Dinic v Victorian WorkCover Authority

[2017] VCC 1007

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-16-02768

DEJAN DINIC	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	14, 15 and 16 June 2017
DATE OF JUDGMENT:	28 July 2017
CASE MAY BE CITED AS:	Dinic v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2017] VCC 1007

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury application
Legislation Cited:     Accident Compensation Act 1985 s134AB

Cases Cited:Richter v Driscoll [2016] 142; Haden Engineering v McKinnon [2010] VSCA 69

Judgment:                Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P O’Dwyer QC with Mr M Fogarty	Maurice Blackburn Pty Ltd
For the Defendant	Mr P Jens QC with Ms B Myers	Lander & Rogers

HER HONOUR:

1 Mr Dejan Dinic was injured in the course of his employment and applies for leave to bring proceedings for damages against his former employer. To obtain leave, he must satisfy the Court that he suffered a “serious injury” within the definitions and restrictions of s134AB of the Accident Compensation Act 1985 (“the Act”). Mr Dinic applies for leave in respect of both pain and suffering and loss of earning capacity damages.

2       Mr Dinic’s application is in respect of an injury to his lower back suffered on or about 20 February 2013.  He relies on sub-paragraph (a) of the definition of “serious injury”[1], in that he claims that the injury caused serious permanent impairment of the function of his lower back.  To satisfy this part of the definition, he must satisfy the Court that the consequences of the injury to him, for the foreseeable future, when compared with the range of other possible impairments of body function, can fairly be described as “more than significant or marked” and “at least very considerable”.[2]

[1]Section 134AB(37)

[2]Section 134AB(38)(b) and (c)

3 Further, to obtain leave to claim damages in respect of loss of earning capacity he must satisfy the Court that he has a permanent loss of earning capacity of at least 40 per cent, measured as set out in the statutory formula in s134AB(38)(f) of the Act, taking into account his capacity for suitable employment after reasonable attempts to participate in rehabilitation or retraining.[3]

[3]Section 134AB(38)(g)

4       The defendant does not dispute that the plaintiff suffered an injury to his lower back in the course of his employment on or about 20 February 2013.  It disputes that he has any ongoing significant consequences from that injury, in that he had limited treatment initially, has had no active treatment for more than the last three years, occupies his days with activities that involve socialising and spending time where it suits him, but has chosen not to consider any possibility of finding alternative work, nor to seek genuine rehabilitation treatment. The defendant argues that if there are any ongoing consequences of his original low back injury, they do not satisfy the definition of “serious injury” either as to pain or suffering or loss of earning capacity. 

The evidence

5       Documents were tendered as set out on the attached schedule, and the plaintiff gave oral evidence having been required for cross-examination.  In addition, I gave leave for oral evidence to be adduced from Mr Paul Zeniou, who had not previously provided an affidavit, but whose giving of oral evidence was not opposed by the defendant.  His evidence was essentially in rebuttal of a contention anticipated to be put by the defendant[4].

[4]The proposition was put in cross-examination of the plaintiff that he had been working at Mr Zeniou’s family business.  The plaintiff denied working there. It had been anticipated that surveillance film would be shown of him engaging in what the defendant suspected was employment activity. That film was not shown after Mr Zeniou’s evidence that the plaintiff was not employed there.

6       As in most cases of this nature, the credibility and reliability of the plaintiff’s own evidence is important, because not only the Court, but also doctors whose opinions are in evidence, are reliant on the plaintiff’s own account of the history of occurrence, timing, extent and duration of symptoms, and their impact on the plaintiff’s life.

7       The defendant submits that the plaintiff’s evidence about the extent of his symptoms is unreliable, and that this renders unreliable the history he gave to doctors, and undermines their opinions.  It also attacks his credit on these issues.

8       Mr Dinic gave the impression of not being prepared to make much effort to provide information during his evidence, nor much effort to do anything in his life generally that he did not want to do.  His counsel urged me to have regard to a psychiatric opinion on him to explain his attitudes and demeanour.  Dr Serry, consultant psychiatrist, had examined him in January 2017, and diagnosed him to be suffering chronic adjustment disorder with anxious and depressed mood which had arisen from the physical injury to his low back, and its ongoing impact on his functioning.  This condition has had no treatment and Dr Serry doubted the plaintiff would be inclined to pursue any such intervention.  He described Mr Dinic as pleasant and cooperative, which might explain why he did not discuss whether the adjustment disorder might undermine his motivation to explain himself further, nor to consider trying to find some alternative employment. Dr Serry considered that he demonstrated a normal affective range, which does not support that his diagnosed depressed or anxious mood would account for his being reticent about providing information in giving evidence.

9       My impression of Mr Dinic as lacking motivation does not of itself undermine his credibility.  However, from the brevity of his descriptions of his activities and symptoms in his Affidavits, to his oral evidence on cross-examination, it did not assist him where there might have been more fulsome or better explanation for some inconsistencies or discrepancies.  He failed to engage enough during his evidence to give such explanations, and for this reason my impression was that I could not confidently rely on his version of the extent of his symptoms and their impact on him and his activities.  Although he says that he hopes that at some time after this case finishes he will look for some work he would enjoy, he appears resigned to making no attempt to bring that about.  Overall, I have approached his evidence with more caution than I would have had he appeared more frank or forthcoming, and have not accepted his generalisations unless likely to be reliable in light of other evidence. 

10      The defendant did not challenge the reliability or credibility of the evidence of Mr Zeniou.  Both parties seek to rely on different parts of what he said.

11      Despite there being much mention of video surveillance of the plaintiff, in particular in 2014, and an apparent lack of agreement about what was to be said of it or shown, none was shown or tendered.  There was an admission from the defendant that over 18 days between 5 June 2013 and 17 March 2017 the plaintiff was observed or under surveillance for 26 ½ hours, of which 31 minutes and 40 seconds was video-recorded.  No submissions were put by either party as to what if any inferences I should draw from that admission or the failure to show any of it.  Apart from noting that the defendant apparently saw fit to obtain surveillance as early as three months after the injury, indicating sceptisims or suspicion about the plaintiff’s activities, at a time when medical information strongly supported that the plaintiff was still suffering incapacity from an injury consistent with radiological findings, there is no other inference I draw from the failure to show any of it.

