Elayoubi v ISS Security Pty Ltd
[2010] VCC 167
•17 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-09-0049
| OMAR ELAYOUBI | Plaintiff |
| v | |
| ISS SECURITY PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 February 2010 |
| DATE OF JUDGMENT: | 17 March 2010 |
| CASE MAY BE CITED AS: | Elayoubi v ISS Security Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0167 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC and | Slater & Gordon Ltd |
| Ms M Pilipasidis | ||
| For the Defendant | Mr J O’Brien | Minter Ellison |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff on 21 December 2006 (“the said date”).
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 s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(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.
Outline of s.134AB
(i) 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;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (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 “at least very considerable” and “more than significant” or “marked”;
(v) 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;
(vi) 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;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
6 The plaintiff is presently aged thirty eight, having been born on 16 November 1971. He is married with a six year old son.
7 The plaintiff completed Year 11 at Brunswick Technical School. After leaving school, he was employed by the Public Transport Corporation for nine years as a station assistant, predominantly at North Melbourne Station. That job involved selling tickets, announcing trains, and a lot of cleaning duties.
8 The plaintiff then worked in security for a year for Super Protective Services, before working at Chubb Security at Melbourne Airport.
9 In about 2002, the plaintiff commenced employment with the defendant as an aviation security officer. His work in that role was often physical and heavy and he was initially employed in the check-in bag screening area.
10 The plaintiff deposed that on 25 May 2004, he suffered some back pain whilst lifting and pulling a heavy bag.
11 The plaintiff saw his doctor, Dr Habib, who organised an x-ray on 27 May 2004 which was normal. The plaintiff was also referred for physiotherapy treatment to Mr Takyar, whom he saw on two occasions in June 2004. He had a few days off work before his pain eventually resolved and he was able to return to work on normal duties.
12 Prior to the said date, the plaintiff injured his right knee working in the checked baggage area on the ground floor of the international terminal, a job where he was not in contact with the public. Following knee surgery in mid 2006, the plaintiff fully recovered with no ongoing problems.
13 On 23 October 2006, the plaintiff was transferred to the passenger screening area. He worked varied hours but predominantly a base of seventy six hours a fortnight with overtime of eight to sixteen hours per fortnight.
14 A payslip for the period 11 September 2006 to 24 September 2006 was tendered. It set out the plaintiff worked seventy six hours at $23.62 an hour. He also worked four hours overtime, earning $35 per hour.
15 The plaintiff deposed that prior to the said date his health was good and in particular, he had never suffered any, or any significant injury to his back, or leg pain.
16 The plaintiff was cross-examined in relation to Claims for Compensation for back injuries he submitted in 2002 and 2003. He had no memory of making either claim and he explained that when anything happened at work he was told to record it in the incident book.
17 The plaintiff agreed he had had problems with blood pressure for a long time and that he had been taking medication since 1989. He agreed that he had attended a number of local medical practices since that time and explained that in recent times he had attended other practices because Dr Habib was often unavailable.
18 The plaintiff agreed that in February 2001 he was treated for bad headaches and that he was hospitalised at the Royal Melbourne Hospital between 7 and 15 October 2004 in relation thereto. He could not remember being visited at home by the emergency doctor’s service.
19 The plaintiff deposed that prior to the said date he was able to do all jobs around the house and in the garden and he always kept busy. He enjoyed playing with his young son and going on picnics and to the beach. He used to socialise a lot and he enjoyed dancing at parties. He and his wife would often entertain. They used to go to the pictures and to shopping centres to browse around. In addition, the plaintiff was passionate about fishing and would go once or twice a week locally or as far away as Lorne.
20 On the said date, at about 3 pm, the plaintiff was working in explosive trace detection using a wand over a passenger. When he stood upright, the plaintiff felt very uncomfortable and experienced sharp pain going up his back with lots of spasm. He requested his duties be changed, and whilst engaged in two other tasks, his pain worsened and became unbearable and he was taken by wheelchair to first aid at the Airport Medical Centre where he was given painkillers.
21 The plaintiff saw Dr Habib the following day and was sent by him to Mr Takyar for physiotherapy treatment on 8 January 2007.
22 On 12 April 2007, the plaintiff returned to light duties on reduced hours as a dock manager at the Urban Workshop at the Department of Human Services in Lonsdale Street (“Lonsdale Street”).
23 His job there involved monitoring cars and people coming in and out of the delivery area whilst sitting in a gatekeeper’s booth. He was also required to do some computer processing. He deposed, while he was predominantly office-based, he was required to be on his feet about thirty per cent of the time.
24 The plaintiff undertook these duties for one or two months before being certified fit to return to normal duties on 14 May 2007, although he was still experiencing niggling back pain and taking Panadol for relief.
25 The plaintiff returned to his old job in the domestic passenger screening area. Over the following day his pain returned and his back spasm became just as severe as originally. He attended Dr Habib the next day and was certified unfit for work.
26 The plaintiff underwent an x-ray of his back on 18 May 2007. He continued to take painkillers and anti-inflammatories. He remained off work until 11 June 2007, when he was certified fit for a return on light duties on reduced hours at Lonsdale Street.
27 The plaintiff underwent an MRI scan organised by Dr Habib on 5 December 2007.
28 The plaintiff worked at Lonsdale Street for four and a half hours a day, Monday to Friday, earning less than half of what he had previously been earning. In cross-examination, the plaintiff said he was unable to increase his hours in that job.
29 In February 2009, the plaintiff commenced full time duties at the Airport guarding a lift (“the lift job”). In cross-examination, the plaintiff confirmed that this was a real job introduced as part of the new airport security program.
30 The plaintiff was really struggling with the lift job and he had to take a lot of time off because of back pain. He was earning about $28.00 an hour and not doing any overtime.
31 The plaintiff took two weeks’ annual leave from 15 August 2009. On 30 August 2009, he suffered a severe exacerbation of his back pain. He was in so much pain that he had to go to the Northern Hospital, where he was given injections.
32 In cross-examination, the plaintiff confirmed he attended the Northern Hospital complaining of lower back pain going to his groin and leg. He could not recall telling the Hospital what happened and could only remember saying that he had pain. He could not remember saying that he hurt his back whilst getting up from praying but it could be possible because he does go and pray at the mosque. He prays “with pain but that is his faith”.
33 The plaintiff attended Dr Habib on 4 September 2009, at which time Dr Habib certified him completely incapacitated for work and he arranged another CT scan.
