Djemil v M and a Polimeni Pty Ltd
[2017] VCC 70
•14 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05299
| DANYIL DJEMIL | Plaintiff |
| v | |
| M & A POLIMENI PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2017 | |
DATE OF JUDGMENT: | 14 February 2017 | |
CASE MAY BE CITED AS: | Djemil v M & A Polimeni Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 70 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – loss of earning capacity only, pain and suffering conceded – worker under twenty-six
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Jarvis v Woolworths [2012] VCC 1329
Judgment:Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring | Ryan Carlisle Thomas |
| For the Defendant | Ms C Spitaleri | Thomson Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular on 20 November 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, serious injury for pain and suffering having been conceded at the commencement of the hearing.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon is the lumbar spine.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments, … fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.
7 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8 As the plaintiff was a worker under twenty-six years of age at the date of injury, pursuant to s134AB(38)(e)(i) of the Act, he must establish that at the date of the hearing he has a loss of earning capacity of 40 per cent or more. Further, he must establish, pursuant to ss(e)(ii) of the Act, that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.
9 The rationale for the insertion of this section was not to disadvantage young workers in assessing an “after injury” earnings figure against their “without injury” earnings. This case is one in point where the plaintiff was an apprentice plumber at the time of the injury and was earning only about $30,000 when he left its employ in 2013. If his “without injury” earnings were assessed in the usual manner applied to older workers, he would fail in his claim for loss of earning capacity if his “after injury” earnings exceeded $18,000 – an unfair situation when the likelihood was that, when qualified, he would have had the capacity to earn far in excess of what the plaintiff was earning at the date of injury.
10 His Honour Judge Brookes conveniently summarised the relevant principles in Jarvis v Woolworths Ltd.[1] They were expressed as follows:
[1][2012] VCC 1329
(i) evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;[2]
[2]at paragraph [64]
(ii) it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what [the plaintiff] is likely to earn after it;[3]
[3]at paragraph [66]
(iii) where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work [the plaintiff] can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity;[4]
[4]at paragraph [69]
(iv) the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;[5]
[5]at paragraph [71]
(v) the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;[6]
(vi) the task of the [court] is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[7]
[6]at paragraphs [72] and [74]
[7]at paragraph [87]
11 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[8] and Grech v Orica Australia Pty Ltd & Anor[9] in reaching my conclusions.
[8](2005) 14 VR 622
[9](2006) 14 VR 602
14 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports, and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
15 The plaintiff is aged twenty-six, having been born in November 1990. He presently lives with his parents and is unemployed.
16 The plaintiff left school, having completed Year 11, and commenced an apprenticeship with the defendant as a plumber.
17 During his apprenticeship, the plaintiff was involved in projects such as domestic properties from start to finish, working on the sewerage and stormwater to hot-water. He was not really involved with day-to-day plumbing tasks.[10]
[10]Transcript (“T”) 26
18 The plaintiff suffered an injury to his back on the said date, when he was attending a house site and had to lift and manoeuvre heavy shower bases out of a utility truck at the site (“the incident”).
19 Thereafter, the plaintiff continued to have lower back pain, but worked in his normal duties for about six weeks, until the Christmas holidays.
20 In January 2011, the plaintiff consulted his general practitioner, Dr Ng, and advised him of his back injury. Dr Ng certified the plaintiff fit for light duties.
21 Until ceasing work with the defendant in 2013, the plaintiff had ongoing lower back pain. He had some time off work in 2011 or 2012. His duties were restricted, not doing any jackhammering or lifting and, in general, he was able to continue work.
22 The plaintiff had injections to try and reduce the pain and stiffness in his back. A CT scan was undertaken and he had physiotherapy treatment in St Albans.
23 At work on 16 November 2012, the plaintiff’s back was sore but he pushed himself to get his job done. The following morning he had severe pain, including very bad leg pain, and realised he could not keep doing his work.
24 The plaintiff returned to Dr Ng, who organised an MRI scan and referred him to Mr de la Harpe, orthopaedic surgeon. The plaintiff also had chiropractic treatment. Mr de la Harpe suggested surgery, but the plaintiff was not prepared to have it because he then thought it would make his condition worse.