Plaintiff’s background and pre-injury circumstances

12      Mr Dinic is now aged 49.   He grew up in Australia and attended school to Year 10.   Then, at about age 17, he commenced working with his father, learning and then engaging in the painting and decorating trade, and for some years worked with his father in a business which had another partner.  In his twenties, the plaintiff left that business and started his own painting business which he ran for about five years.  He then obtained employment with the proposed defendant in this proceeding, a business called “Brush Strokes”.  He apparently left after about a year and worked as a subcontractor, then returned to the employment of the proposed defendant, full-time from February 2008.

13      Mr Dinic had no prior back problems of any note.  He had suffered a left knee injury in the early 1990s but made a good recovery from it, and had not been hindered in his work long-term from that injury.  He also had some shoulder problems in August 2012, but recovered quickly from those also.

14      As at February 2013, he was living with his parents in Ringwood, having returned to live with them after separating from a partner who subsequently gave birth to his son.  His son is now aged five, and stays with him on alternating weekends.  His mother did virtually all of the cooking and housework, although he says he did and still does have an interest in cooking.  He helped with the garden, mowing the lawn, but otherwise his father did most of the home maintenance tasks.

15      Mr Dinic had previously played indoor cricket and soccer.  He says that prior to the injury that is the subject of this application he played indoor cricket and soccer socially with some mates every couple of months.   Although he told Mr Grossbard that he had ceased these sports before the back injury, I accept from his own evidence that he still engaged in them socially to some extent until February 2013.  He says he also used to play the occasional game of outdoor cricket.  He also used to go fishing about once a fortnight with a mate, to the Goulburn river near Thornton.  He used to socialise by meeting friends for drinks (beer) at his local RSL club which he regarded as his local hotel.   

16      From time to time he had smoked marijuana.

17      His only work had been as a painter up to the time of his injury.

The injury and treatment

18      In February 2013 the plaintiff was working on a residential site at Mt Eliza.  In the days leading up to 20 February, he had experienced some intermittent back ache.  On 20 February 2013, while working at tasks requiring twisting and stretching, he experienced much more severe back pain and, although he continued to work for a while, he says he then totally collapsed in pain.  He reported the injury to his employer that day and drove home with difficulty.

19      He spent the next few days at home resting, and then attended a general practitioner in Ringwood, Dr Boctor, and a physiotherapist[5].  He was advised by the general practitioner to rest.  In early March 2013 he returned to the clinic in Ringwood and saw his regular general practitioner, Dr Hammond, who ordered a CT scan of his lower back.  He continued to attend Dr Hammond and a physiotherapist.  He did not wish to take painkillers.

[5]It may be that he first consulted a physiotherapist who referred him to a doctor – Exhibit F

20      The CT scan of his lumbar spine, taken 1 March 2013, was reported as showing a broad-based disc bulge with a mild canal stenosis resulting at L4-5, and at L5-S1 there was some posterior disc bulging with minimal canal stenosis.  The conclusion reported was of mild degenerative change, but no evidence of a focal disc protrusion nor of any major canal stenosis. 

21      As the plaintiff continued to complain of back pain, Dr Hammond ordered an MRI scan of his lumbosacral spine.  This was reported on 4 October 2013, as showing at L3-4 a very shallow broad-based left foraminal disc protrusion just contacting the exiting L3 nerve root without compressing it; at L4-5 a small broad-based disc protrusion/extrusion extending towards the right paracentral region which contacted, but did not compress, the traversing right L5 nerve root; and at L5-S1 no disc protrusion and no neural compromise, but reported in situ disc degenerative change.  As a result, Dr Hammond referred the plaintiff for opinion to Mr Bruce Love, orthopaedic surgeon. 

22      Mr Love thought Mr Dinic a candidate for spinal surgery, but noting that Mr Dinic  was not keen on surgery, recommended a second orthopaedic opinion from Mr Michael Johnson, although Mr Love stated he did not think there was a meaningful alternative to surgery. 

23      Mr Michael Johnson, orthopaedic surgeon, examined Mr Dinic in December 2013, noting Mr Dinic’s description of his condition as being of frequent variable lower back pain, that radiated into both thighs and upper calves, with the symptoms worse with prolonged sitting, walking and physical activity, and relieved by changing position, but that he was slightly better than four months earlier, and could by then walk and sit for 60 minutes and stand for 30 minutes.  Mr Dinic was very stressed by his problems, and smoking.  On examination, Mr Johnson found him to have localised pain in the lower back with significantly reduced range of thoracolumbar movement, but no neurological abnormality in the lower limbs.  He considered that the MRI scan demonstrated multilevel lumbar degeneration that was maximal at three levels.  At L4-5 he felt there was a small central non-compressive disc prolapse. 

24      Mr Johnson stated that he was uncertain of the anatomical cause of Mr Dinic’s symptoms.  As the scan showed multilevel degeneration,  it was difficult, if not impossible, to make anatomical diagnosis, and for that reason he did not recommend surgery and said there was no option but to manage his symptoms conservatively.  Mr Johnson noted Mr Dinic was clearly struggling with his problem, and thought he would benefit from undertaking a structured rehabilitation program at Donvale Hospital.

25      Mr Dinic was referred to a 13-week rehabilitation program at Donvale Rehabilitation Hospital, supervised by Dr Lee, consultant physician.  He was put on a program including hydrotherapy and physiotherapy, and Dr Lee recommended a trial of low dose Norspan patches, being aware that Mr Dinic did not wish to take oral medication.  Mr Dinic ceased the Norspan patches before conclusion of the program due to his reluctance to use medication.  He did not find the hydrotherapy or physiotherapy helpful.

