Gauci v Winmart Pty Ltd
[2012] VCC 53
•6 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-04914
| CHARLES GAUCI | Plaintiff |
| V | |
| WINMART PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 January 2012 | |
DATE OF JUDGMENT: | 6 March 2012 | |
CASE MAY BE CITED AS: | Gauci v Winmart Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 53 | |
REASONS FOR JUDGMENT
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Catchwords: s134AB Accident Compensation Act 1985 – serious injury – pain and suffering and pecuniary loss – plaintiff under 26 years of age – permanent impairment to the plaintiff’s lower back – compensable injury to lower back in 2007 in course of employment with the defendant and in 2008 in course of employment with second employer who accepted serious injury for pain and suffering and pecuniary loss – whether January 2007 injury materially contributes to the impairment consequences for foreseeable future.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr David Purcell | Zaparas Lawyers |
| Ms Hulya Donmez | ||
| For the Defendant | Ms Bree Knoester | Hall & Wilcox |
HER HONOUR:
The application
1 The plaintiff seeks leave under section 134AB of the Accident Compensation Act 1985 (the Act) to bring proceedings to recover damages for injury suffered to his lower back arising out of the course of his employment with the defendant. On 11 November 2010 a later employer, TAD Pty Ltd (the second employer) accepted that following further compensable injury to his lumbar spine the plaintiff had suffered a serious injury in respect of both pain and suffering and pecuniary loss consequences.
2 The evidence adduced at hearing consisted of the Plaintiff's Court Book[1] (Items 3-5, pages 6-19; Items 8-12, pages 39-49; Item 14, pages 51-52; Items 17-34, pages 54.1-81), the Defendant's Court Book[2] (Items 7-10, pages 14-27G; Items 16-17, pages 39.1-39.19; Items19-26, pages 41-80) and the plaintiff's undated Statement of Claim.[3] Somewhat unusually no witnesses or the plaintiff were required for cross-examination.
[1]Exhibit P1, the Plaintiff’s Court Book (“PCB”)
[2]Exhibit D1, the Defendant’s Court Book (“DCB”)
[3]Exhibit D2
The initial injury
3 The plaintiff is 24 years of age and single. He completed his secondary school education to year 11 level and obtained Certificates I, II and III in Information Technology.[4] Whilst still a student and for a short time after he completed school, the plaintiff worked part-time at Kmart.
[4]See the vocational assessment report contained in the Defendant's Court Book ("DCB") 44
4 In 2004 the plaintiff commenced part-time casual employment in the defendant's small delicatessen and supermarket business, the plaintiff's principal duties being to stack goods in the store area and on the shelves in the defendant's shop. His duties apparently involved lifting and moving heavy food items such cheeses and drums of olive oil. From April 2005 the plaintiff was employed full-time, Sunday to Friday between 8am/9am and 5pm/6pm.
5 Toward the end of 2006 whilst moving a 16kg box containing tins of olive oil from a delivery pallet the plaintiff experienced "sharp pain" in his right groin. He attended the Campbellfield Medical Centre, underwent an ultrasound investigation of his groin and he was, he thought, off work for about one week.
6 On about 8 or 9 January 2007 whilst lifting heavy boxes in the course of his employment with the defendant, the plaintiff suffered back pain, which worsened during the evening (the January 2007 injury).[5] The plaintiff was stiff and sore the next morning and, having contacted his employer, he took one day of sick leave. Despite ongoing back pain and pain into his legs the plaintiff return to work "for a day or so" before seeking medical treatment on 12 January 2007 from his general practitioner, Dr Boyapati. As the doctor reported, the plaintiff was treated for "…sharp pain in the lower back which later radiated left leg. All the lumbosacral movements were restricted and painful."[6]
[5]The circumstances relating to the plaintiff's employment and compensable injury are described in greater detail in paragraphs 1 to 8 inclusive of his first affidavit sworn on 28 June 2010, PCB 7-9.
[6]PCB 39. See also the general practitioner’s clinical notes, DCB 39.2
7 Dr Boyapati prescribed anti-inflammatory medication.[7] She arranged a CT scan of the plaintiff's lumbosacral spine and on 15 January 2007[8] the radiologist reported evidence of "Significant posterior central focal disc protrusion at L5-S1."
