Faiers v Robuck Metals Pty Ltd
[2013] VCC 134
•7 March 2013
| N THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04163
| MATTHEW CHARLES FAIERS | Plaintiff |
| v | |
| ROBUCK METALS PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 February 2013 | |
DATE OF JUDGMENT: | 7 March 2013 | |
CASE MAY BE CITED AS: | Faiers v Robuck Metals Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 134 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the lumbar spine – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with Mr G A Worth | Nowicki Carbone & Co |
| For the Defendants | Ms R L Kaye | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 5 December 2009 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s partner, Lorne Durling, swore an affidavit of 18 January 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
Background
16 The plaintiff was born in September 1967 and is now aged forty five. He has been in a de facto relationship with Lorne Durling for eight years and they have a young daughter. The plaintiff lives with Ms Durling’s brother.
17 The plaintiff is presently in receipt of a Newstart allowance, having previously been paid weekly payments of compensation after the said date.
18 The plaintiff left school midway through Year 11 in 1985 and began an apprenticeship as a spare parts interpreter. He completed two years of the three-year apprenticeship and worked in that field for five years. The plaintiff then worked for three years as a storeman and over the following years in labouring jobs.
19 The plaintiff worked in his brother’s engineering shop in 1997-1998, and then had two years off work following a right leg injury. Having briefly worked as a delivery driver in 2000, the plaintiff worked then for six and a half years from 2001 for Precision Balancing.
20 In 2001, the plaintiff had a car accident in which he dislocated his right hip and sustained facial injuries. He thought he had put in a TAC claim and received loss of earnings payments.
21 The plaintiff experienced pain in his lower back requiring time off work in 2005. He attended his local general practitioner on a couple of occasions and was sent for investigations and prescribed painkillers. He took about three days off work and could not recall making a WorkCover claim.
22 In cross-examination, the plaintiff agreed that he was prescribed Tramal at that time but only for a few days. He returned to work on full time normal duties until the said date.[3]
[3]Transcript (“T”) 35
23 In about May 2007, the plaintiff suffered a chest injury when he fell off his motorbike, but has since recovered. In about January 2008, the plaintiff had a left shoulder injury after lifting at work. He cannot recall making a claim in relation thereto.
24 In or about 2007, the plaintiff commenced work with the first defendant as a truck driver and labourer.
25 The plaintiff’s duties with the first defendant involved driving the work truck to various locations where scrap whitegoods, sheets of metal, and tin roofs and metal would be found.
26 On or about the said date, the plaintiff was working with large sheets of recycled building material, approximately five metres long and about a metre wide, weighing about 40 to 50 kilograms. He was required to move the sheets into the back of a truck.
27 Over the course of lifting during the morning, the plaintiff felt his back tightening and getting sore (“the incident”). He completed the job, and thought with rest over the weekend, his back might recover.
28 The plaintiff worked the following Monday and Tuesday but his back pain became unbearable. He told the manager, Matt Smith, that he injured his back when he returned to the first defendant’s depot.
Medical Treatment
29 The plaintiff saw his general practitioner, Dr McGovern, at Werribee, for treatment of his back injury. She suggested rest, and referred him for physiotherapy.
30 The plaintiff had physiotherapy from Mr Richardson for a few months, but that treatment gave him only short-term relief. The plaintiff was referred to neurosurgeon, Mr Han, who sent him for an MRI scan and CT scan of his back. The plaintiff was told these investigations revealed he had disc degeneration at L4‑5 as well as a tear at L5‑S1.
31 On Mr Han’s recommendation, the plaintiff had a CT-guided L4‑5 epidural injection in November 2010. That procedure seemed to give him short-term relief, but the pain soon returned.
32 In April 2011, the plaintiff was under the care of general practitioner, Dr Hargreaves. He recommended further physiotherapy and hydrotherapy, but the hydrotherapy did not help the plaintiff much, as he had a problem with his ears in the water.
33 In re-examination, the plaintiff explained that whilst on his way to hydrotherapy, he was phoned by Gallagher Bassett and advised funding had been terminated.[4] Further physiotherapy has been suggested by Mr Han but the plaintiff cannot afford to pay for it.
[4]T54
34 The plaintiff continues to see Dr Hargreaves who prescribes Tramadol 200 milligrams. It was first prescribed by Dr McGovern. That medication is strong, and affects the plaintiff’s memory and concentration. It assists to mask the pain, but the effects wear off and he often feels worse than he had previously. The plaintiff also takes anti-inflammatory medication, Panadol Osteo and Nurofen Back Pain, but these rarely provide sustained pain relief. The plaintiff takes six tablets of this over-the-counter medication daily – two tablets, three times a day.
35 In cross-examination, the plaintiff confirmed he continues to be prescribed Tramadol which he pays for himself, despite the last reference in the clinical notes to a prescription by Dr Hargreaves on 12 August 2011. Gallagher Bassett told the plaintiff he was entitled to reimbursement for his medication but never really explained to him how that process worked so he has just paid for medication himself.[5]
[5]T18
36 In about early January 2012, the plaintiff was referred to Mr Han for further opinion, as he felt his back pain was worsening with innocuous movement. The plaintiff again saw Mr Han on 4 May 2012, at which time he was referred for another MRI scan, which was conducted later that month.
37 On the last examination in July 2012, Mr Han advised the plaintiff his low back condition had worsened, and there was now an extra disc that was bulging and contacting the nerves.
38 Mr Han recommended further treatment in the form of a cortisone-guided injection into the plaintiff’s lower back. Mr Han is exhausting all conservative treatment, and has advised the plaintiff he does not want to operate as the plaintiff is too young.
Pain and consequences
39 In his second affidavit sworn in January 2013, the plaintiff deposed his physical condition has deteriorated. He has constant lower back pain, which flares from moderately severe to severe, but the baseline of his pain is constantly moderately painful.
40 The plaintiff often experiences electric shocks down either leg, mainly the right, extending to his ankle. They occur with no warning, and he often falls over as a consequence of this sensation. He walks with a persistent limp.
41 In his April 2010 affidavit, the plaintiff deposed he had difficulty walking for longer distances. He also had difficulty standing and sitting, and attempting to stand from a seated position. Attempting to lower himself, aggravated his low back pain.
42 In cross-examination, the plaintiff explained he had equal problems with both sitting and standing on a prolonged basis. The plaintiff’s main concern is to be able to alternate his position.[6]
[6]T35
43 In his April 2010 affidavit, the plaintiff deposed that since sustaining injury, he had difficulty undertaking his activities of daily living. He experienced pain in his lower back when attempting to move, such as flexing forward to shave and look in the mirror. He also had difficulty washing himself, and especially when putting on his shoes.