26      Since conclusion of the Donvale Rehabilitation Program, which I take to have been in approximately late March 2014, Mr Dinic has undergone no further active medical treatment for his back injury.  He has declined either prescribed medication or over-the-counter analgesia.  He was attending his GP, Dr Hammond, monthly to obtain medical certificates for Centrelink, until about a year ago when he obtained the disability support pension. He has not undergone further physiotherapy or hydrotherapy.  He says that he has continued to perform some exercises at home two or three times a week, being exercises recommended by a previous physiotherapist.  He also walks to relieve his back.  He has told medico-legal examiners that he uses some herbal treatment, but has not elaborated as to what that is or how often he uses it.

27      So far as dealing with his pain is concerned, Mr Dinic describes his reluctance to take medication as being that he does not believe in it and that it interferes with messages to the brain, and he also believes medication becomes addictive and he could become dependent on it.  Somewhat incongruously, he claims to use alcohol and marijuana to relieve the pain.  He says that when the pain is at its worst he will relieve it by smoking a joint of marijuana, and that he does this no more than once or twice a week.  He also drinks alcohol as a way of relieving pain, as well as his main social activity, and averages six to eight full strength glasses of beer daily.

Medical Opinion

28      Dr Hammond provided reports in 2015 and 2016 confirming that Mr Dinic was suffering a degenerative back condition, consistent with the stated cause, and that there was having no ongoing medical treatment. His view about Mr Dinic’s capacity for work was based on what Mr Dinic told him. In a report dated 10 April 2017, Dr Hammond states that Mr Dinic is unable to work due to pain on sitting down for any length of time, that his physical duties would be restricted, and that he had a poor prognosis.   However, as that opinion was given when he had not seen Mr Dinic’s since mid-2016, and attendances for the preceding year or more had only been for the issuing of certificates for Centrelink, I take Dr Hammond’s opinion to be based on what he understood was an ongoing and unchanged situation based largely on what Mr Dinic told him.   Further, the reference to Mr Dinic being unable to work due to pain on sitting for long is surprising in light of Mr Dinic’s history never having involved sedentary work. 

29      The plaintiff has not returned for treatment or review to Mr Love, Mr Johnson or Dr Lee, so there are no recent opinions from any of them as to his current or likely future condition beyond what they reported when he consulted them.

30      Mr Clive Jones, orthopaedic surgeon, examined the plaintiff in July 2013 for the employer’s claims agent.  He diagnosed a disc straining injury at L4-5 which he accepted had been caused by the event at work on 20 February 2013.  The plaintiff was having a slow recovery but Mr Jones accepted that at that stage with no work experience except in painting, and no alternative employment skills, the plaintiff had no current work capacity and Mr Jones could not say when a return to work, even part time on restricted duties, would be possible.  He recommended review in three months’ time.

31      Mr Peter Battlay, general surgeon, examined the plaintiff for the defendant initially in November 2013.  At that stage Mr Battlay believed the plaintiff had sustained aggravation of lumbar spine degeneration, and had mechanical low back pain with minor disc lesions at L3-4 and L4-5.  Mr Battlay considered at that stage that Mr Dinic was not fit for work of any kind, and anticipated there would be no major change spontaneously and suggested a review in six months’ time.  On review in May 2014, Mr Battlay considered the plaintiff was still suffering from the same condition and his current incapacity was still materially contributed to by his work related injury.  He considered Mr Dinic fit for part-time alternative duties, with restrictions on prolonged sitting or standing, with hourly five minute postural changes, not handling weights over 5 kg in lifting or pushing or pulling and should avoid sustained or repeated bending.  He read a vocational assessment report recommending various light work jobs, noted that the plaintiff’s answer to that list was that he can do none of those jobs because of his postural restrictions, but thought that Mr Dinic would have a partial capacity for those duties on a part time basis.  He did not specify an appropriate number of hours per day or week. He did not recommend any further review for another twelve months. 

32      Mr Battlay was asked to review the plaintiff again in March 2015.  In a report at that stage he quoted himself as concluding on the previous assessment that the plaintiff “was fit for at least[6] part time alternative duties”.   However he also stated that it was likely that he needed to remain on part-time light duties.   Mr Battlay concluded that the injury was one of aggravation of lower lumber spine degenerative changes and he could not exclude that the plaintiff’s employment remained a materially contributing factor, but noted it was by then a long time since he had been thus incapacitated, and gave the opinion that he had a current work capacity for at least part-time suitable duties.  He considered Mr Dinic was capable of working with restrictions immediately, and that the recommendations in the Nabenet report dated 28/11/14 were appropriate provided that those options were within the physical restrictions on a part-time basis.  He did not explain the extent of the part-time capacity nor why he had moved to consider that was the least of which Mr Dinic was capable.

[6]Emphasis added – as words not actually used in the May 2014 report.

33      Mr Garry Grossbard, orthopaedic surgeon, assessed the plaintiff at the request of his solicitors in January 2017.  He took a history from Mr Dinic of the onset of back pain in February 2013, that he had seen his local doctor and of the scans and initial treatment, but that Mr Dinic refused to use medication and had ceased physiotherapy as part of the rehabilitation program at Donvale because he felt worse after the physiotherapy.  He noted the CT and MRI scan results.  He understood that Mr Dinic at the time he saw him was having no active treatment and taking no medication but had increased his alcohol intake to six to eight drinks each day, and was using marijuana about once a week, and was doing exercises at home two to three times a week, and used no other medication than herbal medication.

