Goodwyn v Victorian WorkCover Authority
[2016] VCC 1590
•28 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03342
| PAUL DAVID GOODWYN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2015 | |
DATE OF JUDGMENT: | 28 October 2016 | |
CASE MAY BE CITED AS: | Goodwyn v Victorian WorkCover Authority | |
| MEDIUM NEUTRAL CITATION: [First revision 22 November 2016] | [2016] VCC 1590 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – pain and suffering – loss of earning capacity – suitable work
Legislation Cited: Accident Compensation Act 1985, Section 134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Richter v Driscoll [2016] VSCA 142; Whisprun Pty Ltd v Dixon [2003] HCA 48; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC | Arnold Thomas & Becker |
| For the Defendant | Ms S Gold | Hall & Wilcox |
HIS 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 to the lumbar spine suffered by the plaintiff in the course of his employment with the defendant on 16 August 2010 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and s134AB(38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon three affidavits sworn 4 March 2014, 28 August 2015 and 5 November 2015[1] 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.
[1]Exhibit “A”
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 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 the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
9 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.
10 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.
11 Sub-sections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Sub-section (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Sub-section (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Richter v Driscoll[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3][2016] VSCA 142
15 The defendant concedes the plaintiff suffered an injury to his lumbar spine on 16 August 2010, but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above. In addition, the defendant submits that the plaintiff’s credit is sufficiently impugned, such that the medical reports favourable to him are rendered of lesser weight because the plaintiff has not provided accurate histories with respect to the level of medication he is ingesting on account of the injury.
Background
16 The plaintiff was born in June 1966 and is aged fifty years. At school, he commenced Form 4 (Year 10), but did not finish the year. Thereafter, he commenced an apprenticeship as a boilermaker, but did not complete same. Since that time, he worked in various manual jobs in construction and engineering. He performed a lot of welding and working on construction sites. He was employed by Transport Permanents Pty Ltd as a truck driver. The truck bodies contained curtains which he alleges would jam. They hung from rollers and were on an aluminium track. It was alleged the track was in sections, but were not welded together in a seamless manner, so that the rollers would easily jam. To close the curtains, one used an aluminium pole which connected to the front of the curtain, then would be pulled closed.
17 On 16 August 2010, the plaintiff sworn that having dropped off a delivery in Altona, he was closing the curtain in the manner described, when it jammed and he wrenched his back. He did not complete his run and attended the employer’s doctor in Laverton North. Thereafter, he attended his own general practitioner at the Roxburgh Park Superclinic.
18 The plaintiff’s general practitioner, Dr Fareed Ahmed, referred him for physiotherapy from Dr Andrew Hahne and also to a neurosurgeon, Mr Maartens. The former administered physiotherapy treatment for approximately twelve months and the latter organised for the plaintiff to have some cortisone injections, which were performed at the Royal Melbourne Private Hospital.
19 The plaintiff was off work for a couple of months and then returned on modified duties. Apparently these modified duties were pursuant to “return-to-work arrangements” dated 11 May 2011, 8 June 2011 and 26 July 2016.[4] In approximately March 2012, the light duties offers were withdrawn and shortly thereafter, the employer went into receivership.
[4]Exhibits 6, 7 and 8 respectively
20 The plaintiff never returned to work thereafter and he continued to be certified fit for light duties.[5] On 16 September 2012, his general practitioner noted:
“Patient came in for capacity certificate as usual – monthly. Patient says he would like to include unfit duties from 24/09/12. Patient says he is not employed anymore so no point to do modified duties then.”[6]
[5]Exhibit 15
[6]Exhibit 14
21 In June 2012, the plaintiff underwent retraining and obtained his White Card and completed a traffic controller course. In October 2012, he underwent forklift training and in November 2012, underwent stock picker training. Prior to his injury, he held a heavy rigid (truck) licence and a Victorian drivers licence. Post-injury, he obtained a forklift licence and a stock picker’s licence.[7]
[7]Vocational Assessment, 8 February 2013, Exhibit 10, Defendant’s Court Book (“DCB”) 134
22 On 12 October 2010, the treating neurosurgeon, Mr Maartens, recommended facet-joint injections at L2-3 and L3-4.[8]
[8]Exhibit “D”, Plaintiffs Court Book (“PCB”) 28
23 In late 2012, the plaintiff moved to Walpeup in North Western Victoria, as he was unable to afford to continue living in suburban Melbourne.