44 Prior to his low back injury, the plaintiff used to pride himself on maintaining his house and garden. However, due to his pain he had difficulty mowing the lawn and keeping the garden tidy.
45 On two occasions in early 2010, the plaintiff saw his general practitioner, having aggravated his back mowing the lawn and using a small hydraulic jack to change a flat tyre on his car.
46 Prior to injury, the plaintiff loved to ride motorbikes. It was one of his greatest passions. It upset him that since the incident he had difficulty riding motorbikes.
47 The plaintiff recently deposed he is an avid motorbike lover and enjoyed riding, fixing and collecting parts of bikes. Because of his injury, he had great difficulty in riding as it imposed great strain on his low back.
48 Consequently the plaintiff had to sell his bikes, which saddened him deeply, but he had to let them go as they were a constant reminder of his condition.
49 In cross-examination, the plaintiff confirmed he had not ridden a motorbike since the incident.[7] At present, he has one registered bike which is housed at a mate’s place. Prior to his injury, the plaintiff enjoyed riding with his partner as a pillion passenger. He also rode his motorbike to work on occasion.[8]
[7]T55
[8]T28-29
50 In cross-examination, the plaintiff also explained that he sold two motorbikes which he had owned for over twenty years to try to get some money.[9]
[9]T54
51 The plaintiff initially deposed that he had difficulty getting comfortable in bed due to pain he experienced. He found he woke during the night due to pain and generally had interrupted sleep, which made him grumpy and tired throughout the next day.
52 In his recent affidavit, the plaintiff deposed that he has difficulty sleeping, and often wakes due to pain. He only manages to get a few hours of undisturbed sleep at night, and finds he has to rely on painkillers to achieve that. As a result of his lack of sleep, the plaintiff feels sad and is less energetic, and fatigued. When he wakes, his back is very stiff, and it is difficult to get out of bed.
53 In his initial affidavit, the plaintiff deposed he had become sad and depressed about the way his condition had affected him and as to his future, and he had subsequently increased his alcohol intake.
54 The plaintiff recently deposed he frequently prefers to stay at home rather than go out and socialise. He feels he has lost his sense of worth and belonging since being unfit to work, and he is embarrassed he cannot provide financial support for his daughter as he did prior to injury
55 The plaintiff recently deposed his frustration with his restrictions is often taken out on his partner. In the beginning, she was understanding of his condition and supportive during bouts of depression. They separated several times in the last year or so, and she tells him he is not the man that he once was, and that hurts him.
56 The plaintiff’s low back injury further restricts him in being intimate with his partner, as he finds he struggles to perform sexually. Subconsciously he tries to avoid intercourse, as he suffers from erectile dysfunction due to his condition, depression, and various medications. He finds it difficult to be interested in engaging in sexual intercourse, as he is often drowsy from the medication or in pain because of his condition, and his erectile dysfunction causes great embarrassment.
57 In his lifetime, the plaintiff has owned about a 150 cars, owning his first at the age of twelve. Prior to injury, he owned up to fifteen cars at one time as a part of his collection for restoration. He used to be a collector of cars and parts. He enjoyed using his hands, and thrived on a sense of accomplishment when he would fix up a rundown car. He spent hours in the garage after work completing these projects.
58 However, since his injury, the plaintiff has had great difficulty in maintaining the upkeep of his cars, as he would have to bend awkwardly to get under the bonnet for sustained periods of time or flex in a position that would impose great pain on his lower back.
59 The plaintiff’s cars have been sold or left in the garage untouched. It deeply saddens him that he has great difficulty in attempting to maintain those vehicles, as this used to be his passion since he was a young boy.
60 The plaintiff was cross-examined in some detail as to his current ownership of motor bikes and cars. Because of his pain, the plaintiff sold three cars on eBay from January 2010, records of the sale of which are no longer available.
61 The plaintiff presently has three cars and one motorbike that are registered. He drives a ute, and his 1953 Ford sedan is in his garage. His Ford Fairlane has just run out of registration and is stationed at his brother’s factory. He cannot afford to renew the registration. The plaintiff also owns a number of trailers.
62 Prior to the incident, about monthly, the plaintiff and his partner attended swap meets and sometimes set up their own stall. The plaintiff could not recall attending a swap meet since his injury.
63 The plaintiff’s partner attends markets on the weekends to sell lollies. The plaintiff sometimes goes with her to local markets to keep her company.
64 The plaintiff’s partner and daughter bring him great joy. However, since injury, he has difficulty in taking an active parental role in his daughter’s life, such as playing with her and picking her up. Should he have been able to pick her up in the past when she was younger, he recalled it would cause him pain later in the day, and that deeply saddened and frustrated him.
65 The plaintiff deposed that he has been unable to return to work due to ongoing lower back restrictions and pain, which have prevented him from undertaking manual and physical work which he was accustomed to do. He has only ever worked in manual-type work all his life, and has not been provided with any retraining.
66 Prior to the injury, the plaintiff was earning about $870 net per week.
67 The plaintiff is able to perform basic activities of daily living, but relies on Ms Durling to assist him with chores or shopping. Whilst they live separately, Ms Durling does a lot of the plaintiff’s cooking. The plaintiff can do a little bit of washing but would have a lot of difficulty hanging it on the line.
68 Due to heavy lifting required at work over the course of his life, the plaintiff had grown to be quite muscular. Since injury, he had lost about 15 kilograms, with lost muscle tone, and his appetite has diminished.
69 The plaintiff is wary of whether he would be able to do the jobs detailed in the NES report of October 2011 of a courier, receiving and despatch clerk, motor vehicle parts interpreter, store person, light process worker, machine operator, product assembler and funeral director, as much of the roles are physical, requiring lifting or prolonged sitting or standing.
70 The injuries the plaintiff sustained at work render him unfit and unable to perform physical roles. He has great difficulty in performing general administrative roles, as he has limited computer skills.
71 The plaintiff does not understand how he could perform the work options that have been suggested when he has limited physical and psychological capabilities as a result of his back injury. He exhibited to his affidavit a printout of jobs he had looked at whilst at Centrelink. He attempted to look for work which he believed would be generally suitable according to his education, work, and experience; however, many of the jobs are unsuitable for his low back condition and its restrictions.
