Dudderidge, Mark v Fonterra Australia Ltd
[2012] VCC 1481
•19 October 2012
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04185
| MARK DUDDERIDGE | Plaintiff |
| v | |
| FONTERRA AUSTRALIA LTD | Defendant |
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JUDGE: | JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 26 and 27 September and 1 October 2012 | |
DATE OF JUDGMENT: | 19 October 2012 | |
CASE MAY BE CITED AS: | Dudderidge, Mark v Fonterra Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1481 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the lumbar spine – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(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; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Maurice Blackburn |
| For the Defendant | Mr P Elliott QC with Mr J Batten | Lander & Rogers |
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 from 4 June 2005 (“the first date”) until October 2008 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
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” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross examined. The plaintiff also relied on an affidavit sworn by his wife, Pamela, on 17 September 2012 and an affidavit sworn by his friend, Gary Clissold, on 21 September 2012. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 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, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
10 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.
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
Background and Pre-Incident Health
16 The plaintiff was born in May 1962 and is presently aged fifty. He finished school at the age of fourteen, having had a lot of difficulty with reading, writing and maths. These problems continue and the plaintiff has been told he suffers from a form of dyslexia.
17 The plaintiff presently lives with his wife, twenty four year old daughter and nineteen year old son. The plaintiff’s wife works as a cleaner part time.
18 The plaintiff has always worked in manual jobs most of which have involved heavy lifting including working on a farm, in a sawmill and in an abattoir. He has no training, qualifications or experience in light clerical or sedentary employment.
19 The plaintiff commenced employment with the defendant’s predecessor Bonlac in 1984 working in the factory for about the first six months and then as a milk tanker driver. The defendant took over the company in 2005.
20 The plaintiff suffered a tendonitis injury to his right forearm in about 1985. He had hernia surgery in 1999. He had panic attacks in the 1990s but had not suffered an attack for about ten years prior to 2005.
21 Prior to suffering injury to his back, the plaintiff enjoyed having a hit of tennis, kicking a football and riding trail bikes when his children were young. He played the guitar before he was married in his early twenties.
22 The plaintiff performed building and maintenance tasks around the house. He socialised with friends enjoying meals and drinks. The plaintiff rode his pushbike for leisure as well as riding to work everyday. He gave sermons every few weeks as a minister in the Jehovah’s Witness Church (“the Church”).
The 2005 Incident
23 On the first date, when the plaintiff climbed back into the seat of his truck, the seat collapsed causing him to experience a sudden onset of sharp low back pain (“the 2005 incident”).
24 At that time, the plaintiff felt like he had landed on a block of concrete.
25 Following the 2005 incident, the plaintiff felt back pain all day but kept working. The next morning he had pain but went to work and completed a couple of deliveries. During one of these deliveries, he experienced severe low back pain radiating out of his right buttock and the back of his right thigh.
26 The plaintiff left work and consulted his general practitioner, Dr Reid, who prescribed painkillers and certified the plaintiff unfit for work for a couple of days after which he booked annual leave. In re examination, the plaintiff explained that he was put on holidays at that time.
27 The plaintiff underwent x-rays in late June 2005 which he understood showed disc space narrowing. He also underwent regular physiotherapy which sometimes helped but other times made the pain worse. The pain never resolved completely.
28 The plaintiff was unable to work due to the 2005 incident injuries for about four weeks before resuming work on modified duties for about three weeks until being certified fit for driving.
29 The plaintiff returned to deliveries but not to collecting milk from dairy farmers as that task involved bending, pulling and connecting the milk hoses. After about four weeks the plaintiff returned to normal duties.
30 In cross examination, the plaintiff described how during deliveries he recorded the quantity of milk he collected from a farm, initially writing it down and later putting the figures into a small computer in his truck. When he got back to the factory, he pushed a button to print out the information.
31 On 21 February 2007 (“the second date”) the plaintiff experienced an increase in his back pain after bending to connect a milk hose.
32 The plaintiff consulted Dr Reid, who certified him unfit for a few days and then he returned to modified duties. In cross examination, the plaintiff confirmed resuming normal duties at various times between incidents but having pain all the way through.
33 In November 2007, the plaintiff suffered a further exacerbation of his back injury and he was off work for about ten days before returning on modified duties which he continued for about the next twelve months.
34 The plaintiff was cross examined at length as to the nature of his duties after November 2007.
35 It was suggested to the plaintiff that he in fact resumed full driving duties with no bending or lifting as set out in Dr Reid’s certificates. However, the plaintiff advised that his driving was limited with most of his time spent walking around checking things at the defendant’s premises and at other times doing shorter deliveries to other local factories rather than farms.
36 The plaintiff confirmed he was “walking around, just walking in the garage and in the office and that sort of thing”. He was occasionally driving and sometimes might take a load to the factory next door and to the Colac and Warrnambool factories. The majority of his time was spent walking around the factory doing things and driving in between. He was doing not much at all. He was put in the office for a few days but he could not do any book work or similar tasks.
37 The plaintiff agreed that at a site assessment on 4 July 2008, his normal duties were looked at by Work Able Consulting.
38 The plaintiff was asked about the statement made by him to the assessor as to the nature of his duties post November 2007. After some confusion, the plaintiff disagreed that his duties involved driving the tanker for long periods up to six hours a day on occasions. He could not understand why this was noted. He could not have driven up to six hours a day. The plaintiff agreed that when the tanker was unloaded he might be waiting around for two or three hours.
39 The plaintiff confirmed after November 2007, during the day he was walking around. He sat around for eight hours some days, and then there was no work or there then might have been a load to take to Warrnambool and that was it.
40 Any driving the plaintiff did during that time was taking cream to the factory, about half an hour away. He ultimately agreed that at the site assessment he was told the work he was doing would not be available long term and at that stage he started the Job Seeker plan and he also started looking for jobs in the local newspapers.
41 In re examination, the plaintiff confirmed after November 2007 he was on light duties. For nearly a week he did office duties but the secretaries did not want him there because he did not do the filing correctly. He put documents in the wrong filing cabinet under the wrong heading.
42 A normal day in the period leading up to the plaintiff being retrenched was a boring day; there was nothing to do. He just went to the office and asked if there was anything to do. He spent most of his time talking to co workers in the smoke-o room. Occasionally he drove a cream tanker. It could be three days before he drove and then he would do a couple of loads.
43 The plaintiff was asked about a further interview with Work Able in July 2008. The plaintiff could not remember telling them that he was currently undertaking truck driving duties which involved driving between factories to deliver milk. He then said he could not remember what he was doing at work at that time, however he supposed he did long hours of driving but then said he did not know why that was noted because he was not driving all the time. He drove occasionally taking a bit of cream to Colac or to Warrnambool.
44 The plaintiff agreed he told Work Able that he was not able to do his pre injury duties which were outside his medical restrictions.
45 The plaintiff agreed he told Work Able he was uncertain about his work future and concerned about what type of work he could do if he lost his current job.
46 The plaintiff could remember Dr Reid certifying in early 2008 that he was fit for modified duties and the work restrictions imposed were that he could drive tankers but not lift tanker hoses.
47 In May 2008, the plaintiff was referred to Mr Carey, orthopaedic surgeon, who ordered an MRI scan which the plaintiff understood showed an L5/S1 disc protrusion.
48 In cross examination, the plaintiff agreed that prior to termination of his employment, he had been told there may be a reduction in his hours and the duties that could be offered were in a casual position.
49 In October 2008, the plaintiff was advised by the defendant that modified duties were no longer available. Since then, he had been unable to obtain suitable alternative employment.
50 The plaintiff supposed he would have stayed at the defendant’s factory doing that job, if he had been allowed to, until retirement. It was the best job he ever had. He went back that many times to try and get work – it was his idea to go back each time. His doctor did not want him to go back to that job.