34 The plaintiff agreed that he was in significant pain when he went to the Hospital and also when he later saw Dr Habib on 17 September 2009. The plaintiff agreed that when examined by Dr Habib on that date he walked with a limp, was unable to get up after sitting down for a while and he was complaining about an electric shock type of pain in his left lower leg.
35 At one stage thereafter Dr Habib certified the plaintiff fit for work for four hours a day, however the defendant was unable to offer work on those hours and in any event, his back soon became worse again.
36 In cross-examination, the plaintiff disagreed, that “save for a twinge in the mosque”, he was perfectly fit by the middle of September 2009.
37 The plaintiff continues to experience constant low and mid back pain radiating down into his left leg. The pain is sharp and sometimes he experiences some numbness and lack of feeling down his left leg. His back pain is present all the time, although on some days it is worse than others and is aggravated by sitting, standing or walking for any length of time or with bending and lifting. The plaintiff continues to experience back spasms and he has problems with sleep and also with his sexual relationship with his wife. His condition seems to be deteriorating with time, with his back pain and numbness down the left leg becoming more severe and debilitating.
38 Once or twice a fortnight he has exacerbations when the pain becomes almost unbearable and he cannot get out of bed.
39 The plaintiff is presently in receipt of sickness benefits. He is very frustrated at his inability to work and the stress and financial strain it puts on his family.
40 The plaintiff could not do the lift job nor could he work at the railway station at present because of his constant back pain.
41 The plaintiff continues to see Dr Habib once or twice a month. The plaintiff takes ‘over the counter’ Panadol and applies creams and gels, such as Voltaren and Finalgan. He has physiotherapy about once every three weeks and does exercises at home. He was prescribed Valium to help relax his back pain when he attended the Northern Hospital. On occasion he has had stomach problems when he has taken Panadeine Forte.
42 Dr Habib has advised the plaintiff that if he does not show any signs of improvement soon he will refer him to a surgeon to discuss surgical options such as a laminectomy.
43 In cross-examination, the plaintiff confirmed that he had told Dr Castle he was in constant pain and he had spasms and that a lot of the time his wife had to help him. Most of the time she does the heavier supermarket shopping and at times she has had to help the plaintiff get dressed.
44 On re-examination, the plaintiff said he had never been free of symptoms since the said date. His pain has varied since then. He thought generally his pain was getting worse.
The Plaintiff’s Medical Evidence
45 Dr Habib initially examined the plaintiff on 22 December 2006, being given a history of the incident the day before.
46 As of February 2008, Dr Habib thought the plaintiff had suffered injuries as a result of wear and tear at work. He considered the plaintiff was not a candidate for surgery and the degenerative process would continue to degenerate and would ultimately end up in surgery.
47 He thought then the plaintiff “was not bad for light duties but how he would be in the future depended on the turn he took”.
48 Dr Habib continued to certify the plaintiff fit for light duties, four and a half hours a day. In his view, the plaintiff had sustained L3-4 disc bulging with nerve root compression causing all his problems.
49 In his report of 19 September 2009, which the parties agreed detailed the attendance on 17 September, Dr Habib noted the plaintiff was working on light duties for eight hours a day with a restriction of no lifting, no pulling, no going on steps and the maximum weight to be lifted was five kilograms.
50 Dr Habib noted that the plaintiff sustained a flare-up of his back pain and attended the Emergency Department at the Northern Hospital on 30 August 2009 reporting excruciating pain, not relieved with Panadeine Forte.
51 On examination by Dr Habib on 17 September 2009, the plaintiff was complaining of numbness in the buttocks and lower limbs and was in great pain and he walked with a limp. There was pain in the paraspinal muscle and tender deep muscle of the back and the plaintiff was unable to get up after sitting for a while. He was complaining of electric shock type of pain in the left lower limb and in the gluteals.
52 Dr Habib had no doubt at that time the plaintiff was keen to return to work as he had to run a family and pay a mortgage, but the plaintiff was crippled with back pain due to disc bulge and nerve root impingement.
53 Dr Habib supported the plaintiff’s application for a Disability Support Pension on 12 November 2009 on the basis of back pain and discogenic pain, disc prolapse and nerve impingement. He thought it likely the plaintiff’s condition in the next two years would deteriorate, fluctuate and was uncertain, and that the current impact of the condition on the plaintiff’s ability to function was expected to persist for more than two years.
54 In his most recent report of February 2010, Dr Habib noted there was absolutely no improvement in the plaintiff’s overall condition and he would say the plaintiff had gone down and was unable to do even light duties. Dr Habib mentioned that he would like to seek the opinion of a spinal surgeon, Mr Roy Carey, who does a lot of laminectomies.
55 Dr Habib noted that with this sort of pain, depression and traumatic neurosis, the plaintiff was a depressed type of fellow. He felt that considering his age, the plaintiff would be working as he had a very good job at security at the Airport, which he cannot do. He noted that Ms Locker, Injury Management Manager for the defendant, was extremely helpful in trying to get the plaintiff back to work.
56 The plaintiff has continued to receive physiotherapy treatment from Mr Takyar in relation to pain and stiffness of his lower back resulting from work. As of February 2009, Mr Takyar reported that the plaintiff had complained of increasing low back pain after increasing his hours to full time working at the lift at the Airport.
57 The plaintiff was examined for medico-legal purposes by a general surgeon, Mr Hadj, on 14 July 2008.
58 The plaintiff told Mr Hadj he had constant pain in the thoracic as well as lumbar spine and he had spasms in the spine. At times his pain radiated into the left leg. He could not stand in one position for more than twenty minutes and he had difficulties with bending and with lifting weights greater than four kilograms. He had assistance with gardening. He could not help his wife with domestic chores.
59 On examination, there was tenderness over the lumbar spine with bilateral paravertebral muscle spasm and some flattening of the normal lumbar lordosis. There was a reduction in flexion and extension and there was no neurological deficit.
60 In Mr Hadj’s view, the plaintiff had sustained an injury to the thoracic and lumbar spine. He thought the plaintiff obviously had degenerative disease of the lumbar spine and he had probably aggravated pre-existing degenerative disease at both levels. He considered that the plaintiff’s work had caused his current symptoms.
61 Mr Hadj thought there was a prospect of the plaintiff having further deterioration with the likelihood of increasing arthritic changes with the passage of time. In his view, continuing medical treatment was indicated in the form of medication and physiotherapy.
