Farrugia v Ace Craft Kitchen and Furniture Pty Ltd
[2016] VCC 189
•4 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-00095
| DAMIEN JOSEPH FARRUGIA | Plaintiff |
| v | |
| ACE CRAFT KITCHEN AND FURNITURE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 February 2016 | |
DATE OF JUDGMENT: | 4 March 2016 | |
CASE MAY BE CITED AS: | Farrugia v Ace Craft Kitchen and Furniture Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 189 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine alleged to have occurred in the course of employment – causation – credibility of the plaintiff – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jones v Dunkel (1959) 101 CLR 298
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Nowicki Carbone |
| For the Defendant | Mr J Batten | Minter Ellison |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Farrugia, alleges he suffered a significant injury to his lower spine in the course of his employment with the defendant, Ace Craft Kitchens and Furniture Pty Ltd (“Ace Kitchens”) on or about 6 July 2010 when he was lifting a heavy cabinet. He said a co-worker dropped one end of the cabinet which was being carried, causing immediate low back pain. He said he reported the injury to his co-workers and boss and to his general practitioner, who he saw the next day.
2 Mr Farrugia was off work from that day and has not returned to work since, save for a brief attempted return to work after the incident.
3 In March 2011, he underwent lumbar surgery in the form of an L5-S1 fusion and rhizolysis. He said he suffers significant pain and restriction in the lower spine and takes strong pain-relieving medication. He has applied for many jobs in an attempt to return to work.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of his employment on or about 16 July 2010.
5 The body function said to be lost or impaired is the lower spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
6 Mr Farrugia was the only witness called to give evidence and be cross-examined. In addition, affidavits of Mr Farrugia, and his mother, radiological, medical and vocational reports were tendered into evidence. I shall not refer to all that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates application of this nature and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
7 Mr Farrugia is thirty years of age and lives at home with his parents. He completed Year 10 at secondary school and in late 2002, started a cabinetmaking apprenticeship. He completed this in about 2006. He continued to work for the company, Modtech Designs, until about the middle of 2009. He completed a Certificate III in Furnishing at Kangan Batman TAFE, Broadmeadows.
8 In January 2007, Mr Farrugia was diagnosed with Bipolar Affective Disorder and was treated by Orygen Health at its Parkville campus. According to a report from that organisation, in January 2007, he was admitted with a two-week deterioration in his mental health with psychotic features. His condition improved when he was commenced on lithium and was said to have made a good recovery, being discharged on 16 February 2007. There was a further episode of anxiety in February 2008, but without psychotic symptoms.
9 In evidence, Mr Farrugia said he was able to manage his work without difficulty and the lithium controlled his condition. In 2009, he voluntarily ceased taking lithium in part to help he and his then wife to have a baby, and in part because he felt able to deal with his symptoms without the medication. At some time thereafter, he resumed taking lithium, which he still takes to the present time.
10 Apart from a few minor ailments, he was otherwise well and in particular, was able to work in what he said was a strenuous and repetitive job, and carry out, without difficulty, all of his activities of daily living and recreational activities including regular swimming, and mountain-bike riding.
The injury and its consequences
11 Mr Farrugia commenced full-time employment with Ace Kitchens as a cabinetmaker on or about 25 June 2010.[1] His work involved the manufacture and installation of cabinets at residential and commercial premises. He said on 6 July 2010, he attended a multi-storey residential property in Reservoir with co-workers, ‘Joe’ and ‘Vuong’, to install cabinetry. At approximately 11.00am, while Mr Farrugia and Joe were shifting a heavy cabinet together, Joe suddenly dropped his end, causing Mr Farrugia to jerk forwards and suffer immediate pain in his low back.
[1]Transcript (“T”) 22, L11 and 16-17 – there was a dispute as to the date upon which Mr Farrugia commenced work and the date of the occurrence of injury.
