Furtado v Wesfarmers Limited
[2017] VCC 343
•5 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01666
| ANTHONY FURTADO | Plaintiff |
| v | |
| WESFARMERS LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23 and 24 March 2017 | |
DATE OF JUDGMENT: | 5 April 2017 | |
CASE MAY BE CITED AS: | Furtado v Wesfarmers Limited | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 343 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the cervical spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
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 D J Crennan SC with Mr M A McLay | Zaparas Lawyers |
| For the Defendant | Mr J L Batten | Thomson Geer |
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 defendant, with the date of admitted injury being 19 January 2012 (“the said date”).
2 Counsel for the plaintiff indicated the main application pursuant to s134AB(37)(a) related to the spine.[1] An application pursuant to ss(c) was withdrawn after the completion of evidence.[2]
[1]Transcript (“T”) 3
[2]T3
3 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).
4 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.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 By s134AB(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, can fairly be described, at the date of the hearing, as being “more than significant or marked”, and as being “at least very considerable”.
8 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.
9 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[3] and Grech v Orica Australia Pty Ltd & Anor[4] in reaching my conclusions.
[3](2005) 14 VR 622
[4](2006) 14 VR 602
14 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports, and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
15 The plaintiff is presently aged forty-two, having been born in March 1975 in India. He is currently separated and has three young children.
16 Having completed Year 12, the plaintiff worked part time in property sales. He then completed the majority of a Bachelor of Commerce and Accounting degree in Madras.
17 Whilst in India, the plaintiff worked as a quality coach for about a year or two at a call centre, having earlier been a team leader.[5]
[5]T76
18 In about 2003, the plaintiff moved to Dubai to take up a position as a distribution manager for Nestlé Waters where he worked for about five years. There, he married Natalie, and in 2008 they moved to Australia. They have only recently divorced, having separated in June 2012.[6]
[6]T61
19 Two months after arriving in Australia, the plaintiff obtained a job working in a call centre for GE Money for a few months.
20 The plaintiff then worked at Linfox in logistics as a regional shift supervisor for about two years, managing third-party logistics for Coles Online.[7] This job involved less computer work than his later job with the defendant.[8]
[7]T40; Duties set out in Healthe Work Vocational Assessment, Defendant’s Court Book (“DCB”) 93
[8]T41
21 The plaintiff then worked for Coles in house as a transport analyst for a few months. The position was subsequently renamed Customer Delivery Coordinator.
22 When the plaintiff first started working directly for Coles, the desk at which he sat was in the form of a ‘V’ with two screens. His work involved long periods of sitting at the desk, using his right wrist to operate a mouse, with a large stand-alone computer screen directly in front of him, and his laptop to his left. He was constantly moving his head and neck to look at the laptop monitor while using his right hand to operate the mouse.
23 Near the end of 2011, a new software system was implemented involving the use of a third screen.
24 In early January 2012, not long after the third screen was introduced, the plaintiff began to notice sharp pain in his right upper arm. He continued working. That pain was in the lateral aspect of his right upper limb, an area which the plaintiff described as the “military patch”.[9]
[9]T49
25 The plaintiff deposed that one night he woke with such bad pain that when he stood to get out of bed, he fainted and hit his head on the bedside table. Soon thereafter, he saw his general practitioner, Dr Sonia Gomez-Paredes. His chin was stitched, and he was given some painkillers for his right arm.[10]
[10]This incident was noted by Dr McBeth on 25 February 2012; T48
26 The plaintiff then had one or two weeks off work, but, on his return, after one or two days he had to stop because of right arm pain.
27 The plaintiff explained that he had specified 19 January 2012 as the date of injury as he thought that was when he had severe pain. He agreed that he had been attending the work gym at that time.[11]
[11]T47- Employer injury claim report attributed injury to gym activities
28 Dr Gomez-Paredes sent the plaintiff for a cervical x‑ray. He was then on and off work, depending on his pain level.
29 The plaintiff was later referred to Professor Richard Bittar, neurosurgeon, who ordered more investigations and also a branch block injection, which was not much help to the plaintiff.
30 In about June 2013, the plaintiff had a nerve sheath injection organised by Professor Bittar, which gave him some relief. Later, he was sent for further investigations, including an MRI scan, which confirmed a C5‑6 protrusion.
31 Professor Bittar recommended C5‑6 surgery, and the plaintiff’s general practitioner put him on a public waiting list, as WorkCover denied funding for the surgery.
32 The plaintiff was cross-examined about his work performance following January 2012. He agreed he received a formal warning in October 2012 but before his injury, he had been commended for his work.[12] He was given a formal warning for excessive phone use in November 2012. There was also a problem with inappropriate explicit content on the plaintiff’s email.[13]
[12]T51, 53, 111
[13]T60
33 The defendant told the plaintiff that he had been underperforming and that he was unable to do all the duties required of him and in about December 2013, his employment was terminated.
34 Prior to that, from May to July 2013, the plaintiff worked in Flybuys on light duties on reduced hours of four to five hours a day, depending on his level of pain, five days a week. At other times, he worked full time in his normal duties but only using one laptop.[14] He missed three to four days of work per month because of his neck pain.[15]
[14]T56
[15]T29
35 In about December 2013, the plaintiff saw Dr John McMahon, a neurosurgeon at The Alfred hospital, who recommended neck surgery and told the plaintiff to come back in a month.
36 In about January 2014, the plaintiff saw Associate Professor Peter Hwang, a neurosurgeon at The Alfred hospital. He also recommended cervical surgery and a nerve root block for temporary pain relief. The plaintiff underwent the latter procedure in February 2014. It assisted his pain for about a week.
37 On 11 June 2014, the plaintiff underwent a C5‑6 anterior cervical discectomy and fusion performed by Associate Professor Hwang (“the surgery”).
38 After the surgery, the plaintiff was not allowed to work for about six months. He was able to drive to see his doctor.[16] During that time, he had rehabilitation at the Cranbourne Community Rehabilitation Centre about once or twice a week.
[16]T27
39 On about 29 December 2014, the plaintiff obtained a job with BAM Wine Logistics (“BAM Wine”) as an outbound transport manager on a full-time basis, on a salary of about $95,000 gross per year.
40 The plaintiff agreed he swore a statutory declaration on 18 December 2014 in which he set out that he was not aware of any circumstances relating to his health or his capacity to work that would interfere with his ability to perform the job at BAM Wine. He had been cleared to work by his doctor.[17] The job at BAM Wine was the only one he applied for that did not require him to sit at a computer so he took it.[18]
[17]T102
[18]T38
41 The job was “completely paper” whereas jobs the plaintiff had been offered at Toll and Exego were similar to his work with the defendant with a lot of computer work.[19] Dr Gomez Paredes thought these jobs were not suitable.[20]
[19]T62
[20]T79
42 The plaintiff worked at BAM Wine for about five months. His employment was terminated as he was told by BAM Wine it had lost a big contract and they were downsizing staff.[21]
[21]T35
43 The plaintiff was given a letter dated 1 June 2015 that advised his employment was terminated because of a “reorganisation”. He had not seen another letter of that date in which BAM Wine advised the plaintiff his employment was being terminated during the six-month probation period.[22]
[22]T36
44 The plaintiff agreed that his manager at BAM Wine spoke to him about his failure to send out a particular letter.[23] The plaintiff never told anyone at BAM Wine of any problems with his neck whilst working there[24] as he wanted the job and did not want to let them down.[25]
[23]T37
[24]T38
[25]T90
45 The surgery reduced the plaintiff’s arm pain; however, he still had a dull pain in his right scapula. He found it difficult to stay in the same position for long. It was difficult extending his arm forward in a straight position, as that caused tightness and pain in his right scapula.