72 In cross-examination, the plaintiff confirmed that he had not applied for work since finishing with the first defendant. He had done basic searching for numerous jobs on the computer at Centrelink of jobs he “would like to do but can’t.”[10] There was nothing he had searched that he thought he could do. Centrelink had not arranged any job interviews for him.[11]
[10]T52
[11]T57
73 The plaintiff was cross-examined extensively about the jobs that had been suggested. He would have difficulty working in traffic management as he would have to stand with a sign all day and he could not sit down. He had not made any enquiries about obtaining a red card which was a prerequisite for such work.
74 The plaintiff did not think he could work in despatch or as a storeman as there was packing of boxes and loading of trucks involved. Inspection of goods would involve bending. Monitoring goods required moving around a warehouse.
75 The plaintiff had not heard of a job in these areas which was as light or as limited as counsel for the defendants described.
76 The plaintiff was unsure whether he could work in clerical duties. He has limited computer skills and is spend up to forty five minutes on the computer on eBay or similar sites.
77 The plaintiff did not know whether he could work in a job arranging bookings of cargo. He was “more with his hands” and had never done “big thinking jobs so to speak”.[12]
[12]T44
78 The plaintiff does not communicate well and whilst he may be able to describe his cars in great detail, he knew them backwards.[13]
[13]Ibid
79 The plaintiff did not know whether he could cope with a job where he was able to change his posture as he had so much pain and the medication he required “made his brain a mush”.[14]
[14]T43
80 The plaintiff had not taken any medication on the day of the hearing as he wanted to be able to concentrate whilst giving his evidence. In re-examination, the plaintiff described being “very sore to be polite” whilst in the witness box.[15]
[15]T56
81 The plaintiff’s ability to work a machine monitor would depend on the type of machine involved, as some machines are quite complicated. He could not sit down to watch a machine and he would not know what to do if something went wrong.
82 The plaintiff would be unable to work as a spare parts interpreter because that job requires lifting of a range of car parts, including bonnets and other heavy items. That job is sometimes performed alone and there would not always be help when required.
83 The plaintiff is frustrated at being unable to resume any form of employment due to his work injury. He feels his capacity for any suitable work is greatly diminished by his work injuries.
Lay evidence
84 The plaintiff’s partner, Lorne Durling, swore an affidavit on 18 January 2013. She and the plaintiff have known each other since childhood and they have a six year old daughter.
85 Ms Durling has noticed a dramatic change in the plaintiff’s personality since his injury. Prior thereto, he was constantly busy, whether working at home on projects or on his hobby of restoring cars.
86 The plaintiff now stays home more frequently and is drinking more often, whereas before injury he did not stay at home that much. It is difficult to tolerate him. In recent months she has noticed his condition deteriorating, and he has complained more of persistent lower back pain.
87 Ms Durling and the plaintiff continue to experience difficulties in their personal relationship, and have at times separated. She is wary about whether they will have a future life together. The plaintiff is not the person she once knew, losing his sexual life and motivation to be an active member of the family.
88 They are both car lovers, and prior to the incident, they went on family road trips to Mt Gambier and Adelaide to watch car and bike races, and attend car swap meets almost monthly, which were like a family picnic.
89 Since injury, the plaintiff has difficulty walking for sustained periods without experiencing back pain and resting, and they now seldom engage in those activities together.
90 Ms Durling recalled the plaintiff complaining of low back pain in 2005 with his previous employer. They were then living separately, and she could recall the plaintiff came over to visit and complained of his hurting his low back earlier that day. He slept over that night, and over the remainder of the week he recuperated and returned to normal work. He continued to work since that period, with little if any complaints with respect to his back until sustaining the present injury.
The Plaintiff’s medical evidence
Treating doctors
91 Notes from the Primary Health Care Medical Centre at Werribee Plaza indicated a few attendances from 30 May to 9 June 2005 when the plaintiff was complaining of low back pain radiating into both posterior thighs. Tramal was prescribed and investigations carried out. The plaintiff did not complain of any back problems from June 2005 until December 2009, when the incident occurred.
92 The plaintiff’s general practitioner, Dr Hargreaves, from Belmont Bulk Billing Clinic, reported on 19 July 2012.
93 Dr Hargreaves noted the plaintiff had a lumbar disc injury sustained at work and he continued to suffer severe chronic low back pain. He reported the plaintiff had not had any notable improvement from any treatment to date. Dr Hargreaves considered at some stage, further treatment options could include treatment with a pain management team program or possibly some form of lumbar surgery.
94 Dr Hargreaves considered the plaintiff had an ongoing organic back injury involving discogenic lumbar pain of very considerable extent. He could only conclude that the plaintiff’s employment remained the cause of his ongoing back condition.
95 Dr Hargreaves thought the plaintiff remained completely unable to work in any capacity due to his ongoing organic back pain, and he was more likely than not to remain completely incapacitated for the rest of his life. In his view, the plaintiff also had, at the very least, a very considerable restriction of his pre injury social, recreational and domestic activities, and was effectively precluded from any physical recreation and social activity. Further, the plaintiff was effectively unable to engage in sexual intercourse and perform domestic duties.
96 Dr Hargreaves considered the plaintiff’s prognosis was very poor. He had chronic severe organic back pain related to disc injury, with pain persisting now for many years and it had been resistant to multiple treatments, including epidural steroid injection. Dr Hargreaves thought classically this condition responded very poorly to surgical intervention. He considered it was overwhelmingly likely the plaintiff’s outlook was for long term symptoms similar to his current status, with ongoing very considerable impact on all facets of his life.
97 Mr Han, consultant neurosurgeon, first saw the plaintiff on 5 May 2010 on referral from Dr McGovern. There were subsequent follow up appointments on 31 May and 7 July 2010, and later on 4 May, 12 June and 4 July 2012.
98 On initial examination, the plaintiff presented with persistent central low back pain in a band across his back, with pain radiating into his right groin and the rear aspect of his right leg.
99 The plaintiff told Mr Han of a history of back pain in 2005 which resolved over two weeks with conservative treatment.
100 Following the first examination, Mr Han thought the plaintiff was making good gains with physiotherapy, hydrotherapy and a TENS machine. Mr Han recommended conservative treatment and organised an MRI.
101 On review on 31 May 2010, the plaintiff continued to have severe pain. His MRI showed L4‑5 disc degeneration on the right side which Mr Han thought could be irritating the L5 nerve root. There was also an annular tear at L5‑S1 on the left side.