24 Having undergone a facet-joint block procedure in March 2013, he was last reviewed by Mr Maartens on 5 April 2013 and reported that the facet-joint blocks had not conveyed benefit. Mr Maartens did not recommend surgery.[9]
[9]Exhibit “D” (supra), PCB 29
25 The plaintiff continued to be treated at the Roxburgh Park Superclinic until approximately January 2014. Thereafter, he attended the Mallee Track Health & Community Service, which was apparently attached to the Ouyen Hospital. It was there that he came under the care of Dr Obatoki. Prior to this transfer, he had been prescribed Panadeine Forte at Roxburgh Park on 24 August 2013.[10]
[10]Exhibit 14
26 Between 22 January 2014 and 3 April 2014, it would appear that the plaintiff was treated for a cervical complaint at the Mallee Track Medical Centre, but not for his lumbar spine.
27 On 27 May 2014, the plaintiff last attended the Roxburgh Park Superclinic and was prescribed Panadeine Forte for his lumbar spine. This was the last listed prescription of that medication, although the plaintiff asserts he was provided with five repeats on that occasion.[11] It would appear that after this date, in any event, the ingestion of Panadeine Forte was irregular, and there was no medical treatment after 27 May 2014.
[11]Transcript (“T”), Lines (“L”) 6-7
The issues
28 Defence counsel relied on the paucity of medical treatment for the lumbar condition and the diagnosis from the treating neurosurgeon, Mr Maartens, to the effect that there was “mild lumbar spondylosis”[12] and Mr Maartens referring to the “unimpressive changes on his MRI scan”.[13]
[12]Exhibit “K”, PCB 71
[13]Exhibit “D”, PCB 26
29 Further, defence counsel submits that the plaintiff has a wide variety of transferrable skills which he was able to demonstrate, performing light duties with the employer up until March 2012 and, accordingly, he is fit for suitable work on a full-time basis, such that he would not meet the statutory threshold for loss of earning capacity.
30 Defence counsel also submitted the plaintiff’s credit is impugned with respect to prescriptions for Lyrica and Panadeine Forte, rendering favourable medical evidence unreliable.
31 The plaintiff’s counsel submits the plaintiff has marked degenerative change at a number of levels, together with disc protrusion, which has essentially rendered him unemployable for suitable work, given the criteria set down in s5 of the Act.
Identifying compensable injury
32 Dr Fareed Ahmed, the treating general practitioner at Roxburgh Park Superclinic, reported on 5 May 2013,[14] to the following effect:
[14]Exhibit “B”
“He suffered back injury as a result of work related accident on 16/8/2010.
Diagnosis:
Annular teat to L2/L3 disc posteriorly , Diffuse Buliging (sic) at L2,3,4, 5 and S1
Treatment:
He has been receiving Physiotherapy and hydrotherapy since Back injury. He has been consulting Neurosurgeon Mr Nicholas Maartens for his back injury who suggested Physiotherapy and analgesics. He Consulted Mr Maartens on 5th April 2013 and suggested him Surgery, but Paul has refused to undergo for Back surgery. Mr Maartens then advised him to take Back Brace to support his Back and reduce pain while [undergoing] physical activities.Mr Maartens has no further follow up for him unless any deterioration in his back pain.
Present Restriction:
[The plaintiff] can not Bend or twist his back and can not stand or sits longer hours. He gets numbness to his Rt Lateral side of thigh region.
At this Stage he is unable to perform any job.His back pain is now more stabilised.
…
I … noticed he is suffering from Anxiety and Mood swings. I re[f]erred him for Counselling too. He has been receiving Counselling Via Psychologist.[15]
(sic)
[15]Exhibit “B”, PCB 18
33 The treating physiotherapist, Dr Andrew Hahne, in a report dated 28 June 2013, stated that the plaintiff commenced treatment in July 2011, following an earlier program from an unnamed physiotherapist. At that stage, he was waking two to three times per night due to pain and he was requiring Tramal, Voltaren, Panadeine Forte and antidepressants. The plaintiff reported he could no longer perform many of his pre-injury daily and recreational activities including gardening, lawn mowing, washing his car and picking up his granddaughter.[16] He related that a lumbar spine MRI scan report dated 21 February 2011 described a right posterolateral focal disc protrusion at L2-3 with an associated annular tear, with displacement of the right L3 nerve root. Slight bulges at L3‑4, L4-5 and L5-S1 were also described. Another lumbar spine MRI scan dated 24 January 2012 describes reduction in the L2-3 disc protrusion, but deterioration in the L3-4 and L5-S1 discs which are now reported as being “extrusions with impingement of the L3 and L4 nerve roots”.[17] His diagnosis was one of “multilevel discogenic low back pain and associated referred right leg pain. The injuries were evident on [the plaintiff’s] two MRI scans”.[18] He was last treated in January 2013.
