Everard v Stegbar Pty Ltd
[2012] VCC 341
•23 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-06305
| DERRICK EVERARD | Plaintiff |
| v | |
| STEGBAR PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30, 31 January and 1 February 2012 | |
DATE OF JUDGMENT: | 23 February 2012 | |
CASE MAY BE CITED AS: | Everard v Stegbar Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 341 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – serious injury application – injury to the lumbar spine – economic loss – capacity to work - leave granted
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622; Stijepicv One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald with Mr G Worth | Shine Lawyers |
| For the Defendant | Mr N Chamings | Thomsons Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on 1 December 2004.
2 The plaintiff seeks leave to bring proceedings for damages in relation loss of earning capacity. The defendant conceded that the plaintiff suffered a serious injury for the purpose of pain and suffering.
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.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the lumbar spine. The plaintiff did not pursue his application under paragraph (c) of the definition of serious injury.
6 The plaintiff relied upon two affidavits, sworn 23 August 2010 and 3 November 2011. The plaintiff, Dr Clayton Thomas and Dr Tony Palleschi were 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.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1]S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant.[2]
[2]S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b)the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
[3]Barwon Spinners (op cit) at paragraph [33]
(c)under s.134AB(38)(b) of the Act, the term “serious” is to be:
“… satisfied by reference to the consequences to the worker of any impairment or loss of a body function … with respect to—
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function … .”
(d)under s.134AB(38)(c) of the Act: an impairment or loss of body function, in this case, loss of earning capacity, shall not be held to be serious unless the consequences, when judged by comparison with other cases, is:
“… fairly described as being more than significant or marked, and as being at least very considerable.”
(e)in addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish.[4]
(i)that at the date of hearing he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;[5] and
(ii)that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[6]
(f)sub-Section 38(g) requires questions of rehabilitation and retraining to be considered in determining whether the 40 per cent loss has been established.
[4]S.134AB(19B) and 38E of the Act
[5]S.134AB(38)(e)(i) of the Act
[6]S.134AB(38)(e)(ii) of the Act
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[7]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[8]
[7][2009] VSCA 181
[8]Ibid at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[9]
[9]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[10]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[11]
[10]S.134AB(38)(j) of the Act
[11] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
14 Counsel for the defendant submitted that the issue was the plaintiff’s capacity to work and economic loss. That is, the plaintiff does not satisfy the statutory requirements for loss of earning capacity, which will result in a permanent financial loss of 40 per cent or more. An issue was raised as to the plaintiff’s credit.
The Plaintiff’s Evidence
15 In his affidavits sworn on 23 August 2010 and 30 November 2011, the plaintiff deposes that:
· He commenced work with the defendant through a labour hire agency. In May 2000, he commenced full-time employment with the defendant as a storeman/forklift driver.
· He sustained injury to his back on or about 13 December 2004 while lifting a flitch. He was treated by the defendant’s doctor, who prescribed Voltaren Rapid. He remained off work until 22 December 2004.
· He returned to work after the Christmas shutdown. He continued to experience low-back symptoms and the symptoms started to get worse. He attended his general practitioner in May 2005, who prescribed medication and physiotherapy and osteopathic treatment. He continued working with modified duties. He continued to experience low-back problems and received treatment.
· By February 2007, he was suffering significant back pain and frequent left leg pain, which was aggravated by prolonged standing and sitting. He was regularly taking strong painkillers.
· On 27 March 2007, he received a CT‑guided spinal injection. He continued to receive injections - approximately nine in two years.
· By May 2007 he became very anxious and depressed with his situation, which affected his relationship with his family and led to his divorce from his wife.
· On 4 September 2007, he resigned from his employment with the defendant. He commenced work as a courier and then as a process worker, but found the prolonged periods of sitting and standing very difficult. In approximately November 2008 he was no longer able to continue working.
· On 11 September 2009 he consulted Mr Brazenor, neurosurgeon. He was experiencing severe pain in his left buttock and left leg as well as low back pain and numbness in his left foot. He was having difficulty sleeping and was restricted in sitting and standing for long periods.