51 The plaintiff explained he pushed his doctor to clear him to go back to work. The plaintiff did not want to sit around and “live like that for the rest of his life doing nothing. His wife does not even like him much any more because he is home all the time.”
52 The plaintiff recalled having a meeting with Dr Reid and Work Able in February 2009. He agreed that Dr Reid indicated he could work as a truck driver or a bus driver provided he was not required to drive long periods and did not have to undertake heavy handling. The plaintiff then said it was not Dr Reid’s suggestion but his own suggestion he try this work. Dr Reid did not really support the proposal. He did not want the plaintiff driving again.
53 The plaintiff was unsure whether he applied for the bus licence before or after that meeting.
54 The plaintiff could remember Work Able wanting him to drive again and Dr Reid saying, “They’re mad; that’s what you went off for”. There were arguments at the February meeting. The plaintiff then said Dr Reid was not supportive of him resuming driving. Dr Reid certainly did disagree because the plaintiff had that much pain all the time, “how could he bloody go driving again?” He was pushed by Work Able. They told him he had to go driving buses and tip trucks and Dr Reid kept “going crook about it” and he did not even want to talk to them about it.
55 All the plaintiff knew was Work Able was pushing him to do all the things and he could not do them. After the meeting finished, Dr Reid described Work Able as idiots.
56 The plaintiff recalled that after that meeting Work Able tried to find him a job and he was looking for jobs as well. They wanted him to go bus and truck driving. He could not get the bus licence so they suggested tip truck driving.
57 The plaintiff could recall further attendances with Work Able in May 2009. There was some discussion about him driving a school bus and that he needed accreditation through the Taxi Directorate and had to get a police check and a medical clearance. He applied for that licence but was advised he was unsuccessful as due to his back condition, if the bus tipped over he would not be able to get the children out of the bus. He was given a green slip and told he did not have permission to get the licence.
58 The plaintiff explained that the testing organisation sent the application back as his physiotherapist had to write a report. The plaintiff was later advised he could not have the licence.
59 The plaintiff agreed that he had discussed his interest in retail or the car sales industry with Work Able. He worked in that field years ago helping out a friend, but he had trouble filling out the paper work.
60 The plaintiff attended a computer course in Camperdown which went for about three or four months. However, because the plaintiff could not read on the screen what to click on, the course was not a success. He could not remember successfully completing the course and really all he learned was how to move the mouse. The plaintiff’s computer usage is really limited to playing games on his daughter’s computer at home.
61 The plaintiff asked Work Able about improving his literacy skills. He was advised it would be a long process and he would have to go to school and start all over again, and that it might not work anyway because he was dyslexic.
62 Over the years, the plaintiff has had friends try to help him read. When he was in his twenties he went to night school many times but the teacher told him he would be “a good truck driver.” He still practises writing and reads the Bible at home.
63 The plaintiff went around some shops and rang up a couple of tip truck businesses. He was interviewed for two of those jobs but did not get them because of his back problem which he revealed. He could not work at the supermarket because he was required to use a computer.
64 The plaintiff could recall telling Work Able in 2009 that he had not applied for any advertised position because he did not have any idea what type of work he would be able to do.
65 When he saw Work Able in January 2010, the plaintiff could not recall telling them he could not cope with any form of truck driving because it would aggravate his back. He advised he was suffering from increasing depression and that his pain and symptoms continued to fluctuate, impacting on his ability to do everyday tasks.
66 The plaintiff was asked Work Able’s further mention in this later assessment of the accreditation for bus driving. The plaintiff confirmed he only put the forms in once. At that stage, he was continuing to look for jobs in the newspaper. He could not remember being asked to resubmit the paperwork for the bus licence. He could only remember submitting the application once, but then seemed to say there was a subsequent application with a request for a physiotherapy report which he submitted from Jason Hill whom he had been seeing for some time.
Pain
67 The plaintiff deposed in May 2011 that he still suffered from low back pain radiating into the right buttock. He was then taking two Codalgin Forte tablets each night for the pain and Nexium for stomach symptoms he experienced when taking painkillers.
68 In his more recent affidavit of September 2012, the plaintiff deposed he takes Codalgin Forte when the pain becomes very severe currently once or twice a month, otherwise he puts up with his difficulties.
69 The plaintiff’s back pain never goes away. It affects him all the time and can be severe. When his pain increases, he just rests and does effectively nothing and if he does not leave the house he can cope with it.
70 From the time of the 2005 incident, the plaintiff has had pain and there had never been a day without pain.
71 The plaintiff does not like taking medication and is trying to do as much as he possibly can without taking drugs. Due to the side effects of his stress and medication, the plaintiff had then developed stomach problems for which he had undergone surgery. He also had bowel incontinence which was of considerable discomfort and embarrassment.
72 In cross examination, the plaintiff confirmed he had undergone stomach surgery in October 2010 and that he had never been the same since that operation. For nine months thereafter, he had diarrhoea and could not go out. He agreed that the specialist had told him that his condition was in his head. The plaintiff suggested to him he had irritable bowel syndrome. It was not the doctor’s diagnosis.
73 The plaintiff is sometimes tearful and has experienced a recurrence of panic attacks. As of May 2010 he had commenced taking one Pristique anti depressant tablet a day.
74 The plaintiff has become depressed. His memory and concentration are reduced and he feels uncertain about his future.
75 In cross examination, the plaintiff explained he had difficulty remembering things because of all he had been through; his life was finished. He asked rhetorically, “You say I try not to get a job, you reckon, do you think I like sitting around doing nothing?”
76 The effects of the plaintiff’s injury have put a strain on his matrimonial relationship. He finds it difficult to get comfortable to sleep and is often woken by pain and anxiety. He has trouble getting back to sleep and is tired and irritable as a result. He is lucky to get a couple of hours sleep and when he wakes up, he cannot get back to sleep. He often has a rest in the afternoons because he is tired because he does not get a proper sleep at night.
77 The plaintiff confirmed he had tried different pills and things to help him sleep but they were of no assistance because he had acid reflux and it comes up. He has not been referred to a sleep specialist.
78 In re-examination, the plaintiff explained he went to bed at one or two o’clock in the morning because he had pain all the time.
Activities
79 Before his injury, the plaintiff was reasonably keen on gardening and did the mowing and looked after the garden, but now he cannot push a mower or do any digging for more than twenty minutes or so, so he does not do that sort of activity.
80 The plaintiff no longer does the heavier tasks such as building and maintenance around the house. He has difficulty cleaning the gutters and can no longer do the gardening or mow the lawns. He cannot do anything but the lightest of maintenance work on his own home.
81 The plaintiff has a garden shed on his property with a few tools which he uses occasionally. He can clean the spouting but gets up on the roof through the window.
82 In re examination, the plaintiff described after spreading a bit of tan bark, he felt terrible and had to go and lie down. He lies down every day spending a lot of time on the couch. He does a bit of tidying around the house.
83 The plaintiff has difficulty with housework including vacuuming, mopping and sweeping but tries to manage by remaining upright and not bending his back.
84 The plaintiff can drive locally and perhaps for up to an hour without too much trouble but then has to get out and stretch. If he drives for a long time, his back pain increases.
85 In cross examination, the plaintiff was asked about an exercise program that Mr Carey suggested. The plaintiff advised he was to be seen by Karen Wilde in that regard, but she had an accident so that treatment did not go ahead. The plaintiff had, however, been given exercises by Jason Hill and did those at home and also when in Mr Hill’s rooms. Dr Horsley did not discuss treatment with the plaintiff, nor mention hydrotherapy.
86 Prior to hurting his back, the plaintiff rode his bike to work every day. Since that time, he has hardly ridden his bike as it causes him too much pain and he certainly could not ride to and from the factory. He last rode a bike as part of his physiotherapy treatment eighteen months ago.
