Eldik v Scott Berkowitz Furniture (Clayton) Pty Ltd and VWA
[2009] VCC 474
•14 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-07-02663
| SAMI ELDIK | Plaintiff |
| v | |
| SCOTT BERKOWITZ FURNITURE (CLAYTON) PTY LTD | First Defendant |
| & | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 & 5 March 2009 |
| DATE OF JUDGMENT: | 14 May 2009 |
| CASE MAY BE CITED AS: | Eldik v Scott Berkowitz Furniture (Clayton) Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0474 |
REASONS FOR JUDGMENT
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Catchwords: s.134AB Accident Compensation Act 1985 – serious injury – lumbar spine
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC | Arnold, Thomas & Becker |
| Mr J Brett | ||
| For the Defendants | Mr P Trigar | Wisewoulds |
| HER HONOUR: |
Introduction
1 The first defendant operated a furniture warehouse at Knoxfield where from 13 August 2001 the plaintiff was employed as a storeman/forklift driver.
2 By originating motion filed 16 July 2007 pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”), the plaintiff seeks leave to commence proceedings for damages in respect to injury to his lumbar spine as a result of a fall at work on 3 July 2003.
3 The application is made under paragraph (a) of the definition of serious injury, that is, serious permanent impairment or loss of function of the lumbar spine. As to the nature of the injury suffered the plaintiff relies on radiological evidence of disc herniation and prolapse at the L5/S1 level, as well as multi- level facet joint degeneration at the L3/4, L4/5 and L5/S1 levels.
4 At hearing the plaintiff did not proceed with further claims in respect to alleged injury-related epilepsy and sexual dysfunction.
5 The application is for leave in respect to both pain and suffering and pecuniary loss damages.
6 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering and pecuniary loss consequences of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the lumbar spine, is more than “significant” or “marked” and at least “very considerable”.
7 The decision of the Court of Appeal in Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 explains the correct approach to the statutory formulation for determining an application for leave to commence proceedings for damages. In summary the plaintiff must establish:
(a)
a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease;
(b) the nature of the injury; (c)
the consequences at the date of hearing, in this case both pain and suffering and pecuniary loss, to which compensable injury materially contributes; and
(d)
that those consequences are serious in the sense that they are permanent and “very considerable”.
The areas of dispute
8 The defendants:
(a)
conceded that the plaintiff suffered a compensable lower back injury as a result of a fall at work on 3 July 2003 but they contest the nature of the injury suffered;
(b)
submitted that the consequences of any compensable injury do not satisfy the serious injury test;
(c)
submitted that a seizure or epileptic condition (not caused by his employment) the symptoms of which were first noted subsequent to the plaintiff suffering compensable injury is productive of any loss of earning capacity in suitable or alternative employment.
The evidence called and tendered
9 At hearing, the plaintiff deposed to the accuracy of his affidavit sworn on 6 March 2007. He gave evidence and was cross-examined.
10 The material tendered from the plaintiff’s amended Court Book consisted of: reports from treating doctors, general practitioner, Dr Michael O’Toole, neurologist, Dr Simon Bower, orthopaedic surgeon, Mr David de la Harpe, consultant in rehabilitation and pain medicine, Dr Clayton Thomas, consultant neurologist, Dr Yong Chern Lee, and from physiotherapist, Mr Luke Surkitt; (b) radiological reports of a CT scan, dated 14 August 2003, and an MRI, dated 30 September 2005; (c) medico-legal reports, to the insurer, from occupational health consultant, Dr Andrew Miller, orthopaedic surgeon, Mr Peter Kudelka, and consultant occupational physician, Dr David Barton; and (d) medico-legal report from specialist in occupational medicine, Dr Charles Castle. From the defendants’ Court Book, the plaintiff tendered medico-legal report dated 7 June 2007 of consultant neurologist, Dr Robert Hjorth (Exhibit “P2”), and two medico-legal reports of orthopaedic surgeon, Mr John O’Brien (Exhibit “P3”).
11 Dr Michael O’Toole gave evidence and was cross-examined.
12 The defendants tendered copy “Medical Report – Assessment of Fitness to Drive”, signed by Dr O’Toole and dated 21 December 2006 (Exhibit “D1”). The defendants also tendered 4 surveillance films (Exhibit “D2”), in DVD format, labelled: (a) “Report of 11/9/2007” (containing video dated 30 August 2007); (b) “Report of 2/1/08” (containing video dated 19 & 20 December 2008); (c) “Report of 20/6/08” (containing video dated 5 & 6 June 2008); and (d) “Report of 9/2/09” (containing video dated 23 January 2009). Due to technical problems film dated 18 & 19 April 2007 could not be shown in Court. However, through his Counsel, the plaintiff admitted that on 16 April 2007 the white van shown in film of 23 January 2009 was parked outside his premises, and that he squatted when obtaining mail from his mailbox.
13 From the plaintiff’s Court Book, the defendants tendered report from physiotherapist, Mr Jon Ford (Exhibit “D3”), and impairment assessment report from Mr Peter Battlay, surgeon (Exhibit “D4”).
14 The material tendered by the defendants from their Court Book consisted of: (a) 6 reports from orthopaedic surgeon, Mr Michael Troy; (b) 2 reports, dated 11 September 2007 and 9 July 2008 from consultant neurologist, Dr Robert Hjorth; and (c) “Vocational Assessment Report” from Worklife Donelly Ayres, dated 17 December 2003.
The plaintiff’s background
15 The plaintiff is 32 years of age having been born to Lebanese parents in Kuwait on 9 February 1977. In June 2001 the plaintiff migrated to Australia where he has siblings living in Sydney and Melbourne respectively. He is married with two children, five and two years of age, the first of whom was born within months of his work-related injury.
16 Apart from stating that his certification to work as a nurse in Lebanon is not recognised in Australia, the plaintiff’s affidavit which exhibits a statement made by him on 20 October 2003, offers limited insight into his education and employment history. Nevertheless, these background factors were also explored in the Vocational Assessment Report obtained on 10 December 2003 at the request of the insurer.
17 In summary, therefore, the plaintiff completed secondary school in Kuwait followed by three years of tertiary (that is, TAFE level) studies in information technology (computer programming) but because these skills were already dated he apparently changed direction and, over a six year period, qualified in hospital-based nursing training. According to the Vocational Assessment Report tendered this training involved “all aspects of nursing including theatre
work, general patient care, administering medication, performing standard
tests and procedures, assisting doctors”.
18 Whilst the plaintiff reads and writes in Arabic he also speaks English as he said “quite well” and reads English “reasonably well”. However, the plaintiff claims that his written English is poor. This appears to be a significant factor in determining, in accordance with the Act, the employment to which the plaintiff is currently suited.