102 Mr Han thought the plaintiff’s symptoms were no better, but the MRI findings were quite subtle, and he was doubtful any surgery would be beneficial. He encouraged the plaintiff to continue with physical therapy and avoid heavy repetitive bending and twisting, and asked him to take a further month off work. He thought then, if the plaintiff was well enough in a month’s time, he could return to light duties, but not to his pre injury employment.
103 On review on 7 July 2010, the plaintiff continued to have low back pain and minimal right leg pain. Mr Han then thought he might benefit from an epidural injection, which he organised. Mr Han thought the plaintiff would spend possibly months to get over his back pain, and did not think he was fit enough to return to any work then, and extended his certificate until 8 August 2010. Mr Han thought surgery was unlikely to be successful, and suggested ongoing conservative management.
104 On 4 May 2012, the plaintiff returned after an increase of lower back pain and bilateral sciatica, worse on the left. A further MRI scan was performed at Western Hospital on 17 May 2012 which showed interval increase in L3‑4 paracentral disc protrusion and stable appearance at L4‑5 and L5‑S1 levels.
105 The plaintiff was next seen on 4 July 2012 when he continued to have back pain and right-sided buttock and loin pain. Mr Han recommended a further CT‑guided lumbar epidural at L3‑4 which was carried out on 31 July 2012. He did not arrange to see the plaintiff again.
106 Mr Han noted that the 2012 MRI revealed disc degeneration at L4‑5 and L5‑S1, and there also appeared to be a new disc prolapse at L3‑4 on the left side with impingement on the left L3 nerve. He did not recommend surgery. Mr Han thought the plaintiff may also consider further epidural injections, and that he would also have to continue with hydrotherapy, physiotherapy, TENS, and prescription of painkillers.
107 Mr Han considered the plaintiff’s low back injury was directly related to work, as was the bilateral sciatica. He thought the plaintiff was not able to return to pre injury employment, and, taking into account his education and work experience, he did not believe the plaintiff would be able to return to any form of work, whether regular, full time, or part time. He also thought the plaintiff’s lower back injury had prevented him from having full engagement in a range of activities.
108 Mr Han considered given that there was evidence of disc degeneration on the MRI as well as a history of pain persisting after at least three years, the plaintiff’s injury had resulted in permanent impairment.
Investigations
109 Dr Brophy from Hoppers Crossing organised a CT scan of the plaintiff’s lumbar spine on 2 June 2005. It was reported there was a disc protrusion at L5-S1 involving the descending S1 nerve root without major canal stenosis.
110 Dr McGovern organised a CT scan of the plaintiff’s lumbar spine on 23 March 2010. It was reported there was a small left-sided disc protrusion at L5‑S1 impinging on the descending left S1 nerve root with minor canal stenosis resulting. There was also moderate canal stenosis at L4‑5 due to a combination of soft tissue injury and bony factors.
111 There was a CT-guided L4‑5 epidural injection was carried out at Victoria House on 9 November 2010 at Dr Hargreaves’ request.
112 An MRI scan of the lumbar spine was carried out at Mr Han’s request on 20 May 2010. It was reported at L5‑S1 there was a left paracentral disc protrusion with flattening and posterior displacement of the left S1 and slight posterior displacement of S2 within the thecal sac. At L4‑5 there was contact of the traversing right L5 nerve root with right foraminal annulus fissure and right central canal stenosis.
113 A further L3‑4 epidural injection was carried out at Mr Han’s request on 31 July 2012.
114 Mr Han arranged an MRI scan of the plaintiff’s lumbar spine which was carried out on 17 May 2012. It was reported there was intervertebral left L3‑4 paracentral/foraminal disc protrusion, stable appearance at L4‑5, and stable disc protrusion at L5‑S1.
Medico-legal examinations
115 Mr David Brownbill, neurosurgeon, initially examined the plaintiff on 20 June 2012.
116 On examination, there was restriction of thoracolumbar spinal movements. There was no neurological abnormality of the lower limbs and no signs of radiculopathy.
117 Mr Brownbill thought the plaintiff’s demeanour and responses throughout the interview suggested some emotional reaction component.
118 Mr Brownbill thought the 2010 radiological investigations demonstrated two-level lower lumbar intervertebral disc derangement with disc protrusion and annular tear.
119 Mr Brownbill thought the plaintiff should, in the future, avoid activities involving heavy lifting, full spinal mobility or repeated bending. He considered the plaintiff, on probability, had some ongoing physical fluctuating low back pain as a result of the aggravated lumbar spine degenerative change. He noted that clinical experience showed on occasion, when lumbar spine degenerative changes were aggravated, the resulting pain may continue in a fluctuating manner, even when the aggravating cause had ceased.
120 Mr Brownbill considered that organic low back injury arose in the course of employment.
121 Mr Brownbill thought, from a physical neurosurgical point of view, the plaintiff would be capable of attending a graduated return to work, avoiding those activities; however, the number of hours would be dictated by his response. Whilst the plaintiff does have a restricted employment capacity, noting his age, education, work experience always being in physical activity, and demonstrated two-level lower lumbar intervertebral disc derangement, together with his described ongoing activity related fluctuating back pain, Mr Brownbill thought the plaintiff may have difficulty performing any employment for which he was suited in an ongoing or reliable fashion.
122 Mr Brownbill also noted the plaintiff’s inability to continue participating in motorcycles and cars and usual domestic and recreational pursuits.
123 Mr Brownbill was later provided with the reports of the 2005 and March 2010 CT scans. On that information provided, Mr Brownbill thought the plaintiff had previously sustained an L5‑S1 disc damage, but on the information provided by him on examination, there had not been any ongoing back pain or restriction. Thus, Mr Brownbill considered the plaintiff’s employment with the first defendant, on the balance of probabilities, continued to remain a cause of his ongoing back injury.
124 Mr Brownbill re‑examined the plaintiff on 19 February 2013.
125 On examination, the plaintiff was alert and co-operative, with a flattened affect, exhibiting immobile facies but without embellishment or abnormal illness behaviour. There was restriction of thoracolumbar spinal movements. There was some palpable muscle guarding to the right of the lumbar spine, but no objective abnormality of the lower limbs indicating any radiculopathy. There was wasting of one centimetre of the right lower leg.
126 Mr Brownbill noted the 2012 MRI indicated some progression of the L5‑S1 degenerative changes since the October 2010 MRI scan. He thought that would be consistent with the natural history occurring of pre-existing lumbar spine degenerative change which had been aggravated at work.