· On 13 October 2009 he had a two level spinal fusion. After the operation there was some improvement in his left leg symptoms but not much improvement in relation to his low back pain. He continues to experience chronic residual back pain, stiffness and symptoms in his legs. He experiences pins and needles and sometimes numbness in his feet.
· He continues to suffer symptoms of anxiety and depression. His sleep is interfered with and he is constantly tired and his motivation and concentration have been affected.
· His current treatment is mainly walking as much as possible and taking regular pain medication.
· He is restricted in his activities: he can walk, sit and stand for up to an hour. He finds it difficult to bend repetitively or do heavy lifting. He can drive a car but experiences pain after about an hour. He struggles to carry out household activities such as mowing the lawns. He can do some shopping. He is no longer able to go fishing or play indoor cricket, golf and social football.
The Plaintiff’s Evidence in Cross-examination
16 The plaintiff was cross-examined and gave the following pertinent evidence:
· Prior to his surgery, he enrolled at TAFE to study Year 10. The course was a six-month course. He was enrolled for nine months. He had not completed his studies when he stopped because of his surgery.
· In 2011, he made enquiries about re-enrolling in TAFE to improve his literacy. CGU directed him to a literacy course at the community house in Dandenong. He attended but the course was inappropriate as it was a course for migrants.
· He said he would give any job a go subject to his doctors’ approval. He thought he could work part-time – he thought four or five hours a day – but he said, at the moment he would be struggling to work twenty hours per week.
· He said he does not bend his back. If he drops something on the ground, he bends his knees to pick it up. He said he could walk up to one hour, but finds it difficult to bend repetitively.
· He said he could do a job which requires his arms to be raised, provided it was not on a sustained basis.
· He said he can drive a car for approximately one hour. He then jumps out, goes for a walk and ten or fifteen minutes later, gets back in the car.
17 In re-examination, the plaintiff said:
· He is not currently being offered any rehabilitation services.
· Compensation payments ceased on 1 January 2012.
· He has not had contact from WorkCover about future rehabilitation or retraining. He did not speak to any person from Recovre.
· After he ceased work with the defendant in September 2007 he continued to suffer back pain and pain down his legs. Between September 2007 and November 2008 he obtained work through a labour hire company which enabled him to take time off as needed to cope with the pain he was suffering.
· He had no experience working in the construction industry.
· He continues to lodge WorkCover certificates of incapacity provided by his general practitioner.
Investigations
18 The following investigations were conducted:
· CT scans of the lumbosacral spine were performed on 24 May 2006 and 6 April 2010.
· MRI scans of the lumbar spine were performed on 13 February 2007, 7 July 2008, 24 August 2009 and 18 May 2011.
· X-rays of the lumbar spine were performed on 6 April 2010 and 29 March 2011.
· A lumbar myelogram was performed on 22 March 2007.
· An isotope bone scan was performed on 29 March 2007.
The Plaintiff’s Medical Evidence
Dr Tony Palleschi
19 Dr Palleschi, general practitioner of the plaintiff since 1998, provided reports dated May 2008, November 2010 and November 2011. The plaintiff first consulted Dr Palleschi in relation to his low back injury on 5 May 2005. In November 2011, Dr Palleschi said that the plaintiff had minimal chances of obtaining active work due to his poor physical functioning, his poor mental state, his poor education levels, and his work history which was labour-type work. He thought there was little opportunity for him to obtain employment unless he could be trained specifically for a particular duty or he improved physically, which he said appeared unlikely. He said the plaintiff would never return to his previous employment.
20 Dr Palleschi told the Court that the plaintiff was unfit for any work duties. He imposed the following restriction on any return to work: lifting, maximum 5 kilograms; minimal, if any, bending and twisting; standing in one position for up to 30 minutes; sitting in one position for up 30 minutes. In terms of hours, he said he could initially work probably 16 to 20 hours per week, but would require a break potentially every two hours. He said that since the operation, the plaintiff has had many exacerbations of his low back pain. The exacerbations have been variable and there has been no pattern to them.