12 After a short break, Mr Farrugia continued working until the job was completed. He returned to the factory by about 3.30pm. He spoke with his employer, Mr Moutsis, about a complaint the customer had made. He went to his mother’s home before accompanying Mr Moutsis back to the Reservoir property to fix a mistake[2] he had made earlier in the day.
[2]T40, L2-3
13 The following day, Mr Farrugia saw Dr Seetha Chavali, general practitioner. Dr Chavali prescribed Brufen and Panadeine Forte and provided a medical certificate. Part of the note of that attendance reads:
“Low back pain Radiating to the R knee..for 3/52..work involvs physical. Restrict of flexion of the spine … .”[3]
(sic)
[3]Exhibit 2
14 It was put by Mr Batten in cross-examination, that Mr Farrugia told Dr Chavali during the consultation on 7 July 2010, that he had three weeks of low back pain. Mr Farrugia denied saying that.[4] He explained that he would have said he had the pain from the day before. [5]
[4]T25, L3-4
[5]T27, L13-16
15 In the course of cross-examination, Mr Farrugia gave a somewhat different version of events. He said that after he hurt his back, he telephoned work and spoke to Mr Moutsis’ assistant and told her of the incident and the pain in his low back. He said that when he returned to the work premises he also told Mr Moutsis that he had hurt his back. It was put to him by Mr Batten that he had not spoken to either of these persons, and had not complained of any back incident to the co-workers. It was further put that early the next morning, when he did not arrive at work at the appointed time, seven messages were left on his mobile telephone by Mr Moutsis’ assistant wanting to know where he was.
16 Mr Farrugia attended Dr Hiluf Gebrehiwot, general practitioner, on 16 July 2010 and received a referral for a CT scan of the lumbar spine. The note of that attendance recorded:
“L lower back pain with L radiculopathy
sudden onset about 10 days ago
for CT.”[6]
[6]Exhibit 2
17 The CT scan of the lumber spine conducted on 16 July 2010 revealed:
“Spondylolisthesis at L5-S1 with bilateral L5 pars interarticularis defects and distortion of the spinal canal at this level. Asymmetric soft tissue attenuation within the left L5-S1 foramen may represent a disc fragment compressing the left L5 nerve root or swollen nerve root. MRI examination would be helpful … .”[7]
[7]Plaintiff’s Court Book (“PCB”) 56
18 Subsequently, Mr Farrugia presented to the Emergency Department at the Western Hospital on 1 September 2010 complaining of increased lower back pain, as well as weakness and numbness in his left leg. He was diagnosed with sciatica and prescribed opioid analgesia.[8] In cross-examination, Mr Farrugia denied attending the hospital to obtain narcotic medication.[9] There was no evidence of any particular subsequent incident to cause the increase in pain.
[8]PCB 62
[9]T76, L21-24
19 With the assistance of solicitors, on 10 September 2010, Mr Farrugia lodged a WorkCover Claim seeking statutory benefits. In the Claim Form, to the question, “What happened and how were you injured?” the following answer was given:
“Injury arose out of, or in the course of my employment, or due to the nature of my employment pursuant to Section 82 of the Act, in particular a kitchen delivery & installation at Pascoe Vale (on site). Was directed to complete the installation & return to the factory by 3.30pm.”[10]
[10]PCB 37 and T46, L17- 21
20 To the question “What tasks were you doing when you were injured?” it was said:
“Twisting, bending, lifting, under time pressure and in awkward positions. Load/unload truck & take installed items on site”.[11]
[11]PCB 37 and T46, L22-25
21 In cross-examination, Mr Farrugia conceded that there was no reference in the Claim Form to his injury having occurred because a co-worker had dropped his end of the cabinet. He denied he had made up the manner in which he came to be injured.[12] He said those answers had been written by his solicitors.[13] Given the language used, that would seem likely.