25 After, the plaintiff was off work. He then resumed on restricted duties. However, he had to take time off at various times and just could not keep working any more, ceasing work in about January 2013.[11]
[11]T8
26 In about May 2013, through a family friend, the plaintiff obtained a part-time sales job in a clothing store, working between twenty to twenty-five hours a week. He may have worked up to thirty-two hours per week, but he really could not remember.[12]
[12]T9 – history to Dr Graham, April 2013
27 The plaintiff lasted in that job until February 2014. Whilst he could cope with the sales job, he would not have been able to go back to plumbing or manual work during that time. At the clothing store, he was not able to do the more physically demanding duties of the job, such as loading shelves, receiving goods, or handling boxes of clothes.
28 In cross-examination, the plaintiff said he really did not cope. Whilst in that job, he thought he was coping, but things changed a bit. He was getting increasingly sore from sitting and standing, and constant sitting. He just could not do the job. The store was a boring place, and his head was “all over the shop working there.”[13]
[13]T10
29 The plaintiff stopped working because the store was not making much money. The boss told him he would have to let him go as he could not do as much as the other employees, like stacking boxes and similar tasks. He agreed he left because there was not enough work, but disagreed his leaving had nothing to do with his back condition.[14]
[14]T11
30 The plaintiff returned to Mr de la Harpe in 2014. He again suggested surgery but the plaintiff was too frightened to take this course. He was referred to Dorset Rehabilitation Services where he attended under the supervision of Dr Clayton Thomas, rehabilitation and pain management specialist. At Dorset Rehabilitation, the plaintiff had physiotherapy and psychological treatment.
31 Due to ongoing back and leg pain, the plaintiff was sent back to Mr de la Harpe in September 2015. He had an epidural injection in his back on 15 September, which did not help, and he continued to struggle with back and leg pain.
32 The pain became particularly bad in late 2015 and early 2016, and the plaintiff was again advised by Mr de la Harpe he required surgery.
33 Following an MRI scan in February 2016, the plaintiff had surgery on his back on 5 February 2016 (“the operation”).
34 Prior to the operation, the plaintiff was very limited with walking and had difficulty sleeping or lying down. The operation helped with his severe leg pain, however, he continues to suffer from back pain, as well as intermittent left leg pain. He also sometimes has sharp shooting pains down his right leg, and there is an area on the outside of his left calf which was constantly numb.
35 Some days his back pain is worse than others. He would not say there were days when he had no pain. He has been through a lot, so some days the pain is nothing to him, but there is still pain there, and he agreed that some days he barely notices it.[15]
[15]T19
36 The plaintiff deposed he sees Dr Ng once a month, maybe sometimes more. It all depends on how he is feeling. However, the plaintiff agreed he had seen Dr Ng in 2016 as the notes indicated. He no longer sees Mr De La Harpe.[16]
[16]T19
37 The plaintiff sometimes takes medication for back pain, such as Voltaren, Nurofen or Panadol, but not daily, with the amount thereof fluctuating. He takes Endone occasionally at night if his back is particularly bad and his leg starts to lock up.
38 The plaintiff has been involved in Kieser-Training, a strengthening program run by his physiotherapist. The program involves massage and dry needles, sitting on a machine and doing bending and stretching exercises to strengthen his core. It has not helped the plaintiff’s back pain, but it has given him more core strength. He also does exercises at home. He is currently having a break from this program but plans to go back to it in a couple of week.[17]
[17]T20
39 The plaintiff has suffered a lot since his injury and has had difficulty, at times, coping with pain and changes to his lifestyle. He has discussed these issues with Dr Ng, who referred him to a psychologist. However, the plaintiff only attended a couple of times as he did not find the sessions helpful.
40 The plaintiff continues to suffer from daily back pain, the level of which fluctuates, but he is rarely without lower back pain and his back is often stiff.[18] He has flare ups of bad pain if he overdoes physical activity, or if he sits or stands for prolonged periods. He often feels an urge to move around and change his posture because of pain associated with prolonged sitting or standing in the one spot. His back pain is typically worse later in the day, and he often lies down to rest his back in the afternoon.