[16]Exhibit “C”, PCB 21
[17]Exhibit “C”, PCB 21
[18]Exhibit “C”, PCB 21
34 Treating neurosurgeon, Mr Nicholas Maartens, reported on six occasions, being 4 February 2011, 11 May 2011, 13 January 2012, 22 March 2012, 12 October 2012 and 5 April 2013.[19] The plaintiff’s presenting complaint was that of lower back and right buttock pain as a consequence of the reported injury at work on 16 September 2010. Mr Maartens recorded he was put off work for eight weeks and underwent intensive physiotherapy twice weekly, accompanied by hydrotherapy and TENS. He was prescribed Panadeine Forte without much benefit. On the first occasion, Mr Maartens recorded:
“He still experiences tingling beneath the foot and the lower back pain has probably been progressive. He is still working on restrictive hours, light duties approximately eight hours per day. He has difficulty standing straight in association with his lower back pain and he has no positive sneeze impulse. The pain is worse on bending over and sitting in a low seat.”[20]
[19]Exhibit “D”
[20]Exhibit “D”, PCB 23
35 He recited that the CT scan of the lumbar spine performed on 25 October 2010:
“… shows mild lumbar spondolytic (sic) changes with a diffuse annular disc bulge – predominantly right sided at L2/3 and diffuse annular disc bulges at L3/4, L4/5 and L5/S1.”[21]
[21]Exhibit “D”, PCB 24
36 In his second report, Mr Maartens noted the MRI scan on 21 February 2011 demonstrated that there is some:
“… subluxation (sic) on L2/3 with retrolisthesis in extension … .
I have strongly advised him that he should manage his back pain conservatively. Should the pain become more severe, chronic and restrict from being able to drive, then he would require review in my rooms … .”[22]
[22]Exhibit “D”, PCB 24
37 On the third occasion, on 13 January 2012, Mr Maartens reported that the plaintiff:
“… appears to have progressed despite the unimpressive changes on his MRI scan. These seem very disproportionate to the symptoms he experiences and there was significant pain behaviour prior to and during the consultation in my rooms today.
…
I am arranging for a repeat MRI scan of his lumbar spine together with a bone scan and will review him with the outcome before deciding how best to proceed.”[23]
[23]Exhibit “D”, PCB 26
38 On the fourth occasion, Mr Maartens reviewed the MRI scan and the bone scan and was arranging for him to have an x-ray of his pelvis and sacroiliac joints and would review him.[24]
[24]Exhibit “D”, PCB 27
39 On the fifth occasion, being 12 October 2012, he recorded:
“[The plaintiff] continues to take Tramadol and Panadeine Forte which only helps marginally.”[25]
[25]Exhibit “D”, PCB 28
40 The diagnosis was as follows:
“He has an annular tear at L2/3 and facet joint disease at L3/4. I cannot determine any other cause for his symptoms and his pain is localised to this region.
…
It is possible that he may benefit from facet joint injections at L2/3 and L3/4 particularly at L3/4, and as an interim measure I am requesting WorkCover permission for this to be done.
I will review him in three months’ time to monitor his progress … He is undergoing physiotherapy and I believe a request has been made for hydrotherapy. At present he is still not working.”[26]
[26]Exhibit “D”, PCB 28
41 On the sixth occasion, being 5 April 2013, Mr Maartens took a history that the facet-joint block “did not convey any benefit”.[27] He stated:
“The MRI findings show the annular tear at L2/3 with some desiccation, but otherwise reasonable maintenance of disc height. His bone scan was normal.
As the facet joint block did not convey any benefit I am not sure that there is any surgery that can be offered to Mr Goodwyn at this stage. He continues to complain of lower back pain predominantly right sided and pain in both buttocks. I would suggest that he continue with the physiotherapy and that we get him a back brace. At present he is both not working and also unemployed because of his previous employer’s business folding and remains on WorkCover benefits. Mr Goodwyn has also indicated that he would also not want to consider any surgery to his back – which may be the best course of action at this stage and simplies (sic) decision making.