87 The plaintiff can only play the guitar for about twenty minutes until he experiences pain down his legs and in his back.
88 Sexual relations with his wife have been significantly affected because of the pain and because the plaintiff is irritable and moody all the time because of his restrictions.
89 The plaintiff does not socialise anywhere near as much as he did before. He does not see friends as much as he would like because he is in pain and going out now is very difficult for him.
90 In re-examination, the plaintiff confirmed before his injury he used to go out for dinner weekly and also to the pictures. He now only dines out perhaps once a month. Sometimes he has difficulty sitting for too long which is frustrating for him.
91 The plaintiff is able to go shopping locally. He does not really follow the local football. The plaintiff agreed his main interests revolved around the Church.
92 The plaintiff still attends the Church on a regular basis but cannot participate in church activities to his pre injury level because of back pain and general restriction.
93 The plaintiff was cross-examined at length as to his involvement in the Church. He confirmed he joined about thirty years ago. He became a minister in his twenties having been baptised, after years of Bible study, and being a member of the congregation of good character.
94 The plaintiff explained the Bible study took him a long time because he had trouble reading so he was in and out of study a bit. Fellow church members had to read bits of the Bible out to him all the time and it was quite frustrating, but “they sort of got there” for him to get baptised anyway.
95 The plaintiff can read some shorter words in the Bible but cannot read more than three letters words as a rule, until he gets familiar with them. That familiarisation is a lengthy process.
96 Since he has become a minister, the plaintiff has gone door knocking/ witnessing. He has also given sermons to the congregation of about thirty and continues to do so, if lucky once every month or two. Some of his presentations involve drawing pictures to help him remember what he talks about.
97 The plaintiff tries to go witnessing perhaps every second or third Saturday from 10.00 to 11.30 am, depending on how he feels. He can drive fifteen minutes or so to another town and go witnessing with another minister.
98 In re examination, the plaintiff described how a week or so ago when he went to Mortlake witnessing, he was able only to door knock half the time and his wife had to complete the witnessing with another minister whilst he sat down and rested on a bench because of his back pain.
99 Local church services on Tuesday and Sunday go for about an hour and forty minutes. The plaintiff has to stand up and move around during services because of his back pain.
100 There are also big assemblies of the church in Bendigo and Melbourne. The plaintiff attended the Bendigo assembly recently. He no longer goes to Melbourne as it is too difficult to travel and the meetings involve too many people.
101 The plaintiff is not required to mix exclusively within his congregation. He agreed it was a close knit community and sometimes he went knocking with Mr Clissold. There are working bees in the Church where the plaintiff does little physical activity. He does not go and help people with home maintenance but others have asked him if he needed help.
Future Work
102 Due to his injuries, the plaintiff is unable to do the sort of work he has done all his life. He has had difficulty finding alternative suitable employment. He has not resumed any work and does not feel he is capable of going back into the workforce. He has only ever been involved in manual work and has very limited literacy and no computer skills. He could not work in an office or sedentary type job as such work is simply not within his capacity.
103 Bending, squatting and walking over rough ground or stairs increases the plaintiff’s back pain, and lifting is very restricted to the point where he does not think he could lift more than three or four kilograms, certainly not in any repetitive action.
104 In cross examination, the plaintiff confirmed he has kept looking for work. If he was offered a job for which he had applied, he did not know whether he could actually do the job. It depended on the duties involved. Of recent times, his wife has really looked for work for him. He did not know if he could do a job that she had applied for because he did not sleep and he is tired a lot and cannot take tablets because of his stomach problems.
105 The plaintiff has not looked for work in the wider local area because there is only one car in the family and also because he cannot drive for very long because of pain.
106 In cross examination, the plaintiff was asked in some detail about further training he had done to improve his skills while working for the defendant. He confirmed he had a truck licence up to the stage where he could drive a road train. He could not really remember obtaining a Certificate II in Transport and Distribution, as he did it so long ago, but it was pretty much ticking boxes. The Certificate II in Food Processing “was really just smelling if milk was off”.
107 The plaintiff has not really thought about his work future once the case finishes.
The Plaintiff’s Earnings
Financial Year Ending Total Gross Income 2001 $47,414 2002 $46,617 2003 $49,563 2004 $59,560 2005 $53,074 2006 $55,542 2007 $58,948 2008 $47,167 2009 $68,515 2010 $32,704 2011 DSP 2012 DSP Lay Evidence
108 The plaintiff’s wife, Pamela, swore an affidavit on 17 September 2012. She and the plaintiff have been married for twenty seven years.
109 Prior to suffering injury, the plaintiff was a hardworking and happy man who got on with people and loved his job. Since he ceased work, the plaintiff is not coping with the difficulties of his back injury and is now extremely moody. He is in pain all the time.
110 The plaintiff tries to do certain tasks but cannot finish them because of his pain and that is very frustrating for him. She often sees him lying down and resting which she believes is because his back pain is increasing.
111 The plaintiff does not like taking medication and only takes it when he has very severe pain.
112 The plaintiff certainly has to have a rest most afternoons because he does not sleep properly. At night, he wakes up and tosses and turns and gets up and watches television for an hour or two and then comes back to bed, sleeps for a while and then wakes up again.
113 Gary Clissold, a friend of the plaintiff, swore an affidavit on 21 September 2012. He has known the plaintiff for approximately twenty years through the Church.
114 Mr Clissold deposed the plaintiff had complained to him about his back injury. He had noticed the plaintiff is no longer as actively involved in the Church. Often if their families arrange a get together, the rest of his family attend but the plaintiff does not. This was not the situation before the plaintiff’s injury.
115 Mr Clissold has noticed that at Church meetings, the plaintiff gets up and walks up the back of the church. He has also noticed the plaintiff arches his back backwards and he has often observed him screwing up his face, indicating to him the plaintiff is in pain.
116 The plaintiff by nature is quite talkative and has on occasion mentioned he feels useless as though he has been thrown onto the scrap heap as a result of his back injury.
Medical Evidence
117 The plaintiff’s general practitioner, Dr Reid, from Cobden Medical Centre, has provided two reports, the most recent in September 2012.
118 Dr Reid saw the plaintiff on 4 June 2005 when he complained of low back pain radiating into his right thigh and buttock. The plaintiff was given analgesics and a light duty certificate for two days with Dr Reid noting the plaintiff was off on holidays.
119 Dr Reid noted an x-ray of 28 June 2005 showed some disc space narrowing. Physiotherapy was arranged with Mr Jason Hill in Camperdown which was initially of some benefit.
120 The plaintiff continued to work driving tankers but not manipulating the hoses. He developed right sciatica and was never free of pain which he stated was worse on getting up, with some improvement as he got mobile.
121 The plaintiff had more severe pain on 22 July 2005 and was off work for a week and then resumed modified duties but had a further episode and was off for ten days from 5 November 2007.
122 On 8 May 2008, Dr Reid arranged for the plaintiff to be seen by Mr Carey, orthopaedic surgeon, who arranged for an MRI which showed disc protrusion.
123 As from December 2008, Dr Reid reported the plaintiff was keen to continue working as a tanker driver but his employer was no longer able to offer him work unless he could be the sole operator in the vehicle, able to handle the hoses. Dr Reid understood the plaintiff ceased working at the end of October. He noted the plaintiff had a very limited education which was an impediment to his obtaining other non manual work. He thought the plaintiff also exhibited some degree of depression due to his enforced inactivity.
124 Dr Reid then considered the plaintiff would not be able to undertake any work involving lifting, bending or prolonged sitting or standing.
125 Following a recent examination in September 2012, Dr Reid reported that the plaintiff’s symptoms remained unchanged and he had back pain directly related to the 2005 injury.