34      Mr Grossbard was told that the low back pain radiated into both sides, which was intermittent and present about four times a week, lasting for most of the day each time.  The underlying pain he described as an ache with episodes of severe sharp pain occurring about twice a week and lasting for a few seconds at a time.  The pain was better when he rested and worse when he stood or sat for long periods of time.  There was occasional pain shooting into both legs from his buttocks to the back of his knees but no paraesthesia or weakness of the legs.  He said he could walk for about an hour and then needed to stop because of low back pain and can manage a flight of stairs but needs to hold onto the rails and had difficulty getting up from a kneeling position.  He could sit for about forty minutes and stand for about an hour.  He said that prior to the injury, he was active in sports including soccer and tennis and cricket and football, and that he had ceased these well before his back injury.

35      On examination Mr Grossbard noted tenderness on palpation at the lumbosacral level with flexion restricted and extension non-existent, no muscle wasting and reflexes and sensation were normal.  Straight leg raising was 60 degrees on each side.  Mr Grossbard’s opinion was that the plaintiff has degenerative disc disease which had been made symptomatic following the period of work during February 2013 and in particular during the incident of 20 February 2013.  The appropriate management was to continue with conservative treatment, the value of surgical intervention being limited in the presence of multilevel disc disease and what was largely back pain.  Noting the observations in reports of Mr Michael Johnson and Mr Bruce Love, of marked loss of lumbar motion, even shortly after the onset of pain, he considered this suggested most of the signs are organic in origin.  He considered Mr Dinic unable to return to his previous work as a painter and decorator, and to theoretically have a work capacity for simple sedentary activity for short periods of time, providing he can stand and sit intermittently and move around at will, but he could not do a job where he is required to bend and lift or maintain standing for longer periods of time, nor undertake twisting work.  For these reasons, most manual jobs are unsuitable.  Dr Grossbard also thought that theoretically there may be improved work capacity with appropriate analgesic treatment, but he noted Mr Dinic is resistant to this and would prefer to use alcohol and occasional marijuana to control his pain.  He considered there was probably an element of depression associated with Mr Dinic’s clinical presentation and recommended an opinion from a psychiatrist.

36      In a supplementary report in June 2017, Mr Grossbard noted that as the plaintiff’s back pain had been constant since the incident of 20 February 2013, with no significant period of resolution in the interim, that suggested that the current symptoms have been contributed to significantly by the incident of 20 February 2013. 

37      Dr Robyn Horsley, occupational physician, examined the plaintiff at the request of his solicitors in February 2017.  He described himself to her as spending his days “sitting at home being miserable”, occasionally going for a coffee with a friend, and going to the local RSL at times, to “get out of the house”.  He also described himself as smoking twenty cigarettes a day, which have increased, that his alcohol intake had also increased to between six and eight stubbies of full strength beer a day, depending upon how much money he had, and that he binges if he has money.  He also told her he uses cannabis for pain relief – one to two joints per week.  As well as a detailed history of the injury and the treatment, Dr Horsley noted that there had been little treatment input since the outpatient rehabilitation program under Dr Lee, and that the plaintiff was not keen to pursue further physical therapy, there had been no hydrotherapy, he was granted a disability support pension in mid-2016, and that he no longer consults Dr Hammond, and believed there was not anything further that Dr Hammond could offer him.  There was no psychologist involved but he continued with a home exercise program which he said he does up to three times a week for about thirty minutes and also walks on a daily basis for up to an hour.

38      Dr Horsley noted that he told her his current tolerances are:  sitting, static standing and dynamic standing or up to an hour; walking of up to an hour; and did not know his driving tolerance as he has not regained his licence that he lost for drink driving in 2014.  On clinical examination of the lumbar spine there was a mild loss of lumbar lordosis, no paraspinal muscle spasm, no fear avoidance behaviour exhibited and she found him straightforward to examine. 

39      Dr Horsley’s diagnosis was that Mr Dinic presents with ongoing mechanical back pain, with intermittent referred upper bilateral leg pain but no radicular clinical features.  She also found on a Beck Depression Inventory that his score was within the normal range.  She considered that given the length of time since the injury and ongoing nature of symptoms, those symptoms were likely to persist.  She considered he would benefit from further education about the nature of his back injury and participation in a functional restoration program to improve his functional tolerances and to provide him with access to realistic vocational counselling and assistance with return to work on a part time basis.  She considered that the work events (wrongly noted by her as 20 March 2013) and the clinical presentation were consistent, and that work had been a significant contributory factor.  She considered he does have a capacity for work but on a part time basis with restrictions to avoid repetitive over-reaching, repetitive pushing and pulling, working in awkward and confined spaces, static postures of the lumbar spine, lifting items greater than 8 to 10 kgs except occasionally, lifting items up to 8 kgs on a repetitive basis, and that with those restrictions he could probably work within the vicinity of 15 to 20 hours per week.  She considered that he presents with ongoing disability but not totally and permanently disabled.

40      Discussing the employment options in a vocational assessment dated 17 December 2014, Dr Horsley believed the most appropriate of those five options was a trade sales assistant, because of his extensive painting experience and knowledge, but he would need to work within the restrictions she had outlined and on a part time basis.  She considered it unlikely he would gain a position as a quality controller, having never worked in a manufacturing environment, and that light packer and light assembly work would probably be an issue because of the repetitive manual handling, no matter how light.  She considered a car park attendant in theory as an appropriate role, however, the reality is that the vast majority of car parks are now automated and the jobs are few and far between. 

41      Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff for the defendant’s solicitors in April 2017.  He took a history that the present condition was of constant ongoing lower back pain and intermittent lower limb pain, for which Mr Dinic was no longer taking analgesic medication as he preferred herbal extracts.  He was doing his own back exercises.  Mr Dinic said that on most days he does “absolutely nothing” and is going “nuts”.  At times he has to lie down, but at other times he tries to move around and can walk very slowly for up to an hour and can sit or stand in one position for around half an hour.