[18]T32
Work since the incident
41 The plaintiff enrolled in a building course which was to start in mid-April 2014 and finish in August that year; however, he did not do the course.[19]
[19]T11
42 In 2014, the plaintiff set up a business “Photo Shack Photo Booths” which involved him taking equipment to parties so people could take photographs of themselves. He advertised just on Facebook and by word of mouth. The business was not an ongoing viable concern and the plaintiff found it difficult and awkward to pull about and carry the components of the photo booth. It was not really a job; the plaintiff was “just trying to get working.”[20]
[20]T12
43 In cross-examination, the plaintiff denied operating any business other than Photo Shack. He was then shown details relating to a registered business “Plumbco Plumbing Services”, which commenced on 23 March 2012.[21]
[21]T12
44 The plaintiff registered this business name to set himself up when he was registered and licensed as a plumber so he could be ready to go out on his own.[22]
[22]T12
45 The plaintiff denied putting anything up on the internet advertising Plumbco. Whilst there was an advertisement which contained his address and mobile number, his name was spelt incorrectly. He knew about the advertisement, but did not recall putting it up. He thought he might have got a few calls following the advertisement, and maybe did one job when he was an apprentice to earn a bit of extra money.[23]
[23]T13
46 In re‑examination, the plaintiff confirmed he registered the business name because he got excited and wanted to go out on his own and start his own business, but the business never operated at all. In the previous six months the plaintiff could not have run a plumbing service business because of the work involved.[24]
[24]T30
47 The plaintiff was referred to Nabenet, but they did not find him a job. He could not go back to heavy work as a plumber, so he was looking for lighter work as of June 2015, when he swore his first affidavit.
48 In early 2015, the plaintiff’s brother, who runs Exhibit Homes, offered him a job driving a tip truck. The plaintiff worked in that role for about two or three months and was paid $150 a day. He coped with those duties. There was no heavy lifting, digging, squatting and bending, because he could no longer do that sort of work.
49 The plaintiff had to cease working with his brother in April 2015 as the work was too hard with his increasing back and leg pain simply from driving. Squatting and bending was very difficult, and he did not believe he could lift more than 10 kilograms on a regular basis.
50 Before the operation and since the incident, the plaintiff’s back has never got completely better. He has got slowly worse and knew he could not do heavy manual lifting or carrying. He is woken by back pain at least four to five times a week, and the more he does, the more difficult it becomes. He can drive for an hour or so but, after that, had to get out of the vehicle and stretch.
51 The plaintiff is now not working. He had been told by his doctors he would be unable to return to his trade as a plumber, which has been a major blow to him. Prior to the incident, it was his ambition to complete his apprenticeship and, ultimately, open his own business as a plumber. He is very disappointed to have lost his chosen career.
52 The plaintiff actually completed his apprenticeship and received his ticket, but he is not a registered plumber as, because of his back pain, he was unable to undertake further courses to achieve certification.
53 If the plaintiff had not had the injury, he would have sat exams and done a business course to become a registered plumber. That might have taken maybe three months. With those qualifications as a registered plumber, he could become a subcontractor and work at a better hourly rate. He would also be able to obtain a licence to enable him to work for himself.[25]
[25]T7
54 The plaintiff is not a good student, having left school before VCE. His reading and writing is not strong. He has trouble concentrating on more than short documents, and his spelling and understanding of punctuation is not strong. He does not believe he would be suited to an office job.
55 The plaintiff denied he told Dr Horsley that he could read and understand 100 per cent of the newspaper, because he could not understand the stock market. He agreed he could write a letter.[26] He did not remember telling her he had better than average computer skills. That was her view. He could type. His punctuation was not the best. He does not really use a computer any more, but when he did it was for school work, but nothing too complicated.[27]
[26]T22
[27]T23
56 The plaintiff agreed he rated his English and reading and writing abilities to be at an average level, and he had below average Turkish verbal language skills. He was familiar with Microsoft Word, and could send an email. When he saw Nabenet he just wanted to do something, so he might have said he had good computer skills, because he was trying to get a job.[28]
[28]T24
57 The plaintiff does not know about accounting spreadsheets. His computer use at the clothing store involved the cash-register system.[29]
[29]T30
58 The plaintiff completed a course in the responsible service of alcohol, having considered bar work; however, he was concerned he was not suited to tasks such as stacking fridges, stocking the bar, or standing for long periods because of his back pain.
59 The plaintiff had also considered working as a job site supervisor; however, he understood such a role involved more than supervision and there were physically demanding aspects of the work, such as manually moving materials that had been delivered to a job site. He was concerned those aspects of the work would be outside his medical restrictions. Overall, he was worried about his work future.
60 The plaintiff and his father bought a block of land in Plumpton earlier this year on which a house is being built. The plaintiff has been involved in organising trades people to work on the site and usually makes a few calls a day to see what is happening, or to arrange the next job or the delivery of material. About once a week he attends the site and talks to the tradesmen. Sometimes he collects rubbish at the site, but he has to avoid lifting anything heavier and putting strain on his back.