21 In cross-examination, he amended his evidence and said the plaintiff should commence employment starting four hours, three days a week, and increasing as is tolerated. Initially he should start at 12 hours per week and if he could cope with that, there could be a gradual increase. He said he would defer to Dr Thomas’ expertise in respect to the jobs that were suitable for the plaintiff. He said his comments in his report about the plaintiff’s aimless lifestyle dated back to 2009, post surgery.
Mr G A Brazenor
22 On 11 September 2009, Mr Brazenor, neurosurgeon, saw the plaintiff on referral from his general practitioner. Mr Brazenor said that all scans showed a mild, broad based central disc protrusion at L5-S1 and at L4-L5. There was a mild/moderate extra foraminal protrusion on the left side, which had carried away part of the end plate. There was moderate stenosis in the most lateral part of the invertebral foramina. He recommended a two-level instrumented fusion, which he said would get him back to work, but not to bending at the waist ever again.
Mr David Brownbill
23 On 17 November 2010, Mr David Brownbill, consultant neurosurgeon, saw the plaintiff at the request of his solicitor. The plaintiff told him that he ceased work with the defendant in December 2007 because of increasing pain. He attempted other jobs including courier work, light packaging, and light process work, but he was unable to continue. Mr Brownbill accepted the injury was work related. He said that in the future, the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He said:
“Whilst from a physical theoretical point of view, he would be capable of employment avoiding those actions, noting his age of 34 years, his education being limited to Year 9, his work experience always having involved heavy physical activities and his past two level lumbar spinal fusion surgery, I consider that in realistic terms he would have difficulty performing employment for which he is suited in an ongoing and reliable fashion.
Should he attempt any such employment (avoid the activities I have referred to) this should be commenced in a graded fashion and under close medical supervision to determine his responses.
I anticipate that some pain will continue in a fluctuating manner indefinitely.”
24 He further said the plaintiff was unable to return to his previous employment in the future or to any employment of a manual nature.
Mr Michael A Johnson
25 Mr Michael A Johnson, orthopaedic surgeon, saw the plaintiff at the request of his general practitioner in March 2007. He provided reports dated 12 March, 3 May and 24 June 2007, 3 April 2008, 11 November 2009, 17 May and 5 November 2010 and 19 October 2011. In October 2009 Mr Johnson performed an L4-5 instrumental decompression and fusion on the plaintiff, which he said had been technically successful. Mr Johnson reviewed the plaintiff in July 2011 and noted that there was disc degeneration at L3-4 but no evidence of any nerve root compression, canal stenosis etc. He was unsure of the cause of the occasional foot numbness of which the plaintiff complained. He encouraged him to be as active as his symptoms allowed.
26 He said returning to work as a full time fork lift driver was inappropriate due to the prolonged sitting and vibration . Further, he said the plaintiff’s symptoms of episodic foot numbness were a safety concern when driving machinery that required foot control. He said the plaintiff’s situation was stable for the foreseeable future, although in the longer term there was a risk that he may develop problems more proximally in the spine. He deferred to Dr Thomas, rehabilitation specialist, about his work capacity.
Dr Clayton Thomas
27 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff at the request of Mr Michael Johnson in June 2007. In October 2011, Dr Thomas said there were significant long term vocational issues for the plaintiff. It was his view, from the organic point of view, that the plaintiff did have a work capacity. However, given that he had a two-level fusion, ongoing residual symptoms, every effort needed to be taken to preserve the plaintiff’s lumbar spine.
28 Accordingly a return to work needed to take place in a back friendly work environment. He said returning to work as a fork lift driver would be inappropriate. He needed to find employment that allowed him to alter his posture and did not require him to bend, lift and twist below waist height or above shoulder height. It was his view that he had a permanent incapacity which is marked.