[7]PCB 31
[8]PCB 60
8 There was no evidence of any pre-existing condition affecting the plaintiff's lower back. As my discussion of the medical evidence in due course reveals, most of the orthopaedic and general surgeons who were appraised of this fact and had some understanding of the circumstances giving rise to the January 2007 injury concluded that this episode had involved discal injury. In this group I include Mr Barrett, [9] Mr Polke, [10] Mr Brearley[11] (each of whom had access to the report of and/or the CT scan) and Mr Marshall[12] and Mr McInnes.[13]
[9]PCB 56 and 56.4
[10]PCB 16
[11]PCB 67.4-5
[12]PCB 69
[13]PCB 73
9 Arguably, orthopaedic surgeon, Mr Shannon is also a member of this group in as much as he accepted that the plaintiff's symptoms were precipitated by "an initial injury" (the January 2007 injury), followed by subsequent episodes of aggravation.[14]
[14]DCB 21
10 If, on this matter, my interpretation of Mr Shannon's report is incorrect, I have nevertheless proceeded on the basis that the evidence of the other specialists is preferable to the evidence of orthopaedic surgeon, Mr Dooley, who, having examined the plaintiff once on 27 June 2011 at the request of the defendant's solicitors (without reference to the CT scan or report), concluded that the plaintiff suffered from naturally occurring degenerative disc disease of the low lumbar spine which had been aggravated in January 2007.[15]
[15]DCB 26
11 In summary, I rejected Mr Dooley's evidence on this matter for the following reasons:
· his conclusion was against the weight of the specialist evidence;
· the history obtained by Mr Dooley makes no reference to the specific heavy lifting incident described by the plaintiff in January 2007;
· his conclusions did not, as submitted by the defendant, find support in the evidence of the treating surgeon, Mr de la Harpe because, as he advised in his final report dated 20 September 2011, when Mr de la Harpe first treated the plaintiff for injury suffered with the second employer, he never took a history of specific injury or injury associated with a lifting incident occurring in 2006 or 2007. In these circumstances it is unremarkable that Mr de la Harpe formed the view that the later compensable injury constituted an aggravation of some pre-existing degenerative condition of the two last lumbar discs.[16]
[16]PCB 54.2
12 Following the January 2007 injury the plaintiff returned to light duties and, as he deposed, his back pain was reduced until exacerbated by playing a game of indoor soccer. On 16 February 2007 he returned to see his doctor. Her letter of referral to a physiotherapist at Merlyn Physiotherapy relevantly explained that on that occasion the plaintiff's lower back pain was worse "on the right side."[17]
[17]PCB 39. See also the general practitioners clinical notes, DCB 39.2
13 It appears that whilst undergoing physiotherapy treatment, which had, the plaintiff said, improved his back pain, post-injury the plaintiff performed light duties for the first week or two, before he was required to resume most of his pre-injury duties. The heavy lifting involved in this employment apparently increased his "back discomfort", such that the plaintiff ceased his employment with the defendant and, with assistance from his doctor, he completed a WorkCover claim form. This claim was not submitted because the plaintiff felt that it would limit his chances of obtaining another job.
14 Based on both the plaintiff's affidavit evidence and the tendered reports it appears that the plaintiff was treated for lower back pain once by physiotherapist, Mr Gray,[18] prior to referral to another physiotherapist, Mr Carlisle. On 29 March 2007, the latter informed the general practitioner that, by 19 March 2007, the plaintiff had: "full range movement, was pain-free and I have suggested he undertake a Pilates range of exercises to improve his condition…"[19] This report and the general practitioner's clinical notes for this period, as well as the certificate of capacity issued by her on 1 April 2007, is evidence of general improvement in the plaintiff's condition and the doctor's support for a return to work, subject to the plaintiff maintaining his exercise regime, adopting correct lifting techniques, avoiding recurrent bending and seeking help when lifting heavy weights.[20]
[18]PCB 58
[19]PCB 57
[20]DCB 39.3-5 and DCB 39.18-19
15 The plaintiff further deposed that between March and August 2007 he was employed as a casual worker in his uncle's steel fabrication business, until his father and this uncle fell out with one another. It is immaterial to the outcome of this application that reasons other than the plaintiff's back pain brought this employment to an end. This is because, on the facts described, this was protected employment in which the plaintiff performed light duties and accommodated his ongoing back pain by taking breaks and resting when needed.[21]
[21]PCB 9
16 The plaintiff next found employment from December 2007 as a plumber's assistant. Shortly after commencing this employment the plaintiff was asked by his new employer to enter an apprenticeship. However, because plumbing work increased the plaintiff’s back pain, prior to the completion of the paperwork Dr Boyapati notified this employer that, due to "a problem with back pain" the plaintiff had been advised by her "not to take up any jobs which involved physical work (lifting weights and recurrent bending etc.)."[22] As there was no light work available, by February 2008 the plumbing employment was terminated.
[22]PCB 40
17 This (uncontradicted) evidence is consistent with a finding that, in December 2007, impairment of the plaintiff's lower back had prevented him from pursuing employment involving physical work and from realising his ambition to become a plumber. Relevantly, the plaintiff's sister, Mary Gauci, deposed that for a long time her brother had said that he wanted to become a plumber. [23]
[23]PCB 19
18 In his further affidavit the plaintiff relevantly explained that following the January 2007 injury his "pain never went away although the severity of (his) pain fluctuated depending on (his) level of activity. After (his) injury in January 2007, (he) would also at times experience pain down both of (his) legs, although more frequently in (his) right leg …"[24]
[24]PCB 16.2
19 As the general practitioner's reports and clinical notes confirm,[25] on 22 April 2008 the plaintiff again presented for treatment, at which time, amongst other things, he reported persistent back pain radiating to the back of his right thigh, (especially after sitting for a long time) disrupted sleep due to pain "for the past few weeks" and an inability to work. On this occasion, apparently in response to the plaintiff's request for a referral to a specialist, the general practitioner referred the plaintiff to a rheumatologist. The plaintiff did not pursue this referral because, as he said, (and also reported to his doctor on 13 June 2008[26]) his back pain had improved.