61 Whilst the plaintiff contributed to the purchase price of the land, it is really his father’s house. The plaintiff is trying to keep busy because his parents thought he was going crazy at home, so they were just trying to help him out. He is essentially overseeing the construction of the house and has organised different trades’ people, but not really ordered the supplies, as that is part of their job.[30]
[30]T21
62 The plaintiff has not had any trouble doing those limited tasks, because he is not doing anything hands-on. He agreed that since the operation he had found it pretty hard being at home and not working. It was frustrating, and he got bored. He agreed he was keen to get back to work in something that he was physically able to do.[31]
[31]T22
63 The plaintiff agreed he knew a fair bit about motorbikes, and working in sales he had learnt about dealing with customers, and had acquired some skills in that regard.
64 The plaintiff explained that working in sales of either plumbing supplies or motorbike parts involved more than just selling. There was handling of items. There was heavy lifting, particularly with motorbike parts that were not light. It was a similar situation with plumbing supplies. No one was going to want the plaintiff to work for them if he was always asking for help.[32] The job of a plumbing supplies sales rep did not really exist.[33]
[32]T26
[33]T27
65 The plaintiff was not a really good salesperson. He was not that confident. He had to be good to keep a job. It was easy to sell things on the internet.[34]
[34]T27
66 The plaintiff did not think he would be able to work full time in a shop, because he would be on his feet all day which would be very hard. He got a lot of pain being on his feet and even when sitting down for too long.[35] Whilst at the clothing store, although he alternated between sitting and standing, he still got pain.
[35]T27
67 The plaintiff pushed himself when working in the clothing store and also when driving for his brother. He had pain when driving and it was not good for him. The driving distances varied, and he could get out and have a stretch and a drink at a service station, but he still had pain, even when the truck was fitted with a special seat.[36]
[36]T28
68 The plaintiff does not really know what is involved in a car-rental agent job, so he could not say whether he could do it or not.[37] He agreed there would not be any heavy lifting in that role. He did not know whether the job would require him to work in awkward positions. He just did not know.[38]
[37]T28
[38]T29
69 The plaintiff agreed no doctor had told him he could not do that sort of job and that all doctors were telling him he could go back to work, but not as a plumber.[39]
[39]T29
70 The plaintiff sometimes attends his parents’ factory, which manufactures roof trusses and other timber products, to have a coffee and talk to his parents. He has not carried out any work there, because it involves handling and lifting heavy timber products.
Activities
71 In his first affidavit, the plaintiff deposed that before the said date he was a very keen dirt bike rider and he rode bikes on the weekend. He sold his bike in 2012 because he could not ride it because of the vibrations and jarring involved.
72 The plaintiff has ridden a dirt bike since the incident, but he could not say how many times, but he had tried a few times. He would not be able to say when he last rode a dirt bike.[40]
[40]T15
73 The plaintiff also had a jet ski which he sold in 2013, because using it involved too much force and vibration. Pre injury, he went camping fairly regularly, going fishing, using the jet ski and hunting. He went at least twelve weekends over the year before the incident, but no longer went or, if he did so, it was only for a short period. He no longer goes jet skiing because of his back condition and he rarely hunts.
74 The plaintiff attempted to ride his brother’s motorbike once, but had to stop after a few minutes because of his back pain. He could not remember when he did so nor could he recall when he last rode his own bike.[41]
[41]T15
75 The plaintiff bought a cheap blue Yamaha motorbike just to sell to his mate. He could not remember whether he rode it or not and he sold it straight away.[42]
[42]T16
76 A post on the plaintiff’s Facebook page in September 2016 related to a friend’s bike. Sale details were put on the plaintiff’s Facebook page as his friend did not have Facebook access. The plaintiff did not ride that bike.[43] He was lying when he posted that he had decided to keep the bike to use on the track. He put up this post to deter a potential purchaser who was hassling him. He agreed he made no mention of selling or buying bikes in his affidavit.[44]
[43]T17
[44]T18
77 The plaintiff has to avoid bending or twisting his back. He finds it more difficult to put on his socks and shoes, or cut his toenails. He cannot squat and is able to kneel, but has difficulty getting up from that position. He has to avoid running and is restricted to walking for about forty-five minutes to an hour before he experiences increased back pain and needs to rest.