46 Whilst working at BAM Wine, the plaintiff was also struggling with his sleep because of right scapula pain. He was able to keep working, as he was taking painkillers including Endone, Ibuprofen, Tramadol and Panadol.
47 The plaintiff found the job at BAM Wine easy as it was not computer-based. As a transport manager, he managed the fleet, external contracts and efficient delivery.[26] He was able to move around a lot, as he was not sitting at the computer very much. However, he still had a lot of right scapular pain, as there were still some repetitive movements and the need to move his arm.
[26]T34; Healthe Work, DCB 90
48 The plaintiff told Dr Gomez Paredes that his right sided problems came back when he was working at BAM Wine.[27] He told her he was very sore and he could not manage so she told him to take regular breaks and exercise and see how he went. She kept motivating him to keep going and he did.[28] Whilst he would have told her he “loved” the job, he was still getting sore.[29]
[27]T84, T102
[28]T103
[29]T106, 110
49 In about mid-June 2015, Dr Gomez-Paredes suggested the plaintiff return to The Alfred hospital because of his continuing right scapular pain.
50 In about October 2015, the plaintiff had a CT scan and an MRI scan. He had a follow-up appointment with Dr Maartens and Dr Goldberg at The Alfred hospital, whom he advised of weakness in his right hand and arm, numbness in his thumb and index finger, and pain in his scapula. They advised him he might need a further C6 nerve block, and that the numbness could be due to nerve damage caused by the delay in having surgery.
51 On about 16 November 2015, the plaintiff had a nerve sheath injection organised by Dr Goldberg which gave him some relief. Later, he was sent for further investigations, including an MRI scan, which confirmed a C5‑6 protrusion.
52 As of December 2015, when he swore his first affidavit, the plaintiff was in receipt of income protection benefits but looking for work, subject to his general practitioner’s clearance.
53 The plaintiff had recently been offered a job by Toll Logistics, but had been advised by Dr Gomez-Paredes that he would be unable to do the tasks without further injuring himself, so he did not accept it. The plaintiff also had gone through significant employment testing with Exego Group, but again, his doctor advised him against taking the role, as it was similar to his previous job.
54 At that stage, most of the time the plaintiff experienced pain in his right scapula, even doing light household duties such as washing the dishes. The pain felt like a dull pain that tightened the back scapula and pulsated and then ran down his right arm. He also had slight numbness in his right thumb and index finger, with some tingling some of the time, especially with right-handed activity. This, together, caused weakness in his right arm and hand.
55 The plaintiff was then taking 50 milligrams of Tramadol and Panadol two to three times a day for his right shoulder pain. If that did not work, he also took ibuprofen.
56 The plaintiff also took sleeping tablets every night. He alternated between five milligrams of Valium or ten milligrams of Temaze per night. He also took two milligrams of Circadin every night to help him sleep. If the Valium did not work, he also took one Restavit tablet, when he really needed to sleep. That made him very groggy in the morning.
57 The plaintiff described the following consequences.
58 Before the injury, the plaintiff was a happy, confident and loving person, and thereafter, he had become angry and short-tempered, and preferred to be alone. His confidence was reduced and he felt frustrated with people. His pain caused general unhappiness, and he believed it affected his marriage, and also had a large effect on his marital sex life.
59 The plaintiff described problems with housework and gardening. He previously shared the domestic duties with his wife. He also mowed every month or so, and did general gardening and maintenance on average a few hours a week.
60 The plaintiff then hired someone or asked family members to help with these tasks. He found it difficult helping with the housework, which caused a conflict, as his wife had to do more of these duties.
61 Before his injury, the plaintiff was very active and involved with his children. He took them fishing about once a month during summer. He had tried a couple of times, but found it difficult with his right scapular pain.
62 The plaintiff regularly went shopping with his family about twice a month to Springvale Market and made it an outing. After the injury, they went less, as shopping aggravated his right arm and shoulder pain, and his wife used to do most of the shopping.
63 Before his injury, the plaintiff enjoyed playing with his children after work, but was now not able to pick them up and be as physically active as previously.
64 The plaintiff used to take his children to karate and watch their lessons and practise with them, but found it difficult after the injury to be involved because of his right upper limb pain.
65 The plaintiff was not living with his children at that time. They were then six, eight and ten.[30]
[30]T69
66 Before the injury, the plaintiff had a regular sleep pattern, but since, was only able to usually sleep about three to four hours a night because of pain. He agreed he had a problem with snoring before the incident.[31]
[31]T92
67 Post injury, the plaintiff had issues of concentration and memory, which were not a problem before, but were now so because of pain and medication.
68 Post-injury, the plaintiff had difficulty showering himself and his children.
69 Before injury, the plaintiff enjoyed riding motorbikes, and rode with his wife’s cousin along the Peninsula about monthly. The plaintiff had tried to ride a motorbike a couple of times but found it difficult with his right arm pain and weakness.
70 The plaintiff then found it difficult driving for longer than three-quarters of an hour to an hour, sitting in one position. He mainly used his left hand to steer, and tried to rest his right hand on his lap. He had to break up longer trips, and was more careful with driving. Turning was difficult because of his right scapular pain and limited movement.
71 The plaintiff believed his injury had caused part of the breakdown of his marriage, having had a very good relationship with his wife prior thereto. Because of his pain, he had become a very difficult person to live with, and now spent a lot less time with his children, which upset him.
72 Before his injury, the plaintiff enjoyed running nearly every day for about an hour and a half. He then found it difficult doing any running, and had been advised by his surgeon not to run because of his fused vertebrae.
73 The plaintiff confirmed that he was still able to run when he saw Dr White in early 2014, before the surgery. Running 5-10 kilometres most days reduced his shoulder pain.[32] At that time, he was also able to enjoy fishing and had an active social life.[33]
[32]T74
[33]T73
74 Since the injury, the plaintiff had found it difficult getting work. He had tried to retrain by doing an MBA. This course was one to two years full time and five years part time. He completed the first two units of the 12-unit course. However, he found it hard sitting in one position for long periods of time and concentrating due to his right scapula pain. It was especially hard in group assignments and group work when he had to sit in one position for a long time for a number of hours.
75 The plaintiff applied for special consideration[34] and assistance as he required longer to complete his assessment tasks. This application took a long time and he decided to defer in October 2014.[35] He has five years to finish the course and he hoping to go back and finish it.[36] At the moment, he has pain and is unable to concentrate for long. He would be more attractive to potential employers with an MBA qualification.[37]
[34]The form dated 1 August 2014
[35]T31
[36]T94
[37]T96
76 The plaintiff wanted to do his MBA so he could obtain a promotion and be a manager within Coles. He spoke to someone at RMIT, who told him he could get into the course without a Bachelor’s degree given his work experience. The plaintiff had previously completed a Diploma with the Australian Institute of Management.[38]
[38]T58
77 The plaintiff swore a second affidavit on 21 February 2017.
78 The plaintiff attended The Alfred hospital in January 2016 for treatment of two nodules on his thigh which were determined as being benign.
79 In about March 2016, the plaintiff moved from Macclesfield due to the breakdown of his relationship with his partner. He wanted to be closer to his children. He now lives in a factory leased by his ex‑wife’s cousin for his business.
80 The plaintiff’s neck injuries continue to cause him symptoms, limitations and restrictions.
81 The plaintiff underwent review at The Alfred Neurosurgery Department in September 2016. It was recommended he persist with conservative measures including physiotherapy, exercise, and pain management. The plaintiff also understood he was to be seen at The Alfred Rheumatology Clinic in March 2017 to rule out a diagnosis of polyarthralgia.