127 Mr Brownbill confirmed his earlier views as to the plaintiff’s employment capacity. Noting the plaintiff’s education limited to Year 10, work activities having always involved physical activity, demonstrated two-level lumbar spine degenerative changes, the plaintiff’s described ongoing back and right leg pain with activity exacerbation, and his lack of computer literacy, Mr Brownbill considered, on probability, the plaintiff would not be able to perform any employment for which he was suited in an ongoing or reliable fashion, nor would he be able to continue with hobbies of motorcycle riding and car restoration. Having been provided with Dr Wilkie’s report of 8 July 2012, Dr Brownbill’s view was unchanged.
128 Dr Helen Sutcliffe, occupational physician, examined the plaintiff on 22 November 2012.
129 The plaintiff then described constant pain in the low back area radiating into the right buttock and to the posterior aspect of the right leg to the foot. He judged the pain to be present at an intensity of seven to eight, sometimes increasing to ten. The plaintiff described a limited capacity for standing and driving to one hour.
130 On examination, there was slight wasting of the right thigh. The plaintiff had a slow gait, and there was a minor decrease in elevation of the right heel. There was some alteration to light touch on the right side of the lumbar spine compared to the left. There was some restricted lumbosacral movement. There was decreased power and flexion of the right knee and dorsiflexion of the right foot to a minor extent.
131 Dr Sutcliffe had available the March 2010 CT scan and reports from Dr Yong, Dr Rowe and Dr Barton.
132 From the history obtained following the examination, perusal of the investigations and assessment of the documentation, Dr Sutcliffe believed the plaintiff sustained disc degeneration of the lumbar spine at L5‑S1 and L4‑5 as a result of awkward and heavy lifting.
133 Dr Sutcliffe considered the plaintiff had no capacity to return to his pre injury duties or any other occupation he had previously performed, noting his limited education and his history of manual employment. She thought it was possible the plaintiff would be able to find niche or protected employment where he was able to perform limited hours of tasks with the variation and capacity to sit and stand. She did not believe he had the capacity for employment in general open employment, as a result of the work related injury.
134 Dr Sutcliffe thought the plaintiff had sustained disc derangement at L5‑S1 with some impact on the nerve root at L5. She also thought he had sustained disc derangement at L4‑5 and an onset of some degree of neuropathic pain present on the right lower limb, a conclusion made not only from his history but the findings of sensory change to light touch, cold and vibration. Dr Sutcliffe considered the plaintiff had an ongoing organic back injury related to work.
135 Dr Sutcliffe believed the plaintiff had no capacity to undertake regular full time or part time pre injury employment, taking into account his age, education, and prior work experience; however, she believed he had the capacity to undertake part time protected niche employment where he had the capacity to sit and stand at will and was able to work for three hours, four days a week, maximum.
136 Taking into account the suitable employment factors, Dr Sutcliffe believed the plaintiff could not fulfil the capacity of any employment classified as a normal range of employment. He would be unable to do more than the suggested hours, and he would be unable to perform lifting, bending, twisting, turning, reaching, prolonged standing or sitting or driving in his occupation. In her view, those restrictions result in such a narrowing of an occupation that it is outside the range of what would be considered open or general employment.
137 Dr Sutcliffe thought the plaintiff would not be reliable, productive or efficient without the risk of re‑injury. She also thought he had a substantial loss in terms of other factors of his life.
138 Dr Sutcliffe considered the plaintiff had no capacity to do the jobs set out in the Ayres report of 21 October 2011 of courier, receiving and despatch clerk, motor vehicle parts interpreter, store person, light process worker, machine operator, product assembler, funeral driver/morgue transport driver, and other suitable employment options, as a result of the inherent duties required in those occupations where lifting, driving, bending, twisting, prolonged sitting and standing were performed.
139 Dr Sutcliffe concluded it was unlikely that the plaintiff’s lower back impairment would mend or repair to any significant extent, and she believed he would continue with persisting back pain and limitation of function into the foreseeable future.
140 Dr Albert Kaplan, psychiatrist, examined the plaintiff on 10 July 2012.
141 Dr Kaplan concluded, as a result of his injury, chronic pain, inability to work, and physical limitations imposed upon him by his injury, the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought the plaintiff was also suffering from substance abuse with regard to alcohol and tobacco, symptomatic of his underlying depression and anxiety, and representing a form of self medication.
142 Dr Kaplan thought it would be appropriate for the plaintiff to be referred to a psychiatrist for supportive psychotherapy, and that his psychiatric condition has had at least a very considerable impact on his ability to engage in his usual social pursuits.
The Defendants’ medical evidence
143 The plaintiff’s treating physiotherapist, Mr Richardson, reported in March 2010 that the plaintiff had a capacity to return to light duties, but noted no light duties were available with the first defendant.
144 Notes from the Health Care Medical Centre, Werribee Plaza from 15 July 2011 to 23 January 2013 seem to indicate only one prescription of Tramal on 12 August 2011.
145 In the notes of that clinic from 1 July 2010 to 5 April 2012, prescription of Tramal was noted on 14 June 2011, 30 September, 4 August, 29 June, 23 April, 12 March, 29 January and 15 January 2010; and 20 and 30 December 2009.
Medico-legal examinations
146 Dr David Barton, consultant occupational physician, has seen the plaintiff on three occasions.
147 Initially, on 3 March 2010, only some months after the incident, he thought the plaintiff presented in a straightforward manner, although he noted the state of the plaintiff’s hands was of some concern, particularly as he said he did no physical work at home.
148 Dr Barton considered the plaintiff had an uncomplicated mechanical low back problem. He was then not sure whether the plaintiff would be considered fully fit for pre injury duties. In his view, the plaintiff should be weaned off physiotherapy and encouraged to self manage. He thought the plaintiff had some work capacity, and he believed some limitation in regard to the plaintiff’s duties would be sufficient to allow him to do a variety of jobs including truck driving.
149 On re‑examination on 28 July 2011, Dr Barton noted the plaintiff walked fairly slowly and cautiously. There was no swelling or wasting, and no paraspinal muscle spasm. There was some mild tenderness in the midline of the lumbosacral spine. Movements of the lumbar spine were reduced by about a third, with forward flexion more limited. There was an inconsistency between straight leg raising and the plaintiff later sitting comfortably upright on the examination couch. Sensation to light touch was globally reduced throughout the whole of the right leg, more so in the right thigh.
