,371 per week.[63] Likewise the average weekly earnings of a cashier is $800 per week,[64] significantly less than the threshold.
[63]Exhibit I: Plaintiff’s particulars of loss of earning capacity dated 13 November 2024.
[64] DCB 76.
109Noting this is a gateway provision, I am satisfied that the plaintiff has established a greater than 40 per cent loss of earning capacity.
110In combination with Mr Dedini’s incapacity for pre-injury employment in a manual role – such as he has engaged in the majority of his working life – I consider that this is a “very considerable” consequence which satisfies the narrative test.
111Mr Dedini is granted leave to commence proceedings for loss of earnings.
112In light of this finding, he is also granted leave to commence proceedings for pain and suffering.[65]
[65]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.
Conclusion
113For the reasons above, I grant the plaintiff leave to commence damages for loss of earnings and pain and suffering damages.
114I will hear the parties as to the form of final orders and as to costs.
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