19 I note that after the date of the injury, apart from periods of total incapacity, it appears that the plaintiff made a number of attempts to return to work. Nevertheless, he said that in December 2003 his employment was terminated on the basis that the first defendant could no longer offer him restricted duties. However, it seems that since 2004 notwithstanding rehabilitation services from Worklife Donnelly Ayres and assistance from the Commonwealth Rehabilitation Service (the latter assisting him to obtain a licence to drive a taxi), not to mention registering with four or five employment agencies, the plaintiff has not returned to gainful employment.
20 At hearing the plaintiff said that currently he receives a fortnightly disability pension. Apparently his wife also receives a pension and child allowance although she recently commenced working as a beautician for two days a week, eight hours per day. In cross-examination the plaintiff conceded that in about 2005 he and his wife obtained Australian Business Numbers. This, he explained somewhat unconvincingly, was done on the recommendation of a broker apparently to assist the plaintiff in obtaining a loan from the bank to refinance debts.
21 I note that in his evidence-in-chief the plaintiff stated that he made his last (unsuccessful as it turns out) job application in August 2007 to the Krispy Crème Doughnut Factory. However, in cross-examination the plaintiff confirmed that since August 2007 he has not looked for a job, re-trained or pursued any English language studies course, the latter of which he previously started but failed to complete on two to four occasions (the number of courses depends on to whom the plaintiff responded at hearing), the last being in 2006 at Chisholm TAFE for which the plaintiff said he paid a fee. This was so notwithstanding the plaintiff:
(a)
conceding that English language skills were important to improving his prospects of obtaining employment; and
(b)
informing the Court in re-examination that when he studied for a certificate for collecting blood (a course to which he had been referred by the Commonwealth Rehabilitation Service), because he was slow at typing his teacher recommended that in order to complete the course he should increase the level of his written English.
22 Accordingly, subject to improvement in his written English skill, the employment for which the course was a precursor was clearly compatible with the plaintiff’s earlier nursing training and the type of employment recommended by a number of doctor.
23 However, to summarise the plaintiff’s evidence on this issue (in cross- examination and re-examination), his excuse for not persisting with earlier English language courses was that more than 10 years after leaving school he found it difficult to return to study and to do homework. I will say more about the plaintiff’s earning capacity in due course.
The circumstances of the plaintiff’s injury
24 On pages 2 and 3 of his statement made on 20 October 2003, the plaintiff described the circumstances giving rise to his lower back injury in the following words:
“On the day I got my injury, 3/7/03, I started work at my normal time. I did my normal days work, nothing unusual happened, and had my lunch. I was feeling okay, I had no problems with my health. I was happy and getting the work done.
…
After lunch, on 3/7/03, I was driving the old forklift, with the platform, collecting the furniture. At about 2.40pm, I had to get a buffet and hutch in boxes from the top rack against the wall. I raised the platform, like I always did, then climbed up onto the rack and dragged the first box onto the platform, and then I started on the second one. The second one had the hutch in it, and it was much dheavier (sic) than the first box. I dragged it towards the platform and I had about 75% of the box on the platform and the rest was still on the rack.
…
I was pulling an end of the hutch in the box while I was standing on the platform. Suddenly, one of my feet went over the edge of the platform, and I fell straight to the floor. I landed on both feet and then onto my hips. I had nothing to grab hold of on the platform to stop my fall.
Straight away I felt pain in my feet, and then in my back, the lower part of my back. I felt I was in shock straight away. I felt stunned, surprised, because it happened so quickly.
I must have shouted out because Ross came running to me straight away. He asked me if I was all right, if I could stand up, and then he helped me onto my feet. I felt very shakey (sic) on my feet. I could feel pain in my lower back. I could not stand straight, bent forward a bit.
Ross asked me if I [w]anted (sic) to go to a hospital, and I said I would go to my doctor. After a while I started to walk out to my car to drive to my doctor, and I started the ignition, and I felt some big bang, shock, in my lower back. I knew I could not drive the car, and I pushed on the car horn for several minutes to alert Ross or someone in the office to come and give me a hand.
Dianne came out and I said I needed to speak to Ross, then she got Ross, and I said I would ring my cousin Gus, and I asked him to come and assist me. He came with his brother, and they drove me to the hospital. Ross and Peter helped me out of my car, and I went and sat in the passenger seat, and then my cousin came and drove me to Dandenong Hospital.”
25 In his statement made on 17 October 2003, apart from describing the plaintiff as “an outstanding employee, very thorough, reliable and efficient...” warehouse manager, Ross Eddington, stated, amongst other things, that:
“I was not in a position to observe what happened because I was in another area with my back to him. I heard him call out, and I turned towards him and I saw him laying on the floor. I rushed over to him, and he was laying on the concrete floor, and appeared to be uncertain of his situation at the time.
He eventually got up from the floor and he said he back was sore, and I said he should get medical attention. I offered to drive him to Dandenong Hospital myself, but he declined and said he’d drive himself. A short time later he was beeping his horn for attention, and I went out to where he was in his car in the car park. He said his back was too painful to drive the car, said he would get his cousin to come and drive him. His cousin came about 20-30 minutes later and drove Sami in Sami’s car.”
He was off work initially for 2 weeks, and then resumed on normal duties. He had no difficulty performing his normal duties, and did so until he again ceased work, and he was off work from 14-28/8/03.
He returned to work without a certificate and resumed his normal duties. He then had periods off work from 8-15/9/03, and he eventually returned to work on a return to work plan, of restricted duties and hours. He was performing 6 hours per day up until he ceased because of his wife giving birth and he is presently on paternity leave until the end of next week.”
26 As the plaintiff also said in his affidavit, following his fall he was at first x-rayed and treated at the Dandenong Hospital and subsequently, because his usual doctor did not want to treat him for a WorkCover claim, treated at a medical clinic other than his usual clinic. In any event the plaintiff said that he was not happy with the treatment received at this clinic and, on the recommendation of a friend, from 15 August 2003 he consulted general practitioner, Dr Michael O’Toole, who continues to treat him.
27 Relevantly, in addition to ongoing treatment for his lower back condition, in his affidavit the plaintiff also reported that:
“10. Since the fall and the injury, I have also had a number of episodes which I think are epileptic fits. I have had about 10 of them. On about 3 or 4 occasions when I have had them I have been taken to the Dandenong Hospital. I am being treated in relation to these episodes by Dr. Simon Bower, a neurologist who practices at the Monash Medical Centre, Clayton. I did not have any of these episodes or fits before the fall and the injury. I struck my head in the fall.”