29 Dr Thomas gave evidence and was cross-examined. He said the plaintiff was a highly motivated person who could return to work up to but not beyond twenty hours per week. He said the plaintiff had a significant problem and has been protected by the medication he takes. He said there was a 20 per cent chance that the disc above (L3-4) will become symptomatic and, given his age, that is likely to occur at least in the medium term. He thought twenty hours per week would give him the best chance of being able to work for as long as possible. He said in the open work market, the plaintiff presented as unemployable. He would recommend the plaintiff obtain casual work which would enable him to work on good days and thus provide him with flexibility.
30 In cross-examination, he was asked to consider various jobs set out in the Recovre report. It was his view that a culling operator in a commercial bakery and product assembly role within a small manufacturing company would be suitable. He said the plaintiff could work thirty hours per week in the short to medium term, but it was not going to be long term. He said he saw him as permanently incapacitated for work.
31 In re-examination, he said that the plaintiff could work twenty hours per week and was more likely to be able to sustain that until age fifty. He said, if the plaintiff increased his hours beyond 20 hours per week, then there is more likely to be a serious problem with the plaintiff’s back.
Mr Kevin King
32 In December 2010, the plaintiff was medically examined by Mr Kevin King, orthopaedic surgeon, at the request of the plaintiff’s solicitors. Mr King said the plaintiff had no effective capacity to work. He said:
“The overall impression is of a rather slow-speaking, earnest but very genuine young man who is chronically disabled to a severe degree by residual back and leg pain as a result of injuries sustained to his lower back on 13.12.04. He is, by his own admission, almost illiterate, has no special skills, always did work which involved heavy physical effort, and he is therefore chronically and severely disabled from the long term point of view. Retraining would not appear to be a possibility here, further rehabilitation will not help, and from a practical point of view this young man will find it extremely difficult to find any sort of employment in the foreseeable future. He has therefore been left with a major long term impairment of his capacity to work in the sort of jobs he had done since he left school at an early age.
I can find no evidence of exaggeration or of any sort of psychological overlay, his depression being an understandable side effect of his chronic back pain, inability to work, and superimposed financial and domestic problems.”
Mr Daryl Nye
33 Mr Daryl Nye, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitors in 2010. He accepted the plaintiff’s injury was work related and employment was a significant contributing factor to the plaintiff’s injury and subsequent condition. He said the plaintiff had a capacity for employment with the following restrictions:
· repeated bending or twisting movements of the spine;
· prolonged unrelieved periods of either standing or sitting;
· a lifting limit of 5 kilograms which should be conducted from below waist level.
Medical Panel Opinion
34 On 12 January 2010, a Medical Panel, comprising of Dr Fracis Gallichio, Dr Stephen Hall, Mr Neil Cullen, Dr Brendan Hayman and Dr Julian Freidin, said:
“In the Panel’s opinion the worker is suffering from persistent severe residual spinal dysfunction following decompression laminectomy and instrumental fusion relevant to the claimed lumbar back injury.
…
In the Panel’s opinion the worker has no current work capacity and this situation is likely to continue indefinitely.”
The Defendant’s Medical Evidence
Mr Peter Kudelka
35 The defendant relied on medical reports from Mr Peter Kudelka, orthopaedic surgeon, dated 4 June, 21 September and 16 December 2009; 9 November 2010; 26 July 2011; 13 and 24 January 2012.
36 Mr Kudelka accepted the plaintiff’s injury was work related. He was aware that the plaintiff had limited education and his occupational history was that of a storeman and forklift driver. He was aware his duties were physically demanding involving bending, stooping and lifting.
37 In July 2011, the plaintiff complained of symptoms of persistent back pain, aggravated by cold weather; variable leg pains, with intermittent numbness of his feet. In January 2012, Mr Kudelka re-examined the plaintiff and noted restricted spinal movement and some evidence of left sciatica nerve root irritation clinically. He diagnosed a work aggravated degenerative change in the lumbar spine, incompletely relieved by appropriate treatment including a spinal fusion. Mr Kudelka’s prognosis was that the plaintiff had stabilised with a work related partial permanent impairment with loss of function of the lumbosacral spine. He said the plaintiff will require ongoing palliative treatment indefinitely.