126 Dr Reid noted x-ray and MRI examination showed significant narrowing and protrusion of the L5-S1 disc space and minor narrowing at C4.
127 The plaintiff advised that he walked most days but was limited to half or one hour due to pain. He could remain standing for about half an hour then had an onset of pain. Dr Reid noted the plaintiff had a serious problem at night. The plaintiff’s wife had confirmed that some nights the plaintiff had very little sleep having to get out of bed although he had a special mattress.
128 The plaintiff took regular Panadeine Forte and Dr Reid noted in the past physiotherapy had not been beneficial.
129 In Dr Reid’s view, the plaintiff remained unfit for any manual work. He noted the plaintiff had a congenital dyslexic learning problem, hence could not get work of a non manual nature such as in an office or administrative capacity.
130 Dr Andrew Griffiths from Kirby Street Clinic saw the plaintiff one occasion for his back injury on 26 October 2007. He reported that he could not comment on the plaintiff’s capacity or prognosis.
131 Mr Roy Carey, orthopaedic surgeon, first saw the plaintiff on referral from Dr Reid on 8 May 2008.
132 The plaintiff told him of the 2005 incident and his back “going again” on 21 February 2007.
133 The plaintiff told Mr Carey he did not take pills because they made him feel sick. He had been given an exercise program but it made him feel worse so he did not do it and he occasionally did some home exercises.
134 The plaintiff complained of back and right buttock pain which occasionally went to his knee.
135 The plaintiff told Mr Carey he was only doing work carting cream from factory to factory but doing no pipe work.
136 Initial examination showed a fair range of flexion without back or leg pain. The other movements were a little restricted. There was no tenderness of the low back or evidence of nerve root irritation or conduction deficit in either lower limb. Slumping was negative.
137 Mr Carey did not have imaging available but noted an x-ray report of 2005 which suggested some L5-S1 disc degeneration.
138 Mr Carey thought the plaintiff had chronic non specific low back pain and suggested further evaluation with an MRI which was undertaken in July 2008.
139 Mr Carey saw the plaintiff in the company of his wife on 21 July 2008. He thought the plaintiff had L5-S1 disc disruption and discussed the condition with him with options from an exercise program through to spinal surgery and suggested a referral to physiotherapy.
140 Mr Carey diagnosed chronic low back pain in association with L5-S1 disc disruption which he thought was consistent with the stated cause. He then thought the prognosis was for continued discomfort and disability into the foreseeable future. The plaintiff did not attend an organised re-examination.
141 The plaintiff saw Mr Carey in January 2012 at the request of his solicitors. At that stage, the plaintiff still complained of midline lower lumbar back pain and if anything, he felt he had got slightly better over the last twelve months because of doing nothing. He had some discomfort in the right buttock and some numbness in both feet mainly on the inner side.
142 The plaintiff rated his best pain rating as two to three out of ten when resting and after duties such as vacuuming; his pain might increase to six or seven out of ten. He helped resolve the increased pain by lying down.
143 Mr Carey noted the plaintiff was under Work Able and a computer course had been arranged but the plaintiff had reading problems and could not complete it. Mr Carey noted there was some suggestion of bus driving but that was not possible because of the sitting required and the plaintiff’s inability to guarantee he could help passengers after an accident.
144 Mr Carey noted the plaintiff had only ever done physical work and he had only been to school to the age of fourteen. His use of the computer was severely restricted by reading difficulties. He noted the plaintiff had been on a disability pension since perhaps July 2012.
145 On examination, there was spinal deformity. The plaintiff could flex well below his knees. Extension and other movements were a little restricted. The plaintiff had a little tenderness at the lumbosacral junction but that was not marked. There was no evidence of nerve root irritation or conduction deficit in either lower limb and plantar responses were down going.
146 Mr Carey reviewed the May 2008 MRI. He thought that the plaintiff still had chronic back pain with referred leg discomfort but no radiculopathy, associated with an L5-S1 disc disruption as evidenced on MRI.
147 In Mr Carey’s view, the plaintiff’s current ability to work did not just rely on his back pain problem as he still had disabling and persistent gastrointestinal problems. He thought the problem with the plaintiff’s work capacity related as much to the lack of numeracy and literacy skills as it did to any physical problem.
148 Mr Carey considered the plaintiff may be fit for alternate duties if he was literate and numerate enough to undertake retraining. That had not been the case and given that all of the plaintiff’s work up until the time of injury had been physical, and given that he had no current capacity to undertaken work which was not physical, Mr Carey considered the plaintiff’s effective work capacity was nil.
149 Mr Carey thought in the future the plaintiff would have aggravations and exacerbations of lower back pain and discomfort, but those should be relatively simply managed with simple medication and an exercise program. The prognosis was for continued discomfort and disability into the future. There would be no reason in Mr Carey’s view why the plaintiff could not be moved to a self managed exercise program.
150 Associate Professor Kiroff first saw the plaintiff in July 2010 on referral from Dr Reid in relation to gastrointestinal problems. The plaintiff then complained of a many year history of severe reflux symptoms. He had had two gastroscopies, the most recent being a couple of weeks prior to July 2010.
151 On examination, Professor Kiroff advised the plaintiff to lose weight. Further investigations were initiated with a pH study confirming a moderate degree of reflux. Surgery was deferred on review on 16 August 2010 as the plaintiff reported his symptoms had substantially improved.
152 At a subsequent review on 18 October 2010, that was no longer the case and an operation was performed on 29 October 2010 at which a small hiatal hernia was noted and repaired and a routine anti-reflux procedure was performed.
153 Three weeks later on review, the plaintiff complained of terrible diarrhoea and persistent nausea. He was also complaining of pain in his chest radiating into his jaw and face.
154 The plaintiff continued to lose weight because of dietary limitations following his surgery. He was seen again in late November. On the last examination in April 2011, the plaintiff’s medication for reflux had been once again resumed in the absence of any objective evidence of reflux.
155 The plaintiff was then advised to cease anti-reflux medication. Professor Kiroff contacted the plaintiff’s doctor and advised that the plaintiff probably required psychological investigation.
156 Professor Kiroff noted the plaintiff was referred with symptoms strongly suggestive of reflux, not related to his pre existing back injury. He thought the gastrointestinal symptoms did not limit the plaintiff’s capacity for work and considered his prognosis in relation to those symptoms would be excellent.
157 Professor Kiroff noted the plaintiff presented as an extremely anxious individual and there was some suggestion that his symptoms were irritable bowel syndrome. He thought that possible psychological support would assist the plaintiff. It was noted a number of medications caused the symptoms and should be avoided.
Medico-Legal Evidence
158 Professor Bittar, consultant neurosurgeon, saw the plaintiff on 14 May 2012. The plaintiff told him of the 2005 incident and a significant deterioration in February 2007 when connecting a hose. There was then a further exacerbation in November 2007 which involved ten days off work before returning on modified duties which the plaintiff undertook for twelve months.
159 At the time of examination, the plaintiff’s main complaint was lower back pain which was intermittent and varied in character. It was particularly severe at night and with any increase in physical activity. Most days, pain was of variable severity.
160 The plaintiff also complained of right leg pain which radiated through his right buttock and thigh to his ankle and foot varying in character and intermittent.
161 On examination, there was mild restriction of lumbar flexion. The plaintiff had bilateral lumbar paravertebral tenderness. Straight leg raising was normal in both legs and there were no neurological abnormalities.
162 Professor Bittar reviewed the July 2008 MRI scan. He concluded the plaintiff suffered from an aggravation of lumbar spondylosis and L5-S1 intervertebral disc prolapse with discogenic lower back pain and associated leg pain.