28 Nevertheless, as the specialist reports and Dr O’Toole’s evidence indicated, there is no diagnosis of epilepsy or of any organic condition to explain the episodes to which the plaintiff referred both in his affidavit and evidence at hearing.
29 I note that, allowing for Dr O’Toole’s evidence in cross-examination, the first complaint of fits he received was on 7 November 2005 when the plaintiff reported “‘Fits, has had ten or so episodes in the past two years. Last fit was about one month ago”, for the treatment of which Dr O’Toole prescribed Epilim.
30 In his only report dated 8 January 2006, addressed to Dr O’Toole, Neurologist, Dr Bower, reported the following history and diagnosis:
“Unfortunately this fellow presented to Dandenong Emergency on the 19th of October, reportedly after further nocturnal seizures. Regrettably, he did not attend with a witness. He has taken Epilim intermittently since this episode and a third EEG in our department is normal. He tells me the events occur within 15 minutes of falling asleep. His wife is woken by jerking activity. It is impossible to get a clear history of what is happening with this fellow. He wonders whether the episodes have been triggered by his back injury. There is known family history of epilepsy.
On balance, I think it would be reasonable for him to continue valproate 200 mg twice a day. As he was leaving the room he asked whether he could apply to be a taxi driver and I said that he wouldn’t qualify given the uncertainty regarding whether he has epilepsy. My gut feeling is that he doesn’t have epilepsy, but then again he is presenting repeatedly following so-called seizures waking him from his sleep so I think a period of treatment is advisable. As he has not had an episode for three months he can drive a car, but I would not support his application to drive a taxi.”
31 At hearing, according to Dr O’Toole, having on 21 December 2005 formally certified the plaintiff as fit to drive a taxi (see Exhibit “D1”), the receipt of Dr Bower’s advice caused him to review this assessment and, as he said, he no longer considered correct his previous decision to certify the plaintiff as fit to drive a taxi.
32 More recently, on referral from Dr O’Toole, the plaintiff sought a second opinion from Consultant Neurologist, Dr Lee, from the Adult Epilepsy Clinic. In two reports dated 20 May 2008 and 13 October 2008, Dr Lee relevantly noted:
(a)
a history of a first seizure a few weeks after the fall at work, in which the plaintiff said that he also hit his head without suffering a loss of consciousness;
(b)
the results of multiple investigations including two EEGs, a sleep deprived EEG and an MRI, the latter performed on 18 April 2008, all of which he described as “unremarkable”;
(c) that “[w]hilst post-traumatic epilepsy is uncommon in the absence of severe head injury, this diagnosis cannot be entirely excluded. The other consideration would be a non-epileptic event (stress related)
which is commonly seen in the practice of Neurology”; and
(d) that the plaintiff should avoid using heavy machinery and heights. 33 Consultant Neurologist, Dr Hjorth, examined the plaintiff at the request of the defendants’ solicitors in June 2007, and as his reports reveal he, too, did not believe that any head injury suffered in the fall has led to post-traumatic epilepsy although, presumably as a precautionary measure, he recommended that the plaintiff not work at heights, with heavy machinery or in a job that required him to drive.
34 I will say more about the impact of any unrelated condition on the plaintiff’s residual work capacity in due course.
The consequences
35 Apart from impacting on his work capacity, in his affidavit the plaintiff sets out in some detail the impact impairment of his lower back has had on his life. For instance, in paragraphs 18 and 19 of his affidavit the plaintiff said:
“18. My current symptoms are that I have pain in my low back which is there most of the time but not all of the time. The pain gets worse, depending upon what I do. As much as possible I have to avoid bending, lifting and twisting. In the mornings when I wake up the back is usually stiff and sore. After I have had a hot shower the pain and stiffness eases off a bit. I also have pain in both my legs. The left leg is worse than the right. The left leg has always been worse than the right. I do not have pain in my legs all the time, and I do not have pain in the legs as often as I have pain in the low back. In the left leg the pain I experience is like a cramping and aching, and sometimes there is a sensation like an electric shock. This pain will go down my leg to below the knee and into the calf. In the right leg I do not experience this pain as often as it is not as bad. In the right leg I experience a cramping, aching pain. In the right leg sometimes the pain goes below the knee and sometimes it does not. I do not experience the electric shock-like pain in the right leg. If I am active I will experience a marked build up of pain in the low back and sometimes pain in my legs. I can sit down, but after I have been seated for 15 or 20 minutes I have to shift and alter my position because I start to get a build up of pain. The same happens if I stand in one position for more than 10 or 15 minutes. I can walk, but after I have walked for 20 or 30 minutes I get a build up of pain in the low back. The injury has had an effect on my sexual relations with my wife. I suffer from premature ejaculation. This is something that I did not suffer from before the injury. I have been to a number of people to try and have this condition treated. However, no-one has been able to come up with any effective treatment. It remains a problem.
19. The injury interferes with my enjoyment of life. I am restricted in the type of physical activities in which I can engage. As I mentioned, as much as possible I have to avoid lifting, bending and twisting. Before the injury I enjoyed going fishing on the beach or from rocks. I have tried to go fishing a few times since the injury; I think I have been two or three times but I experience a lot of pain with the standing and sitting and walking around involved, so that it is really not worthwhile; it is just too uncomfortable and painful. I last went fishing some time in 2005. Before the injury I used to enjoy walking and I was very fit and active. Now I am confined to shorter walks. Before the injury I used to enjoy working in my garden at home. Now the insurer pays for someone to mow the lawn and to do my garden. I still do a little bit in the garden, but I am restricted in what I can do and I do not enjoy it as much. Because of the injury I feel unhappy and my self esteem is reduced. I feel anxious.”
36 At hearing, according to the plaintiff:
(a)
he now suffers constant low back pain and, depending on how long he sits or walks, he also suffers increased pain and intermittent leg pain which has not improved in the two years since he swore his affidavit in 2007;
(b)
depending on his pain he takes between two to eight Codalgin Forte tablets a day (that is, analgesic medication comprising paracetamol and codeine), or if the pain is “small pain” he sometimes takes Panadol. In cross-examination the plaintiff said that the Codalgin Forte tablets were prescribed by Dr O’Toole, usually with three repeats in 10 packets of 20 tablets each (evidence which was generally confirmed by the doctor during cross-examination) and purchased by him using a concession card rather than claiming the cost of the prescription medication under WorkCover medical expenses. At hearing, Dr O’Toole also said that he also continued to prescribe anti- inflammatory medication, Mobic;
(c)
he stopped physiotherapy in 2007 and now does back exercises for 10- 15 minutes each day;
(d)
he continues to consult Dr O’Toole and Dr Lee, the latter for treatment of what the plaintiff described as “fits” occurring: “Sometimes like one a
week sometimes two, sometimes a month like three it’s like between not exactly sure something like I take two weeks nothing but
sometimes come like three, four times a month or four”; and
(e)
he still goes fishing with his brother “Maybe once, two a month or maybe more say like two months”.