62 Mr Hadj thought the plaintiff was unfit for his pre-accident employment, noting he had always worked in security and would have difficulty finding work elsewhere. The plaintiff was just coping with four and a half hours’ work and had not been able to return to full time work at that stage. Mr Hadj also noted that the injury had had a significant impact on the plaintiff’s leisure activities, as well as sexual activity.
63 Mr Hadj re-examined the plaintiff on 22 July 2009, at which time his findings and conclusions were exactly the same as those mentioned in his previous report. However, on examination, he could find no evidence of bilateral paravertebral muscle spasm. The plaintiff told Mr Hadj that he was just coping with light duties.
64 The plaintiff attended the Northern Hospital Emergency Department on 30 August 2009 with the presenting problem of three days’ lower back pain radiating to the left leg and left groin. The plaintiff was discharged on analgesia. Dr Habib was requested to organise an MRI scan of the plaintiff’s back and follow him up. Physiotherapy was also suggested.
65 Dr Castle, occupational and rehabilitation physician, examined the plaintiff on 28 July 2009, and more recently on 2 February 2010.
66 The plaintiff told him on the recent examination that since the first visit he had had the sudden onset of severe pain, after which he was admitted to the Northern Hospital and given an injection.
67 In February 2010, the plaintiff complained of constant pain, the severity of which varied. It was made worse by standing a lot. The plaintiff told Dr Castle he could walk for twenty minutes and then the pain increased. He had small spasms of his back and a lot of stiffness on getting up in the morning. He could sit for about twenty five minutes and stand for about the same time and he could carry three or four kilograms. There were still days when the pain was unbearable and his wife needed to shower and dress him.
68 On examination, there was reduction of lumbar movement. There was tenderness over L3-4 and L4-5. There were no neurological deficits/ abnormalities.
69 Dr Castle noted the plaintiff was slightly worse than when he last saw him. Dr Castle noted the significant change in the L3-4 disc protrusion shown on the recent MRI scan of 3 September 2009, which he noted now mildly impinged the traversing left L4 nerve root. He diagnosed an L3-4 disc protrusion compressing the left L4 nerve root.
70 Dr Castle thought the plaintiff’s prognosis was guarded. He thought it was likely in the future the plaintiff would require surgery on his lumbosacral spine in the form of a discectomy and that he may benefit from an epidural steroid injection or facet block injection.
71 Dr Castle considered the plaintiff had no capacity for his pre-injury work because of the severity of his pain and his standing, sitting and walking tolerances.
72 Dr Castle expected the plaintiff would have a capacity to undertake work in the future but that depended on his back pain decreasing or his tolerance levels increasing to a stage where he could manage to work with his present level of discomfort.
73 Mr Miller, orthopaedic surgeon, examined the plaintiff on 14 September 2009.
74 The plaintiff told him he had low back pain and discomfort with radiation into the left leg with feelings of numbness and tingling. His symptoms fluctuated but there was a pattern towards deterioration. He had significant sleep disturbance and had had a recent severe flare-up of symptoms.
75 On examination, there was no deformity of the lumbar spine but there was diffuse lumbar tenderness and lower lumbar muscle spasm. There was a reduced range of lumbar movement. There was no neurological deficit.
76 In Mr Miller’s view, the plaintiff suffered an injury to his lumbar spine with a musculoligamentous strain and aggravation of degenerative disease in the spine and probable disc injury at L3-4 and L4-5. He did not believe the plaintiff would be helped by operative intervention and he thought his long term prognosis was fair to poor.
77 In Mr Miller’s view, it was likely the plaintiff’s work over a significant period of time and the incident when he changed his nature of work precipitated symptoms in the lumbar spine. He thought it unlikely that the plaintiff would be helped by surgical intervention but that he may be helped by a back rehabilitation program.
78 In Mr Miller’s view, the plaintiff was clearly not fit for his pre-injury work duties, which he noted had been attempted and had failed on a number of occasions. He thought the plaintiff would have difficulty with work that involved repetitive bending, repetitive lifting and lifting of weights of more than five kilograms. He considered the plaintiff would also have a requirement to shift his posture on a regular basis. He thought the plaintiff was now suitable only for sedentary type duties and that such work restrictions were permanent and work related.
Investigations
79 On 27 May 2004, Dr Habib arranged for an x-ray of the plaintiff’s lumbosacral spine. The x-ray was normal.
80 An MRI scan of the thoracic and lumbar spine was carried out on 5 December 2007. It was concluded there was mild degenerative change in the thoracic and lumbar spine. There were a few small disc bulges and protrusions demonstrated with no evidence of nerve root compression and no central canal stenosis.
81 An MRI scan of the lumbar spine was carried out on 3 September 2009. At L3-4, there was a small left paracentral disc protrusion posteriorly displacing and mildly impinging the traversing left L4 nerve root. There was mild bilateral neural foraminal stenosis from L3-4 to L5-S1 without neural compromise.
82 It was noted, comparing this study with the previous MRI scan of the lumbar spine, the left paracentral disc protrusion had become more prominent and mass effect upon the traversing left L4 nerve root was essentially new. Otherwise there had been no appreciable change.
The Defendant’s Medical Evidence
83 Dr Andrew Miller has seen the plaintiff on a number of occasions, initially on 18 January 2007, then on 10 May 2007, 6 September 2007, 5 June 2008 and 16 January 2009. He also conducted a worksite inspection on 8 August 2008.
84 Following the first examination, Dr Miller concluded the plaintiff had sustained a chronic incapacitating injury to his back. In his view, the incident implicated the plaintiff’s employment as a significant contributing factor in the absence of other possible causative factors.
85 Dr Miller thought the plaintiff’s clinical examination revealed a mild to moderate disability of his back due to limitation of movements and local discomfort. In his view, the underlying pathology was most likely a muscular ligamentous strain of the lower back. Dr Miller expected further sustained improvement with resolution of the injury within two to three months and he certified the plaintiff fit to work on restricted duties.
86 On the second examination, the plaintiff revealed his back injury had resolved since the first examination. It was noted the plaintiff’s response to treatment had been excellent and he was expecting to resume his normal duties.
87 At that stage Dr Miller believed the plaintiff was capable of not only doing his duties in Return to Work Plan No.2 of 19 March 2007, but also of doing his pre-injury duties, however he noted the plaintiff should receive instruction on correct manual handling to minimise the risk of further back injury. Dr Miller thought at that stage there was no need for further treatment, investigation or referral.