[12]T46, L31 – T47, L8
[13]T46, L11-16
22 Between September and November 2010, Mr Farrugia attended Dr Gebrehiwot on several occasions complaining of low back pain, for which he was prescribed Lyrica[14] and OxyContin.[15]
[14]Exhibit 2: consultations of 15 September and 1 October 2010
[15]Exhibit 2: consultations of 1 October and 22 November 2010
23 A MRI scan conducted on 5 November 2010 showed:
“Bilateral pars defects at L5 level with anterior listhesis of L5-1,S1 vertebral body.
…
Bilateral neural foraminal stenosis at L5-S1 level, worse on the left side, compressing the exiting left L5 nerve root as well as causing mild impingement of the traversing left nerve S1 nerve root.”[16]
[16]PCB 57-58
24 On 19 November 2010, Mr Farrugia attended the Emergency Department at Sunshine Hospital complaining of left leg and lower back pain. He was discharged home the same day with Panadol.[17] He presented to Dr Gebrehiwot on 22 November 2010, complaining of worsening pain, for which he was prescribed OxyContin.
[17]PCB 19
25 Mr Farrugia was referred to Mr Wong, neurosurgeon, who he saw on 11 January 2011. According to Mr Wong, he presented with a nine to twelve-month history of progressive lower back pain and left leg pain.[18] In cross-examination, Mr Farrugia denied giving that history.[19] Mr Wong considered that conservative treatment would not be of any benefit and recommended performing a L5-S1 laminectomy and transforaminal lumbar interbody fusion.[20]
[18]PCB 69
[19]T29, L1-2
[20]PCB 70
26 Surgery[21] was performed by Mr Wong on 30 March 2011.[22] Mr Farrugia said his back pain improved slightly following surgery.[23]
[21]PCB 70(a): Operation performed: L5-S1 transforaminal lumbar interbody fusion with instrumentation using pedicle screws and interbody cage plus rhizolysis of bilateral L5 and S1 nerve roots
[22]PCB 70(a)
[23]PCB 19
27 On 25 November 2011, a WorkCover claim was lodged for impairment benefits for an injury to the spine.
28 A further MRI scan was conducted on 30 November 2012, which revealed:
“There is a left L5 neuroforaminal obliteration, which appears secondary to a combination of stenosis and enhancing soft tissue, which likely represents a granulation tissue or fibrosis.”[24]
[24]PCB 61
29 Aside from surgery, Mr Farrugia has had no further treatment by any specialists. His condition has almost entirely been managed by Dr Gebrehiwot, who, since the time of the injury, has prescribed pain medication. Dr Gebrehiwot considered that Mr Farrugia suffers from chronic lower back and left leg pain, for which he will probably need painkilling medication for the rest of his life.[25] He said Mr Farrugia has limitation on bending and twisting of his back and is unable to sit or walk for prolonged periods due to back pain. Those symptoms cause Mr Farrugia to feel depressed, to have low motivation and irritability, and affects his sleep.
[25]PCB 68(b)
30 In an August 2015 report, Dr Gebrehiwot thought Mr Farrugia had no current capacity for full-time manual employment and gave a poor prognosis.[26]
[26]PCB 65
31 In a February 2016 report, Dr Gebrehiwot reported that Mr Farrugia was unable to perform his pre-injury duties.[27]
[27]PCB 68(c)
32 At the present time, Mr Farrugia takes Targin (up to two per day), Panadeine Forte (between four and eight per day), Panadol and marijuana (occasionally) for pain relief.[28] He performs exercises “all the time at home” which he was shown after surgery. The exercise involves lying down and lifting his knees up.[29] He walks short to medium distances and generally, experiences back pain after 10 to 20 minutes. He attends a hydrotherapy pool “a couple of times per month”.[30] At various times, he has used a walking stick. He said he tries not to use it.[31] If he has a big day ahead of him, he said he would take the stick.[32] He accepted the proposition that no doctors have ever advised him to use a walking stick.[33]
[28]PCB 27
[29]T60, L10-15
[30]PCB 27
[31]T58, L11-14
[32]T58, L4-5
[33]T58, L15-16
33 Mr Farrugia said he attempted to undertake a customer service role at Melbourne Airport in about January 2011. The role involved pushing trolleys all over the airport. He said he could barely walk at the time and lasted for approximately two days in the job.
