Dovaston v Victorian WorkCover Authority
[2022] VCC 361
•25 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-20-02457
| LUKE DOVASTON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2021 | |
DATE OF JUDGMENT: | 25 March 2022 | |
CASE MAY BE CITED AS: | Dovaston v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 361 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s325 and s335 – plaintiff under the age of 26 years at time of occurrence of accident – s335(2)(e)(i) and (ii) – fall from ladder – injury to the spine – application in respect of pain and suffering and loss of earning capacity – reliance up paragraph (a) of the definition – whether burden of proof is satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Ms M Fudim | Zaparas Law |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
(a) General background
1This matter comes before me by way of an application involving ss325 and 335 of the Workplace Injury Rehabilitation and Compensation Act 2013, hereinafter referred to as “the Act”. Paragraph (a) of the definition of “serious injury” found in s325(1) of the Act is relied upon by the plaintiff in relation to an injury to the spine, although essentially the plaintiff’s symptoms have emanated from the lower back. That shall hereinafter be referred to as “the injury”. The plaintiff is seeking leave in respect of both pain and suffering and loss of earning capacity. The plaintiff suffered the injury on 21 September 2016, when he fell from a ladder whilst undertaking painting work at a residential premises in Mont Albert. That shall hereinafter be referred to as “the accident”. At the time of the occurrence of the accident, the plaintiff was under the age of 26 years. Accordingly, the provisions contained in s325(2)(e)(i) and (ii) of the Act are applicable. The basis for the calculation of any loss of earning capacity is not confined to three years before and three years after the accident and the injury.
2Mr A Ingram QC with Ms M Fudim of counsel appeared on behalf of the plaintiff. Mr C Miles of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of four affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b) The plaintiff’s background, education, training and employment prior to the accident
3The plaintiff is now aged 27 years, he having been born in 1994. He was educated to Year 12 level. He then commenced a painting apprenticeship and was employed by Ideal Painting on a full‑time basis for approximately two years. At the time of the accident, he was employed as a painter by an entity called Protec Group, which shall hereinafter be referred as “Protec”. It was whilst he was so employed and undertaking some residential painting on 21 September 2016 that the plaintiff suffered the injury.
(c) State of the plaintiff’s health prior to the accident
4The plaintiff had suffered a number of injuries when playing football. An x‑ray of his lumbosacral spine was performed on 16 August 2013. It revealed nothing of note. The plaintiff is unable to recall why that x‑ray was performed, but assumes that it must have had something to do with his football. Between 2008 and August 2016 he had undergone a number of radiological investigations and the like. These related to both shoulders, knees, his chest and ribs, his right hand, his left hamstring and his right ankle and foot. He described most of these as being small football injuries, although agreeing that he suffered a serious left hamstring tear playing football, this resulting in an MRI being performed on 18 August 2016. The hamstring tear was where his hamstring connected to the buttocks. His recollection was that his hamstring was not giving him any “grief” as at the date of the accident – see Transcript (hereinafter referred to as “T”) 11.
5The overall situation is that I am not of the view that the plaintiff had suffered any back or spinal injury of note prior to the accident.
(d) The plaintiff as a witness
6I accept the plaintiff as a witness of truth. In his closing address, Mr Ingram stated that the plaintiff was “straight down the line”, answering questions without hesitation and openly. I agree. At times he made admissions against his own interest. I would refer to T61. I accept Mr Ingram’s submission that the plaintiff’s credit was not put in issue. I accept him as a witness of truth.
7I note that Dr Daniel Lewis, rheumatologist, who examined the plaintiff at the request of the defendant, referred to him as having described his history in a straightforward way, with no pain behaviour being observed. Dr Mary Wyatt, occupational physician, also examining on behalf of the defendant, referred to him as being pleasant and appears to have had no problems in relation to the accuracy of his history or presentation. Reporting to the defendant after a follow-up examination, Dr Wyatt referred to him as a straightforward young man. Dr Timothy Entwisle, consultant psychiatrist, who also saw the plaintiff at the request of the defendant, described him as being cooperative with the interview process. He subsequently referred to the plaintiff as being fully cooperative. Dr Meena Mittal, pain physician and specialist anaesthetist, who saw the plaintiff at the request of his solicitors, referred to him as being alert, orientated and answering all questions appropriately. Dr Joseph Slesenger, specialist occupational physician, who also examined the plaintiff at the request of his solicitors, described him as interacting well and appearing to have good insight into his impairment.
8In summary, the credit of the plaintiff does not seem to me to be an issue in this case. I accept him as a witness of truth.
(e) The injury, its treatment and prognosis
9As stated, the accident occurred on 21 September 2016 when the plaintiff fell from a ladder whilst painting door frames. He also cut his left hand. He was only absent from work for a couple of days and it may be that initially he was more concerned about his lacerated left hand. In any event, not long thereafter he seems to have had a dispute with his employer. He left the job with Protec and did not return again. He obtained another painting job. It is apparent that he saw a physiotherapist, Mr Clifford Leckning, and was also being seen by a general practitioner, Dr Damitha De Lanerolle. Dr De Lanerolle, who is based at Narre Warren, organised for the plaintiff to have an x‑ray of his lumbar spine, pelvis and both hips. The radiologist reported findings of slight rotation of the spine with reduced lordosis noted in the upper lumbar spine. There were minor spondylitic changes at L2-3, but otherwise body heights and disc spaces were within the normal range.
10A SPECT‑CT of the thoracolumbar spine was performed at the request of Dr Andrew Smith on 28 April 2017. This was normal, with no evidence of any recent fracture, but an MRI evaluation was suggested because of the plaintiff’s ongoing significant lumbar pain. An MRI was eventually performed on 29 May 2017, this apparently being at the request of Dr Robert Gassin of Frankston. The report of the radiologist includes a reference to severe lower back pain. It was noted that, at L4-5, there was mild disc desiccation and mild bilateral facet arthropathy, slightly worse on the left. There was no other significant finding at that level. At L5-S1, there was moderate disc desiccation with mild loss of intervertebral disc height. There was a small central disc protrusion. There was moderate bilateral facet arthropathy. The conclusion of the radiologist was that there was no convincing evidence of sacroiliitis and no significant canal stenosis or evidence of radiculopathy. There was moderate facet arthropathy at L5-S1 and L4-5, slightly worse on the left side at L4-5.
11A question seems to have arisen as to whether the plaintiff’s symptoms potentially corresponded to facet arthropathy. Leaving the chronological sequence, I note that a subsequent MRI performed on 16 April 2019 revealed mild capsular thickening in the superior aspect of the left L4-5 facet joint with mild left L4 foraminal narrowing with contact, but no evidence of compression of the exiting left L4 nerve root. There was a small amount of fluid in the left L4-5 facet joint, which was described as being possibly mechanical in nature. There was a small central disc protrusion at L4-5, with mild disc desiccation and minimal loss of disc height without associated neural compression.