82 The plaintiff continues under the care of his general practitioner and also has regular physiotherapy with Ms Dickens, whom he sees twice a month.
83 The plaintiff has commenced Targin, 15 milligrams, and Lyrica, which he takes most days. Occasionally, he takes Tramadol or Endone when his symptoms are particularly severe. He continues to alternate between Temazepam and Valium at night, as the former gives him indigestion. He also take Panadol about once or twice a week when he has a headache. He has otherwise ceased taking Circadin and Restavit and also OxyContin and Endone.[39]
[39]T33
84 In the mornings, the plaintiff takes Lyrica, 25 milligrams, and Targin, 5 milligrams, depending on his pain level. If he is in real pain and gets muscle spasms, he usually takes Valium and at night, Lyrica, 75 milligrams.
85 The plaintiff had some pain management treatment two or three times in Frankston late last year and is currently awaiting to hear from Mornington Peninsula Pain Management Clinic where he is to be a patient for a number of weeks.[40]
[40]T90
86 At Frankston Pain Management, the plaintiff received assistance with posture and back strengthening and also with reducing his medication intake. However, as the treatment was not successful, he had been referred to Mornington Peninsula.[41]
[41]T92
87 Despite treatment and medication, the plaintiff continues to suffer from neck pain and intermittent right scapular and elbow pain. Tingling and numbness in his right thumb continues, as well as spasms in his right bicep that occur once or twice a day, and also swelling in his right hand. Neck movement is restricted, especially to the right, and the plaintiff still suffers from weakness in his right arm and hand.
88 Whilst his right arm pain went away with surgery, the plaintiff still has pain in his neck, scapula, elbow and down to his index finger and thumb.[42] The plaintiff understood a compressed nerve at T1 was causing his difficulties.[43] If that was able to be fixed, he would be able to get back to his original job which he loved and be able to move ahead.[44]
[42]T50
[43]T105, 112
[44]T112
89 As a result of his neck and right limb symptoms, the plaintiff’s sleep is very disturbed. During most nights, he is woken by pain at about 1.00 or 2.00am, and he usually gets out of bed and takes sleeping medication. Sometimes that helps for a few further hours of sleep, but on other nights, he remains unable to go back to sleep. He estimates he is asleep for only about three or four hours a night, so he is generally tired, grumpy, and unable to concentrate the following day.
90 Even though the plaintiff is now living in a smaller space, he still has difficulty with some of the domestic chores such as vacuuming, and hanging clothes on the line. Personal care tasks such as brushing his teeth, shaving, and washing his hair, are also difficult.
91 The plaintiff has remained restricted in his ability to go on motorbike rides with friends and family.
92 In about April 2016, the plaintiff went on a motorbike ride, but due to his right limb symptoms he really struggled. He took increased medication, and the group had to stop more frequently to accommodate him, which made him feel “like crap” because he was holding them up.
93 After the ride, it took a few days for the tenderness in the plaintiff’s right upper limb to settle. He had not been on a long ride since. He has ridden the bike to church about fortnightly since moving to his current address. The trip is manageable, as it is only a short ride.
94 The plaintiff continues to have difficulty driving and sitting in a car for prolonged periods and performing head checks. He is also nervous when driving. On longer trips, he tends to stop periodically and ease the right upper limb pain. On a recent trip to Phillip Island, he had to stop twice so he could get out and stretch and walk.
95 The plaintiff remains in receipt of income protection payments of $4,500 per month.[45] Dr Gomez-Paredes provides certificates in this regard.[46]
[45]T63
[46]T33
96 During 2016, the plaintiff enquired of a number of recruitment agencies about getting work as a recruiter, but he got no response. He also spoke to a former colleague about a potential role in customer service at Nestlé, but that enquiry did not result in work.
97 The plaintiff is currently registered with job agencies: Drake, Michael Page and Six Degrees. [47]
[47]T81
98 In December 2016, the plaintiff was approached by Michael Page Recruitment about a role as a logistics manager at Unipod. However, when speaking with the recruiter, the plaintiff became aware the duties would be similar to those he performed at BAM Wine, and, given how much he had struggled in that role due to his injury, he decided to withdraw from the selection process. That role attracted an annual wage of $120,000.[48]
[48]T83
99 The plaintiff was told a starting salary working in recruitment was around $70,000 and depending on performance could increase to $100-$120,000.[49] He had also been approached by Michael Page to be part of its recruitment business. If the plaintiff was offered a job as a recruiter, he would take it on a temporary basis. [50]
[49]T81
[50]T82
100 Considering the plaintiff’s difficulty concentrating on account of his lack of sleep due to his pain and his medication, he did not think he would be capable of returning to the work he was doing at the time of the injury in which he was experienced.
101 Ideally, the plaintiff would like to work as a counsellor, but he does not have the qualifications to move into that type of work, and cannot afford to pay for a course. Given how difficult it was studying for the MBA back in 2014, with problems concentrating and prolonged sitting, he was worried he would not be able to gain the qualifications necessary to move into that role for which he might be physically capable.
102 The plaintiff has enquired with the Australian Institute of Counsellors to enquire about work as a counsellor. He is waiting to see if he can do a course to be a counsellor to motivate people, especially in a role like chaplaincy.[51] He is aware there is a one-year diploma following which he could start his own business.[52]
[51]T98
[52]T99
103 The plaintiff applied for a role at Simplot as a senior transport planner through Six Degrees. He went for an interview but the job was similar to his role with the defendant.
104 If a job comes up that does not require much work with his right hand, the plaintiff will take it.[53] He agreed that he is presently looking for work.[54]
[53]T87
[54]T99
105 The plaintiff remains worried about his ability to find paid work which he is physically capable of doing to support himself and his children financially into the future. His current residence is not suitable for children, but unless he finds work, he struggles to see how he will be able to afford to rent something more suitable.
106 The plaintiff is very serious about his relationship with his new girlfriend, but he cannot find paid work for which he is physically capable, and posed the question: What kind of life could she ever hope to have with [him]?
107 The plaintiff believes his neck injury has caused consequences to his domestic, social, and daily activities, and particularly his ability to work, which are at least very considerable and more than marked.
108 The plaintiff swore an affidavit on 23 March 2017 in relation to matters raised by his former partner, Nicole Jenkins, in her affidavit sworn 6 March 2017.
109 In that affidavit, Ms Jenkins deposed that she was in a personal relationship with the plaintiff at the time of his cervical injury in about January 2014. They moved in together in Cranbourne North prior to his surgery in about June 2014.
110 The plaintiff and Ms Jenkins then moved to a 17‑acre property located at Macclesfield, on 6 June 2015.
111 Ms Jenkins thought the plaintiff’s surgery resulted in a good outcome for him, as he was able to engage in the following activities which she considered strenuous while residing at the property:
(a)cutting down trees on the property
(b)using a log splitter and a chainsaw
(c)moving furniture
(d)erecting fences around the property
(e)riding a road bike
(f)riding a dirt bike on the property
(g)riding a tractor, and being able to attach very heavy equipment like a harrow and a grass slasher to the tractor unassisted
(h)engaging in renovations on the property.
112 The relationship broke down in about February 2015, and they no longer reside together or at that property.
113 In his affidavit of 23 March 2017 the plaintiff answered the allegations made by his former partner in her affidavit.
114 The plaintiff and Nicole were in a relationship for close to three years, which broke down over time, and they separated in March 2016. He confirmed they met in late 2013 and moved in together in 2014. Nicole’s fourteen‑year-old son, Lachlan, lived with them at the property.