The treatment received
37 It appears that before changing his doctor, a CT scan of the plaintiff’s lumbosacral spine was obtained on 14 August 2003 reporting as follows:
“Findings: There was a defect in the neural arch of S1, presumably due to developmental failure of fusion. At the L5/S1 level there was a diffuse posterior and right posterolateral disc protrusion which caused slight deformity of the spinal theca and posterior displacement of the right S1 nerve root. There were very minor posterior protrusions of the L4/5 and L3/4 discs of doubtful significance. There was no canal stenosis. The intervertebral foramina were normally preserved. No other bony abnormality was detected and the apophyseal joints were normal. There is no pars defect.
Conclusion: Mild posterior herniation of the L5/S1 disc, but more marked on the right side than the left.”
38 Two reports made by Dr O’Toole in July 2008 and February 2009 respectively were tendered and he was cross-examined.
39 As is apparent from his evidence and reports, nearly six weeks after the fall at work, having already commenced physiotherapy and made two unsuccessful attempts to return to work, on 15 August 2003 the plaintiff consulted Dr O’Toole. I note that there are no less than 13 reports from treating physiotherapist, Mr Surkitt, dated between 27 September 2003 through to 6 April 2005. There is also a report from physiotherapist Mr Ford who assessed the plaintiff on behalf of the insurer on 10 September 2003 at which time, amongst other things, he recommended that the plaintiff undertake a supervised Spinal Restoration Program. I will say more about all of these reports in due course.
40 In any event, when Dr O’Toole conducted his first clinical examination of the plaintiff, he noted that the plaintiff “demonstrated a restricted range of spinal
movements. Straight leg raising was 50° bilaterally. Neurological
examination was normal”.
41 On referral by Dr O’Toole (and it seems Mr Ford), the plaintiff was initially seen on 19 September 2003 by a Consultant in Rehabilitation and Pain Medicine, Dr Thomas. According to this doctor’s two reports, he examined the plaintiff on four occasions, the last at the request of orthopaedic surgeon, Mr de la Harpe, to whom the plaintiff was also referred by Dr O’Toole.
42 It appears that, when first examined by Dr Thomas, the plaintiff was working four hours per day on light duties. He complained of pain:
“ … across his lower back and into both buttocks and occasionally into either leg without neither numbness or parathaesia. He felt that his left leg pain was slightly worse than the right, with a feeling of weakness and heaviness. Nonetheless his overall worst problem appeared to be one of lower back pain.” (sic)
43 Subsequently on review, on 20 November 2003, the plaintiff reported worsening left leg pain which prompted Dr Thomas to arrange for a MRI scan. As reported by Dr Thomas, the scan performed on 3 December 2003 “excluded any significant neurological compromise” and did not, so Dr Thomas believed, provide him with an explanation for the plaintiff’s complaints of ongoing pain in his left leg. The results of the scan are reported as follows:
“MRI LUMBAR SPINE:
Clinical notes – lower back pain and left buttock, left leg pain.
Alignment of the lumbo-sacral spine is normal. No abnormality of marrow signal is seen. The conus lies at T12/L1 and no abnormality of signal of the lower cord is present.
At L3/4, there is facet joint degenerative change. There is no significant posterior disc bulge. The neural exit foramina are satisfactory.
At L4/5, bilateral facet joint arthropathy results in mild narrowing of the neural exit foramina bilaterally, however these appear adequate. No significant disc bulge is seen.
At L5/S1, a right paracentral and foraminal disc protrusion. This is associated with an annular fissure. The central canal is adequate. Bilateral facet joints hypertrophy results in contacting of the exiting nerve roots, however there is no evidence of compression.
Conclusion: significant central canal narrowing. Bilateral facet joint hypertrophy is present at L3/4, L4/5 and L5/S1. Whilst the facet joints result in mild narrowing of the neural exit foramina, these however remain adequate.”
44 I note that by late 2003 the plaintiff had also been certified as unfit to work (Dr Thomas thought so as to permit him to concentrate on his spinal rehabilitation program) and when reviewed in February 2004 he reported to Dr Thomas that he had not returned to work, because the employer had not offered any further light duties.
45 Between October 2003 and October 2007, at the request of the insurer, orthopaedic surgeon, Mr Troy, examined the plaintiff on a number of occasions, submitting five reports. As his reports reveal, when he examined the plaintiff in October and December 2003, he determined:
(a) that as a result of the fall the plaintiff suffered an aggravation injury to aged-related degenerative changes in his lumbar spine. Whilst the plaintiff accepts that the facet joint arthropathy is consistent with aged- related changes, he nevertheless submitted that the disc prolapse and the herniation of the disc at the L5/S1 level was probably caused by the fall. However, having regard to the general medical consensus (evident from a reading of the reports tendered), I have not been satisfied that the protrusion and the herniation at this level were in fact caused by the fall; (b) notwithstanding continuing pain in his lower lumbar spine, to Mr Troy’s observation the plaintiff moved readily with a normal gait; and (c) that the plaintiff, whilst he did not have the capacity to return to his pre- injury duties, was fit for suitable duties which at the time included forklift driving and the duties outlined in the return to work program, subject to the proviso that the plaintiff be readily able to sit, stand, move and stretch to avoid increasing symptoms in his lumbar spine. 46 Relevantly, in February 2004, Dr Thomas reported that he had been advised by the plaintiff that:
“ … his condition had improved. He was doing an English as a second language course at a facility in Dandenong and was enjoying that. He told me that he thought ultimately he was going to return to some form of work. He had a vocational provider, Donnelly Ayers, (sic) involved in supporting him.”
47 In cross-examination, without directly denying this, the plaintiff tried to distance himself from the report that he enjoyed the English language course by saying that he told the doctor he needed to do the course which he nevertheless ceased within a month.
48 In any event, according to Dr Thomas’s report, he thought the plaintiff’s back problems were associated with his lower disc pathology, although, subject to ongoing restrictions, he was optimistic about the plaintiff’s prospects.
49 As I have already noted, fairly soon after the fall, the plaintiff commenced physiotherapy and programs to help restore his spinal function and his capacity to return to work. Indeed, according to Mr Surkitt, in February 2004 the plaintiff’s “level of compliance” had been ”excellent” and the improvement in the plaintiff’s condition was such that he had “a capacity to work six to eight hours per day but I feel that he should perform light duties only”.