12Returning to the chronology of the treatment of the plaintiff, Mr Leckning, the treating physiotherapist, reported to Dr De Lanerolle again in May 2017 in relation to a care plan for the plaintiff, such plan relating to chronic lower back pain. There was reference to the left sacroiliac dysfunction and T8-9 facet joint pain. There had been some response to dry needling and mobilisation of the L5-S1 joint. A further brief report of Mr Leckning of 11 September 2017 refers to the fact that the plaintiff had symptoms of a left sacroiliac dysfunction and central L5-S1 pain. He had been given some acupuncture, along with a stretching and core strengthening program.
13As referred to above, it is apparent that the plaintiff came under the care of Dr Robert Gassin, who specialises in musculoskeletal and interventional pain management. At this time, Dr Smith seems to have been the plaintiff’s general practitioner. A procedure undertaken by Dr Gassin apparently involved a needle being used with fluoroscopic guidance. The plaintiff seems to have found the procedure somewhat painful.
14Dr Gassin sent a quite lengthy report dated 12 July 2019 to the plaintiff’s solicitors, such report containing a detailed history of events prior to that date. This report contained a history of the accident and of a gradual increase in the intensity of pain commencing approximately one month after it. When seen by Dr Gassin, the plaintiff had resumed work as a painter. The back pain was interfering with his ability to participate in sports and work. On examination, whilst the plaintiff had an excellent range of lumbar spine movement in relation to flexion and extension, he was tender to palpation centrally at the L5-S1 level. Dr Gassin considered the likely diagnosis to be one of discogenic lower back pain, with possible involvement of the low lumbar facet joints. He referred to the MRI scan of 29 May 2017. There was discussion concerning L5-S1 facet joint diagnostic blocks, with a view to radio frequency neurotomy. Dr Gassin advised the plaintiff that he should consider performing work of a less demanding physical nature than his work as a painter.
15When seen by Dr Gassin on 9 November 2017, the plaintiff stated that he had been unable to remain at work as a painter, given his level of pain. The performance of facet joint diagnostic blocks was discussed, and this was in fact done on 14 December 2017. However, when seen on 15 January 2018, the plaintiff reported no pain relief and had experienced some increase in pain for several days following the procedure. In the opinion of Dr Gassin, the pain was not arising from the low lumbar facet joints, but was more likely of low lumbar discogenic origin. The plaintiff was to continue with chiropractic treatment, but, if the effects of that started to wane, referral to a physiotherapist for a back rehabilitation program was suggested. The plaintiff was considering starting his own painting business so that he could choose appropriate jobs and work when he was able so to do.
16Dr Gassin next reviewed the plaintiff on 9 April 2018. The plaintiff’s back pain had been progressing well, but had become more severe some four to six weeks previously, when he was working part‑time delivering juice containers. He had a constant pain in the low back centrally radiating bilaterally and also superiorly when severe. He was receiving chiropractic treatment twice weekly and was on Targin. On examination, his lumbar spine flexion was significantly limited by central low back pain and he was tender to deep palpation at L4-5 and L5-S1. Dr Gassin again was of the opinion that the plaintiff’s pain was of discogenic origin. He provided the plaintiff with a prescription for oral Prednisolone and organised a review of his progress. He was of the opinion that the plaintiff did not currently have capacity for his normal work, but might have been able to perform work of a non-physical nature for several hours weekly. Dr Gassin suspected that this situation would persist for the foreseeable future.
17Dr Gassin next saw the plaintiff on 2 May 2018. Whilst he had obtained no relief from oral Prednisolone, in the previous few weeks there had been significant improvement in his low back pain. However, he continued to be moderately disabled by his ongoing symptoms. Whilst there was some discussion concerning referral to a physiotherapist, the plaintiff preferred participation in a structured multidisciplinary pain rehabilitation program. Dr Gassin referred him to the PRECISION ASCEND Pain Management Program. The plaintiff had applied for a job as a gas meter reader, which might constitute an appropriate employment option.
18Dr Gassin reviewed the plaintiff on 8 August 2018. Whilst he had lost some weight and engaged in an exercise program, his back pain remained significant. There was again discussion about the ASCEND Program.
19When the plaintiff next saw Dr Gassin on 22 October 2018, he had in fact started the pain management program. Apparently there had been some concern concerning the level of narcotic analgesia that he had been using. He had been taking large amounts in order to obtain maximum pain relief and maximise his level of function. There was discussion about him decreasing his dose of opioid analgesic over several weeks. There was also a discussion concerning a possible Ketamine infusion.
20The plaintiff returned for reviews by Dr Gassin on 31 January 2019, 13 March 2019 and 11 April 2019. The plaintiff had not completed the ASCEND Program. He had been unwilling to decrease his dose of narcotic analgesia. He had various physical restrictions in relation to bending, twisting and work below waist height. Dr Gassin considered that the plaintiff did not have the capacity to work as a painter and, given his work history and level of education, he was unsure as to whether there was any appropriate work for him. The plaintiff was also seeing Dr Murray Taverner, pain physician. When seen by Dr Gassin on 13 March 2019, the plaintiff had recently had a Ketamine infusion performed by Dr Taverner. Dr Gassin was reluctant to reintroduce strong opioid analgesics and suggested that the main treatment of the plaintiff should be ongoing core strengthening exercises and avoidance of certain activities, including heavy lifting, repetitive bending, twisting, activities below waist height, prolonged standing and the like. When seen on 11 April 2019 by Dr Gassin, it would appear that the plaintiff had resumed taking stronger medication. Dr Gassin advised against ongoing strong opioid medication.
21As at the time of his report of 12 July 2019, Dr Gassin had last seen the plaintiff on 25 June 2019. By this time, the plaintiff had obtained opinions from Dr Ali Kian Mehr, rehabilitation physician, and Dr Symon McCallum, pain physician, as well as Dr Kilner Brasier, occupational physician. Their collective opinion seems to have been to the effect that treatment options were very limited and Dr Brasier had suggested that the plaintiff retrain for less physically demanding employment. The plaintiff had again discontinued opioid analgesics. Dr Gassin felt that he had little to offer the plaintiff in terms of specific treatment. His overall conclusion was that the plaintiff had suffered an injury to one or more of the lower lumbar discs as a result of the accident. He was not aware of the plaintiff having suffered any psychological or psychiatric condition. He thought that the plaintiff should be encouraged in relation to the performance of exercises to strengthen his low back and core musculature. In Dr Gassin’s opinion, the plaintiff was likely to suffer ongoing back pain and related mild to moderate disability for the foreseeable future. This would be the state of affairs in relation to activities involving pulling, pushing, lifting, prolonged sitting and the like. The plaintiff did not have a capacity to perform his pre‑injury work duties. He also had limitations in relation to his sporting, social and domestic activities.