115 They lived at the property for about six months before the plaintiff told Nicole he thought they should move. She did not want to leave, and that put extra strain their relationship, and it began to break down.
116 During the breakdown of the relationship, there were a number of incidents when Nicole and/or Lachlan made threats towards the plaintiff. The plaintiff had taken out an intervention order against her and her son, and she had also taken out one against him.[55]
[55]T69
117 During the property settlement, Nicole kept talking to the plaintiff about his claim, and demanded she receive money because she cared for him after his surgery. They settled their property dispute in about November 2016.
118 The plaintiff disputed Nicole’s belief that he had made a good outcome from the surgery, having told her he was in pain, and she had seen him in pain.
119 The plaintiff explained he had cut trees, that had already fallen, and when he used his chainsaw, he had to start it with his left arm because of his problems with his right.[56] He also needed a large belt to help him take the weight of the chainsaw. Following those sort of activities, he had increased pain and usually took Endone.
[56]T64
120 Whilst the plaintiff used a log splitter and chainsaw a couple of times in 2015, he had difficulty using it. He did not cut down the tree in the tendered photograph.[57]
[57]T66
121 The plaintiff disputed that he was involved in any significant moving of furniture. He had help from family, and felt sore afterwards and Nicole had to massage him and he had to take Endone.[58]
[58]T64
122 The plaintiff has never erected a fence around the property and would not know how to.[59]
[59]T65
123 The plaintiff could ride a motorbike for about 30 to 45 minutes in December 2015, as long as he did not ride it too often and rode it carefully and slowly. He did ride a dirt bike on the property on some occasions, but for only a short time.
124 The plaintiff did not find driving a tractor any more difficult than driving a car. He did not use a grass slasher and would not know how to do so.[60]
[60]T66
125 The plaintiff is not a handy person, and he had not engaged in any renovations to the property. He had however helped Nicole and her son erect a chook pen.[61] This was not a strenuous task, and he mainly used his left hand and avoided doing overhead tasks. Whilst at Macclesfield, the plaintiff did do some of the housework.[62]
[61]T65
[62]T88
Medical evidence
126 Dr Gomez-Paredes’ clinical notes from December 2014 to June 2015 indicate the following:
· 12 December 2014 Got job in Dandenong as a transport manager. · 23 December 2014 Will start working on 29 December. Still having problems with sleep. Cannot handle things above the head or carry things at shoulder level. (Endone, Temaze). · 3 January 2015 Work is good, got three people reporting to him, it’s 9 till 5. The shoulder is still tight but not the pain, not sharp pain. Sleep is a problem, waking at 2am and can’t sleep. The factory give him a key and he’s going to start early at 4.30am and finish early. · 17 January 2015 Happy with the job, but very sore in the afternoons. Very busy and sitting more. Is not in front of the computer, mainly dealing with people. He gets very tight in his shoulder by 11 so he takes Endone. · 27 February 2015 Work is good. The pain still very uncomfortable at work. Not sleeping because very uncomfortable to get to sleep. Feeling very tired. · 29 April 2015 Work is very good, but his right upper back feels very uncomfortable after three to four hours’ working · 26 May 2015 Said he had a flare-up of right upper back last few days. Sleep problems still ongoing. · 1 June 2015 Very sore on his shoulder last week. Not sleeping. Work is good. Very busy. He has been working · 10 June 2015 Pain on the right arm and shoulder, very sore yesterday, and was very tempted to go to the hospital. He was made redundant. No position available. They restructured the company. Everyone was sad, and he had good recommendations. · 17 June 2015 Shoulder is very sore on the right side. · 27 June 2015 Still very sore today. Pain on the right side of the neck on right shoulder blade. Managing to only sleep a few hours.
127 When Dr Gomez-Paredes, last reported on 19 February 2017, she did not think the plaintiff was fit to return to work in his pre-injury employment occupation. She noted he was unable to sit for long periods of time in front of the computer. He was still in pain, he had not been pain-free, and the pain was getting worse.
128 Dr Gomez-Paredes thought the plaintiff would benefit from retraining into a different role where he could move around and not need to sit for prolonged periods, where he did not need to raise his arms above the shoulder.
129 Dr Gomez Paredes diagnosed persistent complex regional pain in the right neck, shoulder, scapula, and arm, despite C5‑6 ACDF for significant bilateral foraminal stenosis of C5‑6.
130 Dr Gomez Paredes noted she had referred the plaintiff to the Frankston Pain Management Clinic and to the Sport Injury Clinic to seek help with his pain.
131 Dr Gomez Paredes thought the plaintiff’s pain on the right upper limb came from his neck, and that pain on the right side of the neck scapular area was the cause of his incapacity to work.
Certificates
132 In a December 2013 certificate, Dr Gomez Paredes certified the plaintiff as fit for modified duties working five days a week, five hours a day, no overtime, having regular breaks every hour for at least five minutes, and lunch breaks of thirty minutes. The plaintiff’s condition was noted as nerve compression and reactive depression.
133 In a special consideration supporting document from RMIT completed by Dr Gomez Paredes on 1 August 2014, she diagnosed a C5‑6 anterior cervical discectomy which was having a severe impact on the plaintiff’s academic assessment in 2014.
134 In a certificate dated 3 January 2015 relating to an examination of 20 November 2014, Dr Gomez-Paredes noted the plaintiff was having medication to control the symptoms, and as a side effect, it impacts on his concentration and performance, and he is not able to do complex tasks.
135 Dr Gomez-Paredes provided a medical certificate for CommInsure Income Protection following an attendance in September 2016. She noted that the plaintiff was unable to sit or stand for long periods, unable to do computer or work or repetitive movements and that he was still under the care of The Alfred.
136 The plaintiff last saw Professor Bittar and Dr Robert Gassin, musculoskeletal physician, before the June 2014 surgery, so their view is of little assistance when considering the plaintiff’s current capacity for suitable employment.
137 Operating surgeon, Associate Professor Hwang noted that the plaintiff recovered nicely from the surgery when he last reviewed him on 21 July 2014. He thought the plaintiff’s symptoms had improved, and he was able to report some return of sensation in his fingers. His neck pain and right brachialgia down his right arm had improved, as had the right scapula pain.
138 With regard to current fitness for work, Associate Professor Hwang was uncertain what was involved in the plaintiff’s pre-injury employment, but thought he should only be doing light duties with no heavy lifting and no work that required excessive turning or neck movement. He believed the prognosis for some recovery was good.
139 Julie Dickens, the plaintiff’s current treating physiotherapist, last reported in October 2016.
140 Ms Dickens thought the plaintiff did not have a current capacity to return to his pre-injury work, and that any occupation that involved movement regularly and decreased sitting, including driving and/or using computer screens, would be ideal. She noted the plaintiff was currently looking into retraining as a counsellor, and that role would allow him more control of his movement and to avoid excessive computer use.
141 Dr Goldberg at The Alfred hospital reviewed the plaintiff in December 2015.
142 At that stage, conduction studies were suggested, with a specific question of neuropathic injury to the nerve and radiculopathic pain, and the plaintiff was commenced on Lyrica.
143 The plaintiff was reviewed by Dr Pham of the Department of Neurosurgeon at The Alfred hospital in September 2016.
144 The plaintiff reported ongoing right-sided scapular and right forearm pain posteriorly. He had had a right-sided C6 nerve root injection with some benefit. He localised his symptoms to the right scapula, right hand, and right elbow, and felt his right arm was weaker.
145 The examiner was unable to find any obvious surgically amenable cause for the plaintiff’s symptoms, and he had not made an appointment to see him again. They recommended continuation of a multidisciplinary approach to management of the plaintiff’s pain which included physio, exercise, swimming, and referral to a chronic pain service. For completion, he had been referred to the rheumatology clinic at The Alfred hospital.