[25]PCB 10 and 44. See also the general practitioner’s clinical notes, DCB 39.4-5
[26]PCB 44
20 In any event, it seems that, with the assistance of his father, from 4 May 2008 the plaintiff found work with a labour hire agency, the second employer. Through this agency the plaintiff was engaged to work as a machine operator producing steel wiring used in reinforcing concrete (described by the plaintiff as butt welding) for Smorgon ARC. He apparently worked between 11pm and 7am, five nights a week and earned at the rate of approximately $1350 gross per week. Documents tendered by the defendant indicate that from 4 May 2008 to 31 August 2008 the plaintiff worked between 15.20 and 38.00 ordinary hours each week (an average of 31.47 hours per week plus some limited over time).[27]
[27]DCB 78-79
21 In his first affidavit, amongst other things, the plaintiff explained that his butt welding job with Smorgon ARC "required force to manoeuvre and position" the coils of wire in the welding machine. [28]
[28]PCB 10
22 In his further affidavit the plaintiff also explained that, prior to working with Smorgon ARC, he required a medical clearance. After discussing his back injury with the examining doctor, it was, the plaintiff said, decided that he would "give the job a go."[29]
[29]PCB 16.3
23 Quite apart from the medical evidence, discussed in more detail below, as my summary of the plaintiff's treatment and the work undertaken by him in the period preceding the commencement of his employment with the second employer shows, it is unlikely that the plaintiff’s lower back condition resulting from the January 2007 injury was resolved or, as the defendant's counsel at one stage submitted was "very, very much better".[30]
[30]TN 80
24 Rather, despite the advice from his general practitioner in January 2008 not to perform jobs involving physical work and within weeks of the referral for specialist investigation of his complaints of persistent lower back pain and his right leg symptoms, the plaintiff commenced agency work. This work however again exposed the plaintiff to employment involving physical work and possibly, as the defendant submitted, heavy manual work.[31]
[31]TN 100
25 These are matters which support a finding that, subsequent to the January 2007 injury, the plaintiff was and remained unfit for physical work. My conclusion in this regard accords with the opinions expressed in 2008 by Mr Marshall and Mr McInnes and in September 2011 by Mr Barrett and Mr Brearley. They all ascribe the initial damage to the lumbar disc or discs to the January 2007 injury and, as Mr Barrett opined in his report, the plaintiff had no capacity to return to his pre-injury duties because following the initial injury the plaintiff's spine was vulnerable to further injury.[32]
[32]PCB 56.4
26 Accordingly, this is not a case where particular weight should be placed on the fact that the plaintiff presented for employment with the second employer.[33]
[33]TN 100
The second injury
27 On 20 August 2008 in the course of the plaintiff's employment with the second employer, he experienced sharp pain from his "belt line on the right side into the groin."[34] Because of the location of the pain, the plaintiff said that on this occasion he felt more comfortable consulting a male practitioner. Consequently, he returned to see general practitioner, Dr Ratton, whom he had previously consulted. The only investigation ordered by this doctor was an ultrasound of the plaintiff's right groin which returned a normal result.[35] It appears that nothing further happened because, as the plaintiff deposed, the groin pain resolved over a week or two.
[34]PCB 11
[35]PCB 61
28 However, on 4 September 2008 whilst turning a coil of wire "on the finger looking for the end", the plaintiff experienced back pain spreading into his right buttock, as well as a loss of strength and sensation in his right leg, causing him to lose balance and fall (the second injury). The plaintiff was taken by ambulance to the Sunshine Hospital, given strong painkilling medication and certified unfit to work for a few days. Subsequently, the plaintiff was treated by the company doctor who apparently arranged for x-rays and administered a cortisone injection, which the plaintiff said had helped relieve his back pain for a few months. During this period the plaintiff was also treated by the company physiotherapist who, the plaintiff said, had strapped his back and the plaintiff was certified as fit to return to light duties by the company doctor.
29 By Worker's Claim Form dated 5 September 2008, the plaintiff sought compensation from the second employer for injury to his back.[36]
[36]DCB 6-7
30 Ongoing back pain prompted the plaintiff to consult his own general practitioner, Dr Boyapati, on 7 September 2008.[37] In addition to prescribing medication, the general practitioner referred the plaintiff to orthopaedic surgeon, Mr de la Harpe and for physiotherapy treatment.
[37]PCB 42-45. See also the general practitioner’s clinical notes, DCB 39.5-6
31 Relevantly, MRI investigation of the plaintiff's lumbar spine ordered by Mr de la Harpe on 9 October 2008 and repeated on 17 September 2010[38] revealed a small central/right par-central disc protrusion at the L4/5 level indenting the theca but without nerve root displacement (unchanged, according to the radiologist when compared to the previous examination in 2008) and a small central disc protrusion at the L5/S1 level without definite neural displacement (according to the radiologist the degree of mass affect on the theca had reduced at this level when compared to the previous examination).