22A report of 13 September 2018 from Dr Vishal Bhasin, who is in the Frankston Pain Management Clinic along with Dr Taverner, to Dr Bradley Gray, general practitioner, indicated that the plaintiff had been seen on that day. An appropriate history was taken. The plaintiff had stopped work due to increasing pain in October 2017 and found painkillers increasingly unhelpful. His excessive use of painkillers was noted. The plaintiff was complaining of constant, gnawing central lower back pain with some thoracic pain radiation. He was using opioids and hot baths for pain relief and his average pain level was 8/10. It would seem that, at this time, the plaintiff was attending a TAFE course in order to prepare him for applying for entry to a medical school. It was considered that, given the history, the plaintiff’s problem was in the lumbar spine area. A program of winding down the plaintiff’s use of opioids was suggested.
23A further report from Dr Bhasin to Dr Gray, who seems to have continued to be the plaintiff’s treating general practitioner, is dated 4 October 2018. It was noted that the plaintiff was still on high-dose opioids. Dr Bhasin believed that the plaintiff’s condition was still consistent with Baastrup’s disease. An injection into the plaintiff’s back with local anaesthetic was performed. As I understand it, Baastrup’s disease is a term referring to close approximation of adjacent spinal processes due to degenerative changes of the spine. It usually affects the lumbar spine, with L4-5 being the most commonly affected level.
24Dr Bhasin reported to Dr Gray again on 1 November 2018. It is apparent that the plaintiff had been given a steroid injection to his interspinous ligament in the lumbar spine, but this only had a mild effect and afforded no sustainable pain relief. The plaintiff had self-weaned off Endone and reduced the size of the Fentanyl patch that he was using. There was some discussion of a trial of an 8-Ketamine infusion.
25Dr Bhasin reported to Dr Gray again on 22 February 2019. A Ketamine infusion had been performed on that day for the plaintiff’s low back pain. The plaintiff’s pain averaged 9/10. There was moderate to severe interference with daily activity. In this report, there is again discussion concerning the risk of serious harm from opioids. Following the Ketamine infusion, there had been no change in the plaintiff’s level of pain. Dr Bhasin seems to have had some concern about the plaintiff’s mental health, pointing out that feelings of increased depression and other uncomfortable thoughts may occur when the Ketamine treatment is wearing off.
26Dr Bhasin again reported to Dr Gray on 17 May 2019, having reviewed the plaintiff on that day. The plaintiff had undergone a facet joint injection organised by Dr Gassin in the previous week and his pain level had reduced to 6/10. He had managed to wean himself off opioids and sedatives. He had completed a pain rehabilitation program under Dr Ali Kian Mehr. His pain level had increased to 10/10. He had been involved in a disagreement with his father. However, he currently denied any suicidal ideation or intention. Dr Bhasin started the plaintiff on a program of medication in the form of Milnacipran, which apparently has both analgesic and antidepressant effects. He suggested a review after a further three months.
27Also placed in evidence on behalf of the plaintiff were some letters and reports from Dr Ali Kian Mehr, these being dated from 17 May 2019 to 19 March 2021. A letter to Dr Smith, general practitioner, of 12 October 2018 indicated that the plaintiff was in the fourth week of a pain management program, but missed two sessions because of illness. The plaintiff’s excessive intake of Targin tablets was noted, as was the fact that this was not a suicide attempt and that the plaintiff had no suicidal ideation or intent. The goal of the program seems to have been to take the plaintiff off opioids completely. A letter of 11 April 2019 to Dr Smith contains a reference to pain in the lower back with radiation to the sides, and to aspects of the care provided by Dr Gassin. Dr Mehr did not believe that the plaintiff was suitable for a pain management program. The plaintiff was still thinking that the only way forward lay in opioid medications. Dr Mehr had explained that this was not an option and that opioid medication would have to be replaced. As the plaintiff had never had an MRI of the lumbosacral spine performed, Dr Mehr referred him for this. This would appear to be the MRI referred to in paragraph 11 above.
28Dr Mehr reported to Dr Smith again on 28 August 2019. The plaintiff had seen Dr McCallum, who did not think that another opioid trial was appropriate and Dr Mehr agreed fully with this. A Ketamine infusion had been performed. During it the plaintiff was pain-free, but afterwards the pain started again.
29Dr Mehr provided a lengthy report to the plaintiff’s solicitors on 19 March 2021. This sets out in detail the history of events and treatment. The report also contains details of the plaintiff’s excessive consumption of opioids. Admission to hospital for a Ketamine infusion in January 2021 was not successful in reducing his opioid consumption, despite it being at the maximum level. Overall, the diagnosis of Dr Mehr was of chronic lumbar spine pain, being discogenic. This was related to employment. As a consequence, the plaintiff had developed an opioid-use disorder. There had also been the development of some depression, anxiety and adjustment disorder. A suggestion in relation to a change to an opioid replacement therapy was made. Dr Mehr considered the prognosis in terms of the plaintiff’s chronic pain condition to be guarded, due to the chronicity of the condition and the lack of response to different treatments. Whilst the prognosis for the opioid use disorder was also guarded, the plaintiff could be managed by opioid replacement therapy.
30Dr Mehr considered that the prognosis for a return by the plaintiff to pre‑injury work or any other physical work was poor, due to the physical impact of the chronic pain condition on his functionality. In relation to a prognosis for a return to alternative work, that could be considered, but it would be a very long-term process, given the impact of the injury. Dr Mehr believed that the plaintiff may be able to return to some sort of functionality in work by undertaking various courses and retraining. However, this was currently not possible and it would be “a long journey”. The plaintiff had no capacity for pushing, pulling, lifting and the like and no capacity on a consistent basis for bending, reaching, twisting, stooping, prolonged sitting, standing or walking. Dr Mehr considered that the plaintiff’s incapacity would continue for the foreseeable future. He also believed that the plaintiff’s significant limitations prevented him from getting back to any type of physical work and that this condition would not change for the foreseeable future. He thought that the plaintiff could undertake some retraining and obtain some suitable employment, but doubted that he could perform any work for more than “point 4 full-time equivalent”. Dr Mehr expressed the view that the plaintiff currently had no capacity for any work and that this condition would be longstanding. His restrictions in relation to social, domestic and recreational activities would also continue for the foreseeable future.