50 Between March and June 2004 Mr Surkitt’s multiple reports all indicated improvement in the plaintiff’s symptoms, such that the plaintiff had reported actively seeking employment, albeit unsuccessfully. However by November 2004, Mr Surkitt reported that, whilst the plaintiff had been unsuccessful in gaining work as a personal carer, subject to suitable restrictions on the work performed, the plaintiff had informed him that he hoped to undergo security guard training.
51 In cross-examination the plaintiff said that he was dissuaded from pursuing training as a security guard by his cousin, who apparently worked in security and had told the plaintiff that this work required good written and spoken English and that it was sometimes “dangerous”, advice the plaintiff said he also received from another “guy” to whom he spoke about a course.
52 When questioned about other jobs for which he had applied, and in particular positions as a personal carer, the plaintiff also said that not all positions as a personal carer required a certificate. For instance, in one interview he said that he was informed that because of his experience (which I took to mean his six years of training as a nurse in Kuwait) he could be employed, although in due course the plaintiff was not offered the job.
53 Essentially, the plaintiff’s:
(a) reluctance (until pressed) to concede that improving his English language skills would expand his opportunities in the job market; (b) responses to questions about his pursuit of work as a personal carer or work involving computers; and (c) focus on his “seizures”; persuaded me that his failure to pursue a course or courses to improve his English, a loss of motivation and a post-injury unrelated medical condition were all significant contributors to the plaintiff not having sought gainful employment since at least August 2007. This was quite apart from any work- related organic impairment of his lumbar spine which, based on the medical evidence, probably precludes a return to his pre-injury employment.
54 In any event, I note that in June and July 2004, respectively the plaintiff was examined by Mr Troy and by Occupational Health Consultant, Dr Miller, the latter of whom also assessed the plaintiff on behalf of the insurer.
55 Relevantly, in June 2004, Mr Troy added left leg sciatica to his diagnosis although, as his reports show, he:
(a) again noted that the plaintiff “had an excellent range of movement”; (b)
attributed the plaintiff’s ongoing symptoms to pre-existing degenerative changes rather than any work-related aggravation, his reasoning being that “[f]or someone at the age of 26 to have a disrupted disc, he would have had pre-existing degenerative changes”; and
(c)
said, having previously spoken to the plaintiff without the assistance of an interpreter, he thought the plaintiff’s English comprehension was adequate for him to undertake suitable employment as, for instance, a security guard, carpark attendant or “meeter/greeter” or, where the plaintiff could sit or stand at will on a process line packing parts.
56 Whilst precluding a return to the plaintiff’s pre-injury duties, in July 2004 Dr Miller nevertheless reported that:
(a) the “underlying pathology appears to be a chronic L5/S1 disc herniation and some nerve root irritation”; (b) he expected ongoing improvement; although “[i]t is possible he will be left with some degree of residual disability of his back from the injury”; (c) he found the plaintiff’s English to be “very good”; (d) the plaintiff was capable of working subject to a number of restrictions; (e) suitable work included “light packing, assembly works or machine operator”; and (f) he endorsed the provision of gardening assistance to the plaintiff for a further three months. 57 It appears that in July 2004 the insurer also retained orthopaedic surgeon, Mr Kudelka, to assess the plaintiff’s condition. In his report and supplementary correspondence, amongst other things, Mr Kudelka:
(a) noted that the MRI and CT scan reports confirmed “injuries to the lower two lumbar discs, particularly at L5/S1 with some protrusion to the
right”;
(b)
determined that as a result of the fall the plaintiff had suffered aggravation of pre-existing degenerative changes in “the lower lumbar disc particularly at the lumbo-sacral level”;
(c)
noted that, as the plaintiff needed retraining to work as a nurse in Australia, he should be directed to relevant alternative employment that engages both his skills in this field and his fluency in English and Arabic as, for example, an occupational health and safety officer or in the first aid section of a factory;
(d)
considered unsuitable various jobs to which the Worklife Donnelly Ayres Vocational Assessment referred, such as nursing assistant, veterinary nurse and packager and container filler. However, because he thought the plaintiff had a good command of English and Arabic, Mr Kudelka felt that a position as a receptionist represented suitable employment; and
(e)
assessed the plaintiff has having above average intelligence and motivation although, by then, he presented as “slightly depressed” due to his failure to obtain employment.
58 According to Mr de la Harpe, when he first examined the plaintiff on 7 December 2004, he recommended ongoing physiotherapy as well as hydrotherapy. He also felt that the plaintiff should seek a more sedentary job or retrain.
59 It appears that during early 2005 the plaintiff continued to report “episodic low back pain” to the physiotherapist. However, in late May 2005, consultant occupational physician, Dr Barton, (who examined the plaintiff at the request of the insurer) said that the plaintiff reported that his “problem [was] getting worse”. I cannot tell from his report what documents were included in the “attached x-ray reports” Dr Barton said he was given by the plaintiff. Nevertheless, based on these materials, the history obtained and his examination (there is no clinical evidence to suggest any ongoing radiculopathy or significant or clinically relevant disc prolapse), Dr Barton diagnosed either a soft tissue injury or “some disc problems”.
60 At the same time, it is evident that Dr Barton felt that the plaintiff had adopted the “sick role” which was preventing a return to suitable employment in which, despite the reports of seizures, Dr Barton included forklift driving.
61 That throughout psychological issues have also affected the plaintiff is evident from the opening remarks of his Senior Counsel, reports to some doctors which indicate that during 2005 the plaintiff underwent treatment from a psychologist and the report from Dr Lee.
62 In any event, according to Mr de la Harpe, after the plaintiff returned from travelling overseas, in September and October 2005 he reviewed the plaintiff’s condition at which time the plaintiff reported that back and leg pain were “much the same”, a report which prompted the specialist to accede to the plaintiff’s request for an up-to-date MRI scan. The report of this scan, dated 30 September 2005, is as follows:
“Clinical Notes
A 28 year old presents with left sciatica.
Findings
Five lumbar type vertebral bodies are present.
L5-S1 level
There is a small central disc protrusion. The disc extends 4mm posteriorly and lies between the traversing S1 nerve roots. There is mild, bilateral facet joint arthrosis. There is reduced epidural fat around the exiting nerve roots. There is subtle AP compression of the left L5 nerve root within the foramen.
The other lumbar discs have retained their normal height and contour. There appears to be developmental narrowing of the exit foramina at multiple levels which have a reduced AP diameter suggesting the presence of short pedicles. There is also moderate developmental narrowing of the spinal canal diameter.