[38]PCB 62 and 62.1
32 On 15 July 2010 the plaintiff filed serious injury applications against both the defendant and the second employer.
33 In this application the plaintiff submitted that he suffered a serious permanent impairment or loss of function of his lower back and he seeks leave to bring proceedings to recover pain and suffering and pecuniary loss damages in respect to the January 2007 injury.
The statutory requirements
34 In summary, the plaintiff carries the burden of proof (on the balance of probabilities). In relation to his claim for loss of earning capacity the plaintiff must also discharge the burden imposed by section 134AB(19)(a) and (b) by satisfying me that the injury is a serious injury and as to any inability to be retrained or rehabilitated or to undertake suitable employment or employment including alternative or further or additional employment and the extent of such inability. He must also discharge the burden imposed by section 134AB(38)(e) which, because the plaintiff was under 26 years of age when injured, arises pursuant to (e)(i) and (ii), by demonstrating a permanent loss of earning capacity that will be productive of financial loss of 40% or more.
35 It was common ground that when dealing with a worker under the age of 26 the common law position prevails, such that the Court may have regard to the probable income from personal exertion the plaintiff would have earned but for his injury over his probable earning life, rather than the formula contained in sub-section (38)(f) of the provision.[39] As submitted by counsel on behalf of the plaintiff, the determination of this young worker's loss of earning capacity involves a discretionary judgment exercised with due regard to the facts.[40]
[39]See the Second Reading Speech (Victoria, Hansard, legislative assembly, 23 May 2000, 1169)
[40]TN 37
36 The definition of suitable employment is set out in section 5(1) of the Act, where it provides that:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited –
(a)having regard to—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii)the nature of the worker's pre‑injury employment; and
(iii)the worker's age, education, skills and work experience; and
(iv)the worker's place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i)the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market
37 Under the Act, to establish "serious injury" the plaintiff is required to prove that he has suffered a "serious permanent impairment or loss of body function". He must firstly prove a compensable injury arising out of or in the course of his employment with the defendant on or after 20 October 1999 which is, in its consequences in relation to pain and suffering and loss of earning capacity, when judged by comparison with other cases in the range of possible impairments or loss of a body function, fairly described as being more than "significant" or "marked", and as being at least "very considerable".
38 Permanent in the context of section 134AB requires that the impairment is likely to last for the foreseeable future.
39 Relevantly, in this application the provision requires that I ignore any psychological or psychiatric consequences of the January 2007 injury for the purpose of determining whether the plaintiff has met the test in respect to serious permanent impairment of his lower back.
40 It was common ground that in keeping with the analysis of this issue by His Honour, Appeals Justice Ashley in Grech v Orica Australia Pty Ltd,[41] each of two or more compensable injuries may be a legally sufficient cause of the same consequences. In effect, in this application one of the matters the plaintiff was required to establish was that, as distinct from any compensable injury suffered during the course of the second employment, impairment of his lower back from the January 2007 injury (an earlier compensable injury to the same body function) continued to make a material contribution to the consequences of which he complained.
[41][2006] VSCA 172, at paragraphs 57 to 62 inclusive
The areas of dispute
41 Concessions made by the defendant, whether in counsel's oral or written submissions, included that:
· the January 2007 injury to the plaintiff's lower back amounted to a compensable injury. This was so, irrespective of whether the nature of the injury suffered in January 2007 was, as Mr Dooley opined, an aggravation of pre-existing degenerative disease or, as many of the other doctors concluded, frank injury to the disc/discs;[42]
[42]TN 39-41
· as at November 2010, when the second employer accepted that the plaintiff had suffered a serious injury (according to the defendant a further aggravation of pre-existing degenerative disease) in respect to both pain and suffering and pecuniary loss, these consequences of lower back injury were fairly described as at least very considerable;
· the plaintiff now has what is commonly called "a light work back" which precludes a return to physical work;[43]
· the January 2007 injury probably continues to contribute to the current pain consequences.[44]
[43]TN 99
[44]TN 83
42 However, the defendant contended that:[45]
[45]TN 6-9
· impairment of the plaintiff’s lower back from the January 2007 injury did not make a material contribution to the consequences described;
· alternatively, if at the date of the hearing the January 2007 injury continued to make a material contribution to the plaintiff's consequences, these were not at least very considerable. In effect, the defendant argued that in the period between November 2010 and the date of hearing the plaintiff's circumstances, particularly with regard to his earning capacity, were improved.