163 Professor Bittar thought the plaintiff’s employment had been a significant contributing factor.
164 In his view, the plaintiff was permanently incapacitated for pre injury work or indeed any other physical manual labouring work. Taking into account the nature and severity of the plaintiff’s lumbar spine condition as well as his age, education, training and skills, as well as his limited literacy, Professor Bittar thought that the plaintiff’s capacity to procure and maintain suitable employment in a reliable and consistent fashion was negligible.
165 Professor Bittar recommended the plaintiff undergo a repeat MRI scan and be reviewed by a pain specialist. He thought the plaintiff could be considered for facet joint blocks in the first instance and possibly radiofrequency denervation. Professor Bittar thought consideration could also be given to surgery.
166 Professor Bittar considered it likely that the plaintiff would continue to suffer from significant pain and disability into the foreseeable future.
167 As a consequence of his physical injury, excluding any psychiatric condition, Professor Bittar thought the plaintiff was restricted in relation to employment or activities involving bending, lifting, twisting and stooping and prolonged sitting or standing. He thought these restrictions would continue for the foreseeable future. In his view, there was a permanent incapacity for pre injury duties. Also the plaintiff did not have the capacity to perform suitable employment on a permanent basis.
168 Further, Professor Bittar thought the plaintiff was slightly restricted in terms of social activities due to pain and depression. He was also restricted in recreational and domestic activities. He thought the plaintiff suffered very significant pain and suffering as well as distress as a result of the physical work related injury to his back. He considered the plaintiff’s prognosis was poor.
169 Professor Bittar did not consider the plaintiff had increased risk of developing osteoarthritis; however he was at risk of developing and likely to develop further degenerative changes at L5-S1 – the long term course of that being variable and difficult to prevent.
170 Dr Horsley, occupational physician, examined the plaintiff on 26 July 2012.
171 Dr Horsley took a history that he had difficulty reading words beyond three to four letters. Therefore he was able to read and understand about half the newspaper. He could spell three letter words and relied on his family for support.
172 Generally, the plaintiff’s wife dealt with any forms of correspondence at home. At restaurants the plaintiff may require assistance with reading the menu and when driving, he used a GPS although he had problems with spelling the correct street name. He had basic computer skills. Literacy skills were a major issue.
173 The plaintiff complained of ongoing back and right leg pain with discomfort radiating from the lumbar spine into the right buttock. That back discomfort was present most of the time but could come and go. It varied from two to three out of ten up to seven or eight out of ten. The right leg pain occurred a couple of times a week and could last from hours to all day.
174 Dr Horsley noted the plaintiff presented as a straightforward gentleman and there was no fear avoidance behaviour exhibited.
175 The plaintiff’s sitting tolerance was about ten minutes and his static standing tolerance was ten to fifteen minutes.
176 On examination of the lumbar spine, there was a mild loss of lumbar lordosis and no paraspinal muscle spasm. Forward flexion was to eighty degrees, extension to thirty, left and right lateral flexion and left and right lateral rotation was limited in the last five to ten degrees.
177 There was wasting with the thigh circumference of forty four centimetres on the left and forty five on the right and calf circumference of thirty nine and a half on the left and thirty seven and a half on the right. Dr Horsley noted that suggested a significant reduction in muscle bulk on the right side. However peripheral nervous system examination was otherwise normal with attention to light touch, power, tone, vibration and temperature sensation.
178 Reflexes were difficult to elicit without enhancement but with enhancement, were present bilaterally at the knees and ankles.
179 Bilateral straight leg raising was to eighty degrees with the negative sciatic stretch test. The slump test was negative at ninety degrees. The plaintiff’s gait was mildly antalgic when he got up from the couch but settled thereafter. He was able to walk on his toes and his heels. He had difficulty but was able to squat with pain.
180 Dr Horsley had available the June 2005 x-ray and the July 2008 MRI and x‑ray.
181 Dr Horsley thought the plaintiff presented with mechanical back pain and referred right leg pain. He had radiological evidence of disc degeneration at L5-S1 and a moderate size posterocentral disc protrusion. He had symptoms suggestive of the discal disruption although there was no obvious annular tear shown on the MRI scan. There was reduction in muscle bulk at the right calf but no other specific clinical radicular signs.
182 Given the duration and nature of the plaintiff’s symptoms, Dr Horsley thought they were likely to persist and that the plaintiff was significantly disadvantaged.
183 In her view, the plaintiff missed opportunities for redeployment because of his educational background and literacy issues and there was significant restrictions with respect to his lumbar spine. She thought his opportunities for redeployment were very limited.
184 Dr Horsley considered work had been a significant contributing factor. She considered the appropriate restrictions were avoidance of repetitive overreaching, repetitive bending and lifting, truncal rotation, lifting items greater than twelve to fifteen kilograms except on an occasional basis, lifting items up to eight to ten kilograms on a repetitive basis, working in awkward and confined spaces and undertaking good manual handling techniques. She noted the plaintiff’s current functional tolerances were poor and he was quite de-conditioned and he had no formal exercise program.
185 In Dr Horsley’s view, the plaintiff presented with significant disability when one took into account his educational background, literacy, issues, back condition and current functional tolerances. She thought the plaintiff would benefit from a structured physical program supervised by a physiotherapist. She considered hydrotherapy might also be appropriate and the plaintiff would benefit from seeing a psychologist for some counselling as he was having difficulty dealing with his level of disability.
186 At best, if the plaintiff were able to find duties within his restrictions, and if his functional tolerances improved, Dr Horsley thought his capacity for work was likely to be very part time, possibly fifteen to twenty hours a week. She noted unfortunately he was unlikely to find work outside the manual area because of his lack of qualifications and literacy and now his poor functional tolerances. She also noted his time out of the workforce was also a barrier. She thought it would be in his best interests to return to work on a part time basis although the prognosis for a return to work was poor.
187 Dr Horsley considered the plaintiff required a functional restoration program before even considering returning to part time work.
188 In Dr Horsley’s view, the prognosis was for ongoing and intermittent back and right leg pain and the back injury was significant in a primarily manual worker with significant literacy issues living in Cobden.
189 Dr Newlands, psychiatrist saw the plaintiff on 4 April 2012.
190 On mental state examination, there was no evidence of abnormality of the form or possession of thinking. Content demonstrated some negative themes and some self deprecation but no evidence of delusions or overvalued ideas. There was no evidence of any abnormality of perception and the plaintiff had some insight into the nature of his difficulties. There was no evidence of any abnormality of judgment.
191 Generally, the plaintiff reported to Dr Newlands that since suffering injury, his temper had worsened. He thought his memory had diminished. He had reported poor sleep. He had lost weight since the incident. He was perhaps a little quieter socially and he suffered panic attacks without cause.
192 In her view, the plaintiff had developed an adjustment disorder with mixed anxiety and depressed mood relevant to the claimed issue. She noted that must of course be seen on a background of some pre existing anxiety with occasional panic attacks.
193 From a purely psychiatric perspective, Dr Newlands believed the plaintiff was fit for unrestricted work but acknowledging his age and limited education, she thought it would be difficult for him to get work of a non manual nature and also because of his literacy problems. In her view, the plaintiff probably would feel much better emotionally if he were working and supporting his family and she noted he in fact did continue working after his injury and was at one stage provided with light duties in the office. In his own words he “mucked it up” because he could not spell.
194 Dr Newlands thought the plaintiff might benefit from attending a psychologist and also having a referral for pain management. She concluded it was likely that as long as his pain and limitations persisted, the plaintiff was likely to experience some psychological symptoms.
Investigations
195 Dr Reid organised an x-ray of the plaintiff’s lumbosacral spine in June 2005. It was reported there was evidence of L5-S1 disc degenerative change.