88 On the third examination, in September 2007, Dr Miller noted the plaintiff had been given a clearance by his doctor to return to his pre-injury duties but that he had problems on his return to work in May 2007. The plaintiff’s condition then improved and he returned to work on lighter duties and reduced hours after five days off and he was assigned work at the Department of Human Services for four and half hours a day, five days a week.
89 Dr Miller noted that since that time, the plaintiff continued working and was coping reasonably well apart from a flare-up in August 2007, for which he had two days off work.
90 Dr Miller’s clinical reassessment revealed that since he had last seen him, the plaintiff had sustained a further injury to his lower back only two days after returning to his usual duties. Again, clinical examination revealed a mild to moderate disability of the plaintiff’s back due to limitation of movement and local discomfort.
91 In Dr Miller’s view, the plaintiff’s underlying pathology was most likely a soft tissue strain injury of lumbar facet joints. He expected further slow but sustained improvement with resolution of the injury within two to three months with little, if any, residual disability.
92 Dr Miller considered the plaintiff currently incapable of doing a full range of pre-injury duties but he thought he was capable of light work and proposed a suitable return to work program would follow.
93 On re-examination on 5 June 2008, the plaintiff told Dr Miller that his back complaint had deteriorated slightly since the last examination. He was still doing alternate duties in Lonsdale Street for four and half hours a day, five days a week and was experiencing some difficulty coping, and he had required occasional days off work due to back pain.
94 Following this examination, Dr Miller concluded that the plaintiff’s back complaint had deteriorated since September 2007. He thought the plaintiff had a mild to moderate disability of his back due to local discomfort and limitation of some movements and he noted the plaintiff’s response to treatment had been disappointing.
95 In Dr Miller’s view, the underlying pathology appeared to be an aggravation of degenerative changes in the thoracic and lumbar spine. He considered the plaintiff’s employment with the defendant was still materially contributing to his claimed injury and his ongoing partial incapacity. He expected further slow but sustained improvement with resolution of injury within two to three months. He confirmed his earlier view that the plaintiff was not capable of doing a full range of pre-injury duties but that he was capable of light duties.
96 Dr Miller conducted a worksite inspection on 8 August 2008 at Lonsdale Street, during which he was shown the plaintiff’s duties as a security officer. Dr Miller considered this monitoring job where the plaintiff spent most of his time in a small office where he could sit or stand to watch the movement of vehicles was well within the plaintiff’s physical capacity and that the plaintiff would be capable of performing those duties full time.
97 Dr Miller last examined the plaintiff on 16 January 2009. The plaintiff told him that his condition remained relatively unchanged and he had continued doing the lighter duties at Lonsdale Street. The plaintiff told him that he was continuing to experience difficulty with his work due to ongoing back pain and that he did not believe he would be able to increase his hours.
98 Dr Miller concluded that the examination revealed the plaintiff’s back had remained symptomatically relatively unchanged since his previous examination. He thought that the plaintiff had a mild disability of his back due to local discomfort and limitation of movement, however there was no objective evidence of spinal nerve root involvement. He considered the plaintiff had a pre-existing constitutional degenerative condition of the thoraco- lumbar spine which he believed was temporarily aggravated in the course of his employment.
99 Dr Miller considered the plaintiff had had sufficient time and treatment to recover from the work-related aggravation. He believed the plaintiff’s ongoing symptoms and clinical findings were now attributable to the pre-existing degenerative condition and not work-related trauma.
100 Dr Miller therefore did not believe the plaintiff’s employment with the defendant was still materially contributing to the claimed injury or his ongoing partial incapacity. He did not believe there was any need for further active treatment as a self-managed exercise program would suffice.
101 Dr Miller imposed various work restrictions in consideration of the plaintiff’s degenerative condition. He believed the plaintiff should avoid lifting in excess of seven kilograms, avoid movements of his back beyond a comfortable range, avoid forceful pushing or pulling activities, and avoid prolonged static postures, such as sitting or standing in the same position for more than an hour at a time.
102 Dr Miller thought it was unreasonable that the plaintiff refused to increase his hours in his current duties if those restrictions were observed.
103 Dr Wallin, consultant in occupational health, safety and legal medicine, examined the plaintiff on 6 July 2007.
104 On examination, the plaintiff demonstrated moderately diminished back movement, reporting end point pain in the translumbar and lower thoracic region. He did not have any clinical signs of active muscle spasm at that stage, however he did complain of significant muscle spasm when he had a flare-up on 16 May 2007.
105 The plaintiff’s lower limb reflexes were all sluggish, sensation was normal and straight leg raising was possible through a fairly significant range, but was very mildly reactive.
106 Having been given an extensive history of the course of the plaintiff’s back complaints, Dr Wallin confirmed the most recent flare-up in May 2007 appeared to have been virtually equivalent to the episode which occurred in December 2006 giving rise to the plaintiff’s initial back claim and to acceptance of liability.
107 In Dr Wallin’s view, in May 2007, the plaintiff had not totally recovered from the December 2006 back condition. He thought it at least possible to conclude had the incident in December not occurred it would appear unlikely the two work days performing normal duties in May 2007 would have led to actual flare-up of his back. He considered the May 2007 flare-up appeared to have been assessable as a recurrence of the December 2006 episode.
108 At that examination, Dr Wallin thought that the recent flare-up had improved but not yet resolved. He thought the plaintiff most definitely was able to perform his current return to work duties but he was not fit for pre-injury duties.
109 He confirmed the necessity for the plaintiff to have an MRI scan to see if he had some underlying lumbar disc vulnerability to determine what his future work capacity would be. He confirmed that on balance the plaintiff’s work in May 2007 did lead to a transient but not major aggravation of his back, such probably being a substantially, but not quite totally, resolved condition from December 2006.
110 Mr Keith Elsner, orthopaedic surgeon, examined the plaintiff on 7 May 2008 for the purposes of an impairment assessment. The plaintiff told him his back was now much the same as it was in December 2006, although he was only working part time on light duties and had had many months of treatment.
111 On examination of the thoracic and lumbosacral spine, there was normal posture with no muscle spasm or tilt. On several examinations, the plaintiff was tender quite diffusely over the lumbosacral region but only one of those several occasions was he tender in the thoracic region and that was a somewhat vague diffuse tenderness. The plaintiff’s lumbar movements were examined twice and it was noted there was some inconsistent seemingly referred pain from the lumbar spine to the thoracic region but Mr Elsner was not convinced the plaintiff had any injury affecting his thoracic spine. Examination of the lower extremities was normal. There was diffuse reduction of power and sensation in the left lower extremity not consistent with a physiological nerve injury or radiculopathy.