The treatment received and the medico-legal assessments made following the second injury
43 It appears from the four reports tendered[46] that Mr de la Harpe first saw the plaintiff on 2 October 2008. On reviewing the plaintiff on 13 October 2008 (he presented with a normal gait and stance, a full range of movement of the lumbar spine with no neurological abnormality in the lower limbs) and, having by then received the results of the MRI imaging from 9 October 2008 (which he thought "showed some mild degenerative change in the L4-5 and L5-S1 disc but no direct neural compression"), the surgeon diagnosed mechanical and degenerative low back pain without neural compression.[47]
[46]PCB 50- 53 and 54.1-4
[47]PCB 52
44 Apart from recording a past history of some back pain which was also work-related, as I have already mentioned this treating surgeon never obtained a history of the January 2007 injury, nor was he asked in 2008 what, if any, contribution any earlier injury made to the plaintiff's lower back condition. This is the context in which Mr de la Harpe opined that the second injury had aggravated pre-existing degenerative change, demonstrated on the scans obtained by him.[48]
[48]PCB 52 and 54.2
45 In any event, in 2008 Mr de Le Harpe referred the plaintiff for physiotherapy with Backfocus, specifying that the plaintiff undergo a core stabilising exercise program (possibly) combined with some hydrotherapy and gym work. The report from the physiotherapist indicates that the plaintiff commenced this program on 15 October 2008. Allowing for both the plaintiff's evidence and the clinical notes of the general practitioner, it is likely that, as he deposed, the plaintiff attended physiotherapy twice a week for about three months and thereafter once or twice a fortnight.[49]
[49]PCB 12 at paragraph 20 and PCB 59. See also the general practitioner's clinical notes, DCB 39.7-9
46 It appears that the plaintiff was certified by his general practitioner as fit to return to light duties from 28 November 2008.[50]
[50]DCB 39.8
47 In November 2008 and December 2008 respectively the plaintiff was examined on behalf of the second employer by Mr Marshall and by Mr McInnes. Their reports[51] indicate that each specialist had regard to the circumstances relating to the January 2007 injury when he reported that the second injury was an aggravation/exacerbation of a pre-existing injury, i.e. the January 2007 injury.
[51]PCB 68-81
48 They both assessed the plaintiff as fit to return to light work. Mr Marshall said that this work should not involve lifting of anything heavy or repeated stooping and straightening, although for reasons not explained in his report, at the time Mr Marshall appeared to consider that the sort of work performed by the plaintiff with Smorgon ARC prior to the second injury represented light work.[52] Mr McInnes, on the other hand, said that whilst the plaintiff was fit for suitable lighter duties it was unlikely that he would ever return to full-time heavy manual work.[53]
[52]PCB 70
[53]PCB 73
49 Between February 2009 and June 2010 the plaintiff worked with the second employer's rehabilitation providers (IPAR followed by Recovre) to establish himself in alternative duties or employment involving restrictions on bending and lifting.[54]
[54]See the vocational assessment and job seeking materials comprising DCB 41-77 inclusive
50 The reports from the rehabilitation providers and the clinical notes kept by Dr Boyapati show that throughout this period the plaintiff actively applied himself to rehabilitation, retraining and job seeking ("Mr Gauci has presented as a motivated jobseeker"[55] was just one of many comments to this effect).
[55]DCB 62
51 However, having unsuccessfully applied for jobs in the retail and telemarketing area, with the assistance of his girlfriend, in December 2009 the plaintiff commenced employment three hours per day, five days per week at Souvlaki Express. This job apparently involved cutting vegetables and deep frying food.
52 On 10 December 2009, Mr Polke examined the plaintiff at the request of the insurer. He relevantly concluded that the plaintiff’s lower lumbar disc prolapse was a recurrence of the plaintiff's earlier injury and, whilst Mr Polke also concluded that the plaintiff was fit for modified duties, he nevertheless expressed a preference that the plaintiff be retrained for, in his words: "a more sedentary trade."[56]
[56]DCB 16
53 The general practitioner’s clinical notes indicate that in December 2009 the plaintiff required anti-inflammatory medication[57] (to some of which he reported an adverse reaction) to treat ongoing pain, although from late January 2010 (with his doctor's approval), the plaintiff increased his working hours to 5 hours per day, five days per week. The plaintiff did not cope notwithstanding the opportunity to rest when needed and, in February 2010, ongoing back pain led to a cessation of this work. The plaintiff has not since returned to work.
[57]DCB 39.15-16
54 In 2010 the plaintiff was assessed by other orthopaedic specialists, Mr Gard, on 19 May 2010[58] at the request of the plaintiff solicitors and Mr Shannon, on 21 July 2010[59] at the request of the insurer.