78 The plaintiff is restricted in household tasks, avoiding more strenuous tasks such as vacuuming, mopping or mowing lawns. He puts the bins out and does some cooking.
79 The plaintiff is limited to driving for about an hour. He sold his manual four-wheel drive and purchased an automatic car, which is better for his back, as he does not have to operate the clutch, which aggravated his back and leg pain.
Lay evidence
80 The plaintiff’s brother, Adem, swore an affidavit on 16 January 2017.
81 In early 2015, Adem offered the plaintiff a job driving his tip truck, as the plaintiff was getting very frustrated spending time at home.
82 The job involved no heavy lifting and was only driving. However, after a short time, the plaintiff experienced back pain driving for lengthy periods, made worse by the significant vibrations when driving the truck.
83 After about three weeks of the plaintiff commencing work, Adem fitted a new, better sprung driving seat, but it made little difference, with the plaintiff still experiencing ongoing pain. However, the plaintiff did not want to give up and continued driving, but lasted only another month or so before he was forced to stop work.
84 Adem confirmed the plaintiff’s pre-incident leisure activities of riding bikes and jet skiing, camping and hunting. Since the incident, the plaintiff was very restricted in those activities and had sold his bike, jet ski and also his four wheel drive.
85 Over the last year or so, the plaintiff has become increasingly frustrated by his pain and his inability to find suitable work, or work as a plumber. He seems depressed. Both parents, their brother, Eris, and Adem himself, all operated their own businesses in the building industry and the plaintiff was working towards doing the same, as a plumber. He finds it hard to cope with not being able, now, to do this, or find suitable work. This situation is very frustrating for the plaintiff as he has always been well motivated in the past.
Investigations
86 The plaintiff underwent a series of investigations of his lumbar spine, the most recent being an MRI scan organised by his treating surgeon, Mr de la Harpe, on 2 February 2016.
87 Thereafter, it was reported there was compression of the left L5 nerve root and its lateral recess by L4-5 disc material. There was moderate central canal stenosis at L4-5 and compression of the right S1 nerve root, in its lateral recess by the L5-S1 disc.
Treaters
88 Dr Ng provided a number of reports following the first examination of the plaintiff in relation to his incident injuries on 14 January 2011.
89 Dr Ng diagnosed a disc prolapse at L5-S1, with right posterior disc protrusion resulting in moderate right lateral recess stenosis, with posterior displacement of the traversing right S1 nerve root. He noted there was also a mild generalised disc bulge at L4-5, confirmed on MRI scan before the surgery.
90 In 2015, Dr Ng thought the plaintiff was unfit for pre-injury duties and had a capacity to perform suitable employment, or retrain for suitable employment.
91 Dr Ng then thought the plaintiff was capable of work not involving any lifting, for instance, up to 10 kilograms using both arms, while keeping his back straight. He was not capable of any shovelling or digging, or crawling into confined spaces. He should not have to bend at the waist regularly.
92 Dr Ng thought all those restrictions would make it difficult for the plaintiff to do most of the duties of a plumber, however, plumbing jobs such as fixing taps or light insulation work would be suitable.
93 Dr Ng noted the plaintiff was also hopeful of training for a management role within some kind of plumbing business. He thought the plaintiff could also retrain for other occupations where lifting and bending was not regularly required; for instance office work, a sales job or teaching, assuming he had the mental attributes for that work.
94 Dr Ng then thought the plaintiff was capable of full-time work but would need to start part time and build up his capacity.
95 In his December 2016 report, Dr Ng noted the plaintiff continued to have back pain. He had attended a pain rehabilitation program but, unfortunately, did not improve much. He had a few epidural injections, which did not help. In 2015, he had pain in the left leg rather than the right. Back pain continued to worsen. He saw a chiropractor and had some temporary relief. He was reviewed by Mr de la Harpe and eventually he had a lumbar microdiscectomy.
96 Dr Ng thought that operation had helped with the plaintiff’s pain, in particular, the nerve pain down his leg.
97 However, the plaintiff remained unemployed and was uncertain about his future. He had lost confidence in himself and felt anxious. He had told Dr Ng he was worried he would re injure himself. The plaintiff tended to worry excessively about everything. Dr Ng noted that he was waiting for the plaintiff to receive further counselling for depression and he would need help to get into a positive frame of mind and support to retrain for a new career path.