34 In 2013, he was referred to MatchWork, a job seeking service for people with disabilities. He was advised to keep a logbook to record jobs for which he applied.[34] This log book records more than ninety jobs about which Mr Farrugia made enquiry, or application.
[34]PCB 105 – 109
35 According to Mr Farrugia’s affidavits and his evidence, he complains of the following consequences:
· He suffers constant pain, for which he takes significant quantities of pain-relieving medication. The medication makes him drowsy and affects his concentration and memory.
· The condition has required surgery in the form of an L4-5 laminectomy, with little improvement of the pain.
· He has limited standing and walking tolerance due to back pain.
· His sleep is affected and he wakes regularly to pain in his back and left leg. He rarely gets a full night’s sleep and often feels tired and easily irritable during the day.[35]
[35]PCB 21 and 28
· He has difficulty washing and drying himself and tying up his shoelaces.
· He lives with his parents and is unable to contribute to cleaning and cooking save for basic tasks such as wiping down benches. He has difficulty making his bed.
· He has been unable to return to employment aside from two days where he worked at Melbourne Airport.
· Recreational activities are affected, in particular swimming, mountain biking, and fishing with his father from a boat.
· The relationship with his daughter has been affected because he is depressed and constantly preoccupied with pain. He lacks the energy to take her shopping, to birthday parties and recreational events.[36]
[36]PCB 21
Medical opinions
36 Mr Farrugia was examined by Mr John O’Brien, orthopaedic surgeon, in December 2013. He received a history that Mr Farrugia and a colleague were lifting a large wooden frame, when his colleague dropped his end, and Mr Farrugia took the full weight of the frame. He felt a stretching sensation in his left arm and lower back, immediately followed by significant low back pain.
37 Mr Farrugia described constant low back pain with pain radiating into the left buttock, thigh and foot. He reported that the severity of the pain, on average, was 7 out of 10. Mr O’Brien concluded that Mr Farrugia suffers chronic non-specific post-operative back and left leg pain.[37] Significantly, Mr O’Brien reported:
“The patient indeed reports a moderate disability associated with ongoing chronic pain. I would be quite confident the patient is physically incapable of returning to work as a cabinetmaker. The presentation I would suggest is such that there is currently no real possibility of this patient returning to the workforce. It is possible perhaps with appropriate multi-discipline pain management and some retraining this patient might possibly be capable of return to suitable employment. At present however the patient reports quite significant restriction of his general domestic, social and recreational activities.”[38]
[37]PCB 104c
[38]PCB 104d
38 I note that Mr O’Brien’s opinion is now over two years old.
39 Mr Farrugia was examined by Dr Dominic Yong, occupational physician, in March and July 2013 and December 2015. As to the circumstances of the injury, he received a history similar to that provided to other practitioners. In the latest report, Dr Yong said:
“In summary, Mr Farrugia is a man who reports persisting chronic low back and leg pain after surgery for a neurocompressive lumbar condition in March 2011.
There are no current clinical features suggestive of a radiculopathy. There are features of a deconditioning process.
Mr Farrugia’s condition has been complicated by a psychological comorbidity which is requiring ongoing treatment.”[39]
[39]Defendant’s Court Book (“DCB”) 12
40 Dr Yong noted Mr Farrugia’s treatment included taking Targin (one to two tablets per day), Panadeine Forte (one tablet a day), fortnightly swimming and using a walking stick intermittently. He recommended Mr Farrugia continue with a walking program, undertake domestic tasks and a daily exercise program, exercise in a swimming pool and be as active as possible within the limits of the pain.[40] He thought Mr Farrugia would benefit from a multi-disciplinary pain management program.
[40]DCB 13
41 Dr Yong said Mr Farrugia did not have a current capacity to work his pre-injury duties, however he did have capacity for employment provided he:
·avoided repeated bending and twisting the back
·varied his posture regularly between sitting, standing and walking
·avoided repeated firm pushing and pulling
·avoided lifting more than 5 kilograms on a repeated basis.