150 Dr Barton noted that since the previous examination, the plaintiff’s condition appeared to have deteriorated. When seen earlier, the plaintiff suggested a 10 per cent improvement, but now felt he was about the same or worse. This time he presented with a number of features that, in Dr Barton’s view, pointed towards a degree of abnormal illness behaviour – the non-anatomical changes in the right knee, discrepancy between limited straight leg raising and postures, increase in reported symptoms with axial loading, and lack of any clear physical evidence of any significant physical problem that would account for his protracted incapacity and widespread reported symptoms.
151 Dr Barton thought what had started out as a simple mechanical lower back problem had developed into what appeared to be a chronic pain type problem, with the plaintiff feeling he had no capacity to do anything at all.
152 Physically, Dr Barton believed there was little or no loss of bodily function as a result of the injury, and the plaintiff’s incapacity was more to do with his illness belief, the medicalisation of his problem and his emerging chronic pain problem.
153 Despite the plaintiff’s belief, Dr Barton considered the plaintiff had a capacity for suitable employment. While the plaintiff had limited skills, Dr Barton did not believe the physical evidence of an underlying back problem justified him being totally incapacitated. He thought there was a partial incapacity related to the pain problem, but that would not prevent the plaintiff from working if he was motivated. He then thought the plaintiff had the capacity for some truck driving duties, but not all of his pre injury duties, which he said included fairly significant manual handling.
154 On re‑examination on 11 May 2012, Dr Barton noted the plaintiff went on repeatedly about his various problems and difficulties. He reported having good and bad days, and if he moved the wrong way, “bang, that’s it, [he] was legless”. He had constant back pain.
155 During examination, Dr Barton noted the plaintiff was strongly symptom and disability focused. There was no wasting or paraspinal muscle spasm. There was a normal contour of the spine. There was quite widespread tenderness in the lower back. There was again inconsistency between the ability to straight leg raise and sit on the couch. There was generalised weakness through both legs on testing muscle power.
156 Dr Barton believed that mainly functional features had emerged, and that during that examination there were several features that did not fit with a straightforward physical problem and pointed towards a degree of functional overlay. Noteworthy were the increase in reported symptoms with axial loading, the non anatomical sensory changes in the right leg, the long history of persistent and dramatically described symptoms, which was typical of abnormal illness behaviour, and the general weakness and poor effort on testing muscle power in both legs.
157 In a supplementary report of 15 June 2012, Dr Barton reported that he considered the plaintiff had the physical capacity to perform the jobs identified in the labour market review dated 29 March 2012.
158 Dr Dominic Yong, specialist occupational physician, examined the plaintiff in December 2010. The plaintiff gave him a history of the 2005 back injury.
159 On examination, there was no evidence of pain behaviour. The plaintiff’s gait was slow and he moved cautiously. There was tenderness to palpation in the midline of the low back, and restricted range of movement.
160 Dr Yong thought the plaintiff had a discal injury to his low back which had been complicated by a deconditioning process, and there were no current features of radiculopathy clinically.
161 Dr Yong thought an activity-based recovery program was appropriate.
162 Dr Yong considered that the plaintiff’s employment had contributed to his condition.
163 In Dr Yong’s view, the plaintiff had a current capacity for work, with the following restrictions: avoid bending and twisting of the back; avoid firm pushing and pulling; avoid lifting more than 4 kilograms on a repeated basis, and vary posture regularly between sitting, standing and walking. He considered the plaintiff’s pre injury role exceeded those restrictions and, therefore, he did not have a current capacity to do that job.
164 Dr Kevin Fraser, rheumatologist, examined the plaintiff on 2 May 2012.
165 On examination, the plaintiff walked slowly with a pronounced limp. There was restriction of dorsolumbar spine movements, and mild tenderness at the dorsolumbar junction and at the lower lumbar levels. There was an inconsistency between straight leg raising and the ability to sit upright on the examination couch. There was a diffuse sensory deficit to light touch in the left leg in a non anatomic distribution.
166 Dr Fraser noted, apart from marked overreaction on physical examination, there were no other significant features.
167 Dr Fraser was provided with the March 2010 CT scan.
168 Dr Fraser thought the plaintiff may have sustained aggravation of pre-existing degenerative changes in the lumbosacral spine and/or a mild L5‑S1 disc lesion as a result of the incident.
169 Dr Fraser noted the plaintiff acknowledged some improvement with treatment, but claimed to have ongoing incapacitating back and left pain, more on the left. However, in Dr Fraser’s view, the physical findings with marked overreaction left no doubt that the plaintiff was exaggerating his disability, and, in Dr Fraser’s view, non-organic factors were largely responsible for his current presentation. Dr Fraser thought it reasonable for the plaintiff to continue anti-inflammatory analgesics.
170 Dr Fraser considered, at this stage, to the doubtful extent there is any physical impairment, it was due to the underlying age-related degenerative changes rather than a compensable injury.
171 While on that basis the plaintiff may be unfit for his pre injury duties, Dr Fraser thought he was fit for suitable employment with a 5 kilogram lifting restriction, and was suitable for the jobs set out in the market review report of 29 March 2012, and some of the options in the NES 10 June 2010 report; however, giving him the benefit of some doubt, he thought the plaintiff should be probably regarded as being unfit to work as a truck driver or delivery driver.
172 The plaintiff was re‑examined on 14 January 2013. Dr Fraser noted the plaintiff again moved slowly and in an exaggerated fashion. There was restriction of dorso spine movement and also mild local tenderness. Again, there was the inconsistency between straight leg raising and the ability to sit upright on the couch. There was no motor or sensory deficit in the lower limbs.
173 Dr Fraser noted there had not been any significant change since he last saw the plaintiff, and his opinion remained the same. He thought the plaintiff had recovered from any putative aggravation of pre-existing degenerative changes in the lumbosacral spine, and, to the extent they were organically-based, his current symptoms were due to the latter.
174 However, Dr Fraser thought there were again features to suggest the plaintiff was exaggerating his disability, and there were non-organic factors largely responsible for his current presentation. He confirmed his views as to the plaintiff’s employment capacity and the requirement for a 5-kilogram lifting limit.
175 Dr Lange, occupational physician, examined the plaintiff on 25 January 2012. There was twenty to thirty per cent normal range on lumbar spine examination. There was limited straight leg raising, and power appeared to be weak in all muscle groups, left and right side. There were no sensory changes. He had a copy of the May 2010 MRI.
176 Dr Lange concluded that physical examination revealed a man of tall stature who demonstrated a very limited range of movement of the lumbar spine, with limited straight leg raising but no focal neurological loss in the lower limbs, generalised weakness, and normal reflexes. He noted it was difficult to make a diagnosis in the absence of the radiology but suspected the cause of the plaintiff’s current symptoms was an annular tear in the L5-S1 area. He strongly recommended an MRI be sent to him for further comment.