112 In Mr Elsner’s opinion, the plaintiff had sustained a mild aggravation of lumbar degenerative change with an associated chronic pain condition. He could not define on physical examination any evidence of injury to the mid back or thoracic spine. There was no evidence of radiculopathy nor suggestion of loss of motion segment integrity. In Mr Elsner’s view, the plaintiff’s diffuse left lower extremity, sensory and motor changes indicated inappropriate illness behaviour.
113 Dr Elder, consultant in occupational environmental medicine, examined the plaintiff on 18 March 2009.
114 The plaintiff complained to him of back spasms with pain in the lower back associated with bending but he did not describe any radicular symptomology.
115 On physical examination, Dr Elder noted the plaintiff’s presentation was completely inconsistent between formal and informal examination. Range of movement demonstrated in the thoraco lumbar spine was minimal when formally examined, and yet on informal examination, getting to and from the examination couch, the plaintiff showed an ability to carry out a seated straight leg raise of greater than ninety degrees without any discomfort at all.
116 Power, when tested in the left lower extremity, was of a collapsing give way weak pattern in all myotomes, inconsistent with the plaintiff’s ability to walk. There was non-dermatomal loss on the lateral aspect of the whole of the left leg which went up to the belt, and on the posterior trunk it extended to T7. Dr Elder noted this was a non-organic finding. There was no wasting. In fact, the plaintiff was relatively well muscled. Knee and ankle reflexes were equal and plantar response was downgoing.
117 The plaintiff demonstrated a slow gait but he could walk on his heels and toes and carry out a squat, and Dr Elder noted that this ability was completely inconsistent with the lack of power the plaintiff demonstrated on formal examination.
118 In Dr Elder’s view, the plaintiff demonstrated significant abnormal illness behaviour throughout the consultation. He thought the plaintiff’s level of alleged disability and his presentation was totally inconsistent with the objective clinical findings.
119 Dr Elder noted that bending forward with a chemical wand would ordinarily perhaps cause a soft tissue injury which would have lasted a few days. He certainly could not see the link between the injury circumstances and the plaintiff’s alleged level of symptomology or disability.
120 In Dr Elder’s view, there was no significant abnormality in the plaintiff’s thoraco lumbar spine and he was not convinced the minor changes in the MRI were relevant. Whilst accepting the plaintiff suffered a work-related injury, in his view, the effects of that injury would have ceased shortly after the original injury.
121 In Dr Elder’s view, the plaintiff does not suffer incapacity for work. The plaintiff had a current capacity for pre-injury duties and Dr Elder did not believe there was any need to restrict the plaintiff’s work in any way. He noted the plaintiff had mild degenerative changes which were no doubt there prior to the injury but he did not think they were particularly relevant. He also considered there were obviously significant psycho-social factors contributing to the plaintiff’s presentation.
122 Dr Elder was then forwarded the MRI report dated 3 September 2009.
123 In his view, those findings, while new, did not explain the plaintiff’s original claimed symptoms or presentation. He mentioned the original history given by the plaintiff was of mid back pain not lower back pain. Dr Elder accepted there had been development of abnormality at the L4 level which was not present on the original MRI scan. In the absence of any recent injury, that finding, in his view, must be considered evidence of constitutional disc disease. The development of this, almost three years after the original mid back injury, was, in his view, not related. He thought that if there had been a significant injury to the spine the original MRI would have shown some pathology.
124 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on 9 June 2009.
125 The plaintiff told him he had experienced constant lumbar back pain since the incident and that pain did not improve in the last year or two. His pain was aggravated by sitting for more than twenty minutes, walking for more than twenty to twenty five minutes and by standing in the one position.
126 On examination, the plaintiff presented tentative and restricted movement of the thoraco lumbar spine. He gave the impression of voluntary restriction of movement. There were no clinical signs of radiculopathy. There were non- organic signs on neurological examination which included hypoaesthesia of the entire left lower limb and a mild tendency to collapsing weakness on specific muscle resistance testing.
127 Mr Simm was provided with an MRI scan of the thoracic and lumbar spine dated 5 December 2007.
128 Mr Simm diagnosed symptomatic degenerative lumbar pathology. In his view, symptoms from the plaintiff’s back condition were initiated by a minor postural strain on the said date and symptoms had persisted since without any period of recovery. Mr Simm thought there was some evidence of an adverse chronic pain response. He considered the plaintiff had non-organic physical signs which included hypoaesthesia of the entire left lower extremity with a tendency to collapsing weakness on resisted movements of the foot and toes.
129 Mr Simm acknowledged the plaintiff had suffered a work-related injury on the said date. He considered the plaintiff’s protracted clinical course since then was probably more a reflection of underlying degenerative lumbar pathology, and a chronic adverse pain response, rather than the physical effects of the minor postural strain which initiated the onset of pain.
130 Mr Simm considered the plaintiff remained incapacitated for unrestricted physical demanding work. Whilst he believed the incapacity related more to the underlying degenerative pathology and the chronic adverse pain response, he believed the plaintiff could successfully sustain his claim that there was still a work contribution from the heavy physical nature of his work duties and the incident.
131 Mr Simm considered the plaintiff capable of undertaking the modified work duties he was currently doing and that he was incapacitated for unrestricted pre-injury duties involving lifting and bending and he was unlikely to return to physically based employment indefinitely.
132 Mr Simm noted the plaintiff had an underlying pre-existing condition. Employment, in his view, was responsible for the exacerbation of that condition. Other factors which he had detailed were now, in his opinion, the predominant cause of the plaintiff’s pain and disability and had apportioned less than half of the worker’s condition to employment. He expected the plaintiff to report ongoing symptoms without recovery indefinitely. Considering these symptoms were initiated in the workplace, he thought the plaintiff may be able to successfully claim an ongoing work-related injury.
133 Mr Simm was forwarded reports from Mr Nye and Dr Elder. In a supplementary report, Mr Simm confirmed that when he examined the plaintiff the physical signs were all subjective.
134 Whilst the MRI scan reported degenerative disc desiccation at all levels, Mr Simm noted that that was a common finding and that early degenerative disc desiccation was not necessarily associated with any symptoms. He agreed with Dr Elder’s comment that forty per cent of asymptomatic people have those changes.