38 As to the plaintiff’s work capacity, he said the plaintiff’s capacity for work as a storeman and forklift driver was significantly affected. His capacity for work, subject to further education, will be limited to sedentary or partly sedentary duties of a clerical and administrative nature.
39 Mr Kudelka was asked to consider the Recovre report dated 17 May 2011. The Recovre report considered medical reports relating to the plaintiff and work site assessments of various jobs. The report suggested suitable employment options for the plaintiff would be a process worker, machine operator, hand packer and product assembler. A number of jobs were identified. Mr Kudelka agreed with the options for a trial, provided there was some restriction of bending and lifting approximately 5 to 10 kilograms, no higher than bench height, and travel to and from work by car of less than one hour. He recommended that any of the jobs referred to in the Recovre report should be commenced on half time, such as four hours, five days per week, and that the progress should be monitored. Mr Kudelka said that the plaintiff wished to continue the TAFE course which he considered would enhance the plaintiff’s literacy and computer skills.
Vocational Assessment Reports
Evidex Report
40 Evidex prepared a report in August 2010 at the request of the plaintiff’s solicitors. The report concluded that there were no alternative occupations in the ANZSCO identified as suitable for the plaintiff after considering his education, transferrable skills, work experience and functional capacity. The plaintiff had no vocational qualifications apart from a fork lift licence. His pre-injury work experience was mainly unskilled labouring where he was reliant on being physically fit and capable of performing manual tasks. He had few transferrable skills for a new occupation with low physical demands. He has a very low level of reading and writing English skills with an assessment reading level of age 8.3 years, no experience of administrative duties and only rudimentary computer and keyboard skills described as using one finger to either hand in a “hunt and peck” fashion. No alternative occupation was found where the inherent job requirements were within the plaintiff’s functional capacity.
41 Evidex concluded that the further occupational rehabilitation and/or retraining was unlikely to lead, in the foreseeable future, to commercially viable suitable employment in the open labour market for the plaintiff.
42 Evidex concluded that there was no commercially viable occupation in the open labour market for which the plaintiff is likely to qualify, which meets the definition of “suitable employment” and this situation is likely to continue for the foreseeable future.
Workstream Report
43 The defendant relied upon the Workstream reports of September and November 2011. A Workstream NES job seeker plan was prepared after consultation with the plaintiff. The following positions were considered suitable employment options for the plaintiff: process worker, machine operator, packer, product assembler and fork lift driver. Workstream identified three potential barriers to the plaintiff in seeking employment. First, the fact the plaintiff was still experiencing pain and his need to take regular breaks and the requirement that he needs to adjust his posture as required. Secondly, the plaintiff had difficulties with reading and writing English with which Workstream would assist him in any job seeking. Thirdly, the plaintiff did not agree with the independent medical examiner who reported that he did have a limited capacity for work. It was concluded by Workstream that the plaintiff’s motivation for returning to work in his current condition was fairly low.
Recovre Report
44 On 17 May 2011, Recovre, at the request of the defendant’s solicitors, prepared an employment capacity analysis after considering medical reports, rehabilitation reports and the affidavit of the plaintiff sworn 23 August 2010. The plaintiff was not interviewed personally for the report.
45 The Recovre report found that the plaintiff had capacity for employment, namely suitable employment with restrictions of avoiding repetitive bending, stooping positions, prolonged sitting or standing and lifting in excess of 5 kilograms, particularly from below waist height. Recovre assumed the plaintiff had basic written English communication skills sufficient for effective workplace functioning. Recovre recommended that the plaintiff would be able to perform jobs of process worker, machine operator, hand picker, and product assembler.
46 Recovre identified five jobs as suitable for the plaintiff, namely a plate room operator, a culling operator in a large scale commercial bakery, a product assembler in a manufacturing business, a production picker and a back landing operator in a milk production company.