I have not arranged further follow up, but should his pain become exacerbated I would be happy to review him at short notice.”[28]
[27]Exhibit “D”, PCB 29
[28]Exhibit “D”, PCB 29
42 The defendant had the plaintiff examined by surgeon, Mr Peter Battlay, on 10 January 2013. He had available the CT scan dated 25 October 2010 and the MRI scan dated 21 February 2011.[29] He considered that the former investigation –
“… showed a moderate sized right paracentral L2/3 disc protrusion with bulging of the last three discs.”[30]
[29]Exhibit “K”
[30]Exhibit 2, DCB 2
43 The MRI scan of 21 February 2011 –
“… confirmed a focal disc protrusion at L2/3 and the lower lumbar disc degenerative changes.”[31]
[31]Exhibit 2, DCB 9
44 He considered the plaintiff –
“… appears to have sustained an L2/3 disc derangement and aggravated lumbar spondylosis of the back.”[32]
[32]Exhibit 2, DCB 9
45 At that stage, he was taking two Panadeine Forte tablets and occasionally Tramadol tablets. Mr Battlay thought the medication was reasonable.
46 Thereafter, the defendant had the plaintiff examined by orthopaedic surgeon, Mr Michael Dooley, on 18 June 2014. His report was tendered by the plaintiff.[33] He took a history the plaintiff “takes Panadeine Forte for his pain and he is on antidepressant medication”.[34] He took a further history that:
“…by pacing himself, [the plaintiff] can carry out his household chores. He said he mows his lawn over a period of a week. He lives on a block of around 1 acre.”[35]
[33]Exhibit “L”
[34]Exhibit “L”, DCB 16
[35]Exhibit “L”, DCB 16
47 He also reviewed the CT scan of 25 October 2010 and the MRI scan of 21 February 2011, with similar findings to that of Mr Battlay. He also noted that the plane x-rays of the lumbar spine noted a retrolisthesis of L2 on L3. He further noted that the MRI scan of January 2012 reported that:
“… the previously noted right disc extrusion at the L2/3 level has reduced significantly. On the left side at L3/4 and L4/5 levels, disc protrusion is noted.”[36]
[36]Exhibit “L”, DCB 17
48 He further noted:
“Mr Goodwyn has naturally occurring and age-related degenerative disc disease of the lumbar spine. Mr Goodwyn described the onset of acute low back pain during the course of his work in August 2010 when manoeuvring a truck curtain. I believe that in this episode Mr Goodwyn aggravated underlying degenerative disc disease of the lumbar spine and may have sustained a disc prolapse on the right side at the L2/3 level. He has reported persistent ongoing low back pain, without lower limb pain. Subsequent radiological investigation has shown diminution of the disc prolapse in time. It suggests the development of further disc prolapsed (sic) on the left side at the L3/4 and L4/5 levels. This is a not unusual finding.
…
It is now approaching four years since the work-related episode. Overall, it would be my view that Mr Goodwyn’s ongoing symptoms are in keeping with symptomatic degenerative disc disease. I believe that he has had an understandable psychological reaction to his situation and that this reaction does influence his ongoing symptoms.”[37]
[37]Exhibit “L”, DCB 17
49 Mr Dooley then stated:
“From an orthopaedic point of view, the appropriate treatment for Mr Goodwyn is for him to continue to undertake regular low-impact exercise and to sensibly modify his activity. Overall, he presents as a sensible and genuine historian … He does not require ongoing formal conservative treatments and there would be no indication to consider surgical intervention in his management.”[38]
[38]Exhibit “L”, DCB 17
50 Further, he considered that the plaintiff had a loss of body function or impairment resulting from the compensable injury, which was likely to continue for the foreseeable future, and he considered that the plaintiff’s reported pain and restrictions were consistent with the expected clinical course, taking into account the mechanism of injury, the radiological and clinical findings and the time elapsed since the alleged injury.[39]
[39]Exhibit 6, DCB 18, Questions 6 and 7
51 Thereafter, the defendant had the plaintiff examined by surgeon, Mr Jonathan Hooper, on 9 July 2015.[40] On that occasion, it was his opinion:
[40]Exhibit 8
“… this man strained his back in an incident at work as described, though no x-rays were made available. The CT and MRI of his back reveal he does have evidence of multi-level degenerative disc disease in his lumbar spine … .