42      On examination, Mr Dooley noted very restricted flexion and extension of the back.  He regarded the MRI scan of October 2013 to be showing evidence of degeneration from the L3-S1 levels, without evidence of major disc prolapse or of nerve root entrapment.  Mr Dooley’s opinion was that Mr Dinic has naturally occurring and age-related degenerative disc disease of the mid to low lumbar spine.  The description of onset of lower back pain in February 2013 was a soft tissue injury to the lumbar spine that involves aggravation of Mr Dinic’s underlying degenerative disc disease.  He noted that conventional conservative measures have failed to improve the pain.  Radiologically, there was no evidence of major disc prolapse or of nerve root entrapment and his view was that, accepting the soft tissue injuries that Mr Dinic has sustained, the constancy and intensity of his ongoing pain and his described disability are greater than one would expect to see for his organic condition, and Mr Dooley believed that Mr Dinic has had a psychological reaction to the situation which is influencing his ongoing symptoms.  He considered further formal conservative treatment is unlikely to help.  He thought lumbar surgery would be most unlikely to improve the clinical situation and thought it important for Mr Dinic to remain generally active, continue low impact exercise with his walking, and that for his overall well-being it is important that he return to suitable work.  He considered Mr Dinic does have a physical capacity to carry out light physical work and clerical duties and, from an orthopaedic point of view the jobs recommended in the CoWork Pty Ltd (“CoWork”) report of 15 June 2017 were within his physical capacity.

43      On 1 September 2015, a Medical Panel gave an opinion that Mr Dinic is suffering from persisting lower back dysfunction without radiculopathy as a consequence of an exacerbation of lumbar degenerative disc disease, and that at that stage he had a current work capacity.

Compensable injury

44      I am satisfied from the medical opinion as a whole, that as a result of his employment duties on or about 20 February 2013, the plaintiff suffered injury to his lower lumbar spine that aggravated underlying disc degeneration at the three lower levels causing it to become symptomatic.  I am satisfied on the balance of probabilities that that work-induced aggravation continues to materially contribute to ongoing pain in his lower back.  I am not satisfied that he has ongoing pain as a result in his upper legs.

Consequences to the Plaintiff of his lower back injury

45      I accept that the plaintiff still experiences lower back pain, and has done so ever since the February 2013 injury.  He describes himself as never free of such pain, which varies, and for which he uses alcohol and marijuana for relief.  He has not found recognised medications or therapies helpful in relieving pain.   He says his back feels stiff, particularly in the mornings and in cold weather.

46      As was said in Haden Engineering Pty Ltd v McKinnon,[7] the evidentiary basis of the pain assessment will ordinarily comprise the following:

[7][2010] VSCA 69 at [11]

(a)      What the plaintiff says about the pain (both in court and to doctors);

(b)What the plaintiff does about the pain (for example, medication, rest, seeking medical treatment);

(c)What the doctors say about the extent and intensity of the plaintiff’s pain; and

(d)      What the objective evidence shows about the disabling effect of the pain.

These matters will necessarily take into account what assessment is being made of the plaintiff’s credibility and reliability as a witness and also whether the plaintiff is more stoical than others.

47      I accept that the plaintiff does still experience ongoing pain from his lower back injury.  However, I am not satisfied that such pain is constantly at a significant level, and not at a level as high as he described it to Ms Oliver – never below 4/10 and often much higher.  He gave Dr Horsley and Ms Oliver to understand that he spends much time each week lying down as a result of back pain.  Neither of them knew that he travels at least twice a week to his friend’s business where he stays for hours, including standing and walking in the yard, on one occasion assisting to unload two gates from a truck, nor that he stands talking to Mr Zeniou senior and his wife, whom he has known for thirty years.  The authors of these reports also did not know how regularly he attends the RSL Club where he stands, sits, plays poker machines and drinks and talks to people he knows.  It is no criticism of Mr Dinic that he does this, but it undermines what I take to be the impression Dr Horsley and Ms Oliver had, to the effect that he did little with his days and spent much of his time indoors lying down.

48      He complains of pain waking him three to four nights a week and having difficulty getting back to sleep.  He complains of lacking energy.  I accept that he is probably quite deconditioned from the last few years of limited activity, but cannot assess how attributable that is to his mental attitude as distinct from the impact of his physical injury.

49      He does not do housework apart from occasional cooking, especially when his son visits, but he apparently did no more before his injury, at his mother’s insistence.  He no longer mows the lawn, and leaves that to his father whose own health is not good.

50      The plaintiff complains that the pain in his back has interfered with his ability to play with his now five-year-old son, in particular to play cricket and soccer with him.  I accept that Mr Dinic might not be able to play as agilely with his son as he might have been able to do without injury, but I am not satisfied that the restrictions on the plaintiff’s movements significantly interfere with his ability to physically engage with and build a relationship with his son when they meet every second weekend.

51      Mr Dinic says that prior to his back injury he played indoor cricket and soccer socially every couple of months, but has not played any since suffering his back injury.  The latter may be so, but the frequency of prior engagement with these sports is quite general.  He also says that he used to go fishing about once a fortnight with a friend at a particular remote location, but that he has tried once since and no longer goes.  I accept that he would find long drives and walking or climbing to remote areas on uneven surfaces uncomfortable due to his back injury.  However, he appears to have had no interest in attempting to adapt so as to be able to engage in this past-time he enjoyed in any more modified manner so that he could still obtain pleasure from it, but not find himself in postures that aggravated his pain.  Instead, he points to the previous friend no longer being interested in going fishing. 

52      Apart from some initial analgesia and physiotherapy, the plaintiff has undergone very limited active treatment for his back.  In particular, although he participated in a three-month rehabilitation program at Donvale Hospital up to late March 2014, he claims that this was not helpful and, in any event, he ceased taking the pain medication before it finished.  He says that apart from exercising at home, based on some exercises shown to him (on a piece of paper) by a previous physiotherapist, and walking, he has no other treatment.  He refuses medication on the grounds that he believes it interferes with messages to the brain and becomes addictive.  Instead, he chooses to deal with his pain by drinking six to eight glasses of full-strength beer per day, and also by smoking marijuana, which he says occurs once or twice a week, when his pain is at its greatest. 