135 Therefore, Mr Simm stated that he would have to conclude there was limited evidence of a physical condition in this case. In his view, the physical signs presented were non-organic and the MRI scan changes were common in the general population.
136 Mr Simm concluded the plaintiff’s clinical presentation had the features of a chronic pain condition. In his view, if in fact there was some residual symptomology from the degenerative lumbar intervertebral disc disease, the relationship between employment and the condition was more one of coincidence rather than causation. He noted the symptoms were initiated by a simple postural move on the said date which could have easily been undertaken in the course of the plaintiff’s activities outside the workplace.
137 Mr Simm further reported, having seen the MRI report dated 3 September 2009.
138 Mr Simm noted that the December 2007 and the September 2009 MRI scans showed much the same pathology, although the radiologist thought, at L3-4 in the recent scan, the left paracentral disc protrusion had become more prominent and there was a mass effect on the traversing left L4 nerve root.
139 Mr Simm noted, however, the plaintiff did not report symptoms suggestive of L4 nerve root irritation on examination and he confirmed his view that the changes shown on MRI were common in the general population. Whilst the plaintiff did report back pain which could relate to degenerative pathology, the physical signs he presented on examination were non-organic and in Mr Simm’s view, the non-organic factors predominated in the plaintiff’s chronic pain condition. Whilst the distribution of the plaintiff’s pain was suggestive of discogenic pain, in Mr Simm’s view, the plaintiff had suffered an amplified and abnormal illness response to this common clinical condition and now non- organic factors predominated and were contributing to the perpetuation of his illness.
140 In Mr Simm’s view, if in fact there was an organic cause for the plaintiff’s symptoms, this constituted degenerative lumbar pathology. Whilst initiated in the workplace, the symptoms were associated with a simple postural movement that could have been easily undertaken anywhere, repeating his view that the relationship was more one of coincidence rather than causation. From a clinical point of view, he did not think there was any relevant change on the recent MRI.
141 Mr Daryl Nye, neurosurgeon, examined the plaintiff on 11 May 2009.
142 On examination, lumbar lordosis was retained and there was no spasm of paravertebral musculature, some functional features were identified and there was pain behaviour with excessive response to gentle palpation and exclamations at the extremes of movement.
143 Neurological examination revealed retained symmetrical knee and ankle reflexes. The plaintiff claimed an impairment of pinprick appreciation affecting the whole of the left leg and extending to the lower abdomen, the distribution was not anatomical and interpreted as functional. The neurological examination was, with the exception of functional features, normal.
144 Mr Nye noted the report of the December 2007 MRI scan. He concluded the plaintiff suffered a strain injury affecting spinal areas and there was some radiological evidence of mild degenerative change. There was no indication of any neurological sequelae and the plaintiff’s presentation was accompanied by functional features and the suggestion of disability in excess of that which would be expected in the light of the radiological findings as reported.
145 Mr Nye thought the plaintiff suffered a strain injury in a work situation. He considered any incapacity for employment was mild with respect to the consequences of that injury and he considered the plaintiff had a capacity for alternative duties.
146 Mr Nye thought constraints which should apply to the plaintiff’s employment situation included avoidance of repeated bending or twisting movements of the spine and prolonged sitting or standing. A lifting limit of five kilograms would be appropriate and such should not be conducted from below waist level.
147 In his view, there was no indication of a requirement for surgery. He considered the effects of the identified work-related strain had ceased. Continuing symptoms, in his view, may be attributed to mild degenerative change in the thoracic and lumbar spine consistent with age and a constitutional tendency. He noted functional features were identified and contributed to the plaintiff’s presentation.
148 Mr Nye was then forwarded a report of the September 2009 MRI scan.
149 Mr Nye noted on the more recent study the only change appeared to be at L3-4 level where a left-sided disc protrusion was previously identified, and he noted the comment by the radiologist that this abnormality was now more obvious and mildly impinged on the L4 nerve root.
150 In Mr Nye’s view, the available information suggested some minor
deterioration with respect to the MRI scan appearances, however that would
not affect the conclusions previously drawn by him.
151 An Emergency Department record from the Northern Hospital on 30 August 2009 set out the plaintiff presented with an acute onset of lower back ache for three days. The plaintiff complained of an acute onset of lower back pain when “he tried to get up from the praying position in mosque with background chronic pain two years”.
Claim Documentation
152 The plaintiff lodged a Claim for Compensation on 5 December 2002 in which he claimed upper back pain and injury on 18 November 2002 as a result of which he ceased work.
153 The plaintiff experienced sudden pain in his back and had to stand still and the pain became too much to bear while pulling heavy bags at Melbourne Airport. It was noted that he had returned to work on 29 November 2002.
154 On 10 October 2003, the plaintiff signed a further claim form in which he set out he suffered injury to his lower back on 25 September 2003 and he ceased work the following day. He described pulling bags off a conveyer belt and set out that previous pain in that area got a lot worse and that he had had two weeks off previously for a similar complaint. As of the date he signed this claim form, he had returned to work.
155 There was a further claim form signed by the plaintiff on 5 June 2004. He claimed to have suffered injury to his lower back on 25 May 2004, ceasing work the following day. He suffered injury pulling baggage off the conveyor belt when he felt a sharp pain in his lower back. He acknowledged having a previous pain or disability in that area and at the time he signed that claim form he had not returned to work.
156 A claim form was signed by the plaintiff on 21 March 2005 which set out injury on 28 September 2004 in the nature of severe headaches, dizziness, nausea and numbness on the basis of exposure to radiation at work.
157 The plaintiff signed a claim form on 6 February 2006 setting out he injured his right knee whilst turning a heavy bag on 27 January 2006.
158 The relevant claim form relating to the incident on the said date was signed on 23 December 2006. The plaintiff set out he suffered injuries to his back on 21 December 2006 while bending down to screen passengers in the international passenger screening area.
159 The plaintiff submitted a further claim on 30 May 2007 claiming injury to his back on 16 May 2007 whilst working in the passenger screening point.
Vocational and Return to Work Evidence
160 There were a number of return to work programs commencing on 5 June 2007 following the aggravation on 16 May 2007.
161 There were also a number of offers of suitable employment with expected commencement dates of 24 November 2008 through to 10 August 2009. The alternative duties involved no pushing and no heavy lifting of more than four kilograms.
Video Surveillance
162 There was approximately nine minutes of video footage taken on 15 and 16 September 2009.
163 The plaintiff was shown attending Pickles Auto Auctions in Tullamarine on 15 September 2009. He thought he may have been looking to buy a car at that time. He was shown looking under a car bonnet on two occasions and looking at the side of the car for scratches. He said the most he could possibly do with a car was just check the oil.