98 Mr David de la Harpe, orthopaedic surgeon, first saw the plaintiff in August 2012, last seeing him on 17 March 2016, the month after the operation.
99 On that most recent examination, Mr de la Harpe noted the plaintiff had had significant improvement in his left leg pain following the operation, and rehabilitation was recommended. Overall, Mr de la Harpe did not think it appropriate the plaintiff return to his pre injury occupation as a plumber.
100 Mr de la Harpe advised the plaintiff not to return to a job involving heavy manual lifting, as the two discs at L4-5 and L5-S1 were damaged, and returning to manual duties, including heavy lifting and repetitive bending, may cause these to become more symptomatic or deteriorate into the future, requiring further surgery.
Medico-legal examiners
101 Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff in August 2011. As this report pre dates the operation, it is of limited assistance in considering the plaintiff’s current work capacity.
102 The plaintiff was examined by Dr Robyn Horsley, occupational health physician, in February 2015 and post operation in November 2016.
103 On the later date, the plaintiff described ongoing back pain, varying from 5 out of 10 to 8 out of 10. There were periods when he was less aware of his pain and was learning to cope with chronic discomfort. He had persistent and chronic numbness over the left calf and intermittent right leg discomfort.
104 Dr Horsley noted the plaintiff’s sitting tolerance was forty-five minutes, static standing, thirty minutes, and walking tolerance, an hour, with a driving tolerance of forty-five minutes in an automatic vehicle.
105 Given the length of time since the incident and the ongoing nature of the plaintiff’s symptoms, Dr Horsley believed they were likely to persist.
106 Noting the plaintiff is only twenty-six, Dr Horsley thought he required a realistic vocational assessment and considerable vocational counselling to assist him to explore suitable return to work options and, possibly, an upgrading of skills to move back into the workforce.
107 Dr Horsley noted the plaintiff is keen and motivated to move back into the workforce. He has tried three times; the first in a retail environment but, unfortunately, there was a manual component; working as a truck driver, but the prolonged sitting and uneven surfaces were inappropriate, and owning his own Photo Shack booth which was, unfortunately, not commercially viable.
108 Dr Horsley believed the following work restrictions were appropriate:
§ avoidance of repetitive overreaching, repetitive pushing and pulling
§ working in awkward and confined spaces
§ avoidance of truncal rotation and static postures involving the lumbar spine
§ lifting greater than 10 to 12 kilograms except on an occasional basis; and
§ lifting up to 8 to 10 kilograms on a repetitive basis.
109 Dr Horsley thought the plaintiff needed assistance to return to the workforce, noting he was uncertain about his vocational options and required a realistic vocational assessment and considerable vocational counselling. Such assistance was required to return to the workforce on, at least, a part-time basis in the vicinity of fifteen to twenty hours initially. Depending upon the critical physical demands of the role, his hours may be able to increase.
110 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in October 2016.
111 The plaintiff then complained of lumbar spine pain and occasional pain radiating into the left leg.
112 Mr Kossmann diagnosed mild central disc protrusion of L4-5, with compromise of the spinal canal and small right paracentral disc extrusion at L5-S1, impinging on the right S1 nerve root within the lateral recess.
113 Mr Kossmann thought the prognosis was poor and that the plaintiff would require further treatment with pain medication and anti-inflammatories, and may also benefit from physiotherapy, hydrotherapy and acupuncture.
114 Mr Kossmann considered the plaintiff had no capacity to return to pre-injury work as a plumber and no capacity for any physical work.
115 Noting the plaintiff’s report of difficulties with reading and writing, Mr Kossmann recommended vocational assessment to identify areas in which he could be trained in the future. He thought the plaintiff may be able to take an apprenticeship that does not involve physical work.
The Plaintiff’s vocational evidence
116 Ms Katrine Green provided a Vocational Assessment Report dated 5 January 2017.
117 At interview, the plaintiff reported lower back pain was always there and he had got used to it. It fluctuated in intensity and could be heavy, sharp and annoying.
118 The plaintiff reported a sitting tolerance of forty-five minutes; standing, thirty minutes and walking, fifty minutes and driving, an hour.
119 Ms Green noted the plaintiff’s English literacy was assessed as very low. His computer skills consisted of Facebook, internet, processing emails and a limited knowledge of Microsoft Word.