The conus lies at T12-L1 and is normal as is the cauda equina.
COMMENT
1. Mild AP compression of the left L5 nerve root within the foramen.
2. Small central disc protrusion at L5-S1.”
63 Notwithstanding the submission of the plaintiff’s Senior Counsel to the contrary, having apparently viewed the film I can see no good reason to doubt Mr de la Harpe’s expert opinion that the second scan “was essentially
unchanged from a couple of years ago. There was a persisting small right paracentral disc prolapse at L5-S1 and some associated degenerative change
but most of his symptoms were in the left leg and the back …”. I have read both the MRI scan reports, each of which speaks of some contact, although the second report in 2004 interprets this as “subtle” or “mild” compression.
64 In any event, this treating specialist diagnosed either an aggravation injury of a degenerative L5/S1 disc or, in the absence of earlier radiological evidence of degeneration, a prolapse caused by the fall. However, on reviewing the plaintiff in September 2007, Mr de la Harpe accepted that the plaintiff’s impairment associated with the “small disc prolapse” was not “severe enough
to warrant surgical intervention and at the time he presented not incapacitated
enough to warrant such a major operation”.65 I note that in late 2005 Mr Troy conducted an impairment assessment and, as submitted by the plaintiff, in his report, dated 22 December 2005, Mr Troy appears to accept that the plaintiff’s employment continued to be a significant contributing factor to his symptoms and clinical findings, that is to say, notwithstanding his earlier report Mr Troy accepted that the plaintiff’s work continued to make a material contribution to a symptomatic degenerative lumbar disc injury at the L5/S1 level.
66 So far as the treating surgeon is concerned, I note that by late 2007, Mr de la Harpe:
(a) reported that the plaintiff’s condition was stabilised; (b) diagnosed discogenic back pain which no doubt reflects the plaintiff’s report of “significant pain aggravated by sitting with non dermatomal left leg pain…”; (c) referred the plaintiff to Dr Thomas to assess whether a more structured course of rehabilitation could be of benefit; (d) recommended ongoing conservative management; (e) recommended restrictions on lifting, bending, twisting, sitting and standing, whilst expressing his belief that the plaintiff then had an extremely limited capacity for employment. However, because I am unable to ascertain the extent to which Mr de la Harpe understood the plaintiff’s background and training beyond his work as a storeman I have placed less weight than I might otherwise have on this particular opinion, made as it turns out a couple of months before the plaintiff gained his taxi licence. The inference I draw from this and Dr O’Toole’s evidence is that, but for an outstanding concern about the cause of any seizures reported by the plaintiff, injury-related impairment of his lumbar spine is not responsible for his inability to use his taxi licence or for that matter his forklift licence; (f) offered a guarded prognosis for the long-term, based on the failure to “make adequate improvement”.. 67 It appears that as a result of Mr de la Harpe’s recommendation, the plaintiff again saw Dr Thomas in November 2007, that is, after the date the plaintiff told the Court he ceased applying for jobs. I note that the plaintiff’s likely loss of motivation and its impact on his return to work is evident from Dr Thomas’ report where he concluded that the plaintiff was capable of employment “albeit with restrictions” but that the “biggest issue that he needed to confront was the
vocational one”.
68 I note that on this occasion Dr Thomas also observed that the plaintiff’s English skills had improved significantly (PCB 114), although I am unable to say from reading his reports whether, when he recommended that the plaintiff seek employment (that is, employment with restrictions that allowed him some physical flexibility, starting from four hours per day), Dr Thomas also understood that the plaintiff had a background in nursing.
69 The most recent medico-legal assessments of the plaintiff’s lower back condition were undertaken by occupational health and rehabilitation specialist, Dr Castle, on behalf of the plaintiff and by orthopaedic surgeon, Mr O’Brien, at the request of the defendants’ solicitors.
70 According to his report, in February 2008 Dr Castle was asked by the plaintiff’s solicitors to report on their client’s prospects of finding employment on the open labour market. I note that apart from his examination of the plaintiff, Dr Castle also had regard to radiological reports and to a selection of other reports. These included reports from neurologists, Dr Bower and Dr Hjorth (that is, Dr Hjorth’s earliest reports). In my view, the absence of the most recent report from Dr Hjorth and a report from Dr Lee probably, at least in part, explains why Dr Castle appeared to assume that the plaintiff suffered from epilepsy.
71 In any event, even though an organic explanation for the seizures reported is not considered likely, the plaintiff’s reports of recurring seizures have nevertheless led to precautionary constraints being placed on a range of his work activities, such that Dr Castle’s opinion that the plaintiff cannot work using his forklift driving licence or as a commercial driver is probably justified.
72 Notably, unlike many of the other specialists who previously assessed the plaintiff’s earning capacity, Dr Castle described the plaintiff’s English as functional. He also appeared to give little consideration to this very young plaintiff’s prospects of retraining probably, in part, because of the plaintiff’s poor response to conservative interventions so far.
73 When Mr O’Brien examined the plaintiff in June 2008:
(a) he was apparently told that the plaintiff “suffered constant back and buttock pain associated with intermittent pain radiating into the posterior aspect of both legs, the left worse than the right.”
(Exhibit “P3”);
(b) as with some of the other specialists, he observed the plaintiff “to move relatively freely” and to “demonstrate a normal gait”; (c) as with other specialists, he detected no abnormal neurology in the plaintiff’s lower limbs; (d) he noted that the plaintiff’s: “Physical signs now are subjective with restriction of lumbar movement and some reproduction of back pain on active straight leg raising. There is certainly an abnormality at the L5/S1 disc on a recent MRI. This would be in keeping with the ongoing presence of discogenic pain without any evidence clinically of nerve
root compromise.” (Exhibit “P3”, page 449);
(e)
on the history, he accepted that employment was a significant contributing factor to the plaintiff’s chronic back pain and bilateral back pain;
(f)
in the presence of long-standing symptoms he felt that the plaintiff’s long-term prognosis was guarded;
(g)
whilst accepting that the plaintiff’s lower back condition precluded a return to his pre-injury duties, he nevertheless felt that the plaintiff was fit for employment:
“… which did not involve heavy physical tasks. The patient has indicated that he has been unsuccessful in attempting to obtain suitable employment. He did report gaining a taxi license but was unable to pursue that as he was prevented from driving due to ‘seizures’. … In relationship to low back pain, however, I would consider the patient is capable of driving with regard as modified duties. I would fact suggest that the ongoing chronic back pain has only a mild effect on the plaintiff’s overall general activities, including his social and recreational pursuits.” (sic) (Exhibit “P3”)
I note that to some extent, Mr O’Brien’s opinion as to the plaintiff’s ability to engaged in general activities is borne out by the surveillance film to which I will refer shortly; and
(h) he considered (in his supplementary correspondence) that the plaintiff was physically capable of undertaking work in a reception/customer service position and, subject to a restriction on heavy lifting, bending and prolonged standing, he was capable of working as a machine operator. (Exhibit “P3”) 74 This brings me back to the evidence and most recent report of the treating general practitioner, Dr O’Toole, where he:
(a) confirmed a diagnosis of degenerative disc disease at the L5/S1 level; (b) confirmed a history suggestive of discogenic pain; (c) noted probable permanent impairment of the plaintiff’s lower back; (d)
expressed his opinion that the plaintiff was unable to work, an opinion no doubt in part informed by the plaintiff’s report that he had difficulty coping with activities of daily living and that his wife performed all the chores; and
(e)
noted that the plaintiff was not fit to perform his pre-injury duties and required retraining, a view consistent with the doctor’s statement during cross-examination that the plaintiff had no training, or skills for other work in Australia.