[58]PCB 63-67
[59]DCB 19-23
55 Mr Gard spoke of discogenic low back pain from disc bulging at L4/5 and L5/S1 with past episodes of sciatica which were not "currently" a problem. He considered the plaintiff best suited to a retail or office environment where he could move around and was only required to lift light objects. Relevantly, Mr Gard accepted as "quite credible" the proposition that the plaintiff's work post-2006 had significantly contributed to the onset of his discogenic back pain.[60]
[60]PCB 65
56 As I have already noted Mr Shannon was one of a group of specialists who considered that the second injury had aggravated the plaintiff's lower back condition, the symptoms of which had been precipitated by the January 2007 injury. He considered the plaintiff immediately fit for full-time modified or alternative duties, depending on the availability of suitable light work involving restrictions on prolonged or repeated bending and heavy lifting.[61]
[61]DCB 22
57 During 2010 the plaintiff commenced seeing another general practitioner, Dr Andrianakis. It appears that in September 2010 this doctor referred the plaintiff to Mr de la Harpe for review. He also referred the plaintiff to Mr Barrett, who examined the plaintiff in September 2010 and most recently in September 2011.[62]
[62]PCB 55-56.4
58 Having obtained up-to-date MRI imaging ("to rule out in any neural compression"), Mr de Le Harpe, who only dealt with the second injury nevertheless concluded that the plaintiff no longer had a work capacity for pre-injury employment or manual labour, although he did not rule out the possibility that the plaintiff may be employed in more sedentary occupations depending on his educational background, employment history and experience. This surgeon also recommended that any sedentary job allow the plaintiff to get up and move around every 20 to 30 minutes.[63]
[63]PCB 54.2
59 Consistent with the plaintiff's unchallenged affidavit evidence, [64] on review by Mr Barrett in September 2011 the plaintiff evidently reported:
[64]PCB 14-15 at paragraphs 25 to 28 and PCB 16.2 to 16.4 at paragraphs 4, 5, 7 and 9
· ongoing "lower back pain into the right buttock area and shooting pains down his left posterior thigh, calf, associated with some tingling and pins and needles into the left leg area";
· the onset of symptoms in association "with prolonged standing, bending, twisting etc and any lifting, carrying activities and somewhat eased by taking analgesics and lying down for a while";
· sleep disturbance on a nightly basis;
· only brief and temporary relief in the past following physiotherapy;
· that his back pain was the worst symptom which was increasing in its severity.[65]
[65]PCB 56.1
60 As I have already indicated, having also viewed the CT and MRI scans obtained between 2007 and 2010 Mr Barrett concluded that as a result of the January 2007 injury the plaintiff had suffered injury to discs at two levels of his lower spine, which injury was itself sufficient to prevent a return to the plaintiff's pre-injury duties; that this condition was subsequently aggravated and worsened by the second injury and that the January 2007 injury materially contributed to the plaintiff's current symptoms and disability.[66]
[66]PCB 56
61 Mr Barrett was the only specialist to raise the possibility of surgical intervention, either a two-level fusion or a disc replacement procedure. The results of the replacement procedure were, he said, less reliable.[67] The plaintiff has nevertheless expressed a preference for ongoing conservative management of his condition.
[67]PCB 56
62 Dr Boyapati's final report in December 2010 records that when she last saw the plaintiff on 3 October 2010 the plaintiff reported ongoing pain, that he was still having physiotherapy and that he was considering a cookery/hospitality course. As we now know the plaintiff did not pursue this avenue of retraining because his back condition prevented him from completing the work experience component of the course (two weeks work for 40 hours each week).[68]
[68]PCB 13
63 In any event, in her final report to the plaintiff solicitors, Dr Boyapati said that when last examined by her in October 2010, the plaintiff was unfit to return to work in any capacity. The general practitioner declined the opportunity to respond to a question from the plaintiff's solicitors on whether the January 2007 injury had left the plaintiff vulnerable to subsequent aggravation injury, suggesting instead that they seek an opinion from a specialist.[69] As I have already mentioned, the opinions of a number of the specialists[70] support a finding that following the January 2007 injury the plaintiff’s spine was vulnerable to further injury.
[69]PCB 47-48
[70]See for example the reports of Mr Marshall, Mr McInnes, Mr Barrett and Mr Brearley
64 As his further affidavit indicates, between February 2011 and 27 November 2011 the plaintiff undertook and completed a course at Swinburne from which he obtained a Certificate 4 in Multimedia. The plaintiff's perseverance with this course, which he found boring, and his subsequent enrolment in another course, which the plaintiff believes is compatible with his interests - an Advanced Diploma in Building and Construction (Architecture) at NMIT TAFE - demonstrate a strong motivation to develop skills to help him exercise any residual earning capacity.
65 Essentially in this case, one of the questions I must decide is whether further rehabilitation and/or retraining is likely to improve the plaintiff's capacity for suitable employment to a level that would take him over the statutory threshold. The plaintiff's unchallenged evidence is that, notwithstanding retraining, his capacity to undertake full-time suitable employment in the foreseeable future remains very uncertain. This concern was best illustrated by the plaintiff's affidavit evidence to the effect that, due to back pain:
· on average he missed five to six hours per month of the classes for the Multimedia course. This course required the plaintiff to attend for seven hours (including a one-hour lunch break) on Mondays, six and-a-half hours (including a half-hour break) on Tuesdays, three hours on Wednesdays and seven and-a-half hours (with a one-hour break) on Thursdays;
· he was unable to sit in classes for long periods without getting up and moving around;
· he often found it difficult to concentrate.[71]
[71]PCB 16.4
66 In his further affidavit sworn in December 2011 the plaintiff deposed that he tried to manage ongoing pain with Panadeine Forte and Mersyndol and he was taking painkilling medication at least once a day with a stronger dosage at night. By his account, following an adverse reaction to this, the plaintiff had by then ceased using the strong painkilling medication, Tramadol, although from time to time he also resorted to over-the-counter painkillers such as Panadol if his prescription medication ran out.[72]
[72]PCB 16.3
67 In addition to a brief report from Dr Andrianakis dated 21 September 2011 medico-legal reports were obtained from Mr Dooley in June 2011 and, lastly, from Mr Brearley on 30 September 2011.