120 Ms Green thought, given the plaintiff’s education, trade training, work history and transferable skills, the main occupations for which he could be considered were plumber, truck driver, product assembler, retail sales assistant, sales representative, motor vehicle spare parts interpreter, call centre information clerk, gaming attendant and factory process worker.
121 However, considering the core duties and occupation of those jobs, and the physical demands of the work, the medical opinions as to the plaintiff’s physical restrictions and his current physical tolerances from a physical perspective, due to his lower back injury, Ms Green considered those occupations were not suitable for the plaintiff within the foreseeable future.
122 Ms Green concluded while, from a physical perspective the plaintiff was currently not a suitable candidate for vocational educational training, he should be encouraged to commence an English course. Due to his physical limitations, this would need to be undertaken according to the physical restrictions reported in the medical opinions, and on reduced hours, such as three hours, two to three times a week.
The Defendant’s medico-legal examiners
123 Dr Graham, occupational physician, examined the plaintiff in April 2013. This examination predates the operation and is of little assistance when considering the plaintiff’s present work capacity. At that stage, Dr Graham thought the plaintiff was not fit to resume full pre-injury duties of a plumber, but had a current work capacity.
124 Dr Graham thought the plaintiff could do modified pre-injury duties not involving repetitive bending or lifting, especially from a low level of work with constantly bent back. Ideally, he should be able to vary his posture, sitting and standing and walking about. He could perform appropriate duties for normal hours.
125 Dr Philip Mutton, occupational physician, examined the plaintiff in July 2014; also prior to the operation.
126 Dr Mutton then thought the plaintiff had significant pathology in the lower back which would have implications for him returning to heavy physical work, such as plumbing. He noted the plaintiff certainly found working in retail to be much more desirable in terms of being able to sit and stand and move about, and was coping satisfactorily until he was put off, due to a downturn in work.
127 Dr Mutton considered the plaintiff had a current capacity for modified duties at pre injury hours.
128 Dr Mutton thought the plaintiff clearly had the capacity as a retail assistant and was working in retail until recently. He would be able to work as a sales representative, providing he was not required to lift a lot of heavy equipment. He should be able to do administrative functions in terms of the jobs of the jobs of hire controller and rental operator. Machine operator and product assembler may be appropriate. He should be able to sit and stand, and interchange. He should avoid a lot of bending at the waist, and pushing and pulling and twisting. He should limit lifting to 10 kilograms.
129 Dr Mutton thought it unlikely the plaintiff could work in plumbing with its inherent physical demands and that he had a current capacity for fulltime employment of an appropriate type.
130 Dr Dominic Yong, occupational physician, examined the plaintiff in November 2016.
131 The plaintiff then described persisting pain in the lower back, with radiation into both legs, with the left leg not as severe. He had the following tolerances – sitting for forty-five to sixty minutes, standing and walking for forty-five minutes and driving for sixty minutes.
132 Dr Yong thought there was post-operative lumbar dysfunction, together with some radicular features.
133 Dr Yong considered the prognosis of the plaintiff’s physical condition should not be considered unreasonable after surgery, together with a post-operative graduated activity based recovery program.
134 Dr Yong thought the plaintiff had a current capacity for work within the following restrictions:
§ avoiding repeated bending and twisting of the back
§ avoiding repeated firm pushing or pulling
§ avoiding lifting more than 7 kilograms regularly; and
§ an initial reduction in working hours.
135 Given the period of time out of the workforce and since the operation, Dr Yong thought a graduated return to work program would be indicated. His initial recommendation would be to work four hour shifts for five days a week, with an aim to increase back to pre-injury level over three to four months.
136 Dr Yong thought the plaintiff did not have a capacity to perform his pre-injury duties.
137 Dr Yong had some reservations in terms of the suggested jobs of retail assistant, machine operator and product assembler. He thought those positions would require individual assessment to determine whether they complied with the restrictions.
138 Dr Yong thought the jobs of sales representative in plumbing and building supplies and hire controller or rental operator were likely to comply with the restrictions thus, he considered them suitable for the plaintiff to perform.
Vocational evidence
139 Nabenet provided an NES Vocational Assessment Report in June 2014.
140 Identified suitable employment options in order of priority were retail assistance trade sales ($777 per week); sales representative, plumbing and building supplies ($1,198 per week); hire controller/ rental operator ($900 per week); machine operator ($1,050 per week) and product assembler ($840 per week).