164 There was one or two seconds of film taken on 16 September 2009 in the front yard of his house where his wife’s car and his uncle’s wife’s car were shown.
165 The plaintiff admitted that he had also been at times to Vicwide Auto Salvage in Campbellfield, a business owned by his niece’s husband, where he “might pop by every now and again”.
166 When it was suggested to him that in the film on 15 September 2009 he was moving quite normally, the plaintiff said that he took a lot of painkillers. He cannot just sit down and sit at home and do nothing and he tries to keep active as best he can. He is in constant pain “but he has to move and do things”.
167 Occasionally he might buy a car and sell it once in a while. He could not recall buying a car on 15 September 2009.
168 A second short video was shown of the plaintiff’s activities on 20, 24, 25 and 26 November 2009.
169 On the earliest date, the plaintiff was shown standing around looking at some cars with some of his friends. The plaintiff said on that particular date he probably was not looking like he was in constant pain.
Overview
170 I accept that the plaintiff suffered a compensable injury to his lumbar spine in the incident on the said date.
171 The preponderance of medical opinion is that the plaintiff suffered an aggravation of degenerative disc disease in the lumbar spine, with Dr Castle and Mr Miller also finding a probable disc injury at L3-4 and L4-5.
172 However, counsel for the defendant submitted that the plaintiff’s degenerative back condition was symptomatic from time to time when there were simple aggravations and that any aggravation from the incident had ceased. Accordingly, any impairment was neither serious nor permanent.
173 Counsel for the plaintiff submitted that the plaintiff’s complaints had been ongoing since the said date and that medical opinion to the effect that any such aggravation had ceased should be disregarded as those practitioners failed to give an adequate explanation for their view that the plaintiff’s condition was only temporary.
174 Mr Simm, having previously found there was a continuing work contribution from the heavy nature of the plaintiff’s duties and the incident, reached this conclusion having received reports from Mr Nye and Dr Elder without giving any explanation for his change of view.
175 Both Mr Nye and Dr Elder found the effects of incident had ceased, with Mr Nye finding any ongoing problems could be attributed to degeneration. Neither practitioner explained on what basis they considered the work contribution had ceased.
176 Dr Miller, on final examination in January 2009, having been supportive of an ongoing work contribution on the four previous examinations, simply concluded this was no longer the case as the plaintiff had had sufficient time to recover.
177 I do not accept, as submitted by counsel for the defendant, that the plaintiff suffered a simple strain in the incident from which he has recovered. Since that time, he has been unable to return to his pre-injury duties for longer than a day or so without suffering an aggravation. He has had ongoing back complaints with periods of improvement and then exacerbations, the most recent in August 2009 that put him off work totally. Further, he continues to require physiotherapy treatment and medication.
178 In these circumstances, I prefer the views of Dr Castle, Mr Miller and Dr Habib, and Mr Simm’s initial view that there is an ongoing work contribution to the plaintiff’s back condition and that the current consequences of this physical injury will persist into the foreseeable future.
179 In any event, save for Dr Habib, Dr Castle and Mr Miller, all examinations preceded the aggravation in late August 2009, following which the plaintiff has been unable to return to any work.
180 Whilst this issue was not addressed by counsel for the defendant in submissions, by reason of sub paragraph (h) of the Act, I am required to exclude psychological or psychiatric consequences when considering an application pursuant to paragraph (a).
181 Whilst in more recent times some examiners have found inconsistent findings on examination and diagnosed a Chronic Pain Syndrome, having regard to the totality of the medical evidence and the plaintiff’s evidence as to his ongoing complaints, I accept that the plaintiff’s back condition is organically- based.
182 No mention was made by Dr Miller of the presence of non-organic factors on his five examinations of the plaintiff, the most recent in January 2009. Similarly, Dr Wallin made no findings in this regard.
183 Mr Elsner, on examination in July 2008, found a mild aggravation of lumbar degenerative change with an associated Chronic Pain Syndrome. Dr Elder alone attributed the plaintiff’s condition solely to significant abnormal illness behaviour.
184 Before receiving other medical reports, Mr Simm diagnosed an aggravation of underlying degenerative condition and chronic adverse pain response. Mr Nye found the plaintiff’s ongoing condition was due to degenerative factors with functional features contributing.
185 As Judge Morrow stated in Gorgiev v Healthscope Ltd (2008) VCC 1443, at para 50:
“The mere fact that non-organic factors have later intruded does not mean that what is an otherwise sound organically based case is to be dismissed.”
Credit
186 It was submitted by counsel for the defendant that the plaintiff was a far from impressive witness given his lack of recall as to previous claims and also in relation to his attendance at the Northern Hospital in August last year.
187 It was submitted by counsel for the defendant that the plaintiff painted an exaggerated level of disability to examining doctors which was to be contrasted with his activities on video.
188 In my view however, the plaintiff’s lack of recollection of the 2002 and 2003 claims is of no particular relevance given there was no evidence of significant treatment or time off work at that stage. Also, the plaintiff was prepared to accept that he had told those at the Northern Hospital on 31 August 2009 that he aggravated his back rising from a praying position at the mosque.
189 Further, the video surveillance, whilst taken on 15 September 2009, the day after the plaintiff was seen by Mr Miller when Mr Miller found diffuse lumbar muscle tenderness and some lower lumbar spasm, and apparently two days before the plaintiff attended Dr Habib in some difficulty, did not show the plaintiff participating in any strenuous or heavy activity and merely showed him at a car auction centre, and on another occasion talking with friends in the vicinity of various cars.
190 In any event, the plaintiff’s evidence is that whilst constant, his pain varies from day to day.
191 In this case, where there is reference to a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the incident is serious and permanent.
192 Whilst he had some problems with his back prior to the incident in relation to which he made a claim in 2002 and 2003 which he could not recall, and he had a short period of time off work in 2004 following a minor back injury at work, the plaintiff was able to work full time without restriction and he had not had any treatment for two years prior to the said date.
193 I accept counsel for the plaintiff’s submission that prior to the incident there were very finite small episodes compared to the plaintiff’s ongoing condition following the incident, and that in the two years or so before the incident the plaintiff was not experiencing problems with his back.
194 The provisions of Section 134AB(38) set out the narrative test for determining whether a plaintiff may make a claim for damages for pain and suffering and or loss of earning capacity. In relation to the latter, additional tests are imposed.