68 Whilst Dr Andrianakis’ report is not particularly informative it nonetheless indicates his opinion (no doubt in part informed by the advice he received from Mr Barrett) that the January 2007 injury is "the major" contributor to the plaintiff back condition. In 2011 this general practitioner was, however, alone in reporting that the plaintiff has no capacity for alternative duties, if by this statement he intended to suggest that, even with retraining, the plaintiff could not undertake any suitable alternative employment in the future.[73]
[73]PCB 59.1
69 As I have already mentioned, Mr Dooley attributed the plaintiff's ongoing lower back pain to degenerative disc disease, albeit a pre-existing condition aggravated by various episodes during the course of the plaintiff's employment with the defendant and with the second employer. He was the only doctor to question the constancy and intensity of the plaintiff's reported lower back pain and his use of strong painkilling medication.
70 By and large, the reasons for Mr Dooley's opinions were not explained in any detail. Moreover, his conclusions were out of step with the medical evidence and the opinions expressed through the other material tendered. These matters and the concession by the defendant's counsel that the plaintiff was not fit for physical work suggest that Mr Dooley's further conclusion, that the plaintiff is capable of carrying out light physical work and clerical duties, is not a reliable basis upon which to determine the extent of the plaintiff's loss of earning capacity.[74]
[74]DCB 26
71 Mr Brearley, who was the last of the medico-legal specialists to examine the plaintiff on 30 September 2011[75] diagnosed intradisc damage to the L4/5 and L5/S1 intervertebral discs with protrusion and right-sided sciatica due to pressure on the L5 nerve root intermittently. The plaintiff's report that this symptom (the sciatica) has improved over the past year or two is consistent with his earlier report to Mr Barrett that back pain was his worst symptom.
[75]PCB 67.1-67.6
72 In Mr Brearley's opinion the January 2007 injury caused the discal damage whereas the second injury, a more traumatic incident, represented a major exacerbation. Mr Brearley's opinion that the plaintiff "will need to seek permanently lighter work" accords with the general consensus that any residual capacity is limited to light duties which allow the plaintiff to avoid lifting (beyond 10 kg) and to avoid "repetitive lifting and repeated bending, stooping, twisting and turning and long-standing and walking", although, Mr Brearley clearly felt that the plaintiff retained the capacity to work full-time in suitable light employment.[76]
[76]PCB 67.5
73 I note that, of the treating and medico-legal specialists who reported on the plaintiff's physical capacity to work, Mr Shannon was the only other similarly-minded specialist who (in July 2010) considered the plaintiff fit to perform suitable light duties full-time. Ultimately this is a question of fact, which calls for analysis of all of the evidence concerning the plaintiff’s physical capacity to sustain regular full-time employment to which the plaintiff is suited having regard to factors such as the nature of his incapacity, his age, education, skills and work experience.
The consequences
74 Based on materials before me, the consequences of ongoing impairment of the plaintiff's lower back can be summarised as follows:
· lower back pain since the January 2007 injury, which at times involved pain down both his legs, although this was most frequently experienced in his right leg. Following the second injury, the level of the plaintiff's back pain and frequency of pain down his legs increased. Currently the severity of his back pain fluctuates depending on the level of activity undertaken by the plaintiff.[77] In his first affidavit the plaintiff deposed to experiencing sharp pain if he bends, stretches or twists his back "too much" or uses his back to lift weights exceeding 5 kg. The plaintiff sought to illustrate this problem when he deposed that, whilst working at Souvlaki Express, other workers had to bend to pick up items located near the floor and, whilst the plaintiff was able to squat he found getting up painful;[78]
[77]PCB 16.2
[78]PCB 14
· restricted mobility inasmuch as prolonged standing (more than about an hour) increases the plaintiff's discomfort. After 20 minutes of walking - part of the exercise regime recommended by the plaintiff's physiotherapist - the plaintiff said he experienced tightness in his lower back;
· restricted sitting capacity inasmuch as the plaintiff said that sitting for more than about an hour increases back pain;
· an inability to drive for prolonged periods. The plaintiff said that he restricts his driving to no more than 35 minutes during off-peak periods. Driving still apparently produces back pain and when his back pain is worse the plaintiff said that, to enter or exit a vehicle, he has to support himself by holding on to some part of the vehicle;[79]
[79]PCB 14
· regular sleep disturbance, particularly after the plaintiff has been active during the day. Relevantly, the plaintiff deposed that when he previously worked at Souvlaki Express he was woken by a back pain "nearly every night";[80]
[80]PCB 14
· back stiffness in the morning with difficulty getting out of bed. The plaintiff apparently mobilises by doing stretching exercises in bed;[81]
[81]PCB 15
· difficulties with his personal hygiene such as an inability to bend to wash or dry his feet when showering;
· ongoing and regular use of prescription and over-the-counter painkilling medication (the plaintiff's preference being to avoid using the stronger painkilling medication). The plaintiff also deposed to using heat patches (day and night) and a TENS machine;