141 Healthe.work provided a labour market analysis in December 2016.
142 Employment options for the plaintiff were identified as follows: retail assistant (trades hardware sales) $738 to $868 per week; sales representative, plumbing building supplies, $48,000, increasing with commissions, to over $85,000 a year; hire controller/ rental operator, commencing salary of $45,000 and extending to $60,000, depending on experience; machine operator, median salary of $50,000 to a senior salary of $64,000; product assembler, $698 to $833 a week; security front desk concierge, $755 to $829 per week; truck driver, median salary of $46,301 with an upper scale of $60,626 and car rental agent, $42,565 first year to $52,471 fourth year.
Overview
143 There is no dispute the plaintiff suffered a compensable injury to his lower back in the incident. The defendant has conceded the pain and suffering consequences in relation to that injury are serious.
144 The sole issue for determination in this case is whether the plaintiff, a worker under twenty-six at the time of incident, has suffered a loss of earning capacity of 40 per cent or more on a permanent basis.
145 There was a dispute between the parties as to what the plaintiff was likely to have been able to earn had he not been injured.
146 It was submitted on the plaintiff’s behalf that the figure set out under the relevant Enterprise Bargaining Agreement of $1,573.20 for a registered plumber plus a daily travel allowance of $42, was the appropriate figure.
147 On that basis, had the plaintiff not been injured, he would be earning $1,783 per week, 60 per cent of which is $1,069.
148 Counsel for the plaintiff relied on a recent payslip showing weekly wages for an unspecified position with the defendant of $1,200 per week. Further it was submitted the EBA did not apply as the nominal expiry date thereof was 30 June 2015.
149 In my view, the figure suggested by counsel for the plaintiff most fairly reflects what the plaintiff would likely to have earned had he not been injured, having been able, after achieving his ticket, to obtain registration and be paid at a higher level. I reject the figure suggested by counsel for the defendant as there were no details on the payslip of the job performed by that worker. Further, I consider it likely that the EBA figures would not be lower as at the date of hearing.
Credit
150 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[45]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[45](2010) 31 VR 1 at paragraph [12]
151 As I indicated to the parties, I found the plaintiff to be a very credible witness and did not consider the Facebook entries about his involvement in selling dirt bikes or his activities related to Plumbco of any particular relevance as to his credit.
152 I accept the plaintiff continues to suffer lower back pain and, at times, referred pain into both legs. Despite surgery in February 2016, the plaintiff needs regular painkilling medication. He continues to undergo a Kieser physiotherapy program and does home exercises.
153 There is no dispute that the plaintiff no longer has a capacity for his pre-injury trade as a plumber or for any other heavy, manual work. He cannot resume the trade of his choice and follow family members, who have taken a similar path.
154 In my view, the plaintiff’s ability to perform more sedentary work is limited, not only because of his physical condition, but also his lack of relevant clerical experience and computer skills.
155 At most, the plaintiff would have the capacity to work, perhaps, half time, but not on a reliable basis because of the fluctuating nature of his back condition, his difficulty sleeping and his limited tolerances in terms of standing and sitting. These difficulties have been apparent on his attempts to return to work since the incident.
156 Whilst the plaintiff has some experience in clothing retail, that does not qualify him for full-time work in plumbing supply sales. A job of that nature would involve some heavy lifting and require the plaintiff to be on his feet for long periods, activities with which he has significant difficulties. He would have difficulties in other retail jobs such as selling motor bike parts.
157 Dr Yong thought a job in this field required individual assessment because of the possible lifting involved.
158 Further, I do not accept the plaintiff has the capacity to work full time as a rental agent or sales representative because of his continuing back pain, limited postural tolerances as noted by medical examiners and also his lack of computer skills.
159 Whilst Dr Yong thought these roles were suitable, he considered a graduated return to work was indicated with initially four hours per day for five days with the “aim” for this to increase to pre-injury level over three to four months.
160 In my view, the plaintiff does not have the capacity to work more than a couple of hours a day in a sedentary position. In those circumstances, his potential earnings fall well below $50,000 per year.
161 Taking into account all the evidence, I am satisfied that the plaintiff has suffered a loss of earning capacity of 40 per cent or more and that this situation is permanent.
162 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
163 I accept that the plaintiff is motivated to return to work as evidenced by his previous unsuccessful attempts. As Dr Horsley and Mr Kossmann noted, the plaintiff requires retraining and a realistic vocational assessment as he is uncertain of his vocational options.
164 However, in light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or further retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
165 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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