Medico-legal evidence
146 The plaintiff was examined by Professor Cook, neurologist, in October 2014.
147 Professor Cook noted the plaintiff had been pain free since the operation, other than discomfort related to neck movement as a consequence of the surgery itself. The sensory disturbance and fasciculations had also resolved. There was still some weakness in the arm.
148 On examination, the plaintiff’s neck movements were moderately restricted in all directions by pain, particularly turning to the right.
149 Professor Cook thought the plaintiff had developed a C6 radiculopathy during work. In his view, the plaintiff’s symptoms were quite typical and pain in the scapula was a very common manifestation of radiculopathy. Fasciculations, sensory disturbances, and weaknesses, were all quite classical.
150 Professor Cook thought the plaintiff had made an excellent recovery, still limited to a degree. He noted the disruption to the plaintiff’s life through a combination of pain, poor sleep, and sedating medications, led to the collapse of his marriage unfortunately, adding the plaintiff was remarkably optimistic about all that had happened, and had taken positive steps to find a new career.
151 Professor Cook then thought the plaintiff was not fit for his pre-injury employment, but would be fit for alternative duties that did not require repetitive head movement or repetitive use of his upper limb.
152 The plaintiff was examined by Dr Aliashkevich, neurosurgeon, in August 2016.
153 The plaintiff complained of persisting pain in the right scapula region of a burning nature, with radiation to his right hand, and involving his thumb and index finger. He described the intensity of pain as usually around 6, but it may increase to 9 out of 10. He also complained about a swelling sensation in the right hand and weakness of his index finger and thumb.
154 Dr Aliashkevich thought persisting C6 nerve root irritation, and possible non-union after anterior cervical discectomy and fusion, represented the most likely organic basis for the plaintiff’s pain.
155 Dr Aliashkevich thought the plaintiff’s repetitive work-related neck injury had deteriorated his pre-injury degenerative condition and significantly limited his ability to undertake his pre-injury employment and alternative suitable employment.
156 Given short positive response to several C6 root blocks, the plaintiff’s pain restrictions, disability, and incapacity, derived in Dr Aliashkevich’s view predominantly from the persisting right-sided C6 radiculopathy originating from his neck.
157 Occupational physician, Dr Joseph Slesenger, examined the plaintiff in September 2016.
158 The plaintiff told Dr Slesenger that he had ongoing pain in his neck, right scapula, right flexor aspect of his elbow, and base of the right thumb. This was a dull and shooting pain which he graded between 7 to 10 out of 10.
159 Dr Slesenger diagnosed aggravation of degenerative disease of the cervical spine presenting with neck pain and right radicular symptoms leading to surgery, chronic pain disorder, possible right shoulder rotator cuff pathology, and psychological impairment, outside of his area of expertise.
160 Dr Slesenger thought the plaintiff at present does not have a capacity for pre-injury duties. He noted the postural demands associated with those duties was likely to give the plaintiff neck symptoms.
161 With regard to alternative duties, Dr Slesenger considered the plaintiff had a capacity for work with the following restrictions: no push, pull, carry of lift over 5 kilograms, and avoid sustained neck flexion and neck rotation.
162 The plaintiff had specifically advised his symptoms were aggravated by working with a computer. Dr Slesenger noted the plaintiff’s past occupation, experience, and qualifications, and thought he was unlikely to return to work in the role of a transport logistics manager.
163 Dr Slesenger also noted the plaintiff was considering retraining and completing an MBA. He thought the plaintiff was unlikely to be able to do this with his current level of symptoms.
164 Dr Slesenger thought the plaintiff was unlikely to be able to work in a recruitment role, as he would be required to do some data entry, which would aggravate his neck symptoms.
165 Dr Slesenger also thought, regarding retraining as a counsellor, the plaintiff did not have relevant qualifications, and it would be likely he would be required to complete online assessments as part of retraining as a counsellor. Dr Slesenger anticipated the plaintiff would have significant difficulty completing such a retraining program.
166 Whilst Dr Slesenger thought that restrictions were appropriate on duties performed, taking into consideration the plaintiff’s past occupations and experience, particularly the focus and nature of his occupational experience in Australia, his qualifications, age, and residential location, together with his current symptoms and level of functioning, Dr Slesenger thought that whilst the plaintiff had a capacity for work, he did not have a capacity for suitable alternative duties.
167 Dr Slesenger considered the plaintiff’s current symptoms were predominantly related to his neck pathology. In particular, he noted the plaintiff’s current upper limb symptoms appear to be radicular symptoms from the degenerative disease of the cervical spine for which he had undergone surgery. He did, however, consider there was evidence to support a diagnosis of a right shoulder injury; however, he thought that was a minor contributing factor to the plaintiff’s overall current impairment and disability.
The Defendant’s lay evidence
168 Tammy Connolly, National Human Resources Manager of BAM Wine, swore an affidavit on 16 March 2017.
169 Ms Connolly confirmed the plaintiff started employment with BAM Wine on or about 29 December 2014 as a Vic Outbound Manager. He was required to use a computer to complete the inherent requirements of his role.
170 The plaintiff’s employment was terminated within his probation period, as set out in correspondence of 1 June 2015.
171 Ms Connolly understood the plaintiff’s employment was terminated due to performance reasons. It was BAM Wine’s belief the plaintiff had overstated his abilities in his résumé and in person, and that became evident during his probation period. His resume was attached to the affidavit.
172 The plaintiff was hired on a remuneration package of $95,265 per annum, which included superannuation.
173 When Ms Connolly reviewed the plaintiff’s personnel file, there was no reference to any difficulties he was having with his duties as a result of any pre-existing injury. The plaintiff’s personnel file had been sent to Court under cover of a subpoena served by the defendant’s lawyers.
174 The first time BAM Wine became aware the plaintiff had sustained a previous work-related injury was when lawyers for the defendant subpoenaed his personnel file. Prior to this time, they had no knowledge the plaintiff was injured or had issue with his cervical spine.
175 In the Employer’s Injury Claim Report dated 3 April 2012, the defendant set out that the reporting of the plaintiff’s claimed injury was consistent with commencement of gym, and no significant change to job requirements or activities.
The Defendant’s medico-legal evidence
176 Mr Geoffrey Klug, neurosurgeon, examined the plaintiff in February 2013. As this examination pre‑dates the surgery, this report is of little relevance to the issues presently in dispute. Similarly, Dr David Barton, consultant occupational physician, saw the plaintiff in January 2013, and forensic psychiatrist, Dr Jager, saw him in July 2013 before the surgery.
177 Dr White, consultant psychiatrist, examined the plaintiff in January 2014. The plaintiff was cross-examined in some detail as to the history given to him.
178 The plaintiff then said he was not suffering from psychiatric illness and was not depressed. He had a positive attitude to life and he was interested in most activities. His concentration levels were generally no problem, and his energy levels were high. He denied significant impacts on his activities of daily living or work from psychiatric symptoms.
179 In terms of personal history, the plaintiff described a good relationship with his children, aged seven, five, and three. He had a number of supportive friends, and enjoyed people coming over, having a drink, and going fishing. He visited friends the previous week and enjoyed fishing in November 2013. On New Year’s Eve, three couples came to his house to celebrate.
180 The plaintiff advised that most days he ran five to ten kilometres, until his shoulder pain was increased and caused significant insomnia during the night before. Whilst the children were on holidays, he enjoyed taking them to the park and being active. He was involved in shopping, cooking, and cleaning activities, and over the last fortnight had been trying some new recipes.