…
… The diagnosis is of chronic, degenerative disc disease and low back pain and sciatica.
…
The incident at work precipitated the onset of symptoms. It can be regarded now that the continuance are attributable to the age related degenerative changes that are seen in his lumbar spine radiologically.”[41]
[41]Exhibit 8, DCB 42-43
52 It should be noted, however, that Mr Hooper does not say when the effect of the precipitation of symptoms, caused by the incident at work, ceased to have effect, or on what basis.
53 The defendant had the plaintiff examined by specialist occupational physician, Dr Dominic Yong, on 17 August 2015. It would appear that he was provided with the NES Vocational Assessment Report dated 28 March 2012,[42] but not the Resolve 130-Week Vocational Assessment dated 8 February 2013, which was provided to Mr Dooley.[43] He reviewed a number of radiological investigations, including the CT scan of 25 October 2010, the MRI scan of 21 February 2011, the MRI scan of 24 January 2012 and the MRI scan of 31 March 2015. The latter investigation revealed:
“… nominal disc bulge at L2/3 with no neural compression. It noted a diffuse broad based asymmetric disc protrusion the left L3/4 with annular fissuring and left marginal osteophyte resulting in moderate stenosis of the exit foramen. There was mild compression of the exiting extra foraminal left L3 nerve root. It also noted diffuse asymmetric broad based disc protrusion at L4/5 with a left marginal osteophyte compressing the exiting extra foraminal left L4 nerve root. It noted normal disc bulge at L5/S1.”[44]
[42]Exhibit 9
[43]Exhibit 10
[44]Exhibit 10, DCB 49
54 He summarised the condition as:
“… a discal injury of his low back without any evidence of a radiculopathy.”[45]
[45]Exhibit 10, DCB 51
55 The plaintiff’s solicitors also had their client examined by occupational physician, Dr David Middleton, on 29 July 2015. He had to hand the same radiological examinations as Dr Yong, and commented similarly.[46] It was Dr Middleton’s opinion that the plaintiff:
“… suffered a severe aggravation of previously asymptomatic, age related degenerative disease of the lumbar spine. It is my opinion that the injury at work on the 16th of August 2010 resulted in derangement of the L2/3 and L3/4 lumbar discs, both of which subsequently developed disc protrusions resulting in lumbar instability maximal at L2/3 with nerve root irritation predominantly involving the right L2 nerve root, but also the L3 nerve root.”[47]
[46]Exhibit “E”, PCB 35-36
[47]Exhibit “E”, PCB 42
56 It would appear that the general consensus of opinion from all medical practitioners, is to the effect that the plaintiff had aggravated pre-existing degenerative changes at probably three levels of his lumbar spine, such that disc protrusions have resulted at L2-3, L3-4 and L4-5, which, in turn, would be consistent with the opinions expressed that the pain is now chronic, with permanent consequences. Although Mr Maartens referred to “significant pain behaviour”[48] during his consultation, and Mr Dooley recorded that the plaintiff “has had an understandable psychological reaction to his situation and that this reaction does influence his ongoing symptoms”,[49] it would appear that all medical practitioners accept that there is an ongoing physical basis for the symptoms complained of and, accordingly, no disentangling is required.[50]
[48]Exhibit “D”, PCB 26
[49]See paragraphs 48 and 49 above
[50]See Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167 and Meadows v Lichmore Pty Ltd [2013] VSCA 201
Consequences
(a) Physical activities
57 In his affidavit sworn 4 March 2014, the plaintiff stated:
“7. I continue to have a burning pain in my lower back, to the right side. It is there pretty much all the time. I have to live with it. It is made worse by long periods of sitting or standing. By the end of the day, it is really quite bad. I do what I can in my house but I am limited. For example, I cannot mow all of my lawn and when I do any mowing, I have to do a small section at a time and I am then in a bad way for several days. In terms of household chores, when I am living alone I have to do them but it is slow and painful. I am limited in driving to maybe an hour at a time before I need a rest.