42 Dr Yong was asked to comment on a variety of roles suggested by the defendant’s vocational assessor, CoWork Pty Ltd, in a report dated 25 September 2015.[41] He thought Mr Farrugia was capable of undertaking the roles of kitchen design consultant, kitchen estimator, console operator, security-alarm control room and surveillance monitor within the restrictions he outlined. He said the role of locksmith would require assessment to determine whether it would comply with the restrictions he recommended. Noting the length of time Mr Farrugia had been out of the workforce, he recommended a graduated return to work program.[42]
[41]DCB 60 – 107
[42]DCB 15 – 18
43 Mr David Brownbill, neurosurgeon, examined Mr Farrugia in May 2015. He obtained a history that his left leg and back pain was constant and unchanged from before surgery.[43] On examination, Mr Brownbill found no signs of radiculopathy. He noted there was restriction of thoracolumbar spinal movements. He diagnosed Mr Farrugia as suffering from aggravation of pre-existing asymptomatic lumbosacral spine degeneration (L5-S1) with resulting nerve root compression and irritation.
[43]PCB 72
44 Mr Brownbill said:
“[Mr Farrugia] should in the future avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
Those restrictions would prevent him from returning to his pre-injury employment or to manual type employment in the future.
Any attempts to return to work should avoid the activities referred to above and have the capacity for him to stand or sit at will. The number of hours he could work would be dictated by his responses. Noting his work experience and his education, it is probable that he would require a period of retraining to obtain such a position.”[44]
[44]PCB 75
45 As to work capacity, Mr Brownbill said:
“He does not have a current capacity for full time unrestricted manual or pre injury employment as a result of the lumbar spine degenerative change aggravation sustained at work.”[45]
[45]PCB 75
46 Mr Brownbill thought the employment restrictions would also apply to the social, domestic and recreational aspects of Mr Farrugia’s life. He anticipated that Mr Farrugia’s pain would continue in a fluctuating manner, indefinitely.
47 In a subsequent report of November 2015, Mr Brownbill was asked to comment on employment options identified by Dr Yong in March 2013, namely, “console operator, static security guard, customer service agent, office based tasks”.[46] Mr Brownbill said:
“In that the employment options identified by Dr. Yong on the 27th March 2013 appear to comply within the restrictions and requirements referred to in my earlier report I consider on the balance of probabilities this man would be capable of an attempted return to work in those capacities but it would need to be in a graded fashion and under close medical supervision to determine his responses.”[47]
[46]DCB 35
[47]PCB 79
48 Dr Helen Sutcliffe, occupational physician, provided a report of 14 October 2015. Mr Farrugia complained of constant pain in the low back, left hip and left buttock, with pain radiating down the posterior aspect of the left thigh. She noted that he had severe pain in the dorsum of the left foot. She recorded that he had had many episodes of waking pain at night and constant fatigue. She concluded that Mr Farrugia had sustained aggravation of L5-S1 spondylolisthesis and disc derangement at L5-S1, impingement of the spinal nerve root at left L5 and left S1 with consequent radiculopathy. She said her findings are consistent with Complex Regional Pain Syndrome in the left foot.[48]
[48]PCB 99
49 Dr Sutcliffe said Mr Farrugia had no capacity for unrestricted manual or pre-injury employment and no capacity for suitable employment.
50 In a 2016 supplementary report, Dr Sutcliffe thought Mr Farrugia had no capacity for any of the occupations discussed by Dr Yong.[49] She also observed that the occupations of locksmith, kitchen estimator and static security officer all required additional training. She believed Mr Farrugia was unable to reliably, productively or realistically undertake employment in the open market.