Video Surveillance
47 The plaintiff was surveilled for a period of 86.7 hours, of which he was sighted in 46 hours. I was shown 44 minutes of footage. On 1 November 2010, the plaintiff was shown using an automatic teller machine and walking to his car. The plaintiff agreed he walked normally if he was not getting pains down his leg.
48 On 6 November 2010, the plaintiff was shown with his two children and a woman he identified as a person he employed to take photographs of the family. The family was standing around talking and were in a park. The plaintiff said it was a happy occasion. He has access to his daughters every Sunday, that Sunday was a one off occasion as they were having family photos taken. He agreed that on one occasion he raised his arms and sat in a squat position for a few minutes. He lay on the ground for a couple of minutes and got up and bent forward to brush the grass from his pants. He agreed that he said he could not bend at all.
49 On 26 March 2001, the video showed a Holden station wagon with the rear door elevated. The plaintiff said it was his car but he could not recall whether he opened the rear door as someone else was with him. He did not know where the video had been taken. He agreed he reached up and closed the door.
50 On 5 December 2011, he was shown standing outside a medical centre. On 10 December 2011 the video showed him talking to friends in front of his house. He said his friends had come to visit him because he was suffering depression and took him out.
51 On 29 January 2011, he was shown squatting to pump air in the tyre of his car. He was asked whether he put air in each tyre. He said, no, he had a leak in one tyre for about twelve months. Later in the day he was shown at a shopping centre with a female friend waving his alms and talking. He agreed that he had done that but said he did not know how many Panadeine Forte he would have taken on that day.
52 I accept that a video is a snapshot in time and that a plaintiff with injuries as described, may have days when he is able to do more activities than on other days. The video evidence was consistent with the restrictions the plaintiff described and the recommendations of the medical witnesses. I formed the view that the video evidence did not assist the defendant.
Credit of the Plaintiff
53 The plaintiff was consistent in reporting the injury and its causes to doctors whom he saw.
54 The plaintiff had some difficulty in understanding the questions that were put to him. His concept and grasp of the spoken language was limited. I accept that this affected his ability to answer questions.
55 The plaintiff made concessions, and I accept that he is a witness of truth.
56 Overall, the plaintiff impressed me as genuine, hard working man who was highly motivated to return to work.
Analysis of the Evidence
57 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course, of his employment with the defendant. All of the medical witnesses accepted the injury was work-related.
58 All of the medical witnesses were aware that the plaintiff’s employment history involved work of heavy physical activity. All of the medical witnesses accepted that as a result of the plaintiff’s injury and consequent two level spinal fusion surgery, the plaintiff was restricted in his employment options. Most imposed restrictions on any return to work. All accepted that he could not return to his previous employment as a fork lift driver.
59 In March 2010, Mr Nye said the plaintiff had a capacity for employment but with restrictions. In November 2010, Mr Brownbill said, in realistic terms he would have difficulty working in employment for which he was suited in an ongoing and reliable fashion. In December 2010, Mr King said the plaintiff was chronically and severely disabled from the long term point of view; retraining was not a possibility and rehabilitation would not help. He considered the plaintiff would have extreme difficulty in finding employment in the foreseeable future.
60 The current view of the plaintiff’s treaters was that at best the plaintiff could return to work in a work-friendly environment, but only up to twenty hours per week, which would give him the best chance of remaining in employment as long as possible, perhaps to age fifty. This was the view of Dr Thomas. He recommended casual work, which would provide flexibility, which would enable the plaintiff to work on good days. Of the jobs referred to in the Recovre report, Dr Thomas said, that the plaintiff could work as a culling operator in a commercial bakery and on a productive assembly role within a small manufacturing company, but such jobs would be on the basis he worked twenty hours per week with the restrictions he had identified. He said he saw him as permanently incapacitated for work.
61 Dr Palleschi, the plaintiff’s treating general practitioner, said he was unfit for any duties. Any return to work should commence four hours per day, three days per week, and increasing as tolerated. He said the plaintiff would require a break potentially every two hours. He deferred to Dr Thomas’s expertise as to the type of work the plaintiff could perform.