196 Mr Carey organised an MRI scan and x-ray of the plaintiff’s lumbar spine on 2 July 2008. It was reported on the MRI scan that there was a degenerative L5-S1 intervertebral disc with broad based posterocentral disc protrusion.
197 The report of the x-ray set out there was normal lordosis with mild narrowing of the L5-S1 intervertebral disc with anterior endplate osteophyte formation. The other lumbar intervertebral discs were of normal height and no spondylolisthesis was seen. There was small Schmorl's node herniation seen in L1 and superior endplate of L2. Facet joints were unremarkable.
The Defendant’s Evidence
Medical Evidence
198 Mr Roy Carey, orthopaedic surgeon, wrote to Dr Reid on 8 May 2008 thanking him for referring the plaintiff.
199 The plaintiff told him of initial back discomfort from the 2005 incident, which had persisted until that time. The principal problem now was that whilst the plaintiff was happy doing driving work (not being required to use hoses to pick up the milk from farms) everything was okay but he was unable to cope with normal work which was quite physical. The plaintiff advised he had been told there may not be work available in the future for him on a physical basis.
200 Mr Carey noted what sounded like right sciatica had now completely resolved.
201 On examination, there was no spinal deformity and the plaintiff had a fair range of flexion without back or leg pain. There was no tenderness or irritation of nerve root irritation or conduction deficit in either lower limb. Slumping was negative.
202 Mr Carey noted no imaging was available, although a report of a 2005 x‑ray suggested some degeneration at L5-S1. As that had been going on for so long, Mr Carey thought it not unreasonable to undertake an MRI scan to exclude significant pathology.
203 Mr Carey advised, unfortunately no treatments apart from an appropriate exercise program, which the plaintiff told him made him worse, were likely to be helpful in improving his performance and get him back to normal quite physical duties. Mr Carey did not think operative treatment would be appropriate.
204 Mr Carey re-examined the plaintiff in July 2008, having received the MRI scan which he thought showed the plaintiff had L5-S1 disc disruption.
205 Mr Carey discussed the various options, ranging from exercise through to surgery. He noted the plaintiff really had not had a good core stabilising program and he recommended physiotherapy be organised.
206 Mr Carey advised that Ms Wilde, the suggested physiotherapist, had recently hurt her foot and would be off work for a while.
207 Mr Carey noted that the plaintiff had further issues in regard to the possibility his employer might put him off work as there were not alternative duties and he suggested the plaintiff seek legal advice.
208 Following examination on 28 March 2011, Dr Reid certified the plaintiff fit for alternative duties for the next month involving no lifting or bending and “if able, to drive vehicles must have ½ hour breaks.”
209 Mr Hill, physiotherapist, reported to Allianz on 31 March 2011. He diagnosed a lumbar injury as a result of the 2005 incident, with the plaintiff having L5-S1 disc degeneration with posterocentral disc protrusion.
210 Mr Hill noted that since the 2005 incident the plaintiff had had three attempts at light duties until 31 October 2008 when he ceased work.
211 Mr Hill noted on the occasions when the plaintiff attempted to return to full time duties of ten to twelves hours a day; for example, putting pipes on the truck, driving, bending, pulling down hoses, his back pain worsened significantly to the point where he could not work for two to three days and as such his attempts to return to full duties failed.
212 Mr Hill thought the plaintiff’s incapacity for work was a direct result of his lumbosacral injury.
213 Mr Hill considered the plaintiff did not currently have the capacity to perform his pre injury duties and was not able to lift hoses or bend as those duties required. He considered the plaintiff may have a capacity for limited driving, walking, bending or lifting activities. Further, he may have a capacity for alternative duties which involved intermittent sitting and standing activities, such as light driving or some activities that interspersed walking.
214 Mr Hill noted, as the plaintiff had not worked for about two and a half years, there should be a capacity to attempt some light alternate duties, so an inability to do any work indefinitely was probably too extreme.
215 Mr Hill considered treatment was essential to avoid deterioration of daily tasks such as bending down to put on his shoes and socks, pick up soap and general household activities. He thought the plaintiff required access to ongoing medical and pharmaceutical care and physiotherapy and it would also be beneficial to have access to psychological services.
Medico-Legal Evidence
216 Dr Mary Wyatt, occupational physician, examined the plaintiff in June 2007.
217 The plaintiff advised he had had intermittent back problems over the last few years which flared up in 2007. At that stage, he had returned to his normal work and advised he was coping adequately. The plaintiff then complained of continuing soreness in the low back and right buttock with tingling into the outer part of the right leg and foot and some symptoms of discomfort in the left foot.
218 On examination, there was a flattened lumbar curve and no tilt. Range of movement was mildly restricted. The plaintiff was stiff in the lumbar spine. Straight leg raising was uncomfortable at about seventy degrees on the left, at which he indicated soreness in his low back. There was normal right straight leg raising and reflexes. Mild tenderness was noted over the low back, particularly over the left low back extending into the left buttock.
219 Dr Wyatt thought the plaintiff had a clinical presentation of disc prolapse and sciatica. The plaintiff indicated his problem had improved but not resolved and he had continuing grumbling sciatica for a few years. Dr Wyatt thought the plaintiff was probably going to have continued sciatica and intermittent problems with his back which may flare from time to time, but she thought his long term prognosis was fairly good.
220 Dr Wyatt considered the plaintiff’s employment materially contributed to his current problem although there was no continued incapacity. She thought the problem that year had basically been a continuation or recurrence of the previous condition from a few years ago. There had been no recent work aggravation to cause the symptoms in 2007. She would not say it was a new claim but said it was basically the natural fluctuating symptoms for a chronic back pain and sciatic problem.
221 Dr Wyatt thought the plaintiff was then fit to continue with his normal duties as he was working fulltime in them.
222 Mr W Huffam, orthopaedic surgeon, examined the plaintiff in March 2008.
223 The plaintiff then told him that he was off work for two or three weeks at the end of 2007, then returned to work driving a truck but not picking up milk. He was working eight, ten or twelve hours a day and continued to have pain in the middle of his back and right buttock, but this time not down his leg.
224 Mr Huffam noted the report of an x-ray of 28 June 2005. Upon physical examination, he found the plaintiff walked with a normal gait and was able to walk on his heels and toes. There was mild tenderness over the spine of the fifth lumbar vertebra. There was limitation of lumbar spine movement to about half.
225 There was no muscle wasting. Knee and ankle tendon reflexes were normal and active and there was no loss of muscle power or skin sensation over the lower limbs.
226 Mr Huffam then thought the plaintiff did not have a capacity to return to duties requiring bending or lifting from a bent position, as required in his original job.
227 Mr Huffam did not regard the plaintiff as being fit to perform his normal work which required considerable bending over attaching milk hoses to tanks, but noted the plaintiff was coping with alternate duties, working quite long hours purely truck driving. He thought it reasonable for the plaintiff to continue to do that work. Considering the plaintiff’s very limited education, no other work experience and his place of residence, Mr Huffam thought it unlikely any other available employment would be better for him.
228 Mr Huffam diagnosed intervertebral disc degeneration at the L5-S1 levels in the lower back which could be reasonably attributed to work strains with recent exacerbations.
229 Mr Huffam noted no specific management plan had been submitted but the plaintiff was then coping with working fulltime truck driving. He noted the plaintiff stated his doctor had suggested he change jobs, but the plaintiff stated that although he did have back pain, he was able to cope with his present driving job and Mr Huffam thought it was reasonable for him to continue to do so.
230 Mr Huffam thought the plaintiff’s present disability must be regarded as being permanent, but provided he did not sustain further injuries, there was a good chance his back condition would not significantly worsen in the foreseeable future.
231 Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff in July 2009.
232 The plaintiff told him of the 2005 incident however, Mr Battlay was not given a detailed history of various returns to work and duties undertaken.