31A brief supplementary report from Dr Mehr to the plaintiff’s solicitors, such report being dated 19 May 2021, was also put in evidence. This referred to the fact that the plaintiff had been seen by Dr Richard Sullivan on 15 April 2021 and the decision was made that he was not suitable for a trial of spinal cord stimulation at this stage. Dr Sullivan had referred him back for the continuation of the rehabilitation process, as well as for maintenance of his current condition and for the attempts to reduce his opioid consumption. With the help of his general practitioner, the plaintiff had significantly reduced his opioid consumption. However, overall, Dr Mehr regarded the plaintiff’s condition as being stable, stating that it would not change for the foreseeable future. There was no special plan for treatment to change his chronic pain condition or functionality.
32Mr Justin Moar, senior physiotherapist, reported to Dr Gassin on 16 January 2019. The plaintiff’s treatment was discussed. At that time, Mr Moar was of the opinion that the plaintiff did not have the capacity for more than a few hours of casual employment that was self-paced, did not involve heavy lifting or repetitive bending and which allowed for alternating between sitting and standing as needed. There was also a risk of significant opioid medication escalation if the plaintiff attempted to return to full‑time work.
33A report from Dr Symon McCallum to Dr Smith, such report being dated 23 May 2019, was also placed in evidence. At this time, the plaintiff stated that he was not taking opioids. The impression formed by Dr McCallum was that the plaintiff had central lower back pain and that he had a poor level of function. The avoidance of opioids was recommended, along with the continuation of physiotherapy. This report does not really take matters much further and, to some extent, has been overtaken by events.
34A detailed report of 25 August 2019 has been provided by Dr Bradley Gray, he being located at the Cranbourne Road Medical Centre, at which clinic Dr Smith was also based. The report sets out the history of events and the plaintiff’s situation as at the date of the report. It refers to the fact that the plaintiff was continuing to have daily back pain and remained unable to manage work that required physical demands. Dr Gray stated that the plaintiff would have a long-term need to avoid any duties or activities that may re-injure his back and would have a permanent long-term risk of recurrences and aggravations. It was unlikely that his symptoms would resolve completely and he was likely to need to modify his lifestyle (long-term). The plaintiff would be precluded from any employment that could aggravate his back in the future and would need to avoid work involving repetitive bending, lifting, reaching and stooping. The possibility of seeking interstate truck driving qualifications was discussed. The plaintiff was permanently precluded from returning to work as a painter.
35A further report from Dr Gray of 17 September 2020 was also placed in evidence. Dr Gray expressed the view that the plaintiff would continue to struggle with his back for many years. With prolonged rehabilitation and strengthening, there was a hope that he could move to fewer days of severe pain, but he would suffer with long-term back issues. His prognosis in relation to returning to a physical job remained unchanged. Due to the mix of good and bad days, the plaintiff was currently incapacitated for work duties. Dr Gray expressed the view that the plaintiff would not be able to be employed on a reliable basis and that his current pain medication regime would not be appropriate for employment involving driving. He referred to the views expressed in his earlier report, which opinions had not changed. In relation to the social impact of the injury, Dr Gray stated that the plaintiff could not do physical-type activities and at times is limited in the parenting of his daughter. His pain and variable mood would also impact upon his social outings, interactions and reliability.
36Dr Gray provided a further report to the plaintiff’s solicitors on 11 July 2021. In this report, he stated that the plaintiff continued to have daily pain in his back, but was having fewer days of severe level pain. He had more recently managed to increase his level of activity in terms of walking and assisting a football trainer. The prognosis was that he would continue to struggle with his back for many years. With prolonged rehabilitation and strengthening, it was hoped to shift the situation to fewer days of severe pain, but the plaintiff still would suffer with long-term recurrent back issues. Dr Gray repeated some of his observations from the earlier reports. He again observed that the plaintiff’s inconsistency of good and bad days would impact upon his ability to manage various employment roles which had been suggested. The medications used by him for flare-ups would also impact upon his ability to manage the roles. Dr Gray concluded by saying that, on a good day, the plaintiff may have some physical capacity, but his unreliability on bad days would prevent him from being able to be employed. I should add that the diagnosis of Dr Gray, repeated in his reports, is that the plaintiff suffers from chronic mechanical and discogenic lumbar back pain with degenerative changes at L4-5 and L5-S1. He also referred to Baastrup’s disease and to the overuse of pain medication by the plaintiff.
37It is apparent that Dr Mehr referred the plaintiff to Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, who is also part of the Precision Group of doctors. He made the observation that the plaintiff had long-standing lower back pain and symptoms extending into the lower limbs. He appeared to have an L5-S1 disc injury. Unfortunately, despite the various measures that had been taken in his treatment, no long-term improvement in back pain or functional capacity had been obtained. Dr Sullivan had some discussions with the plaintiff about neuromodulation, which the plaintiff did not seem to be anxious to pursue. He was taking steps in terms of medication reduction and preferred to adopt a more conservative approach. Dr Sullivan described this as being reasonable and sensible. He was also happy to review the plaintiff again.
38The plaintiff has also been seen for medico-legal purposes at the request of his solicitors.
39Placed in evidence was a report from Professor Richard Bittar, consultant neurosurgeon, who saw the plaintiff on 11 September 2019, reporting on the same day. To Professor Bittar, the plaintiff complained of constant lower back pain, which had an average severity of 6 to 7/10. It deteriorated after a period of bending, twisting or lifting and also worsened with sitting for more than 20 minutes or standing for more than 10 minutes. He also referred to the constant pain and sitting intolerance, with restrictions on recreational activities. The diagnosis of Professor Bittar was that the plaintiff presented with aggravation of lumbar spondylosis and had developed a significant chronic pain condition. His employment had been a significant contributing factor, and in particular the accident remained a significant contributing factor to the plaintiff’s ongoing pain and disability. Professor Bittar also stated that the plaintiff was likely to suffer from significant pain and associated disability into the foreseeable future.
40Professor Bittar placed various restrictions upon the plaintiff’s capacity for employment. In particular, these related to such things as pushing, pulling or lifting; bending, reaching, twisting or stooping on a repetitive or sustained basis; and prolonged sitting, standing or walking. Such incapacity will continue for the foreseeable future. The plaintiff did not have the physical capacity to perform his pre‑injury duties. There was a theoretical capacity to undertake very sedentary work. However, given the plaintiff’s requirement to lie down frequently and the constant aggravation of his back pain by sitting or standing for more than short periods of time, it was unlikely that he could work in such a role reliably and consistently. There were also consequences relating to his social, domestic and recreational activities.