8. I am aware that a vocational assessment has been undertaken at the request of the WorkCover insurer. In terms of the options identified, I say as follows. I do not think I could drive a forklift. I am familiar with that job. Forklifts do not have a suspension and the seats are usually not padded. Accordingly, it is very hard on the spine and I could not do it. I have never done store work, but I have restrictions on bending, lifting, twisting, pushing, pulling and prolonged sitting or standing, so I do not think I could do store work. I cannot drive for the long periods required of a delivery driver, or do the heavy work required of a labourer.
… .”[51]
[51]Exhibit “A”, PCB 12-13
58 In his supplementary affidavit sworn 28 August 2015, the plaintiff swore:
“3. “After my injury, I moved to the above address because of this injury. I had a small superannuation payout and I bought this house. I had had enough of Melbourne and I had no work prospects. I live alone, on a house on an acre of land. It is a small house and does not need much attention. I have to clean it, but I don’t make much mess. I do the housework slowly. If I have to vacuum that is hard, even though I have an upright vacuum. There is not much lawn to mow; it is mostly bush. When I bought the property, it had a swimming pool. I had that cleaned up and filled but then I found that I could not cope with the maintenance and so now it is empty and derelict.
4. There is no real treatment available save for visiting the doctors at nearby Ouyen Hospital. I just take medication. I take Lyrica and Panadeine Forte, which is prescribed by a doctor at the Ouyen Hospital. I try to go for a daily walk to exercise and to help my back. I don’t have any other exercise. I watch TV a lot of the time but I have to sit, or stand, or wander around when I am watching.
5. I used to hunt and I would like to hunt the game that is available, kangaroos and wild pigs and so on, but I am unable to do that.
6. I continue to have pain in my right lower back. It is there all of the time but is made worse by driving, by standing too long, by walking around for too long, or by doing such things such as unloading the washing machine or hanging out my clothes.
7. I live a very limited life. I have virtually no social life. I keep in touch with my ex-wife Pam. We are on good terms. I also keep in touch with my stepsons.
8. My sleep is not very good. I have to get up often during the night, having been woken by pain. I don’t work on my own car. I used to maintenance my car myself and like fiddling with cars; I would also look after the cars of my family members, and I would often help with the cars of my friends. Since moving to the country, I have had a flat tyre on one occasion but I did not even attempt to change that. I just drove the car slowly around to the local mechanic in Walpeup.”[52]
[52]Exhibit “A”, PCB 15-16
59 I accept defence counsel’s submission that the reference to Lyrica in paragraph [4] was impliedly with respect to the lower back, when it was prescribed for his cervical spine. I will refer to this matter later.
60 In his third affidavit sworn 5 November 2015, the plaintiff stated he could not remember who first prescribed Lyrica for him and that if the clinical notes suggested it was prescribed for cervical pain, he would not contest that assertion. However, he attested he no longer had cervical pain and any prescription for Lyrica was obtained for the purpose of treating his lower back problem.[53] Further, the plaintiff swore that his marriage had broken down because of the effects of the injuries to him. He swore:
“I became very irritable and difficult to live with, and as a result my wife and I separated. I remain on excellent terms with her and she is a very good friend, but she says that she cannot live with me.”[54]
[53]Exhibit “A”, PCB 17(B) at paragraph [6]
[54]Exhibit “A”, PCB 17(B) at paragraph [10]
61 Further, the plaintiff swore that he could not drive for long periods.
(b) Treatment and medication
62 With respect to the Lyrica medication, the plaintiff’s counsel opened the matter on the first day of hearing that the plaintiff had recently had a recurrence of neck and shoulder pain for the first time in a year. The plaintiff was thus taking Lyrica, but was rarely taking any Panadeine Forte because it constipated him.[55]
[55]T6, L21-29
63 In his affidavit sworn 28 August 2015, the plaintiff swore:
“4. There is no real treatment available save for visiting the doctors at nearby Ouyen Hospital. I just take medication. I take Lyrica and Panadeine Forte, which is prescribed by a doctor at the Ouyen Hospital.”[56]
[56]Exhibit “A”, PCB 16
64 This is to be contrasted with the history obtained by Professor Teddy, neurosurgeon, who reported on 15 May 2015 to the following effect:
“[The plaintiff] had physiotherapy that was stopped by his insurance company. He has used a TENS machine and had hydrotherapy and exercises. After a while, all conservative treatment stopped and over the past year he has had no formal management.”[57]
[57]Exhibit “G”, PCB 57
65 Further, Mr Dooley, in his report dated 18 June 2014, asserted:
“He does not require ongoing formal conservative treatments and there would be no indication to consider surgical intervention in his management.”[58]
[58]Exhibit “L”, DCB 17
66 With respect to defence counsel’s submission that the plaintiff intentionally misled the Court with respect to ongoing treatment for his lower back pain by way of prescription for Lyrica, he was cross-examined as follows:
Q: “Going to paragraph 6 of that second [scil third] affidavit, ‘I now cannot remember who it is that first prescribed Lyrica for me. If the clinical notes suggest it was prescribed for cervical pain, I cannot contest that.’ Well, we’ve resolved that, haven’t we? You now recall - - -?---
A: Yeah.