233 On examination, the plaintiff held his lumbar spine in a normal posture. He performed a substantially full range of back movement with minimal discomfort but no current evidence of sciatic root nerve irritation or a lower limb neurological loss. There was no measurable wasting and no objective neurological loss.
234 Mr Battlay noted the 2008 MRI scan which showed a bulging L5-S1 disc and x-rays which demonstrated degenerative change in June 2005. Mr Battlay thought the plaintiff had an L5-S1 disc derangement and a stabilised and permanent impairment to his back.
235 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in November 2011.
236 The plaintiff told him of the 2005 incident, exacerbations in 2007 and a return to driving work after a short period of time off work and alternative office duties until dismissed from his employment in October 2008. The plaintiff advised he noted intermittent back pain.
237 On examination, there was no deformity of the spine. Flexion was to seventy degrees and extension to twenty degrees. Other movements were to twenty degrees with some pain. Bilateral leg raising was to eighty degrees. Power, tone and sensation were intact in the lower limbs and the knee jerks were symmetrically reduced.
238 Mr Dooley noted plain x-rays showed narrowing at the lumbosacral level and an MRI scan of the lumbar spine showed evidence of degeneration at that level.
239 Mr Dooley thought the plaintiff had naturally occurring degenerative disc disease at the lumbosacral level. He considered it probable the plaintiff had aggravated this underlying condition during the course of his work in June 2005 and February 2007. Mr Dooley thought the plaintiff may be subject to flare ups which could be improved by him undertaking regular low impact exercise and losing weight.
240 Whilst he accepted there would be orthopaedic surgeons who believed one level degenerative disc disease could be treated by fusion, Mr Dooley thought in compensable circumstances, the outcome was not predictable. He considered the plaintiff’s condition could be self managed with short term conservative therapy for any significant, acute exacerbations of pain.
241 In Mr Dooley’s opinion from an orthopaedic point of view, the plaintiff was unfit to carry out regular heavy physical work or work involving a lot of bending or lifting. He thought the plaintiff would be capable of carrying out driving type work, no loading or unloading, and light physical work. He noted the plaintiff’s doctor believed his standard of education and literacy were such that he would not be able to carry out what one might term normal office work.
242 Dr Stephen Stern, psychiatrist, examined the plaintiff on 20 July 2009.
243 The plaintiff told him that when he ceased work the previous year he was on light duties.
244 On mental state examination, the plaintiff’s affect was mildly depressed. He told Dr Stern he could not do office work because of his dyslexia and he was uncertain of his future and his confidence was low. There was no evidence of thought disorder, delusions or hallucinations or of a compulsive obsessive disorder. Memory and concentration were reduced and the plaintiff had good insight into his situation.
245 Dr Stern thought the plaintiff was suffering from an adjustment disorder with mixed anxiety and depressed mood related to the June 2005 work incident and continuing pain.
246 From a psychiatric point of view alone, Dr Stern thought the plaintiff was fit for work, including his pre injury duties, and his psychiatric condition had stabilised.
Investigations
247 Dr Reid organised an x-ray of the plaintiff’s lumbosacral spine on 28 June 2005, after which it was reported there was evidence of L5-S1 disc degenerative change.
248 A CT scan of the plaintiff’s head and cervical spine were organised by Dr Reid in October 2007.
Vocational Evidence
249 Work Able Consulting carried out a vocational assessment report in June 2008 in which the identified suitable employment options were truck driver, bus driver, forklift operator, car salesman and meter reader.
250 In terms of the plaintiff’s current situation, it was noted the plaintiff reported he was undertaking truck driving duties which involved driving between factories to collect milk. The plaintiff stated he was currently working eight to twelve hours a day, five days a week. He reported he was not able to perform his pre injury duties of driving trucks involving collection of milk from dairy farms as that involved lifting and attaching hoses which was outside his medical restrictions. The plaintiff stated he was not able to undertake lifting tasks as well as tasks that involved bending and pulling.
251 It was noted the plaintiff was then on leave from work and, prior to going on leave, his employer discussed with him there may be a reduction in his hours and duties that he could be offered as the work he was doing was a casual position.
252 The plaintiff agreed that at that stage, in early 2008, he was being certified by Dr Reid as fit for modified duties and could drive tankers but not lift hoses.
253 The plaintiff reported his injury impacted on his work life as he enjoyed driving and stated he hoped to be able to continue that work until he was ready to retire. He was now uncertain about his work future and concerned about the type of work he could undertake if his current duties could not be provided.
254 When asked about alternative roles, the plaintiff stated he thought he would enjoy working in a sales role or working in a shop, noting he had done some unpaid work in a car yard in the past, but he thought he would struggle with the paperwork.
255 An NES job seeker plan was completed by Work Able in October 2008. It was noted then the plaintiff had presented as uncertain about what type he work he could undertake and would need vocational counselling. A number of training options were discussed including fork lift licence and driver’s certificate for bus driving positions. It was noted the plaintiff did not express an interest in completing this training at the current time. It was also noted the plaintiff indicated he was open to the idea of working in sales. However, he noted that his limited English literacy skills may impact on his ability to perform administrative tasks.
256 There was also an NES Week 8 Job Seeker Plan dated 4 December 2008.
257 There was a meeting between Work Able Consulting, the plaintiff and Dr Reid on 26 February 2009, during which several employment options were discussed.
258 Dr Reid indicated he was supportive of the plaintiff returning to work with a new employer and stated he believed the options of truck driver and bus driver would be within the plaintiff’s capabilities provided he was not required to drive for long periods, such as an interstate driving role, and also he was not required to undertake heavy manual handling such as loading goods on and off a truck. Dr Reid also indicated he was supportive of the plaintiff undertaking roles such as car sales or other retail based positions.
259 Work Able Consulting carried out a vocational re-education assessment report in May 2009, at which time the plaintiff had been participating in an NES program for thirteen weeks. During that time, he had not applied for any advertised positions and indicated he did not have any idea regarding what type of work he would be able to do. It was noted the plaintiff was reluctant to consider work opportunities outside Cobden as he advised his wife needed to use their one car during the night.
260 There was mention of a process to the plaintiff to become a bus driver whereby he was required to obtain a driver’s accreditation issued by the Victorian Taxi Directorate, having submitted a police check and a medical assessment. It was noted Dr Reid had indicated he was supportive of the plaintiff having the capacity to undertake bus driving roles. Further, it was noted that a computer training course had been identified to provide the plaintiff with basic skills.
261 There was an NES 16 Week Job Seeker Plan dated 22 January 2010. It was noted that the plaintiff had been continuing to look in the local newspaper for suitable work but remained at a loss as to what type of work he could do. He advised Work Able Consulting he continued to be of the opinion he could not cope with any form of truck driving because he believed that this would aggravate his back symptoms.
262 Reference was also made of Work Able providing the plaintiff with the forms to assist with the driver accreditation and that the plaintiff had submitted the completed paperwork and was awaiting advice re the certificate. The plaintiff at this stage informed Work Able that he had been suffering from increased depression.
263 It was noted the plaintiff then reported he had been continuing to look in local newspapers for suitable positions. However, he remained at a loss as to what type of work he could do. The plaintiff advised Work Able Consulting that he continued to be of the opinion he could not cope with any form of truck driving because he believed that would aggravate his back.
264 Work Able reported it had provided the plaintiff with forms and attempted to assist him with getting driver accreditation for a bus driver position over recent months. However, it was noted there had been a number of delays and at that stage the plaintiff advised he had submitted the necessary paperwork.