177 In January 2012, Dr Lange suspected the plaintiff had an annular tear at the L5-S1 level causing his current symptoms, but this was very difficult to evaluate without films.
178 Dr Lange thought the plaintiff did not have a capacity to return to pre injury work and hours at that stage. There should be a 5-kilogram lifting limit. He thought the plaintiff could undertake the alternate duties in the NES assessment report of 21 October 2011, apart from store person and machine operator, which required lifting. He agreed with Dr Yong’s recommendation of a multidisciplinary rehabilitation program, given the plaintiff was deconditioned.
179 Dr Lange thought the plaintiff’s incapacity for full employment was still contributed to by his initial injury at work. He considered the disability was unlikely to continue indefinitely, and with a multidisciplinary rehabilitation program involving exercise, psychological counselling and education, the plaintiff’s condition should improve.
180 Dr R C Wilkie, consultant radiologist, provided a report on 8 July 2012, in which he commented on the March 2010 CT scan of the lumbar spine and the October 2010 MRI scan. He concluded no significant progression had been imaged. He noted the plaintiff had sustained L5‑S1 herniation prior to the 2005 scan, and had evidence then of disc degeneration consistent with the history in the affidavit. Dr Wilkie thought the findings were not normal for age.
181 Dr Wilkie thought the alleged incident was not the causation of any abnormality as demonstrated on the 2010 MRI. He considered the changes in that scan indicated persistence of the disc herniation at L5‑S1 and disc degeneration of L5‑S1 L4‑5.
182 Dr Wilkie commented that one would expect that, for the incident, any disc degeneration would persist and show some progression over five years. In the absence of effective treatment, the disc herniation would also persist and be associated with disc degeneration. He noted annular injury is invariably followed by secondary disc degeneration, and as the herniation was present in 2005 (necessitating annular injury in its causation) the annular changes in his view in 2010 reflected the annular injury.
183 Dr Wilkie provided a further report on 12 January 2013 in which he commented on the May 2012 MRI, noting that there was no marked change from 2 October 2010, and that study was consistent with the opinions in his earlier report. He confirmed that if the incident had not occurred, any disc degeneration would persist and show some progression over five years.
184 Dr Kennedy, psychologist, carried out an evaluation on 15 December 2011. He concluded there was no formal psychological treatment required, and that, from a psychological point of view, the plaintiff could work and had no psychological incapacity or condition. He concluded any incapacity related to the plaintiff’s physical state was not psychological.
Vocational evidence
185 Ayers Management carried out an NES refresher assessment report and plan on 21 October 2011.
186 Identified suitable employment options in order of priority were courier, receiving and despatch clerk, motor vehicle parts interpreter, store person, light process worker, machine operator (selected environments), product assembler and funeral driver/morgue transport driver.
187 There was a labour market review report carried out by the same service on 29 March 2012 in which the following jobs were identified as suitable: despatching and receiving clerk, light process worker, store person, machine operator, general plastic production machine operator, heavy truck driver, delivery driver, and traffic management and control operator, a job in which the plaintiff expressed some interest.
VicRoads
188 The defendants relied upon a VicRoads search detailing motorbikes and motor vehicles recently and currently registered in the plaintiff’s name.
Overview
189 There is no issue that the plaintiff suffered a compensable injury to his lower back in the incident on the said date.
190 On 15 March 2011, the defendants accepted the plaintiff’s claim for impairment benefits pursuant to s98C and also made weekly payment until some twelve months ago. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[16] such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[16][2006] VSCA 171
191 There is some difference in medical opinion regarding the basis of the plaintiff’s present back condition.
192 The plaintiff’s treating doctors, Dr Hargreaves, and neurosurgeon, Mr Han, medico-legal examiners Dr Sutcliffe, Mr Brownbill, Dr Lange and Dr Jong, are of the view that the plaintiff has suffered a discal injury involving aggravation of previously asymptomatic degenerative change in the lower back at L4-5 and L5-S1, and they consider that aggravation is ongoing
193 Dr Barton and Dr Fraser, who considered the plaintiff’s current presentation had a large functional component, are in the minority. Whilst on initial examination Mr Brownbill thought there was an emotional component to the plaintiff’s presentation, on most recent examination in early 2013 there was no embellishment or abnormal illness behaviour.
194 I prefer the evidence of the plaintiff’s treating doctors and those medico-legal examiners who share their view.
195 There was no film or other evidence challenging the plaintiff’s reported pain and restriction. No doctor found embellishment or exaggeration on examination.
196 Treating neurosurgeon, Mr Han, thought the MRI showed L4‑5 disc degeneration on the right side which could be irritating the L5 nerve root.
197 Dr Fraser, rheumatologist, is alone in the view that the plaintiff’s present back condition, if any, is age-related. In any event, he gave no explanation in his report as to the basis of this opinion.
198 I accept that at the time of the incident, the plaintiff did not have any ongoing pain or restriction in his lumbar spine. An episode of pain in mid 2005 was transient and required only a short time off work and limited prescription of Tramal. Whilst there was disc degeneration present on the 2005 MRI scan, from June 2005 until the said date, the plaintiff was able to perform his normal work duties without any restriction or difficulty.
199 Further, I accept the preponderant view expressed by medical practitioners that the plaintiff’s organically-based back injury has impaired his back function, and that it has in turn had the following consequences.
Pain and suffering consequences
200 The plaintiff has sworn two affidavits – on 13 April 2010 and 22 January 2013 in which he deposed to the injury he suffered and the impairment caused by the consequences to him in terms of pain and suffering.
201 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[17] at paragraph 12:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[17](2010) 31 VR 1
202 I found the plaintiff to be a truthful and credible witness. He has a good work ethic and is motivated to work, as his pre-incident work history indicates, having returned to work after a number of earlier injuries.
203 There was no real attack on the plaintiff’s evidence as to his pain and restrictions in cross-examination. There was no evidence inconsistent with the plaintiff’s description of his ongoing difficulties.
204 I have considered the submissions of Mr Morfuni, for the plaintiff, and Ms Kaye, for the defendants, and I have read the transcript of the plaintiff’s evidence, the vocational assessments and the medical reports.
205 On the basis of the foregoing, I am satisfied that the plaintiff’s pain and suffering consequences meet the statutory definition of “serious”.