41Professor Bittar reported again to the plaintiff’s solicitors on 10 August 2020, having had a Telehealth conference with him on that day. The plaintiff stated that the average severity of his back pain was 7-8/10, with a maximum severity of 10/10. Deterioration occurred after a period of bending, twisting or lifting and worsened after sitting for approximately 30 minutes or standing for more than 5 minutes. An updated history of treatment, including that by Dr Mehr, is included in the report. The diagnosis of Professor Bittar remained the same, namely aggravation of lumbar spondylosis. He was of the opinion that the plaintiff should continue with his current treatment regime. He considered that the plaintiff was likely to continue to suffer from significant pain and associated disability into the foreseeable future. He considered that it was likely that the plaintiff’s condition represented an aggravation of pre‑existing asymptomatic degenerative change. He made the same observations concerning the plaintiff’s incapacity and restrictions. They would continue for the foreseeable future.
42Professor Bittar made much the same remarks as in his earlier report concerning the plaintiff’s capacity for employment and his inability to work reliably and consistently, even if it was very sedentary work. Professor Bittar stated that it was his opinion that the plaintiff did not have any realistic capacity to perform suitable employment. He referred to frequent and unpredictable flare-ups of the plaintiff’s pain. Also, he was likely to be restricted in relation to social, domestic and recreational activities. His incapacity will continue for the foreseeable future.
43Dr Meena Mittal, pain physician and specialist anaesthetist, saw the plaintiff at the request of his solicitors on 15 November 2019, reporting on that day. Dr Mittal took a detailed history of the plaintiff’s injury and its treatment. The plaintiff was complaining of pain which, at rest, was at the level of 6-7/10, although activities could aggravate it to 10/10. At this time, the plaintiff was considering the possibility of becoming a truck driver. He was studying science on a part‑time basis at Swinburne University. Dr Mittal considered that the plaintiff’s chronic low back pain was most likely of discogenic origin.
44Dr Mittal was of the opinion that the plaintiff’s injuries were directly related to his employment and thought that he would continue to suffer from some degree of chronic pain well into the foreseeable future. As at the date of this report, there was a possibility of ongoing functional improvement. However, he was likely to be precluded or restricted in relation to employment activities involving pushing, pulling, lifting, bending, reaching and the like. Dr Mittal considered the extent of the plaintiff’s incapacity to be moderate to severe and likely to continue for the foreseeable future, although there may be some improvement in his sitting, standing and walking tolerances. He had no capacity to perform his pre‑injury duties and that incapacity was permanent. There were also social, domestic and recreational restrictions.
45Dr Mittal reported again to the plaintiff’s solicitors on 28 January 2021, having seen the plaintiff on that day. She set out details of the plaintiff’s treatment since she had last seen him. The plaintiff rated his low back pain at rest as being 7-8/10, which could be aggravated to 10/10. There had not been much change in relation to his tolerances, although forward flexion was also mentioned as an exacerbating factor. Dr Mittal again described the plaintiff as having persistent lower back pain, the cause of which was discogenic. She also referred to his deteriorating mental state, which had multiple causes. She believed that his physical injury was directly related to the accident. She described his prognosis as being guarded.
46Dr Mittal again described restrictions in relation to employment activities involving pushing, pulling, lifting and the like. She described the extent of his incapacity as being severe and likely to continue for the foreseeable future. The plaintiff did not have the physical capacity to perform his pre‑injury duties on a part‑time or full‑time basis, and this was also a permanent situation. She thought that he did have the capacity to perform suitable employment on a part‑time basis, referring to driving without any lifting requirements, while also stating that this would be for no more than 10 hours per week to begin with and on a trial basis. Consideration would also need to be given to the plaintiff’s current medication regime in relation to safety. There should be no repetitive lifting, bending, twisting or stooping. Consideration of an increase in hours would depend upon his ability to cope with the pain. He was also likely to have restrictions in relation to social, domestic and recreational activities for the foreseeable future, the extent of this capacity being described as severe.
47Dr Hazem Akil, neurosurgeon, saw the plaintiff on 7 January 2021, reporting to the plaintiff’s solicitors on the same day. The diagnosis of Dr Akil was of aggravation of lumbar spondylosis, the accident being the main triggering factor behind the presence of symptoms. He considered the prognosis to be poor. He also opined that the plaintiff had significant restrictions because of his pain. The plaintiff would be unable to return to his previous duties. He would need complete retraining. However, an attempt at studying had been started, but the fact that he was in constant pain made him unable to finish what he wanted to do. Dr Akil said that, realistically, it would be very difficult for him to return to the workforce. The restrictions upon the plaintiff’s pushing, pulling, lifting and the like were likely to continue for the foreseeable future.
48Dr Joseph Slesenger, specialist occupational physician, saw the plaintiff on 13 January 2021, reporting on 15 January. He took a detailed history. The plaintiff complained of moderate to severe pain in the lower back that radiated into both hips and stated that, on five to six occasions per month, he was unable to rise in the morning due to severe pain and spent the day in bed. Dr Slesenger diagnosed a soft tissue injury of the lumbar spine, with chronic lower back pain and radiating features, but no confirmed evidence of radiculopathy. Dr Slesenger referred to the prognosis as being guarded, bearing in mind such matters as the comprehensive nature of the treatment received by the plaintiff and his poor response.
49In relation to employment, Dr Slesenger thought appropriate restrictions included no pushing, pulling, carrying or lifting over 5 kilograms; no repetitive bending or twisting; no prolonged static postures; and no exposure to whole body vibration. These restrictions will continue into the foreseeable future. The plaintiff could not return to his pre‑injury role and this will remain the situation for the foreseeable future. Taking into account a large number of factors, including past employment history and the like, Dr Slesenger was of the view that, at this stage, it was unlikely that the plaintiff would be able to return to work performing suitable alternative duties on a consistent and reliable basis. He noted the plaintiff’s domestic and recreational restrictions and was satisfied that these related to the injury. He thought that the plaintiff could engage in light recreational pursuits and would be able to engage in light domestic tasks performed in a self-paced manner.
50Dr Slesenger provided a supplementary report to the plaintiff’s solicitors, this being dated 3 March 2021. It would appear that he had not seen the plaintiff again, but essentially he was being asked to comment upon a report of allegedly suitable employment prepared by Recovre for the defendant. Recovre had identified three positions which allegedly represented suitable employment. The first of these was a Customer Service Officer. Dr Slesenger was of the view that the plaintiff could perform the inherent demands of this role, although he was unlikely to be able to return to work in it on a consistent and reliable basis. He had some concerns in relation to the plaintiff’s capacity to work as an administrative assistant. In the particular position identified, files were stored from floor level upward. Dr Slesenger was of the view that working in this area might aggravate the plaintiff’s symptoms. The third position was that of a sales administrator. Dr Slesenger had some concerns in relation to the plaintiff’s capacity to perform the identified work. Again, a requirement to access filing cabinets at floor level existed. Dr Slesenger was also concerned that some of the workstations did not appear to have sit-stand desks. He expressed the view that the plaintiff was unlikely to be able to return to work in this role on a consistent and reliable basis.