265 It was also noted the plaintiff informed Work Able Consulting he had been suffering from increased depression.
266 There was a further NES independent job seeker plan dated 12 April 2010. The plaintiff then advised he was continuing to job seek via the newspapers but did not see any advertised job he could do because of his situation, back condition and skills. He experienced exacerbations on a regular basis. It was noted the driver’s accreditation application was ongoing but the plaintiff had been unable to obtain it. During recent discussions with the plaintiff, he stated he received the written information that he would need to resubmit due to a number of reasons.
267 It was noted the plaintiff continued to express uncertainty regarding his capacity to do driving roles due to his injury and pain levels. It was noted Work Able Consulting had attempted to encourage the plaintiff to consider driving roles such as bus driving as that could involve shorter hours and split shifts. However, the plaintiff continued to express doubts about doing that type of work.
Compensation Documents
268 In a Claim Form signed by the plaintiff on 5 June 2005, he set out suffering injury on 4 June 2005 to his low back when getting into a truck and the seat did not release. He noted previous jarring of the back. He had returned to work the day he signed the claim form.
269 The employer’s version of the form confirmed injury on 4 June 2005, at which time the plaintiff’s average weekly earnings were $744.00 or $19.50 per hour.
270 There was a further claim form signed by the plaintiff on 26 February 2007 in which he set out suffering low back pain on 21 February that year while bending over connecting a pipe, aggravating the 2005 injury. There was an employer’s claim report of 26 February 2007.
Certificates
271 On 4 June 2005, Dr Reid certified the plaintiff had low-back pain and was expected to be fit for duties on 6 June 2005. It was noted “Light work 2/7 then holiday”.
272 On 4 January 2011, Dr Reid certified the plaintiff was fit for alternate duties from 3 January to 1 February with no lifting or bending, driving vehicles but must have half hour breaks. Dr Reid noted a diagnosis of L5 spine dysfunction, disc degeneration and depression.
Overview
273 I am satisfied the plaintiff suffered a compensable injury to his lower back initially in the first incident and later during the course of his employment with the defendant.
274 Save for Mr Dooley who thought the plaintiff’s back problem was degenerative, the consensus of medical opinion is that the plaintiff has a disc prolapse at L5-S1.
275 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. The plaintiff’s claim pursuant to s98C was also accepted
276 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
Credit
277 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… 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.”
278 I found the plaintiff to be a truthful, credible witness who did not overstate the extent of his disability. He was clearly uncomfortable in the witness box because of his back condition. I accept that he is a man motivated to work as evidenced by his numerous attempts to return to work after initial injury until his employment was terminated in October 2008. I accept that since that time he has been similarly motivated to obtain work but has been unable to do so due to his back condition.
279 In this case, there is no evidence of any pre-existing back condition nor is there a suggestion of any functional overlay in the plaintiff’s presentation.
280 There was no surveillance film or any medical evidence to the effect that the plaintiff was exaggerating or embellishing his condition on examination.
281 I accept that since 2005, and more particularly from November 2007, the plaintiff has suffered ongoing constant back pain referred to his legs. He has required medication of various types at different times, his intake being somewhat inhibited by his reflux and stomach problems.
282 The plaintiff has undergone a wide range of treatment including physiotherapy and chiropractic treatment.
283 The plaintiff’s sleep has been significantly interrupted due to his back pain. As a result, he is often tired and needs to rest the following day.
284 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
285 I accept that the plaintiff is restricted in activities involving bending, lifting or prolonged walking and standing. He has not been able to do any physical activity with his children for many years and he cannot ride a bike. He has problems sitting going out for dinner or to the pictures.
286 I accept that as a result of his condition, the plaintiff no longer has a capacity for unrestricted manual employment as was the case before he injured his back.
287 The consensus of medical opinion is to this effect.
288 I am satisfied that that is a consequence which alone meets the test of serious as set out in the Act.
289 As counsel for the defendant ultimately conceded, he could not say much about the pain and suffering consequences, noting the plaintiff had worked for the defendant for twenty two years.
290 Taking into account all the evidence, I am satisfied the consequences of the plaintiff’s back condition in terms of pain, restriction in his activities, the need for treatment and the interference with his employment capacity are serious and I grant leave to bring proceedings for pain and suffering.
291 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
292 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
293 The former must be calculated by reference to the six year period specified in s134AB(38)(f).
294 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
295 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
296 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
297 I am therefore required to determine a “without injury” earnings figure - see Barwon Spinners Pty Ltd & Ors v Podolak (supra), at paragraph 70.
298 Both counsel essentially agreed the appropriate base figure was $55,000, sixty per cent of which is $33,000 or $365 per week.
299 There is a significant factual dispute in this matter as to the nature of the work the plaintiff was undertaking prior to termination of his employment.
300 There are repeated references in the Work Able vocational material to the plaintiff giving a history of prolonged driving duties involving delivering milk to various locations, but not involving use of a hose. However, the plaintiff, whilst at times having difficulty understanding the questions in cross examination, consistently maintained that he did very limited driving and spent a lot of time at work after November 2007 walking around and having smokos and not doing very much at all at work.
301 Whatever the true situation may be, clearly the plaintiff was unable to perform a full range of duties as a tanker driver after November 2007. I do not accept he was driving long distances without difficulty. Consistent with this situation was his inability to return to driving as suggested by Work Able after his employment was terminated.
302 I am required to determine what is the plaintiff’s capacity for employment as at the date of hearing and whether that capacity results in a loss of earning capacity on a permanent basis of forty per cent.
303 I accept that the plaintiff has significant problems sitting which would affect his ability to drive for prolonged periods. Further he is markedly limited in his ability to engage in bending or lifting activities. The initial certification from late 2007 was consistent with these limitations - “no lifting or bending, driving vehicles but must have half hourly breaks”. Of more recent times in April 2011, the certification was - “If able to drive vehicles, must have half hour breaks”.
304 Mr Dooley thought the plaintiff had a capacity for light physical work in these terms.
305 I am not satisfied that a long haul truck driving job or any other driving job exists in which the plaintiff would be able to take half hour breaks and not engage in any bending or lifting. Further as evidenced by his inability to obtain a bus drivers licence, the plaintiff would be unable to engage in this type of work as he would not have the capacity to assist children in day to day and emergency situations.
306 I accept Dr Reid’s current view that the plaintiff remains unfit for any manual work – a view shared by Professor Bittar following examination earlier this year. Mr Carey reached a similar conclusion in 2008 when he thought the plaintiff had no capacity to undertake work that was not physical.
307 The only occupational physician in this case, Dr Horsley, thought the plaintiff had a very limited capacity of possibly fifteen to twenty hours a week and that was if he was able to find duties within his restrictions and if his functional tolerances improved. She considered the prognosis for a return to part time work was poor.
308 I accept that the plaintiff’s level of disability is such that he cannot participate to an active extent in Church working bees and he is limited in the amount of walking and sitting as evidenced by having to stand up in church and his inability to go door knocking on a consistent basis for even an hour or so.
309 The plaintiff’s lack of sleep results in significant tiredness the following day, confirmed by his wife and doctor, which affects his ability to work and concentrate for extended periods.
310 Clearly the plaintiff’s problems with dyslexia would prevent him from engaging in any significant retraining and he has no capacity for sedentary clerical or administrative work as evidenced by his unsuccessful attempt in the defendant’s office on light duties.
311 Taking into account all the evidence, I am satisfied the plaintiff does not have the capacity to work more than a few hours a day in any other but the lightest manual work. Further, because of his problems sleeping, he would be unreliable attendee at the workplace. In such circumstances, I am not satisfied that the plaintiff has the capacity to earn in excess of $635 per week and he has therefore established the requisite loss of forty per cent.
312 As the plaintiff’s back condition has persisted for in excess of five years with little improvement despite treatment, I am satisfied that the impairment relating thereto is permanent.
313 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
314 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or 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 forty 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).
315 Accordingly, I also grant leave to the plaintiff to bring proceedings loss of earning capacity.
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