53      The defendant points out that the plaintiff admits to engaging in social drinking (of beer) and Cannabis smoking, although the frequency is unclear, prior to suffering the injury.  In this context, the approach of treating his claimed pain with alcohol and an illicit drug is not logically consistent with the reason he gives for refusing standard pain medication, as he knows that both marijuana and alcohol are considered addictive and likely to interfere with clarity of thought, especially if taken in large quantities.

54      In my view the lack of conventional treatment and resort to alcohol and cannabis does not provide support for the degree of ongoing pain of which he complains.

55      Nor is the lack of conventional medication likely to be a reflection of his stoicism.  Mr Dinic did not present as a man of particular stoicism.  He presents more as a man who has resigned himself to continuing to suffer what pain he does, to not finding alternative work that he might enjoy, and who has sought relief in alcohol and cannabis to escape rather than deal with his current circumstances.

56      The medical opinions as already outlined, provide some but not fulsome support for the extent of pain he describes.  There is no evidence of compression or impingement of nerve roots, and no radiculopathy, and the extent of his pain is not considered to be likely to be as severe as for many.  

57      It is very difficult in this case to find objective support for the extent of disability in lifestyle that he claims as attributable to symptoms from the compensable injury, as distinct from his subjective decisions about what he is prepared to do, especially in relation to ability to work.

58      The plaintiff describes feeling depressed and frustrated by the ongoing pain and his inability to return to work as a painter.  I accept that some medical evidence supports that he was exhibiting signs of depression as a result of his back injury, and Mr Zeniou confirmed that from his non-medical perception he was concerned for Mr Dinic’s mood, and urged him to visit his business and spend time there to assist Mr Dinic to overcome his low mood.  I have also noted the report of Dr Serry, but as this application is based on part (a) of the definition of “serious injury”, I cannot take into account the effects of his psychological reaction to his back injury in assessing the consequences of the back injury.

59      I accept that he misses working, and feels frustrated by not being able to return to an occupation which contributed to his feeling of self-worth.  That he had some pride in it is also attributable to the fact that he knew his father had been a proud and successful painter and had taught him that trade.

60      Taking all of these considerations into account, and particularly in light of my reservations about the reliability of Mr Dinic’s description of the extent of his pain and its impact on him, and of the minimal treatment he has accepted for this injury, I am not satisfied that the consequences to him can fairly be described as more than significant or marked and at least very considerable.     

Capacity for work

61      I am satisfied that as a result of the injury to his back Mr Dinic is not capable of  full-time work as a painter and decorator, as such would require him to move and climb ladders and scaffolding, and work in sustained postures requiring stretching and balance, and in potentially awkward positions, and lift or carry heavy cans of paints into those awkward or elevated positions.

62      To obtain leave to claim damages for loss of earning capacity, however, he must satisfy the court that he has sustained a permanent loss of earning capacity of at least 40%, having regard to his capacity for suitable employment, and the reasonableness of his attempts to participate in rehabilitation or retraining for alternative or further employment.

63 Applying the formula under s 134AB(38)(f)(ii), there was agreement that a fair reflection of his “without injury” earnings was $55,000 gross per annum. He has not earned any amount from physical exertion since the injury. Therefore, to establish the necessary minimum loss of earnings he must satisfy the court that he is not presently capable of earning at least $33,000 gross per annum or $634.61 per week, from suitable employment, taking into account his capacity after reasonable rehabilitation or retraining.

64      Although there was some discussion about whether taking analgesic medication might increase his capacity to tolerate pain and thereby give him greater capacity for work, I do not consider that this is a case where any real issue of reasonableness of participation in rehabilitation or retraining arises, as although Mr Dinic’s shunning of orthodox medication may have been unreasonable, the evidence does not convince me that pain medication is likely to have improved his capacity for work to any meaningful degree. 

65      The key factor which complicates assessment of the plaintiff’s working capacity in this case is his subjective attitude towards any alternative work.  He has so far refused to consider any possible options.  He did undertake two basic computer courses when required by the claims agent on a recommendation of Nabenet, but ceased the second about internet use before completion because he was not interested –“it’s not me”.

66      Mr Dinic made clear in his evidence that he refuses to give thought to what else he might be capable of doing, or might like to do, because he has long held the attitude that he will not work at anything that does not pay him sufficiently for his effort, or which he does not like doing.  So far as not being paid sufficiently for effort, he gives examples of people he knows who work as chefs and are underpaid and work poor hours. Consistent with this attitude, he says he has never volunteered his time for free.  However selfish and unattractive that attitude, it does not answer the question to be decided in this case, which is whether his capacity for earnings from personal exertion is sufficiently impacted by his injury to satisfy the statutory requirement, namely permanent loss of earning capacity of 40 per cent measured under the formula.

67      Mr Dinic not only refuses to consider working for less than he considers satisfactory remuneration, but describes himself as not wanting to work in any environment where he would need to interact with people – “I’m not a people person”.  Further, he says that various types of work do not interest him – “I’m not that sort of person” and he sees himself only as an outdoors worker.  Computer work “is not me”.

68      The problem for him is that the meaning of “suitable employment” does not allow for the subjective preferences of the worker, whether as to his interest in or likelihood of enjoying the job, or whether it is likely to pay enough for his perception of effort or inconvenience. 

69      It is the current capacity for employment and not the likelihood of a person obtaining a job to which the Court must turn its attention when assessing the plaintiff’s capacity for alternative suitable employment. That is not to say that such capacity is confined to physical capacity not informed or considered in light of the individual worker’s circumstances.[8]. 

[8]Richter v Driscoll & Ors [2016] VSCA 142

70      I therefore turn to try to assess whether the plaintiff has suffered a loss of capacity for suitable employment to the extent that he is not now capable of earning at least 60% of his pre-injury capacity.