51The defendant also arranged for the plaintiff to be examined for the purpose of providing medico-legal reports. Dr Graeme Doig, orthopaedic surgeon, reported on 23 June 2017. Dr Doig diagnosed a soft tissue injury of the lumbo-sacral spine, noting that he did not have access to the MRI scan. He implicated the accident. At this time, the plaintiff had returned to pre‑injury duties as an apprentice painter with a different employer. He noted that the plaintiff was using strong analgesic treatment, and thought that this was not really appropriate.
52Dr Daniel Lewis, rheumatologist, reported to the insurer on 8 November 2019. The history taken was of the accident and of the plaintiff ultimately returning to work as a painter with a different employer. This work ceased in October 2016, by which time the plaintiff was on large amounts of Targin, Fentanyl and Endone. The plaintiff described constant pain in the centre of the low back pain, radiating to both sides, and being aggravated by almost everything that he did. There had been a recent flare-up of symptoms. The plaintiff described the activity which he performed at a gymnasium. He was seeing a general practitioner monthly and a physiotherapist fortnightly. He was going to the gymnasium five times a week.
53Dr Lewis noted that the plaintiff described his history in a straightforward way and that no pain behaviours were observed. Dr Lewis seems to have had little or no investigations available to assist his assessment. In any event, he diagnosed lumbar spine dysfunction with radiculopathy due to chronic secondary musculoskeletal pain. The plaintiff’s chronic persistent pain followed an acute soft tissue injury. His condition of chronic secondary musculoskeletal pain had not resolved. Dr Lewis thought that the plaintiff would need to undertake an exercise program for his lumbar spine indefinitely. He also thought that, if the plaintiff’s current treatment ceased, it was unlikely that he would be able to return to work in any manual capacity. Much of the attention of Dr Lewis seems to have been directed towards the plaintiff’s treatment requirements and whether these were reasonable.
54Dr Mary Wyatt, occupational physician, reported to the defendant’s solicitors on 29 April 2020. Being an occupational physician, Dr Wyatt was essentially concentrating on the plaintiff’s work history, qualifications, restrictions and the like. In relation to work activities, she thought that the plaintiff should be able to change his position intermittently and that it was sensible if he was not doing repetitive bending and twisting of his spine. He should also avoid lifting up more than 5 kilograms to 8 kilograms regularly and more than 20 kilograms intermittently. He was studying at the moment, which would enable him to move into an administrative or sedentary role. He was fit for a broad range of occupations that were not physically taxing on the back, including a range of customer service, administration, call centre or sales type services. Such roles would allow him to get up and move around intermittently. He would be capable of doing disability care, which he seems to have done at the age of 17 years. He would be capable of full‑time work in such roles. Although requested so to do, Dr Wyatt was not able to identify suitable jobs in particular workplaces, with details about such jobs. She did not think that the plaintiff required further formal training in order to enable him to re-enter the workforce.
55Dr Wyatt reported for the second time on 8 February 2021, having seen the plaintiff on 4 February. The plaintiff said that his back problem was much the same as at the time of the earlier interview. It was sore regularly and worse with static posture. A Ketamine infusion had not assisted. He had contemplated getting a truck driver’s licence, but felt that he may not be reliable and this may mean that an employer might not want to take him on. He had given various types of employment some consideration. These included with the Air Force and the Police Force. He had been doing some assistant coaching of a football club for four to five hours per week and engaged in easy activities. Dr Wyatt stated that the plaintiff presented as being fit for work which was not unduly demanding on his back. He should avoid work which involved a lot of bending and twisting of the spine or being constantly in an awkward position. He should avoid lifting over 5 to 8 kilograms regularly and more than 20 kilograms intermittently. Dr Wyatt said that she had some concerns that his problems had been over-medicalised. The focus on his back problem may have detracted from the focus on exercise and fitness.
56Dr Wyatt stated that the plaintiff presented as being fit for a range of customer service duties, such as retail work, or work as a truck driver or crane driver, with appropriate training. He would also be fit for customer service work or work behind a counter in sales, such as in plumbing or electrical supplies. He could also perform disability care work where he was taking people out or taking them to the doctor. Dr Wyatt was not able to identify particular jobs at particular workplaces. With retraining, he could work in security or as a crane, truck or forklift driver. She also considered him fit for a customer service position, the role of an administration assistant working in an aged care facility or as a salesclerk. These appear to be particular jobs, which were identified in a report. If he did not exercise, he might struggle to do the jobs beyond 30 hours a week, but if he could exercise at a basic level, the plaintiff would be suitable for full‑time duties. She believed that he would be able to work on a consistent basis and would not need further skills, although some level of job experience would improve his employability.
57Associate Professor Max Esser, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 30 April 2020, reporting on 13 May. He took a detailed history. The plaintiff also described his regular attendance at the gymnasium and the exercises that he performed. Associate Professor Esser thought that the plaintiff was a man complaining of back pain, but had a virtually normal range of movement of the lumbar spine, apart from some discomfort getting from a flexed to an erect position. He also commented that the plaintiff’s well-developed musculature was not consistent with the degree of disability he was describing, although I note that Associate Professor Esser did have a history of the exercises and weight training which the plaintiff was performing at the gymnasium.
58Associate Professor Esser also commented that the plaintiff had what appeared to be a relatively trivial injury when he fell off the ladder in the accident. He thought that it would be helpful to get a more complete description of the circumstances surrounding the injury, suggesting that the plaintiff may have had a significant disagreement with his employer at the time. Whether Associate Professor Esser, whose letterhead suggests that he is an independent medical examiner, should be suggesting investigations of this nature seems to me to be somewhat doubtful.
59In any event, Associate Professor Esser stated that the plaintiff’s symptoms of back discomfort were far in excess of any abnormality that he could detect on clinical examination, which was basically normal. Essentially, he thought that the plaintiff’s complaints and description of what exacerbated his pain were not consistent with a significant injury to the lumbar spine. He again described the injury as being relatively trivial, stating that he did not think that the episode at work “when he fell just off a two step ladder” was a significant contributing factor to the current injury. He stated that the plaintiff’s employment did not remain a significant contributing factor to the claimed injury. Associate Professor Esser also stated that the plaintiff would be able to perform his usual tasks as a painter without any restrictions. His prognosis depended upon social and psychological factors.