[49]PCB 104
Vocational report
51 The defendant relies on a lengthy report of September 2015 from Ms Joanne Bryant, occupational therapist, of CoWork Pty Ltd. Ms Bryant identified several employment alternatives and detailed the typical duties they involve and average salaries. Ms Bryant suggested the following occupations:
“1. Kitchen Design Consultant
2. Estimator – Kitchen Construction (training required)
3. Console Operator
4. Static Security Officer (Control Room) (training required)
5. Locksmith (training required).”[50]
[50]DCB 64
52 In relation to the role of estimator, it was said that a vocational certificate would be helpful but was not required. According to Ms Bryant, many employers would value Mr Farrugia’s industry experience. As for the role of static security officer, Mr Farrugia would need to obtain a Certificate II in Security Operations (and Control Room Monitor), which can be undertaken over three weeks full time. There is a part-time option. Finally, the role of locksmith required a vocational certificate. Ms Bryant suggested Certificate III in Locksmithing which can be undertaken at a TAFE conveniently located near where Mr Farrugia lives. The course comprises a four-year apprenticeship and applicants must be engaged in full-time employment with a qualified locksmith.[51]
[51]DCB 76
53 In cross-examination, Mr Farrugia said he was aware that Ms Bryant had identified jobs for him. He said he never discussed Ms Bryant’s report with her or Dr Gebrehiwot. He was asked whether he knew what an estimator does, to which he replied, “they estimate”.[52]
[52]T70, L12
54 Dr Gebrehiwot said the jobs identified by Ms Bryant (and Dr Yong) involve sitting and standing for prolonged time periods, require bending or twisting of the back, for which Mr Farrugia has limitations. He considered that Mr Farrugia was unable to perform those tasks.[53]
[53]PCB 67
Disentangling
55 Mr Batten submitted that any incapacity arising from Mr Farrugia’s psychiatric state needed to be disentangled.
56 At the defendant’s request, Mr Farrugia saw Dr Rod Farnbach, psychiatrist, on three occasions, the most recent of which took place on 30 January 2013. Dr Farnbach diagnosed Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, of mild severity. He thought Mr Farrugia’s psychiatric condition was causally related to his chronic pain and incapacity. He could see no causal contribution from childhood or bipolar disorder. On examination, he saw no sign of an upswing or downswing of Bipolar Disorder. From a psychiatric perspective, Dr Farnbach concluded that Mr Farrugia had a work capacity for his pre-injury employment and he could perform any type of work for which he was trained or had the capacity to perform and no restrictions would be necessary. He further said:
“My impression, from his account of himself and his presentation in the interview, is that his pain is not severe and it may be appropriate now for him to be referred for rehabilitation and possible retraining. It is very likely that if he could be working again and earning better, his mood would improve.”[54]
[54]DCB 42
57 Mr Farrugia was further examined at the request of the defendants by Dr Timothy Entwisle, psychiatrist, on 4 January 2016. Dr Entwisle received a history that Mr Farrugia had not experienced a relapse of his Bipolar Disorder. His symptoms were managed by his general practitioner with a combination of Lexapro (which he had not taken in a month) and Lithium Carbonate.[55] He was not currently undergoing any psychological or psychiatric treatment. Dr Entwisle concluded that Mr Farrugia’s Bipolar Disorder was in remission. He thought the injury resulted in the development of an Adjustment Disorder which was now in remission. From a psychiatric perspective, he thought Mr Farrugia could return to his pre-injury role as a cabinetmaker.
[55]DCB 3
58 Overall, I am not satisfied that there is any significant disentangling exercise to be undertaken. I find that Mr Farrugia’s psychiatric symptoms play no significant role in his current presentation.
59 There was some evidence from Dr Sutcliffe that he suffered a Chronic Regional Pain Syndrome, but that was in relation to his foot, rather than the low back as a whole. Undoubtedly he has suffered some depressive symptoms with irritability, mood swing and sadness. He has been prescribed the anti-depressant, Lexapro. Such symptoms would not be unexpected in a man suffering chronic back pain following major back surgery. Overall, I am satisfied that Mr Farrugia’s presentation relates overwhelmingly to the physical symptoms arising from his organic back injury.[56]
[56]See Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [21]-[23]
Conclusions
60 At the outset of the application, Mr Batten, for the defendant, said a significant issue in the application was the causative relationship between employment and Mr Farrugia’s injury.