Q: - - - that you were prescribed Lyrica for cervical pain, which is neck pain?---
A: Yeah – oh yeah, yep.
Q: And for the shooting pain down - - -?---
A: Yeah.
Q: You remember that clearly now?---
A: Yeah.
Q: ‘However, I no longer have such pain and any prescription for Lyrica is obtained by me for the purposes of treating my lower back problem.’ Is that right?---
A: Is – sorry, I didn’t hear.
Q: ‘However, I no longer have such pain’ – that’s the cervical pain?---
A: Yeah.
Q: As of November?---
A: Yeah.
Q: You’ve updated that and said yes, you’ve had a recurrence of that pain?---
A: Yeah.
Q: But as of November, your position was ‘I no longer have such pain and any prescription for Lyrica is obtained by me for the purposes of treating my lower back problem.’?---
A: No, I don’t get it for that.
Q: No, you don’t take Lyrica?---
A: No.
Q: So that second – sorry, that third affidavit that you swore on 5 November 2015 – that’s not quite right about your medication either, is it?---
A: No, I don’t take Lyrica for my lower back.
Q: And your evidence is that you haven’t taken Lyrica for some time?---
A: No, yeah.
Q: But recently you have been taking it?---
A: Yeah, yeah.
Q: And you’ve been taking it for that flare up of your neck and that condition?---
A: Yeah.
Q: So to suggest that Lyrica has anything to do with your lower back problem - - -?---
A: No.
Q: - - - that’s totally incorrect, isn’t it?---
A: No, that’s right, yeah.”[59]
[59]T36, L14-T37, L18
67 In my view, the manner in which the plaintiff answered these questions was more in keeping with one who is guileless rather than deceptive. However, these answers are in keeping with the history taken by Professor Teddy, referred to above.
68 In re-examination, he was asked about a prescription for Lyrica he obtained in June 2015, but he stated he did not have it acted upon until 20 September 2015. He was asked:
Q: “At that stage, were you having neck pain? That’s about two and a-half months ago?---
A: No, no, I was just - - -
Q: So why did you fill the prescription?---
A: My back was just giving me trouble and I was just – I was desperate for something, you know, and - - -
Q: And did it help? - - -
Q: No. Not really. They just knocked me out for a few hours, those Lyrica.”[60]
[60]T72, L2-T72, L8
69 Overall, I do not think the discrepancies outlined with respect to prescriptions for Lyrica and Panadeine Forte, and the paucity of treatment from his general practitioner, is fatal to this litigant. I have referred to the histories obtained by Professor Teddy and Mr Dooley and, overall, my impression of the plaintiff is of a basically guileless and straightforward witness. I am also mindful of the comments of Kirby J in Whisprun Pty Ltd v Dixon,[61] which states:
“Lies and civil proceedings: Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned.
Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in the evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law.”