60Associate Professor Esser reported again on 9 December 2020, having seen the plaintiff on 1 December. The plaintiff stated that he was no longer attending the gymnasium. The overall impression gained by Associate Professor Esser was that the plaintiff’s mood had altered significantly since the last examination, this being due to his inactivity. The plaintiff described the various activities and movements which caused the discomfort in the low back, radiating to both loins and the iliac crest. It would seem that his attendance at the gymnasium had ceased because of the COVID-19 situation, and he was about to recommence a gym program. Associate Professor Esser thought that the plaintiff had some stiffness of lumbar spine movements and probably two-thirds of the usual range of flexion. Associate Professor Esser thought that the plaintiff’s presenting condition was of somebody who had a degree of lack of motivation and probable signs and symptoms of depression. He suggested that it would be appropriate for the plaintiff to see a psychiatrist for assessment and treatment. He did not think that there was any significant abnormality of the musculoskeletal system.
61Associate Professor Esser again suggested that it would be helpful if he had a more complete description of the circumstances in relation to the original cause of the plaintiff’s discomfort and his cessation of work. Whilst Associate Professor Esser thought that it would be helpful for the plaintiff to see a psychiatrist, he did not think that there was any functional or psychological reaction to his condition. Associate Professor Esser was concerned that the plaintiff was possibly a suicide risk, basing this on comments that he had made.
62The defendant’s solicitors arranged for an examination by Dr Timothy Entwisle, consultant psychiatrist, which was conducted on 16 June 2020. I appreciate that reliance is not placed upon paragraph (c) of the definition. However, it is worth noting that the diagnosis of Dr Entwisle was that the plaintiff did not present with symptoms of a diagnosable mental disorder or illness. The plaintiff did not require treatment and it was the opinion of Dr Entwisle that he did not have what another examiner had described as a pain syndrome. He concluded that there was no work-related psychiatric injury described or acknowledged by the plaintiff, although he referred to the strong possibility of a personality disorder.
63In summary, the plaintiff has undergone an extensive amount of treatment for his back condition. A very considerable number of reports from those who have treated him, and from those who have examined on a medico-legal basis, has been put in evidence.
64I prefer and accept the opinion of Dr Mehr, who specialises in rehabilitation medicine and neurophysiology, and who has seen and treated the plaintiff on a number of occasions. In his opinion, the plaintiff suffers from chronic lumbar discogenic pain. I accept that this is related to employment and particularly to the accident. This is consistent with the opinion of Dr Bradley Gray, general practitioner, that the plaintiff suffers from discogenic lumbar back pain. In his most up to date report, he has described the plaintiff’s condition as being chronic mechanical back pain with degenerative changes at L4-5 and L5-S1. It is not greatly different from the diagnosis of Dr Robert Gassin, who specialises in musculoskeletal and interventional pain management, and who has also treated the plaintiff. He diagnosed injury to one or more of the low lumbar discs. This is consistent with the diagnosis of Professor Bittar of aggravation of lumbar spondylosis and with the diagnosis of Dr Mittal of chronic low back pain, most likely of discogenic origin. Dr Akil, neurosurgeon, also diagnosed the aggravation of lumbar spondylosis.
65In short, I am satisfied that the plaintiff suffered an organic injury to his back of the type described above. As earlier stated, I consider him to be a witness of truth and I accept that he suffers the symptoms which he has described.
66As there is no reliance on paragraph (c) of the definition, consequences of a psychological or psychiatric nature shall not to be taken into account. However, I note that the only consultant psychiatrist who has seen the plaintiff, namely Dr Entwisle, concluded that the plaintiff did not present with symptoms of a diagnosable mental disorder or illness. I accept that and it is consistent with the presentation of the plaintiff when giving his evidence. I also accept that there have been problems in relation to the plaintiff’s use of opioid medications and the consequences of this from time to time.
67Insofar as the injury is the aggravation of a pre‑existing condition, I accept that, prior to the accident, any such condition was asymptomatic. The plaintiff’s symptoms emanate from the accident.
68I am also satisfied that the consequences of the accident and the injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. In his report of 19 March 2021, Dr Mehr expressed the opinion that the plaintiff’s lack of capacity in relation to various employment activities would continue for the foreseeable future and the same applied to the plaintiff’s preclusion or restriction in relation to social, domestic and recreational activities. Dr Gray, general practitioner, has opined that the plaintiff will have a permanent and long-term risk of recurrences or aggravations. He also referred to the fact that the plaintiff will have to struggle with his back for many years and will suffer long-term back issues. Professor Bittar expressed the opinion that the plaintiff’s incapacity in relation to a variety of activities such as pushing, pulling, lifting, bending, prolonged sitting and the like will continue for the foreseeable future. The plaintiff’s restrictions in relation to social, domestic and recreational activities also constitute an incapacity which will continue for the foreseeable future.
69In her more recent report, Dr Mittal described the plaintiff’s incapacity as being severe and stated that it was likely to continue for the foreseeable future. Dr Akil expressed the opinion that the restrictions from which the plaintiff suffers will continue for the foreseeable future. Dr Slesenger placed various restrictions upon the plaintiff’s activities such as pushing, pulling, repetitive bending and the like and stated that he did not anticipate a significant alteration in the plaintiff’s presentation in the foreseeable future. These are opinions which I accept. I am satisfied that the pain and restrictions from which the plaintiff suffers are permanent within the meaning of the Act in that they will persist for the foreseeable future.
(f) Other developments since the accident
70Immediately after the accident, the plaintiff was absent from work for a couple of days. It may well be that his concentration immediately after the accident was upon his lacerated hand. After being back at work for approximately three days, he had a dispute of some kind with his employer and did not return to that employment. He was then not working for a couple of months, before he obtained another painting job, with which he persisted for some 10 months. He has sworn that he ceased that work because of back pain. After a couple of months off, he attempted returning to painting work on a self-employed basis, but, after trying to paint a fire station in Dandenong for a few days, he had to stop because of back pain.
71The plaintiff did some part‑time pizza delivery work, but ultimately ceased that. The pizza delivery work would appear to have been for only three to six hours per week and seems to have been paid little more than petrol money. It was then that the plaintiff worked as a receptionist and delivery driver for an entity called Super Groom, performing some administrative tasks for approximately three to six hours per week. His attendance in relation to this was unreliable and unpredictable. He also performed some work on a volunteer basis as an unqualified mathematics tutor for disabled students. He has not undergone any formal retraining. Prior to the injury, he had applied for a position with the Air Force. He completed and passed an aptitude test after the injury, but was unable to take the application further because of his symptoms. I would refer to the detailed history taken by Dr Slesenger.
72The plaintiff commenced a Certificate IV in Science at Swinburne University, but withdrew after a short time because of the effect of his back pain on studying. I suspect that this may have been the course described in one medical report as being “medicine”. He recommenced studying in February 2019. He also signed up as an assistant coach for the Lyndall Football Club. There is no payment attached to this. He has encountered difficulties in this regard and can only walk and jog around the oval, or kick a football, for about five minutes at a time. It would appear that he stopped studying when COVID-19 started, as he could not concentrate sufficiently working from home. He has not completed his studies.