The film
75 There were times throughout the hearing when I found the plaintiff’s evidence uninformative and/or unsatisfactory. His responses in cross-examination prior to and after the film was shown contributed to this impression.
76 In summary, in cross-examination prior to showing the surveillance film the plaintiff:
(a) said that he spent his days at home with his family, sister or friends, he sometimes “worked” (an expression he was not asked to explain) for his cousin, drove to visit his friends or cousin and sometimes listened to music; (b) said that he could bend “sometimes easily, depends … ”, squat “maybe” and lift his son or daughter “maybe”; (c) agreed that he saw a lot of people but denied that he could “get around quite normally” without physical restrictions; and (d) claimed that if he had to lift his daughter he did so with pain although depending on the weight and how long he had to walk, he could lift and move “small things”. 77 As I have said, these responses were a precursor to four segments of film being shown which were taken on 30 August 2007 (nine minutes); 19 and 20 December 2007 (four minutes); 3, 5 and 6 June 2008 (six minutes); and 23 January 2009 (23 minutes).
78 The first segment of film captured the plaintiff at intervals during a three hour period between approximately 10am and 1pm on 30 August 2007. In this film the plaintiff is seen walking, sitting in a restaurant, driving, bending and reaching into the boot of a car, bending and twisting and squatting to speak to other males as well as to check his mail box. The film also shows the plaintiff retrieving items from a vehicle which he subsequently explained were webcams he and his first cousin (a computer technician who sells and buys computers) had purchased from MSY Technology so that the plaintiff and his brother could use their computers to communicate with family overseas.
79 In this film, as conceded in cross-examination, the plaintiff moved and undertook the activities described freely and without apparent difficulty or restriction. I did not observe, as suggested by his Senior Counsel, that the plaintiff walked “with a slight limp”.
80 The next film was taken in December 2007, that is some three and a half months after the earlier film. On this occasion the plaintiff was seen placing his young children in restraints in a vehicle which, for one child, involved a sustained period of bending. He was also seen bending to check his letterbox as he spoke on a mobile telephone. Whilst at first the plaintiff was reluctant to accept that he moved “quite normally” I think it plain from the film that his movements were free and without apparent difficulty.
81 Within six months, the next film obtained in June 2008 again captured the plaintiff in free and unrestricted activity. For instance, on this occasion he drove his young daughter to kindergarten. Subsequently, the plaintiff drove his brother to Bunnings where they were filmed walking around and shopping, and where they purchased lengths of wood which were loaded by them into the vehicle (with the plaintiff leaning into the boot without apparent difficulty) before the plaintiff drove off.
82 The last and longest sequence of film shown at hearing was obtained in January 2009. This depicted the plaintiff at intervals between approximately 8.12am and 11pm. Over the course of a day the plaintiff was seen driving his wife to the “Sheer Beauty” salon, purchasing flowers for the store, again squatting to clear his letterbox, and later driving to Dandenong to his sister’s home, where he entered a white van and drove to his father-in-law’s address. From this site the plaintiff drove the van to the Grand Chancellor Reception Hotel Centre in Thomas Street, Dandenong, where he unloaded equipment from the van, at times employing a trolley (the latter also unloaded by him from the back of the van).
83 I am satisfied that when he was cross-examined about this activity at first the plaintiff sought to minimise his actions by saying he was not alone that day. However, in the period between approximately 12.56pm and 1.29pm, the plaintiff was filmed at intervals at this location and whilst using his mobile phone went about the business of unloading and arranging items in the back of the van without apparent restriction.
84 In the two hours or so between approximately 3 and 5pm, having reversed the van out of the reception centre’s car park, the plaintiff was filmed at intervals at the Dandenong Plaza Shopping Centre where he walked around before he spent time queuing for food and eventually dined at McDonalds. However, by approximately 4.45pm the plaintiff returned to the van driving back to the reception centre where he spoke to a man he subsequently identified as a fireworks technician. In this period the plaintiff was also seen carrying a case he said contained a cordless microphone up a flight of steps into the hotel. Whilst the plaintiff conceded that he negotiated the steps two at a time (suggesting that this was “usual” because of his height), having observed the fluidity of his movements I did not find credible the plaintiff’s claim that he climbed the stairs with pain.
85 In any event, as the film confirmed, the van was parked at the reception centre until late in the evening.
86 In cross-examination, having acknowledged that he had remained at the hotel, the plaintiff explained that he did so to “enjoy the party”. However, when pressed it became apparent that he was at a wedding and that he attended this function with a band which he at first said was run by his “friend”. That he could not tell the Court the band’s name is just one example of how unsatisfactory the plaintiff’s evidence was in this regard.
87 Indeed, as cross-examination progressed the plaintiff:
(a) asserted that his cousin owned the equipment and the van and that because he was working he asked the plaintiff to deliver the equipment; (b) gave evidence that showed that he had a long and regular association with the band, who in 2008 he conceded he “helped out” (but was not paid) “maybe more, maybe less” than a few times a month and for whom in 2009 he drove the van and loaded and unloaded equipment “under five times”. However, eventually the plaintiff also explained that he had been helping his cousin in this manner since before his fall and had continued to do so after the fall because he enjoyed it; and (c) asserted that the van to which he held a set of keys was owned by his cousin, although it was registered at his address in his wife’s name to allow his cousin to take advantage of the lower registration fees paid by his wife by using her concession card (T 88). 88 In all:
(a)
having regard to his responses I was left with reservations about the extent of the plaintiff’s association with the band and the related business of playing Arabic music at social functions. The evidence regarding the plaintiff’s activities with the band also caused me to doubt the plaintiff’s earlier evidence about his activities because at no stage, either in his affidavit evidence or in his reports to the doctors, did he mention this regular activity; and
(b)
notwithstanding the fact that the film consisted of short, broken segments: when combined with the responses given in cross- examination it clearly lent weight to some of the medical opinion to the effect that the impairment of the plaintiff’s lower back probably is not as restrictive of his daily and social activities as claimed in his affidavit and at hearing.