71      It is conceded on behalf of the plaintiff that his loss of earning capacity is not total.  It is argued that it is partial to the extent that satisfies the statutory formula.

72      In May 2017, the defendant obtained a Vocational Assessment of Mr Dinic from Katarina Jakovljevic, occupational therapist, of CoWork.  It appears that there was some cultural understanding which led to Mr Dinic engaging and discussing his circumstances quite extensively and openly with her.   That led her to describe him as presenting as personable, engaging and well groomed, and he persuaded her that he is a capable and reliable worker who focuses on delivering a quality service or product, and she was “convinced that Mr Dinic can, and will, find his place in the open labour market”.  This was notwithstanding her reporting him to lack all motivation to find work, and his having blocked all suggestion of alternatives or work options, from being uninterested in anything not outdoors, to saying that he can’t use computers and the two courses he undertook in basic computer training only being done at the insistence of the claims agent.  

73      Ms Jakovljevic listed extensive transferrable skills of Mr Dinic, some of which I consider were highly overstated, and therefore I give significantly less weight to some of the suggested jobs within his capacity.  Nevertheless, there are some jobs which appear to be within his capacity, even with the postural restrictions described by Mr Battlay, and at least if part-time.

74      The plaintiff relied on a report from Flexi Personnel by Ms Mary Oliver, a human resources consultant.  Ms Oliver interviewed the plaintiff in March 2017 and had available some medical reports.  She reports him describing himself as suffering constant lower back pain at the 5-6/10 level that varies up to 8 or 9 when aggravated by sitting, walking, or standing for too long, and stating that after walking he needs to lie down for the rest of the day, and that usually occurs two to three days per week.  He described, once every two to three days, suffering extreme pain travelling from his lower back to his knees, and which pain in either leg may last for a couple of days.  He also described being constantly tired, having a memory that was not good, and his concentration being bad.  His tolerance for riding in a car was said to be approximately forty minutes before he would need to take a break and stretch, his sitting tolerance being thirty to forty minutes, standing tolerance thirty to forty minutes in one spot, but then moving for too long also bothered him.  He described himself as not doing any indoor chores as his mother does them, although he does a little shopping for himself, limited to basic light items, and has tried to help with outdoor chores but it makes his injury symptoms worse.  He is driven by friends or his eighty-year-old father.  He described himself as consequently tired during the day and napping. 

75      In light of Mr Dinic’s descriptions of his symptoms and limitations, and the medical reports of Dr Horsley, Mr Grossbard and Dr Hammond, Ms Oliver concluded that on the basis of the medical reports, the plaintiff is permanently incapacitated for his pre-injury work as a painter.  She also concluded that from a recruitment point of view he does not have a post-injury physical capacity to perform even alternative duties because he would not be capable of performing to commercial standards in any industry, as those require a person to sustain consistent and reliable productivity in their work duties.  Ms Oliver also considered each of the alternative types of work suggested in an earlier vocational assessment, concluding that he would not be able to efficiently perform in any such position.  She subsequently considered the latest suggested alternative jobs from CoWork and excluded his capacity for those.

76      I accept that Ms Oliver addressed various of the considerations under the definition of “suitable employment”.  However, I have reservations about the weight to give her opinions for the following reasons.

·    Ms Oliver seems to have had only the medical opinions favouring his being more incapacitated for suitable employment, and not any obtained by the defendant, in particular from Mr Battlay or Mr Dooley (even though Mr Dooley’s post-dates her assessment it is part of the material for the court to take into account). 

·    Ms Oliver bases her view on a level of pain as described by the plaintiff to her in March 2017, and of restrictions of movement consequent on that pain, which in my view are greater than are likely reality.  For example, she was given a lower estimate of his sitting, standing or walking tolerance than what he gave in evidence, and I do not accept that he has a constant level of pain of at least 5/10 as described to her.

·    Ms Oliver accepted from Mr Dinic as contributing to his incapacity what in my view are considerations that I cannot take into account.  For example, she accepts from him that other than his signature “I don’t write so that won’t be done”;[9] that he is not interested in work that does not suit his view of himself as an outdoor worker; and that in the second computer course to which he was sent through Nabenet, he stopped as “I was just not interested – it’s not me”.[10]  

·    She says that he describes being quite debilitated by his lower back injury.  She does not appear to have been aware that on his evidence in court, about two days a week he travels by bus, or car if collected, to his friend’s business called Pete’s Bargain Centre, where he often stays all day, nor that he spends hours at a time at his local “RSL” where he will drink with friends, sit or stand near the bar or at tables, and talk with people he knows, and spend time at poker machines.

[9]Footnote ?

[10]Footnote?

77 In the circumstances, while I do not ignore the opinion of Ms Oliver, it is my view that she has adopted a more restrictive view of the plaintiff’s actual capacity than I find to be the case, and that she has taken into account his preferences in a manner not permitted under the definitions in the Act.

78      In my view the opinion of Dr Horsley should also not be taken at its optimum in that she was given the impression that the plaintiff spent most of his time at home doing nothing, whereas he clearly is actually much more active than that and capable of more activity than she knew.

79      The evidence shows that Mr Dinic goes out most days, and at least twice a week spends most of the day at his friends’ store.  He stands around talking most of the time, and I accept that his presence there so often was at least initiated by Mr Zeniou having some concern for Mr Dinic’s apparent depression and inviting him there to get him out of his home and interacting with people. He does however manage to go by bus when not offered a car ride, and walks around and has been seen assisting in some yard unloading, although I have not seen the surveillance and accept that whatever he was doing did not amount to activity the equivalent of sustained employment.

80      I accept that his back injury still makes him not suited to unrestricted manual labouring tasks.  I accept that he would require some flexibility of posture within each working hour, and that restriction on repetitive lifting or manoeuvring of heavy items or of bending and twisting would be necessary for any job to be within his capacity to work at on a sustained regular and reliable basis.  