62 In January 2012, Mr Kudelka said, subject to further education, the plaintiff’s capacity for work was limited to sedentary or partly sedentary duties of a clerical and administrative nature. Mr Kudelka was asked to consider the Recovre report of May 2011. He agreed with the job options on a trial basis with limitations, but commencing at twenty hours per week. He said the plaintiff’s progress should be monitored. I accept that Mr Kudelka is not suggesting that the plaintiff would proceed beyond twenty hours per week, as was submitted by the defendant.
63 I accept as valid the criticism of the Recovre report made by counsel for the plaintiff. First, the plaintiff was not interviewed, there was no attempt made to determine the plaintiff’s current limitations or assess his abilities. Secondly, the medical evidence is that the plaintiff can only return to work for limited hours under medical supervision and, at best, increasing to twenty hours per week or on a casual basis. There is no suggestion that any of the identified jobs would tolerate such an employee. Only one position provided pay rates. That was the culling operator.
64 The evidence was that the plaintiff was not a good student and only completed Year 9 at school. He had obtained employment through labour hire companies. Generally the work involved labouring, process work and fork lift driving. All the work involved manual employment. The plaintiff has not returned to employment since the spinal fusion in October 2009. At best he can return to part time work of up to 20 hours per week with restrictions in a work friendly environment or on a casual basis.
65 A number of doctors referred to the plaintiff’s motivation. I accept the plaintiff is a motivated man who made genuine attempts to continue working despite his injury and is no longer able to work in a manual position. I accept that as a result of the spinal fusion, the plaintiff is unable to return to his pre-injury employment or any similar manual job, a view supported by the majority of the medical and vocational opinions.
66 I am satisfied that his inability to return to manual work, when the plaintiff has no other training or work experience, has very low literacy and is aged 35 is a consequence which can be described as serious pursuant to the statutory definition. In reaching that conclusion I have made a comparison with other cases in the range of possible impairments.[12]
[12]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
67 I am satisfied that the spinal injury is permanent, given that it has continued since the incident and despite surgery. This is supported by the medical opinion.
68 Having satisfied the narrative requirements, to obtain leave in relation to the loss of earning capacity, the plaintiff must also establish that:
(a)at the date of hearing, he has a loss of earning capacity of 40 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)
69 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.
70 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
71 “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.
72 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.
73 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).[13]
[13]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
74 I am therefore required to determine a without injury earnings figure. The plaintiff’s without injury earning capacity is best represented by his gross earnings in the 2003 tax year, being $49,497 gross. Sixty per cent of $49,497 gross is $29,698.20.
75 The plaintiff’s present earnings from personal exertion are nil.
76 As a culling operator, the plaintiff would earn $20.25 gross per hour. At that rate, the plaintiff would have to work 28.21 hours per week to earn more than $29,698.20 gross per annum.
77 I am satisfied that the plaintiff does not have a capacity to work more than 20 hours per week. I accept the evidence of Dr Thomas that 20 hours per week would give the plaintiff the best chance of remaining in employment as long as possible, perhaps to age fifty. The plaintiff is currently thirty-five. On that basis, I find that the plaintiff satisfies the arithmetic formula established by the Act.
78 I am also required to consider issues of retraining and rehabilitation pursuant to sub-s(g) of the Act. The medical evidence did not suggestion that rehabilitation was necessary and appropriate. Accordingly, I do not consider that rehabilitation will alter the situation that the plaintiff has a loss of earning capacity of 40 per cent or more. There was no evidence that even if the plaintiff were to complete the TAFE course to Year 10 that it would lead to a significant increase in his vocational options. Accordingly, I am satisfied that the plaintiff has no prospect of retraining and re-education that would enhance his earning capacity. Therefore I am satisfied the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.
79 Therefore, I am satisfied that the plaintiff satisfied the 40 per cent requirement and has sustained an injury within the meaning of s.134AB of the Act.
80 Having made these findings, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for economic loss consequences as a result of employment with the defendant after October 1999.
81 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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