(g) Ruling
(i) Loss of earning capacity
73As stated, because the plaintiff was under the age of 26 years at the date of the accident and injury, s325(2)(e)(i) and (ii) of the Act apply. In order to discharge the burden of proof, the plaintiff must prove on the balance of probabilities that, after the date of the decision or the hearing, he will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.
74I am satisfied that he has discharged the burden of proof in this regard. As stated, I regard him as being a truthful and reliable witness. I accept his evidence that he would not be able to work in the positions suggested in the Recovre report and that he would not be able to undertake full‑time work. I also accept that he does not have the required skills to perform the duties required in the positions suggested in the Recovre report. Apart from what is contained in the medical material, I would refer to his evidence at T47–51. It is to be remembered that the plaintiff’s occupation was that of a painter. I am of the opinion that, not only is the plaintiff precluded by reason of his injury from returning to work as a painter, he is totally incapacitated for employment.
75His treating general practitioner, Dr Gray, stated that the plaintiff is precluded from any employment that could aggravate his back in the future. Dr Brasier described him as being precluded from any employment that could aggravate his back in the future. In his report of 11 July 2021, Dr Gray considered the plaintiff’s ability to work in roles such as customer service, administrative assistant and the like, these being positions that had been discussed. His conclusion was that the plaintiff’s inconsistency in relation to good and bad days would make him an unreliable worker. That unreliability would be likely to prevent him from being able to be employed.
76Professor Bittar referred to the plaintiff as having a theoretical capacity to undertake various types of sedentary work. However, the plaintiff’s requirement to lie down frequently and the consistent aggravation of his back pain by sitting or standing for more than short periods of time meant that it was unlikely that he could perform the sedentary-type duties described on a reliable and consistent basis. Dr Akil, neurosurgeon, expressed the following opinion, “Realistically, it would be very difficult for him to return to the work force”. Dr Slesenger, occupational physician, expressed the view that the plaintiff was unlikely to be able to return to work performing suitable alternative duties on a consistent and reliable basis.
77It is to be remembered that, because of the plaintiff’s age at the relevant time, the type of more precise mathematical calculations involved in the “three years before, three years after” method of assessing loss of earning capacity are not relevant.
78As to the approach to be adopted, in his closing address, Mr Ingram referred me to cases dealing with what could be described as the common law approach in relation to the assessment of economic loss, as set out in State of New South Wales v Moss [2000] 54 NSWLR 536 and particularly at 553, which decision was in turn referred to by his Honour Judge Brookes in Jarvis v Woolworths Limited [2012] VCC 1329. The case of Jarvis involved a person under the age of 26 years as at the date of injury, and thus the operation of s325(2)(e)(i) and (ii) of the Act.
79Adopting the approach set out in those decisions, it is my opinion that the plaintiff has discharged the burden of proof. The plaintiff was an apprentice painter with a long-term hope of becoming a pilot. I accept that, by reason of his back injury, he is precluded from either of those occupations. It seems to me that the weight of evidence clearly establishes this. Apart from those who have treated the plaintiff or examined him at the request of his solicitors, I note that Dr Wyatt, an occupational physician examining on behalf of the defendant, placed considerable restrictions upon his employability. These included repetitive bending, twisting of his spine, and regularly lifting up to more than 5 kilograms to 8 kilograms. The occupations for which he thought he was fit were those that were not physically taxing on his back and which would allow him to get up and move around intermittently. Restrictions such as these would clearly seem to put an end to any prospect of the plaintiff returning to work as a painter or, for that matter, being able to become a pilot.
80However, the bottom line is that I prefer and accept the opinions of those reporting on behalf of the plaintiff, including those who have treated him. It seems to me that the highest that the plaintiff’s employability can be put is that, sporadically, he may be able to perform a small number of hours of work per week and on an unpredictable basis. Effectively, he is totally incapacitated for employment, and that will remain the situation.
81I would add that I leave to one side the opinions expressed by Associate Professor Esser. He is effectively “one out” in raising any potential queries as to the credibility or reliability of the plaintiff. A couple of his remarks could be described as potentially falling outside what is expected of an independent medical examiner.
82I am not satisfied that the plaintiff would be able to perform the job that was put to him and which involved computer work, possibly using two screens in conjunction. I accept his evidence that the longest that he would be able to sit, if given a comfortable chair, was an hour and a half, or, as he put it, “two hours tops” – see T49.
83When asked what computer programs he had been trained in, he answered “Microsoft Word”, but went on to say that he had been taught the basics at school but he had not used it since “maybe Year 8 or 9” – again, see T49. He could not recall how to create Excel spreadsheet functions and, whilst he can type, he does not have touch-typing skills. He did not believe that he would be able to work an 8‑hour day with a 30‑minute lunch break and tea breaks. Seated work stations represent a problem. He has no skills in relation to the simultaneous use of a telephone and a keyboard. Indeed, Mr Ingram took him through the requirements of various jobs that had been suggested as being suitable. The conclusion which I have reached is that none of them were in fact suitable.
84In summary, I am of the view that the plaintiff has discharged the burden of proof in relation to loss of earning capacity and in so doing, inter alia, I have had regard to the observations in the cases to which I have referred above. Thus, the plaintiff is successful. I agree with the basic submission of Mr Ingram that no employment has been identified which can be performed by the plaintiff on a reliable basis and without the risk of aggravating his injuries.
85I am of the opinion that no suitable employment for the plaintiff has been identified. I accept that he is incapacitated for employment and this will continue to be the situation for the foreseeable future.
86Thus, I am of the opinion that the plaintiff has discharged the burden of proof in relation to loss of earning capacity.
(ii) Pain and suffering
87Given that I have found that the plaintiff has discharged the burden of proof in relation to loss of earning capacity, there is no real need for me to make a specific finding in relation to pain and suffering. However, I am of the view that he has also discharged the burden of proof in that regard.
88The plaintiff has recorded his pain levels as being 9 or 8/10, which can be aggravated to 10/10. He has been on a high level of medication, to such an extent that attempts have been made to wean him off such consumption. He has been forced to give away the playing of football, and now does some minor assisting in a coaching role. He is a young man and his preferred careers are lost to him. His pain and restrictions are essentially with him every day. There is substantial interference with many, if not all, of his daily activities. He has difficulty sleeping.
89In summary, I am of the view that the plaintiff has also discharged the burden of proof in relation to pain and suffering.
Conclusion
90The plaintiff is successful. He has discharged the burden of proof in relation to both loss of earning capacity and pain and suffering. Leave is given to him to bring proceedings accordingly.
91I shall hear the parties as to any further orders that are required.
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