181 The plaintiff’s self-care activities were normal, and he was not returning to bed or lying down during the day.
182 The plaintiff described his injury at work. He enjoyed good relationships in the workplace, and after the injury, the relationships were still pretty good, although he made a mistake and got a warning straight away. He felt under the microscope, and lost confidence. He told Dr White he thought it was unreasonable that his employment was terminated, because they could have found him something else.
183 The plaintiff felt he was fit to work, for instance in an operations supervising job with a little computer work. He had looked for work after his employment was terminated, and had been offered a position, but had decided not to accept - “because I didn’t want to cause them any problems ... I’m not looking now because I want to wait until my arm’s fixed”.
184 Dr White thought the plaintiff’s psychological symptoms had now remitted, and there was no evidence of ongoing psychiatric disorder. He considered there did not appear to be any incapacity for work from a psychiatric perspective.
185 Mr Kevin Siu, neurosurgeon, examined the plaintiff both before and after surgery, with the initial examination in January 2014.
186 On re‑examination, the plaintiff indicated pain and discomfort in the right scapula. Unlike the earlier examination, the right biceps was perhaps a little depressed compared to the left.
187 Mr Siu thought in the course of the plaintiff’s employment, working with several computer screens, it precipitated symptoms consistent with nerve root irritation, which the plaintiff confessed in a previous examination he was not convinced was present.
188 Mr Siu noted since surgery, the plaintiff’s right arm pain had improved significantly, but he was still left with symptoms of pain around the right scapular region, exacerbated by activity. He had twitching with a sensory disturbance in the right thumb and index finger, and, even though surgery had helped the right arm pain, it had not relieved the discomfort in the right scapula.
189 Whilst Mr Siu thought it was difficult to argue against surgery success. That needed to be defined properly. The plaintiff had relief of right arm pain but still had pain, discomfort, and sensory disturbance, in the right scapula, right index finger, and thumb.
190 Mr Siu thought it was not uncommon to have persisting discomfort following surgery, but noted the plaintiff’s symptoms are more severe than he would expect had surgery been clear-cut for the decompression of that nerve root.
191 Mr Siu confirmed his earlier view that the plaintiff does not have the capacity to return to pre-injury duties. It seemed that his second employment, requiring less time on the computer screen, was a job he was initially able to cope with, but towards the end he had persistent symptoms and nerve root irritation and had to take a retirement redundancy package.
192 Mr Siu noted the plaintiff is only young, at the age of forty, and therefore probably should be retrained to some extent. He thought the plaintiff had good transferable skills but really should embark on a job which required much less sitting gate a computer. He thought the prognosis remained guarded.
193 Dr Dominic Yong, occupational physician, examined the plaintiff in December 2016.
194 The plaintiff then complained of pain in the right scapula, radiating up to his neck and into his right elbow. He also had pain between his right thumb and index finger. He described numbness in his right first and second digit fingertips.
195 The plaintiff told Dr Yong he lived at home with his wife and three children. He was able to sit for 30 minutes, walk for 30 to 45 minutes, and drive for 40 minutes. He was independent in his activities of daily living, although he had trouble with brushing his teeth and shaving. He could occasionally hang out the washing and do the shopping. He was not able to mow the lawn, hang up the washing on a high line, vacuum and mop.
196 Dr Yong thought the plaintiff had features of a C5‑6 disc prolapse with radiculopathy treated surgically. The plaintiff had reported a recurrence of similar symptoms with worsening in mid-2015, leading him to cease working with a new employer. There was some cervical spine dysfunction with radicular features.
197 The plaintiff advised that he ceased work with BAM Wine Logistics due to the escalation of his symptoms.
198 Dr Yong thought the plaintiff required the following restrictions for work: avoid repeated neck movements, awkward neck postures on a repeated basis such as looking upwards or to the side, repeated firm pushing or pulling and lifting more than five kilograms on a repeated basis. The plaintiff also required a reduction in work hours. Hence, Dr Yong considered he had a capacity to undertake suitable employment.
199 Dr Yong thought the suggested jobs of training and development officer and sales representative were likely to comply with the restrictions. The plaintiff required further assessment whether he could return to a job as a recruitment consultant or in transport logistics warehousing.
200 Noting the diagnosis, chronicity of the condition, and the period of time since surgery, Dr Yong thought the plaintiff would have a capacity to initially work reduced hours such as four-hour shifts for four days a week. This could initially increase to approximately 30 hours a week on a progressive basis such as over a three to four-month period.
201 The plaintiff would then need reassessment to determine his functional capacity and clinical status. He would then need to be assessed to determine whether he had the capacity to participate in a further return to work program, returning back to his pre-injury hours.
202 Dr Yong considered student officer, school of business and management faculty, jobs to be suitable the plaintiff.
Treaters
203 Psychologist, Dr Remenyi, reported in 2012 that the plaintiff described panic attacks. He then thought the plaintiff was likely to benefit from psychological intervention.
204 The plaintiff attended the Frankston Hospital sleep laboratory, where he underwent a diagnostic sleep report in January 2012. It was then noted there was significant OSA overall with severe disease, severe snoring. Treatment was indicated for symptom relief.
205 There were a number of reports detailing the pre-operative injections and blocks from Professor Bittar and Dr Gassin, musculoskeletal and pain physician.
206 In July 2014, on review by the Registrar of the Neurosurgery Department at The Alfred hospital, the plaintiff’s general practitioner was advised that the Registrar was delighted to announce the plaintiff was improving in all facets after his successful surgery.
207 On examination, the plaintiff felt his sensation in his thumb and forefinger on the right had improved markedly, and he could now feel his fingertips. Fasciculations no longer occurred. He reported pain in his C6 distribution and neck had markedly improved, as had the strength of his right upper limb overall, which was improving. There was some mention of some scapular pain and some radiating neck pain which had also decreased significantly.
208 The Registrar’s impression was the plaintiff was then progressing very satisfactorily and he was certain at a stage of expected recovery.
209 The Registrar again wrote to the general practitioner in February 2015, having reviewed the plaintiff on behalf of Associate Professor Hwang that day.
210 The plaintiff then advised his right upper limb pain had markedly improved; however, he still experienced some predominantly shoulder pain with prolonged standing and use of the upper limb. Certain positions also brought on right scapular and shoulder pain. The plaintiff did not describe any radicular sounding pain into the right upper limb.
211 The Registrar was then happy about the plaintiff’s progress after the operation, and had not made any routine repeat appointments to see him.
212 When last seen at The Alfred hospital on 17 August 2015, the plaintiff’s main issue was right scapular pain as well as some ongoing issues of point tenderness and pain down the right forearm to the right thumb.
213 Registrar, Leonie Goldberg, noted, unfortunately, the issues were then still as follows: weakness of elbow flexion of approximately four plus to five, with absent biceps and supinator reflexes, which could possibly point to an ongoing issue of the C6 exiting nerve root. Further, the plaintiff was very tender over the right scapula, and that seemed to be his main concern. It was thought that may or may not relate directly to the neck, and currently there were cervical spine investigations.
214 Registrar Goldberg suggested the plaintiff undergo a right-sided C6 nerve root injection to be repeated in order to hopefully alleviate his pain if it comes from the cervical spine. It was also thought appropriate for the plaintiff to undergo an ultrasound and x‑ray of the scapula to rule out any lesions or muscular causes.
215 In a report from The Alfred hospital to Dr Gomez Paredes of August 2015, the Registrar advised that the plaintiff was discharged from the Neurosurgery Clinic in February 2015 and had returned in August with a report of ongoing right-sided medial scapular pain and tenderness, right lateral elbow pain, and a burning sensation of the right second metacarpal.