206 My reasoning in making that finding is as follows.
207 I accept the plaintiff’s evidence that he suffers constant lower back pain which varies in intensity from moderately painful to severe. The level of his pain was apparent in the witness box when he appeared in some distress whilst he gave evidence without the assistance of his usual medication.
208 Further, the plaintiff often experiences unexpected electric shocks, particularly down his right leg, causing him to fall. He walks with a persistent limp.
209 Due to his back pain, the plaintiff’s back movement is limited and he has a particular problem with movements and activities involving flexion, whether simple personal hygiene tasks or more strenuous activities.
210 I accept, as a number of medical practitioners have described, that the plaintiff’s restricted range of back movement will affect most activities of daily living.
211 Despite the absence of any mention in his general practitioner’s notes of the prescription of Tramal since August 2011, I accept the plaintiff continues to take Tramal and has done so for several years for pain relief. He also takes over the counter medication in the form of Panadol Osteo or Nurofen Back, taking up to six tablets a day.
212 The plaintiff has undergone CT-guided lumbar epidural injections in 2010 and 2012 which have provided only short-term relief.
213 The plaintiff had physiotherapy treatment until early 2010 when funding was terminated by WorkCover and he has not been able to afford to pay for this treatment since that time.
214 Because of his lower back pain, the plaintiff continues to have disturbed sleep and often feels tired and lethargic the following day.
215 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[18] at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[18]supra
216 Before the incident, the plaintiff derived great enjoyment from riding motorbikes and restoring bikes and cars. He has not ridden since the incident and as he is unable to work freely on his bikes and cars because of back pain, and has had to sell a number of vehicles which he treasured.
217 The plaintiff’s back condition affects his sexual relationship with his partner. The plaintiff is able to do only limited domestic tasks and he is restricted in his ability to play with his young daughter.
218 The plaintiff has limited education, having left school in mid Year 11. His work experience is in manual work of labouring and truck driving and working as a spare parts interpreter. The plaintiff has never done clerical work, and has required unrestricted use of his back to perform manual work. As a result of his back injury, the plaintiff no longer has the capacity to undertake such tasks.
219 The consensus of medical opinion is that the plaintiff is unable to carry out his pre-injury duties and duties of the type he was performing when injured.
220 I am satisfied that there is an incapacity for unrestricted manual employment due to ongoing pain and restriction or back movement.
221 This situation in itself is a serious consequence for a relatively young man of forty five with only limited education, no particular training and a history of manual work.
222 I am confident in accepting the plaintiff’s evidence as to the pain and suffering consequences because the medical evidence, which I accept, supports the conclusion that he suffered an injury which has so impaired the function of his back and is consistent with the plaintiff’s evidence that he has suffered the level of pain and suffering consequences summarised above.
223 In my view, the pain and suffering consequences meet the statutory test of seriousness, in that the degree to which the plaintiff suffers those consequences is more than significant or marked and in my value judgment, those consequences are deserving of the description of “at least very considerable”.
224 It is nearly four years since the injury. Despite two injections and ongoing treatment, the plaintiff continues to experience significant pain. In such circumstances, I am satisfied that his impairment is likely to last into the foreseeable future and is therefore permanent.
Loss of earning capacity
225 The main issue between the plaintiff and the defendants is whether the plaintiff is fit for suitable employment or, alternatively, if fit for suitable employment, whether he has permanently suffered a loss of forty per cent or more.
226 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
227 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.
228 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
229 “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.
230 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.
231 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein – See Barwon Spinners Pty Ltd & Ors v Podolak.[19]
[19](Supra) at paragraph 70
232 I am therefore required to determine a “without injury” earnings figure. Counsel agreed that $49,050 was an appropriate “without injury” earnings figure, being the plaintiff’s gross earnings in the 2007-2008 financial year, the year before the incident.
233 Sixty per cent of that figure is $29,430 or $565 per week.
234 As previously noted, I am satisfied that the plaintiff has lost the capacity to engage in his pre injury employment. He is unable to engage in manual work requiring use of his back and he is significantly restricted in his ability to lift.
235 The plaintiff’s capacity for “suitable employment” must then be considered.
236 Section 5 of the Act sets out the relevant factors:
“Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker’s pre‑injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i) the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market.”
237 The treating general practitioner, Dr Hargreaves, and neurosurgeon, Mr Han, do not consider the plaintiff has a capacity for suitable employment. This view is effectively shared by Dr Sutcliffe and Mr Brownbill.
238 Mr Brownbill thought, on probability, the plaintiff would not be able to pursue employment in a regular or ongoing fashion. Ms Sutcliffe considered the plaintiff had a theoretical capacity for employment only for a maximum of four days a week, three hours a day in niche, protected employment with an extensive range of restrictions involved.
239 Whilst practitioners relied upon by the defendants, Dr Fraser, Dr Yong, Dr Barton and Dr Lange, consider the plaintiff has the capacity to do a range of jobs suggested the vocational reports, I accept the plaintiff’s evidence that he could not engage in such work in a reliable and regular manner because of his level of back pain and his problems with lifting, bending, twisting, turning, reached, prolonged sitting and standing.
240 In cross-examination, the plaintiff explained his difficulty with the various jobs and his inexperience in a number of the suggested fields. Essentially, the plaintiff is a “hands on” man, not having worked in more sedentary roles. He has no particular skills or training and his computer use is basic. Prolonged sitting or standing would pose problems for him in a number of the suggested jobs, as would having to bend and lift stock.
241 Further, the plaintiff’s medication intake affects his ability to concentrate and would pose problems operating machinery or dealing with the public on a regular basis.
242 Having analysed the plaintiff’s evidence and that of the medical practitioners who have offered opinions on the plaintiff’s employability in suitable employment, I accept the plaintiff’s evidence that the suggested employment is not suitable as defined in s5 of the Act because it infringes the limitations placed upon him that he not engage in tasks which involve lifting, stretching or excessive use of his back.
243 Having considered the submissions of both counsel and read the transcript of the plaintiff’s evidence, the medical reports and vocational reports, I am satisfied the plaintiff has suffered a permanent loss of earning capacity of forty per cent within the meaning of s134AB(38)(e) of the Act as he does not have the capacity to earn in excess of $560 per week.
244 I am also required to consider issues of re-training and rehabilitation pursuant to ss(g).
245 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, despite the plaintiff’s hopes to re-train, I am satisfied there is no rehabilitation or re-training that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and re-training have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g) of the Act.
246 Accordingly, I grant leave to the plaintiff to bring proceedings in relation to loss of earning capacity, in addition to pain and suffering.
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