61 A significant proportion of the cross-examination was directed to causation. In particular, there were a number of inconsistent histories given by Mr Farrugia to the initial treating practitioners, including Dr Chavali and Mr Wong. Further, it was put to Mr Farrugia that he did not make the complaint to his employer, Mr Moutsis, and Mr Moutsis’ assistant of the injury at work, nor to the co-employees, Joe or Vuong. However, there was no affidavit material tendered from any of these witnesses.
62 In the end, Mr Batten conceded, without admitting the point, that a submission as to causation would be difficult in the circumstances. He did not press the submission that Mr Farrugia’s back injury did not occur in compensable circumstances.[57] That will no doubt be a matter for trial.
[57]T97-98
63 Mr Batten noted that there was no up-to-date report from the treating surgeon, Mr Wong, and that I should, pursuant to the principles of Jones v Dunkel,[58] infer that had there been an up-to-date report, it would not have assisted the plaintiff, and that I might more readily accept the opinions of the defendant’s practitioners.
[58]Jones v Dunkel (1959) 101 CLR 298
64 Mr Batten submitted that as Mr Farrugia was under the age of twenty-six at the time of the injury, while he was required to prove a 40 per cent loss of earning capacity, he was not required to prove that loss in accordance with the formula set forth in s134AB(38)(f) of the Act. I accept this submission.
65 Mr Batten referred to the significant amount of narcotic medication being used by Mr Farrugia at the present time, and over recent years, including Panadeine Forte, OxyContin and Targin. He said, and I accept, that those medications can be addictive and that the plaintiff had failed to take all reasonable steps towards rehabilitation and retraining as was required by s134AB(38)(g) of the Act. In particular, said Mr Batten, no steps had been taken for Mr Farrugia to undertake a pain management program and reduce the intake of this medication. He noted that despite Mr Farrugia’s claim in evidence that the insurer had refused to approve funding for a pain management program, that was in contrast to the approval granted in December 2015 sent to his solicitors.[59]
[59]See exhibit B
66 As to employment, Mr Batten did not argue Mr Farrugia would be incapable of returning to his previous employment. However, he submitted there were a significant range of jobs that were available to Mr Farrugia on a full-time basis, in particular those identified by Dr Yong and set out in the Co-Work vocational assessment. He emphasised that Mr Farrugia himself had claimed to apply for over ninety jobs over the period from 2013 to 2016 as were evidenced in the “MatchWorks Job Seeker Log Book”.[60] He further referred to the opinions of Dr Yong and of Mr Brownbill, the neurosurgeon, who said Mr Farrugia was able to return to some form of work. He submitted that in these circumstances, the plaintiff did not satisfy the 40 per cent loss of income test.
[60]PCB 105 – 109
67 Any assessment of Mr Farrugia’s work capacity requires a consideration of all of the evidence, including his evidence, and that of the treating and consultant practitioners. I did not find Mr Farrugia a particularly satisfactory witness. He did not answer questions directly, was often confused and his memory inaccurate. It is difficult to determine whether this was an affectation, or whether, with his modest education and psychological difficulties, he truly did not understand what he was being asked. His evidence about the circumstances under which the injury occurred was unimpressive. He did not adequately explain the inconsistent medical histories.
68 Mr Farrugia’s evidence about having applied for more than ninety jobs at the behest of MatchWorks was equally unimpressive. On the one hand, it could be said that in applying for so many jobs he acknowledges he has a capacity to undertake the work involved. This point was relied upon by Mr Batten. On the other hand, the fact that he was unsuccessful in these applications is a measure of the fact that, given his injury, education and background, his work capacity is very limited. At the end of the day I am not satisfied he applied for all these jobs. His evidence in response to questions by me was again unsatisfactory.[61] Rather I am of the view he recorded jobs which he saw in the media or on the internet. Possibly he did apply for some jobs but at the end of the day I am not satisfied this assists in determining his work capacity very much one way or the other.