Compensable injury
89 In this application, notwithstanding the plaintiff’s comparative youth, there is evidence of pre-existing degenerative change in the plaintiff’s lumbar spine which until the fall was probably asymptomatic. This circumstance and the general medical consensus has satisfied me that the injury suffered in the fall was probably an aggravation injury, particularly at the L5/S1 level of the plaintiff’s lumbar spine, which continues to be productive of discogenic pain and may also give rise to leg pain from time to time. However, his pain appears to be controlled by intermittent use of painkilling and anti- inflammatory medication. The question that remains is to what extent, if any, impairment of the plaintiff’s lumbar spine contributes to the pain and suffering and pecuniary loss consequences of which he continues to complain?
Pain and suffering consequence
90 I have already summarised the pain and suffering consequence on which the plaintiff relied. Based on the medical evidence, to this list I have also added the loss of the opportunity to return to the plaintiff’s pre-injury and/or any employment involving heavy lifting et cetera as a factor in determining whether, as at the date of hearing, the pain and suffering consequence to the plaintiff of impairment of his lumbar spine is “serious”.
91 On the evidence the plaintiff has not satisfied me that his low back pain is “constant” and that his lifestyle, domestic and social activities are as restricted by the impairment of his spine as he would have the court believe. Nevertheless in my view, for this young plaintiff the ongoing pain and suffering consequence referrable to injury-related impairment of his lumbar spine is, when judged by comparison with other cases in the range of possible impairments or losses of function of the lumbar spine, fairly described as being very considerable. Moreover, on the evidence, the plaintiff has satisfied me that the impairment of his lumbar spine is permanent in the sense that it is likely to last into the foreseeable future. In these circumstances I propose to make an order granting leave to the plaintiff to commence proceedings against the defendants in respect to pain and suffering damages.
Loss of earning capacity consequences under paragraph (a) of the definition of serious injury
92 As I have already mentioned, at hearing the defendants submitted that one consequence of the medical concern that post-injury the plaintiff had developed an unrelated condition was that this condition was the cause of any loss of earning capacity rather than any work-related impairment of the plaintiff’s lumbar spine.
93 As Ashley JA also said in Grech (at paragraph 58) the Act “…contemplates
that a consequence may have a multiplicity of causes, including a multiplicity
of compensable injuries”. At hearing I was also referred to an earlier decision of Ashley JA in Dressing v Porter & Anor [2006] VSCA 215. This decision concerned the Transport Accident Act 1986. Nevertheless, his Honour’s observations are germane to the application before me where he said (at paragraph 47):
“… What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences.”
94 Accordingly, in this application the focus must be on the extent to which the compensable injury materially contributes to any pecuniary loss consequence. If the medical precaution against performing certain activities impacts on the plaintiff’s residual work capacity and contributes to a loss of earning capacity by currently reducing the range of suitable or alternative employment, that is employment in which, with retraining, despite the work-related impairment of his spine, the plaintiff might otherwise engage, this is not a consequence to which the compensable injury contributes.
95 In relation to his loss of earning capacity claim, in addition to the narrative requirements of loss of earning capacity under paragraphs 134AB(38)(e), (f) and (g) of the Act, the plaintiff was required to prove that at the date of hearing his loss, as measured by reference to the statutory formula, is 40 per centum or more, and, after the date of hearing, a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.
96 Loss of earning capacity is measured by comparing:
(a) the income the plaintiff is earning or capable of earning in suitable employment at the date of hearing (“the after-injury earnings”); and (b) the income that the plaintiff was earning or was capable of earning “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the
injury not occurred” (“the without-injury earnings”).
97 The income compared is gross income from personal exertion expressed at an annual rate.
98 At hearing it was agreed that within the six year window the without-injury earnings that most fairly reflect the plaintiff’s capacity, had injury not occurred, is the gross earnings amount for the financial year ending 30 June 2003, that is $28,162.
99 The Act requires that this figure be compared with the plaintiff’s after-injury earnings. The plaintiff carries the burden of proving any inability to be retrained or rehabilitated or to undertake suitable employment including alternative or further or additional employment and the extent of such inability. At hearing it was accepted that the plaintiff must prove an inability to earn more than $16,897.20 gross earnings per year, that is $325 per week
100 In 2003, the Vocational Assessment Report by Worklife Donnelly Ayres identified potential employment options for the plaintiff, including skilled jobs such as Nursing Assistant ($524 gross weekly earnings), Veterinary Nurse ($541) and Receptionist ($521), and unskilled jobs including Packagers and Container Filler ($572), Hand Packer ($498), Food Factory Hand Assemblers ($660), Product Examiner ($614), Product Grader ($450), Product Tester ($587) and Sales Assistant (food and drink products) ($471). (DCB 60+) Allowing for the medical evidence and the restrictions associated with ongoing impairment of his spine, I think it fair to conclude that some of these positions no longer constitute suitable employment. However, it is apparent that after undergoing spinal restoration programs from 2004 the plaintiff was assessed as having a work capacity (albeit in light work) of six to eight hours per day and that if motivated to seek employment and/or retraining he currently probably has a work capacity which, if exercised, could produce earnings of more than $325 gross per week.
101 Accordingly, based on the evidence:
(a)
the plaintiff has not satisfied me of the extent of his inability to be retrained or rehabilitated;
(b)
the plaintiff has not satisfied me that he has a permanent loss of earning capacity of 40 per cent or more (sub-s.134AB(38)(e)(i) and (ii);
(c)
I am satisfied that rehabilitation and retraining are likely to improve the plaintiff’s capacity for employment and to improve it to a level that would probably exceed the statutory threshold (sub-s.134AB(38)(g); and
(d)
the plaintiff has not satisfied me that, when judged by comparison with other cases in the range of possible losses of body function, the loss of earning capacity consequence flowing from injury to his lumbar spine is fairly described as being more than significant or marked and as being at least very considerable.
102 In these circumstances, in this application I have not granted leave in respect to loss of earning capacity consequences.
Orders 103 I will hear from the parties as to the making of appropriate orders.
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