216 It was noted the plaintiff admitted to significant improvement in his brachialgia symptoms; however, these isolated symptoms persisted. The general practitioner was advised that further investigations were to be undertaken.
Vocational evidence
217 Nicholas Janides, vocational occupational consultant from Healthe Work, provided a vocational assessment/labour market analysis in November 2016.
218 The plaintiff reported he continued to experience ongoing pain and impairment with his right arm. He stated he had difficulties writing, and pain was aggravated by some personal hygiene tasks. He added he had started to successfully use his non-dominant hand to manage computer tasks.
219 The plaintiff described his pain level as being eight out of ten.
220 Mr Janides set out the occupational duties involved with the job at BAM Wine, including management of transport staff, work allocation, motivation and performance for company drivers, carriers and subcontractors, outbound team loaders, and dock workers.
221 Mr Janides also described the details of the duties required in the plaintiff’s job with the defendant between October 2010 and December 2013, for the three-month period doing Flybuys’ work between May and July 2013 and also as regional shift manager at Linfox Logistics between July 2008 and October 2010.
222 A wide range of the plaintiff’s transferable skills were described by Mr Janides in terms of transport logistics, distribution, communication, computer, human resources, admin, and clerical.
223 Based on a review of the plaintiff’s residual transferable skills, labour market data, and his occupational interests, Mr Janides recommended the following represent suitable employment options for him in the current labour market:
(i) Recruitment consultant – transport logistics and warehousing field (commencing salary of $60,000 with commissions to earn up to $100,000 per year).
(ii) Training and development officer, transport logistics and warehousing field (full-time earning capacity from $65,500 to $82,781, and casual rates of $28 to $44.70 an hour).
It was noted that to enhance his employability the plaintiff acquire a Certificate IV in Training and Assessment.
(iii) Sales representative (base salary of $48,000 which could increase with commissions to over $85,000 a year).
(iv) Student officer, school of business and management facility (commencement salary of $58,000 and progress to $78,000 and $79,000 over a short time).
Overview
224 For the purposes of this application, the defendant did not dispute the plaintiff suffered a compensable condition to his cervical spine which became symptomatic some time in January 2012. Whilst causation was not admitted, it was not argued against.[63]
[63]T119
225 Further, it was conceded that the plaintiff suffered an organically-based injury involving an aggravation of cervical spondylosis, causative of symptoms of cervical dermatome, otherwise called cervical brachialgia for which he underwent a cervical discectomy and fusion.[64]
[64]T 218; Mr Sui, Dr Aliaskevich and Professor Bittar
226 While some medal practitioners considered there to be a separate shoulder injury making a minor contribution to the plaintiff’s present right sided complaints, the Medical Panel did not consider this to be the case. Professor Cook thought scapular pain was a typical radicular symptom of cervical pain. Further, any issues relating to carpal tunnel epicondylitis are minor at present.
Credit
227 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[65]
“… 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.”
[65](2010) 31 VR 1 at paragraph [12]
228 Counsel for the defendant raised an issue as to the plaintiff’s credit in terms of his failure to depose to a range of activities, particularly those related to the Macclesfield property.[66] Further, it was submitted in his history to various doctors, the plaintiff gave the impression he was happily married with three children when this clearly was not the case.[67]
[66]T128
[67]T121
229 In response, counsel for the plaintiff submitted that it had not been suggested the plaintiff was an evasive or unsatisfactory witness. Whilst some activities had just been left out of his affidavit, this could be explained, as could the history to various practitioners with the interchangeable use of the words “partner” and “wife”.[68]
[68]T152
230 Further, whilst cross-examination focussed on the plaintiff’s history to Dr White of significant activity such as running in early 2014, it was a very different situation when he swore his affidavit eighteen months later in December 2015.[69]
[69]T146
231 Whilst it had been suggested there was a lack of candour on the plaintiff’s part as to his level of activity on the Macclesfield property, having closely considered the evidence in this regard, I accept that the plaintiff really did not do much at all on the property.[70]
[70]T154
232 In my view, although the plaintiff appeared at times to have a somewhat inflated view of his work capacity and ability, described by his counsel as “optimistic,” the plaintiff was generally a truthful witness and a man who has tried hard to return to the workforce after a significant neck injury and subsequent surgery.
233 I accept the submission by counsel for the plaintiff that the plaintiff’s unrealistic prospects have been “persistently defeated by reality”.[71]
[71]T156
Pain
234 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[72]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors).”
[72]Supra
235 Despite surgery and ongoing significant painkilling medication, the plaintiff continues to experience pain in his neck, right scapula, elbow and down to his index finger and thumb, rated by him at 7 out of 10,[73] tingling and numbness in his right thumb, daily spasms in his right biceps and weakness in his right hand and arm.
[73]September 2016 examination by Dr Slesenger, can increase to 9 out of 10 - August 2016 Dr Aliaskevich
236 The plaintiff’s neck movements are significantly restricted, particularly to the right and he lacks strength in his right upper limb.
237 As a result of his neck and right limb symptoms, the plaintiff’s sleep is very disturbed.
238 As a relatively young man, the plaintiff now aged only forty-two, will continue to experience neck pain and restriction for many years.
239 In Stijepic v One Force Group Aust Pty Ltd,[74] Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[74][2009] VSCA 181 at paragraph [43]
240 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
Treatment
241 The plaintiff has undergone a range of treatment modalities for his neck condition. He initially underwent two injections and a nerve block which were unsuccessful, leading to surgery in June 2014.
242 Whilst there was some early optimism as to the outcome of surgery,[75] the plaintiff has continued to experience significant ongoing neck and right-sided symptoms. He required a further nerve sheath injection in November 2015 and is still under the care of The Alfred hospital and requires ongoing physiotherapy.
[75]T125- Professor Cook October 2014
243 The plaintiff also continues to require very significant painkilling medication, including Targin, Lyrica and Endone, which affects his ability to concentrate.
244 In Kelso v Tatiara Meat Company Pty Ltd,[76] Dodds-Streeton JA stated:
“Secondly, the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[76](2007) 17 VR 592 at paragraph [199]
245 Lyrica was commenced in December 2015 by Dr Goldberg at The Alfred hospital to treat the plaintiff’s neuropathic pain.
Work
246 The plaintiff clearly is restricted in his ability to move freely, sit or stand for prolonged periods, bend, and twist. As a result thereof, he is significantly restricted in his ability to undertake computer work which has been a major part of his employment in recent years.
247 As counsel for the defendant conceded, there is no medical evidence that the plaintiff can return to his pre-injury job. That factor alone made it hard to argue against this being a serious pain and suffering consequence.[77]
[77]T124
248 In my view, the inability to return to pre-injury work as a result of neck pain and restrictions satisfies the statutory test of seriousness.
Loss of earning capacity
249 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 40 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).
250 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.
251 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
252 “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.
253 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.
254 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.[78]
[78]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
255 It was agreed that the without injury earnings figure was $89,787, with the 60% threshold being $1,036 per week ($53,872).[79]
[79]T157
Medical evidence as to work capacity
256 Most medical practitioners consider the plaintiff has a restricted capacity for employment, with medico-legal examiners relied on by the plaintiff of the view he has no such capacity.
257 Dr Gomez Paredes thought the plaintiff would benefit from retraining to perform a different role where he could move around and not need to sit for prolonged periods and where he did not need to rise his arms above the shoulder. Ms Dickens shared this view
258 Mr Sui’s comments on the plaintiff’s employment capacity were quite brief, simply stating the plaintiff should probably be retrained to some extent given his young age. Noting the plaintiff, had good transferable skills, Mr Sui thought he should embark on a job which requires mush less sitting at a computer.