[61]T64-67
69 Dr Gebrehiwot, who has treated Mr Farrugia over a considerable period, is of the view he has no current work capacity for full-time manual or pre-injury employment.
70 Mr Brownbill, an experienced neurosurgeon, thought Mr Farrugia would be capable of an attempted return to work in a graded fashion and under close medical supervision. This is a guarded opinion.
71 Mr O’Brien, orthopaedic surgeon, who examined Mr Farrugia for the insurer, said realistically he had no current work capacity, although suggested a multi-disciplinary pain management program. He said he was quite restricted by chronic pain.
72 Dr Sutcliffe, occupational physician, thought Mr Farrugia had no capacity for any form of suitable employment, having analysed a range of jobs. This appeared to be on the basis that he had insufficient capacity for the sitting, standing, walking and driving necessary to undertake the various jobs in a reliable manner.
73 Dr Yong, an occupational physician, thought Mr Farrugia had a capacity for employment within various restrictions. The areas of employment included as a console operator, static security guard, customer service agent and other employment involving office-based tasks.
74 In addition to the opinions of the various practitioners, I must take into account the matters referred to in the definition of “suitable employment” contained in s3 of the Workplace Injury Rehabilitation and Compensation Act 2013. These criteria include the nature of a worker’s incapacity, his age, education, skills and work experience and any occupational rehabilitation services that are being provided.
75 It is important to note Mr Farrugia has limited education. He completed only Year 10. His only qualification is as a cabinetmaker. He has not worked in any other area of employment. His education, skills and work experience are therefore significantly limited. Moreover, he would present to an employer with a back injury which, on any view, has been required very substantial lower back surgery.
76 While I have reservations about accepting all of Mr Farrugia’s evidence, I do accept that he has ongoing pain and restriction in the lower back. I have no up-to-date report from his treating surgeon, Mr Wong. I would have expected such a report to have been provided. I do accept the inference that had such a report been provided, it would in all likelihood, not have assisted the plaintiff’s case. However, it is often the nature of reports provided by treating surgeons that they view a person who has been surgically treated as having made a good recovery. I accept that while the surgery has been of some assistance, it has not led to a resolution of that pain and restriction.
77 Mr Batten points to the fact that Mr Farrugia’s management in terms of rehabilitation and the provision of a pain management program has been lacking. I accept this. The onus is upon a worker to establish that the provision of rehabilitation and retraining would not enhance work capacity. While a more comprehensive rehabilitation regime would undoubtedly assist, I am not satisfied it would lead to any significant improvement in work capacity.
78 I prefer the opinions of the general practitioner, Mr O’Brien, and of Dr Sutcliffe to that of Dr Yong. Mr Brownbill says Mr Farrugia does have a work capacity, although is guarded as to the extent of it. In my view, Mr Farrugia does have some work capacity beyond that which he says. However, it should be remembered that he is a relatively young man who has had major surgery to his lower spine. He is on a regime of powerful pain-relieving medication. I am satisfied he suffers ongoing pain and restriction in the back. With his limited education and experience the work capacity that is retained is modest.
79 There was some debate as to the appropriate pre-injury earnings figure. Mr Walsh suggested $900 per week.[62] Mr Batten submitted that given Mr Farrugia had only just commenced employment with the defendant when the injury occurred, and had a considerable period away from work when he ceased using the lithium, a lesser figure would be appropriate. At the end of the day, it is not necessary for me to fix upon any one figure.
[62]T119-120
80 While it is difficult to be precise in the circumstances, I am satisfied Mr Farrugia has suffered a loss of earning capacity of at least 40 per cent. In my view, the loss of earning capacity is something in excess of 60 per cent. Thus he meets the criteria for loss of earning capacity. It follows that he also achieves the test in relation to pain and suffering.
81 I shall make the consequent orders.
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