195 The narrative test requires that the consequences of the plaintiff’s impairment when judged by comparison with other cases in the range of possible impairments may be fairly described as being more than significant or marked and as being at least very considerable.
196 The test requires a judgment based on an evaluation of all the evidence. The relevant consideration is the impairment not injury.
197 I accept that since the incident, the plaintiff has had back pain and restriction of movement to a variable degree – worsened by activity or at times even by the slightest motion such as getting up from a praying position as experienced in August 2009. He continues to require physiotherapy treatment and medication, albeit ‘over the counter’ medication, and of recent times surgery has been foreshadowed by Dr Habib.
198 I accept, as a result of the injury to his back, the plaintiff no longer has the capacity to perform the only work in relation to which he has had experience, namely, manual work.
199 The plaintiff has made a number of attempts to return to work. He had difficulty with what appeared to be relatively light work with duties in the gatehouse at Lonsdale Street and was unable to increase his hours from four and a half per day, reporting problems with this work to his doctor.
200 When the plaintiff briefly attempted his normal duties in May 2007, he suffered a further aggravation and required a month off work, following which he returned to the gatehouse job on reduced hours.
201 The plaintiff’s most recent job at the Airport working on lift security, whilst for eight hours a day was a relatively light job, and again he had problems in the performance of his duties. The plaintiff’s evidence that he required time off in this job because of his injuries was not challenged.
202 Medical opinion, save for Dr Elder, is unanimous that the plaintiff does not have the capacity to return to unrestricted manual work. Further, all doctors agree that any work the plaintiff is capable of undertaking is significantly limited in nature with restrictions on repetitive bending and repetitive lifting and lifting of weights of more than five kilograms and the requirement to shift posture regularly.
203 I am satisfied that the interference with the plaintiff’s work is a consequence that, 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 “at least very considerable”.
204 In addition to the narrative requirements to obtain leave to bring proceedings 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 – S.134AB(38)(e)(i); and also
(b)
after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
205 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. 206 The former must be calculated by reference to the six year period specified in s 134AB(38)(f).
207 “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.
208 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.
209 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.
210 I am therefore required to determine a “without injury” earnings figure.
211 Counsel for the plaintiff submitted that the “without injury” earnings figure should be $28 an hour for thirty eight hours a week, a base figure of $1,064 together with overtime of seven hours per week at $35 per hour resulting in a weekly figure of $1,309 or $68,068 per annum. Sixty per cent of that figure is $40,840 or $785.40 per week.
212 I note, however, in the payslip which was tendered for the period 11 September to 24 September 2009, the plaintiff only worked four hours overtime in that fortnight.
213 Counsel for the defendant submitted $900 plus overtime was the appropriate figure. Based on an average of the earnings of three comparable employees, Mr Petrovski, Mr Cabuk and Mr Smith, the average gross annual earnings was $61,380 or $1,180 per week – sixty per cent of which is $36,828 or $708 per week.
214 Counsel for the plaintiff submitted this was an unfair approach as when these comparable earnings were examined, in most years the wages exceeded $60,000 per annum and Mr Cabuk’s earnings in the $50,000s unfairly brought the figure down.
215 An average of the annual wage figures in excess of $60,000 resulted in a gross yearly figure of $63,753, sixty per cent of which is 38,251 or $735.61 per week.
216 In the absence of any evidence as to the reason for the lower wages paid to Mr Cabuk, I accept that this figure suggested by counsel for the plaintiff most accurately reflects the plaintiff’s earning capacity in the relevant period had the injury not occurred.
217 The “without injury” figure is therefore $735.61 per week.
218 At the time of this hearing the plaintiff’s gross earnings from personal exertion are nil.
219 Having accepted that the plaintiff has no capacity for his pre-injury employment, the next enquiry is what the plaintiff is capable of earning in suitable employment as defined in s.5 of the Act?
220 In Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230, at 11, Buchanan AJ said, of S.5 of the Act and the definition of “suitable employment”:
“The definition directs attention to the realities of the labour market. It does require that regard is to be had to any return to work plan. A return to work plan must include an offer of suitable employment,[1] and such an offer may take the form of employment catering for the disabilities caused to a worker by injury, such as the position created for the respondent. It is one thing to have regard to a return to work plan for the light it may throw upon a worker’s ability to work, which can be turned to account in the commercial world outside the special relationship between a worker and an employer concerned to cater for the worker’s special needs. It is another to equate the work offered by such a plan with suitable employment for the purposes of s.134AB(38)(f). The definition does not require the second step to be taken.”
[1] See s.160 of the Act
221 At para 10, Buchanan AJ said:
“… If the phrase ‘suitable employment’ qualifies only the income from personal exertion the worker is capable of earning, the work on one side of the comparison may be a contrived, adventitious, short-term occupation bearing little or no resemblance to the work for which the worker is suited. I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work.”
222 Forrest J, in Acir v Frosster Pty Ltd [2009] VSC 454, at paragraph 188, also took into account the realities of the labour market when considering the issue of suitable employment.
223 I have already referred to the plaintiff’s various attempts to return to work in lighter duties and the problems associated with these attempts and the fact he has not worked since August 2009, following the most recent severe aggravation.
224 The plaintiff’s capacity for employment has been demonstrated by these attempts to return to lighter duties.
225 Taking into account the plaintiff’s education, his work history of manual labour only - working as a train station attendant and security worker, his back condition and medical certification for limited duties, and his inability to consistently undertake even the light jobs provided after the incident, I find that the plaintiff does not have a capacity for suitable employment.
226 In the alternative, it was suggested by counsel for the plaintiff that it may be open on the evidence to find that in the future the plaintiff may be able to work for four and a half hours per day, the longest sustained hours worked since the incident at the gate house. On this basis, without overtime, the plaintiff may be able to work 22.5 hours per week at $28 per hour earning a total of $630 per week - a figure which falls short of the threshold figure of $735.61 and also below the figure suggested by counsel for the defendant.
227 In either case, the plaintiff has a loss of earning capacity of forty per cent or more within the meaning of s.134AB(38)(e) of the Act which I am satisfied is permanent.
228 I am also required to consider issues of retraining and rehabilitation pursuant to subsection 134 AB (38)(g) of the Act.
229 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 s.134AB(38)(g).
230 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd (supra) at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
231 Accordingly, I grant the plaintiff leave to bring proceedings for damages for loss of earning capacity and pain and suffering.
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