· restriction on his sporting and recreational activities. For instance, prior to the January 2007 injury the plaintiff played indoor soccer for two different teams twice a week, he trained twice a week with a professional boxer, he did some panel beating work at home on his friends’ cars and he enjoyed riding a motorbike. As a consequence of this injury the plaintiff gave up boxing and the panel beating activities. He also gave up playing with one of the soccer teams and whilst the plaintiff continued to play (not as often or as consistently as before and in circumstances where on occasions playing increased the level of back pain) at times back pain prevented him from playing or restricted his ability to play. However, it appears that the plaintiff continued to ride a motorbike until increased pain (even getting the leg over the bike) following the second injury also brought this activity to an end;[82]
[82]PCB 15 and 16.2
· restrictions in his social life such that he now avoids activities involving sitting and standing;[83]
[83]PCB 16
· difficulties in his sexual relations because sexual activity increases back pain;
· an inability to return to pursue a career in physical or manual occupations. This and the plaintiff's inability to work isolate him from his peer/friendship group most of whom the plaintiff said were tradesmen and have their own businesses.[84]
[84]PCB 16
75 In this case the plaintiff has not been pain free or capable of sustained part-time or full-time alternative employment since he suffered compensable injury to his lower back in January 2007. The second injury, itself a significant traumatic episode, arguably aggravated/exacerbated the condition of an already significantly impaired body function.
76 Based on all of the relevant (and some would suggest compelling) evidence the plaintiff has satisfied me that the compensable injury (the January 2007 injury) probably is a material cause of the consequences of which the plaintiff currently complains.
77 The Court of Appeal has now confirmed that where a plaintiff satisfies the test in respect to the loss of earning capacity consequence he or she is also entitled to bring common law proceedings for any pain and suffering consequence. For this reason I propose to deal with this aspect of the application first.
Loss of earning capacity
78 I have already discussed in some detail the plaintiff's employment history and the efforts made by him to undertake alternative employment and to retrain following the January 2007 injury.
79 As I have already mentioned, the plaintiff has not worked since he left his employment with Souvlaki Express in early 2010.
80 The skills audit conducted by the rehabilitation provider, IPAR, in February 2009 identified a range of skills (including some aptitude with computers) which might be applied in sedentary work. No doubt the Certificate 4 in Multimedia studies has also enhanced the plaintiff’s skills base, although he still has a long way to go (perhaps years) to complete the most recent course in which he is currently enrolled.
81 The plaintiff is a very young man who started his working life and probably expected to pursue a career as a plumber, exercising his earning capacity in physical/manual work. However, whilst the evidence indicates some residual physical capacity for light work in sedentary occupations, the plaintiff has satisfied me that he has a likely permanent (that is for the foreseeable future) loss of earning capacity which will be productive of financial loss of 40% or more.
82 In reaching this conclusion, amongst other things, I took into account the most recent NES Refresher Assessment Report & Plan submitted in June 2010 [85] and tendered by the defendant. Suitable employment options identified in this report and on which the defendant relied included full-time employment as a kitchen-hand, security guard or as an ICT Support Technician.
[85]DCB 70
83 However, history has demonstrated that impairment of the plaintiff’s lower back likely precludes working full-time hours for the foreseeable future, whether or not this involves working in a shop or any other environment which also accommodates breaks as and when required. The plaintiff's experience with Souvlaki Express, when he tried to increase his hours from 15 hours to 25 hours per week and his recent experience whilst studying in 2011, are strong indicators that, in addition to an inability to undertake physical work, the plaintiff's residual capacity to sustain even suitable employment (that is employment for which he is suited, having regard to factors such as his age, education, skills, work experience and medical condition) is likely significantly impacted by ongoing pain and disability.
84 Accordingly, applying the test under the Act, by reason of the ongoing impairment of the plaintiff's lower back:
· I was satisfied that when judged by comparison with other cases in the range of possible impairments or loss of a body function, the plaintiff's loss of earning capacity is fairly described as more than significant or marked, and as being at least very considerable;
· I was further satisfied that rehabilitation and retraining are unlikely to improve the plaintiff's capacity for employment to a level that would take him over the statutory threshold; and
· I find that the plaintiff will likely after the date of hearing continue permanently to have a loss of any capacity which will be productive of financial loss of 40% or more.
Orders
85 Leave is granted to the plaintiff to bring proceedings for damages in respect of the pain and suffering and loss of earning capacity consequence of injury to his lower back suffered in the course of his employment with the defendant in about January 2007.
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Certificate
I certify that these 26 pages are a true copy of the reasons for judgment of Her Honour Judge Millane delivered on 6 March 2012.
Dated: 6 March 2012
Hannah Christensen
Acting Associate to Her Honour Judge Millane
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