81      I accept that his background and experience leaves him unsuited to general office work, but not necessarily to all indoor work such as in factories or warehouses or stores.  I accept that he is not suited to work in which computer operations are central or would require hours a day of concentration. However, if he can sit for an hour or more at a poker machine, I do not accept that he is totally unsuited for using computer terminals such as at cash registers or to check stock availability.   

82      I accept Mr Zeniou’s evidence that no-one except a family member would be allowed to work on the cash-register at his family’s business, but that does not mean that Mr Dinic would not be capable of working as a cashier in another business, provided that it did not need advanced IT knowledge to operate, and allowed some flexibility of posture, so as not to have to stand without breaks for more than an hour at a time.  Moreover, and despite saying he is “not a people person”, Mr Dinic apparently spends time at his local RSL club most days, and he clearly socialises when he chooses there, and I am not satisfied that he is not capable of a sales assistant role, especially in building supply or handyman type stores.

83      The plaintiff’s counsel submitted that I should find that he is not capable of working more than the 15 to 20 hours per week that Dr Horsley considered his capability.  Applying that capacity to the jobs for which wage rates were provided by Ms Oliver, and taking him to be likely to be employed only at award rates as he lacks experience in any of these alternative jobs, he would satisfy the formula as having lost at least 40% earning capacity.  In relation to the CoWork suggested job options and wages for them, it was submitted that only if he were capable of being a spare parts interpreter would he exceed 60% of the without injury earnings rate, doing 20 hours per week, and it was submitted that there are some tasks for such a job including lifting heavy items, and consulting computerised lists, that would make that job unsuitable for him.  It was also argued that anyway the award rates of pay for such a job would be lower than that provided.

84      As already outlined, there are reasons why the opinion of Dr Horsley including as to Mr Dinic’s capacity for work should be approached with some caution given the misapprehension she had as to his daily levels of activity.  There are also in my view limitations on the weight I should give to the opinions of either author of the vocational assessments and alternative job options.  However, the greatest difficulty in assessing the extent of the plaintiff’s incapacity for suitable alternative employment, in particular as to how many hours a week he would be capable of sustaining suitable employment duties, is that all of the opinions have of necessity been caste in light of his subjective attitude of disinterest in attempting any alternative work.  Even though his attitude has not convinced Dr Horsley (or the vocational assessment advisers) that he is totally incapacitated for work, I cannot determine how Dr Horsley in particular has determined that 15 to 20 hours would be his limit of capacity.  As she was unaware that he spends on average two full days attending Mr Zeniou’s family’s business premises, her assessment of hours could not have been based on that activity.

85      In the circumstances outlined, I am not satisfied on the balance of probabilities that Mr Dinic is capable of no more than 20 hours per week of suitable employment.  I am therefore not satisfied that he has lost at least 40% of his without injury earning capacity from personal exertion.   I find him capable of some suitable employment, and even though probably not able to be sustained on a constant full-time basis, I am not satisfied that his capacity for such employment is limited to no more than 20 hours per week, and certainly not for the foreseeable future were he to attempt some alternative work and test his ability to gradually increase his hours.
Conclusions

86      I am satisfied that Mr Dinic suffered injury to his low back in the course of his employment duties on 20 February 2013, being aggravation of pre-existing degenerative lumbar spine.  I am satisfied that that injury continues to cause him symptoms of low back pain which restrict his movements and activities.  I am not satisfied that the consequences to him satisfy the definition of a “serious injury” as to pain and suffering, nor that he has suffered a permanent loss of earning capacity of at least 40% as a result of that injury.  In light of these findings, his application will be dismissed.

SCHEDULE OF EXHIBITS

Number and identifying mark on Exhibit	Short description of Exhibit	Court Book Reference	Date tendered	Tendered By
A	Affidavits of the Plaintiff made 22 January 2016 and 7 June 2017	PCB3-9, 10-13	15 June 2017	Plaintiff
B	Radiology reports: ·     CT Lumbar Spine 1 March 2013 ·     MRI Lumbosacral Spine 4 October 2013	PCB14-15, 16	15 June 2017	Plaintiff
C	Letter of Mr Bruce Love dated 17 October 2013	PCB18	15 June 2017	Plaintiff
D	Letter of Mr Michael Johnson dated 1 December 2013	PCB19-20	15 June 2017	Plaintiff
E	Letter of Dr Lee Yeng Lee dated 16 December 2013	PCB21	15 June 2017	Plaintiff
F	Letter of Mr Anthony D’Alosio dated 27 February 2015	PCB22	15 June 2017	Plaintiff
G	Reports of Dr Phillip Hammond dated 14 January 2015, 23 April 2015, 15 July 2015, 7 October 2016, 10 April 2017	PCB23,24,25,26,27	15 June 2017	Plaintiff
H	Reports of Mr Garry Grossbard dated 17 January 2017 and 5 June 2017	PCB28-31, 32	15 June 2017	Plaintiff
J	Report of Dr Nathan Serry dated 19 January 2017	PCB33-41	15 June 2017	Plaintiff
K	Reports of Dr Robyn Horsley dated 10 February 2017 and 23 May 2017	PCB42-48, 49-52	15 June 2017	Plaintiff
L	Flexi Personnel reports dated 21 April 2017 and 13 June 2017	PCB53-65, 79-82	15 June 2017	Plaintiff
M	Report of Mr Clive Jones dated 7 July 2013	15 June 2017	Plaintiff
N	Reports of Mr Peter Battlay dated 10 May 2015, 6 May 2014, 23 March 2015	15 June 2017	Plaintiff
1	Reports of Mr Michael Dooley 6 April 2017 and 29 May 2017	DCB1-3,4	15 June 2017	Defendant
2	Medical Panel Certificate of Opinion dated 1 September 2015	DCB5	15 June 2017	Defendant
3	Vocational Assessment Report of CoWork Pty Ltd 16 May 2017	DCB6-50	15 June 2017	Defendant