259 Counsel for the plaintiff submitted Dr Aliaskevich had a grim view of the plaintiff’s capacity, considering he was unfit for alternate duties, and the chances of a full functional recovery were very slim.[80]
[80]T147
260 Further, Dr Slesenger did not really think the plaintiff had a capacity for suitable employment, and thought he would not be able to undertake retraining.[81]
[81]T148
261 Whilst Dr Yong thought the plaintiff had a capacity to undertake restricted duties and was likely to be able to work as a student officer, training and development officer, he considered the return to work should be on a graduated basis starting at 16 hours per week, increasing to 30 hours, and the plaintiff’s situation then be reassessed.[82] Further, he thought the suggested job as sales representative would require individual assessment to see whether it was a suitable job for him.
[82]T143
262 As counsel for the plaintiff submitted, relevant to the issue of work capacity is not only medical opinion, but also what actually happened when the plaintiff tried to return to work post injury and surgery.[83]
[83]T149
263 It was submitted the history of the plaintiff’s injury and thereafter is quite revealing.[84] Prior thereto, he received numerous commendations, and then, after the injury, he struggled at work, being able to work only half time in Flybuys[85] and missing three or four days a month due to his neck condition whilst in the defendant’s employ. His employment was then terminated on 12 December 2013 on the basis of his work performance.[86]
[84]T138
[85]T138
[86]T139
264 Further, it was submitted the plaintiff showed motivation commencing the MBA in early 2014, soon after he left the defendant. He had problems with his study because of neck pain and difficulty concentrating, being able to complete only two of twelve units, he then had to defer because he could not cope.[87]
[87]T139
265 The plaintiff then underwent the surgery in June 2014, and he was back at work at Bam Wine within six months, the minimum time his doctor had given him off. It was submitted in these circumstances, the plaintiff is not a man who sits at home watching television. He is doing his best, as Mr Cook commented.
266 The plaintiff was then cleared on a limited basis to commence full-time duties at the end of 2014 when he started at BAM Wine.
267 Whilst the plaintiff did not tell those at BAM Wine about his neck injury or any related problems, I accept he had ongoing problems during that time, as his general practitioners notes indicate, leading to him ceasing employment in mid-2015 and once again coming under the care of The Alfred hospital.
268 In my view, the “flurry” of medical attendances in mid 2015 was due to a deterioration in the plaintiff’s condition, not in the context of the present litigation, as counsel for the defendant submitted.[88]
[88]T129
269 Whilst the clinical notes contained references to the plaintiff describing work being “good”, there were ongoing shoulder and neck complaints noted. The plaintiff was optimistic about the job as it was not a paperless office.[89]
[89]T141
270 In particular, there was the note of 3 January 2015 of the plaintiff waking at 2.00am and “can’t sleep”, and making arrangements to start work early at 4.30am. During his time at Bam Wine, the plaintiff was also taking heavy painkilling medication such as Endone and Tramadol.
271 Counsel for the plaintiff also relied on the note of 29 April 2015 where, again, the plaintiff described work as very good, but also complained of right upper back pain after three or four hours. It was submitted this was significant, as that seemed to the plaintiff’s capacity according to both his own practical experience[90] and medical opinion such as Dr Yong.[91]
[90]The hours the plaintiff worked at Flybuys
[91]T142
272 As counsel for the plaintiff submitted, the plaintiff could not cope working in a $100,000 per year job at BAM Wine because of his neck condition. This was not a hypothetical situation. It was a very similar story with the MBA.[92]
[92]T144
273 I accept that the plaintiff is motivated and keen to get back to work as his continuing job applications indicate. In my view, he has not become demotivated because of his receipt of income protection benefit since mid-2015 of $4,500 as counsel for the defendant submitted.[93]
[93]T131
274 Whilst a number of jobs have been identified as suitable for the plaintiff in the Healthe Work report attracted a significant salary[94] and the plaintiff has a range of transferable skills, as described by Mr Janides in that report,[95] I do not accept the plaintiff has the capacity to work in any suitable employment where he would earn in excess of $1,036 per week.
[94]T134
[95]T135
275 Taking into account all the evidence, I believe the plaintiff would have the capacity to work a maximum of four hours per day before experiencing a significant increase in his pain, as was the case when he worked at Bam Wines, even when he was not sitting at the computer very much.
276 Further, the plaintiff’s significant medication intake would cause him problems with concentration doing the various suggested jobs.[96]
[96]T162
277 In my view, the role of recruiter is unsuitable for a number of reasons.
278 Firstly, an entrance requirement is a Bachelor’s degree which the plaintiff presently does not hold which counsel for the plaintiff described as a “pretty heavy first barrier” given the plaintiff’s problems with the MBA course.[97]
[97]T158
279 Further, it appears that role involves significant seated work operating a computer and interviewing clients and it seems unrealistic as the job description sets out that the plaintiff would be able to sit and stand at will when performing these roles.[98]
[98]T159
280 If the plaintiff was able to work in this role for 4 hours a day, he would suffer the requisite loss, earning less than $1,036 per week on the figures at both ends of the suggested range: $65,479/$32,789 and $82,871/$41,390. He would also earn below this figure working 30 hours per week at the lower end of the range and passing that figure at the upper end where he would earn $65,396.[99]
[99]T160
281 The plaintiff would require retraining to work as a training development officer and, in my view, could not cope with the requirements of the relevant course as Dr Slesenger confirmed. Further, he would have difficulty with the computer work involved.
282 Working 20 hours in this role at both ends of the range of suggested wage rates, the plaintiff would not earn in excess of $1,036 per week - $65,479/$32,789 and $82,781/ $41,390. Working 30 hours per week on the higher figure, he would earn $65,396 (79 per cent).[100]
[100]T160
283 I do not consider work as a sales representative to be a suitable job for the plaintiff. In particular, that role would require a lot of driving, an activity which the plaintiff has significant difficulty given the need for repeated neck movements as Dr Yong described.[101]
[101]T161-2
284 Only working 30 hours per week at the upper end of the range, namely $100,000 with commissions, the plaintiff would not establish the requisite loss. Working 30 hours at the lower level and 20 hours at both ends of the range, he would not earn in excess of $1,036 per week.
285 Finally, I do not believe working as a student officer is a suitable role for the plaintiff. He would not have the patience to deal with students of differing abilities and from different cultures given his pain level and the need for medication.
286 Only working 30 hours per week at the upper end of the range, namely $78,079, the plaintiff would not establish the requisite loss. Working 30 hours at the lower level and 20 hours at both ends of the range, he would not earn in excess of $1,036 per week.
287 As counsel for the plaintiff submitted, the plaintiff has been looking for a wide range of well paid jobs because he hopes to be cured. He might have hopes and aspirations, but in reality, they are unrealistic, and in fact doomed to fail, and he has therefore suffered the requisite loss.[102]
[102]T163
288 Whilst the plaintiff thinks that he can undertake employment of the nature he had previously engaged in, which can attract a salary in the range of $100,000, his attempts so far have been unsuccessful. I am not satisfied he can earn in excess of $1,036 in the four suggested jobs or other suitable employment working four hours a day, as has been his demonstrated capacity. Further, I am not satisfied he could work 30 hours per week or more on a consistent reliable basis in any of the suggested roles.
289 I am therefore satisfied the plaintiff has suffered the requisite loss of earning capacity.
290 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
291 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
292 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
293 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[103]and Advanced Wire & Cable Pty Ltd v Abdulle.[104]
[103][2009] VSC 454 at paragraph 147
[104][2009] VSCA 170
294 Accordingly, I grant leave to bring proceedings for damages for loss of earning capacity.
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