[61][2003] HCA 48 at paragraphs [119]-[120]
Return to work – light duties
70 The plaintiff was cross-examined about his return to work with respect to a plan signed and dated 26 July 2011.[62] He stated he did not do any photocopying, scanning or filing. He stated “I took stuff out of the fax machine a couple of times”.[63] He was questioned as to what administrative tasks he did do, and he replied:
“Just sat in the front of the phone with customers that would ring, they lost freight, and just, you know, ring up screaming … And I was supposed to run around and magically find it somehow … [I would] just write down on a bit of paper, write, you know, the freight number, their name and you know, what’s supposed – you know, a rough description of what it is … [I would then] just walk around the yard having a look. … [and if I found it I would] Just tell the boss … and they’d deal with it from there.”[64]
[62]Exhibit 8
[63]T44, L13-14
[64]T44, L17-T45, L7
71 Another task the plaintiff performed was “controlling the pallets”[65] which was stated to be manually recording the number of pallets as recorded by exiting drivers. He replied:
“Yeah, they tried doing that for a while.”[66]
[65]T45, L21
[66]T45, L24-25
72 In essence, the plaintiff stated:
“… they just made that job up, but it didn’t last because none of the drivers were interested in doing any of the paperwork.”[67]
[67]T46, L3-6
73 The plaintiff was then cross-examined on another return-to-work plan dated 10 October 2011, which was not ultimately tendered in evidence. In any event, it involved the 11.00am to 8.00pm shift, Monday to Friday, full time. When asked if he had any problem performing the duties, he replied:
“No, well, I wasn’t doing anything … at night time no-one rings because all the clients have gone home for the day.”[68]
[68]T47, L1-9
74 He was then questioned:
Q: “Right, so from 11 till four you’re still doing the phone tasks?---
A: Yeah. Yeah.
Q: And then you have other tasks past normal business hours?---
A: No really, no, just sit and drink coffee.”[69]
[69]T47, L16-19
75 Further, the plaintiff was asked:
Q: “You … did some computer work?---
A: No.
Q: Did you … ever work on the computer?---
A: No. They tried to put me on the computer doing the fleet controllers job … that lasted about two hours.”[70]
[70]T47, L28 – T48, L3
76 It was then put to the plaintiff:
Q: “At the end of the return to work plan the duties were withdrawn?---
A: Yeah.
Q: And soon after that the company closed down, didn’t they?---
A: … yeah, a matter of, yeah, three or four months after they … retrenched me.”[71]
[71]T49, L13-18
77 It was further put to the plaintiff that he was actually physically quite able to do the work that he was doing in the office, and he replied:
A: “Yeah, well, it’s just like being – sitting around at home … just like sitting and standing and stuff. But I mean, even at home I have to lay down for a moment. That’s what (sic) I’m wishing I could go now and have a lay down.
Q: But in the fulltime hours that you were working … so the 11 am to 8 pm?---
A: Yeah.
Q: And going all the way from doing just light work, no heavy work … You had no physical difficulty doing that?---
A: Yeah. I was able to do it.”[72]
[72]T50, L3-17
78 It was then put to the plaintiff he told Mr Hooper on 6 July 2015:
“He is okay if he does not do anything silly, and he points out that he was working the last few months of his employment in light work and was coping quite well.”[73]
[73]T50, L20-23
79 He replied that that did sound about right.[74]
[74]
Retained abilities
80 As to the skills the plaintiff possessed prior to injury, he was questioned as follows:
Q: “So sometimes that would be working in a team environment, like process work - very much a team environment?---
A: Yeah, yeah.
Q: And sometimes you'd be doing things more on your own, like maintenance work?---
A: No, yeah.
Q: And with maintenance work you'd need to be able to read and understand manuals?---
A: Yeah.
Q: And to do boiler making generally, you need to be able to read and understand plans?---
A: Yeah, yeah.
Q: So quite high level skills in doing that?---
A: Not really, but yeah.
Q: With the maintenance work?---
A: I can teach a ten year old to read drawings, it's not that hard, yeah.
Q: So you don't think that reading drawings is hard?---
A: No, no.
Q: I'll suggest to you that you've got that skill?---
A: Yeah.
Q: It’s very easy for you to read drawings?---
A: Yeah, yeah.
Q: And it's easy for you to implement a job when you've got the documentation of what needs to be done?---
A: Yeah.
Q: You're able to go off and do that?---
A: Yeah.
Q: You did that for many years?---
A: Yeah.
Q: And you had no trouble keeping a job?---
A: No.
Q: People weren't saying, "You're not capable", people were keeping you on?---
A: Yeah.
Q: And doing work like maintenance work, you have to be pretty self motivated, you have to be able to get up and do things?---
A: Mm.
Q: Obviously English is your first language?---
A: Yeah.
Q: You're able to communicate?---
A: Yeah.
Q: You're communicating very well in court today. You can read?---
A: Yeah.
Q: You can write?---
A: Yeah.
Q: You can do maths - add and subtract?---
A: Yeah, but - yeah.
Q: You've got no difficulty handling money?---
A: No, it just goes through my hands too quick, yeah. But no, I can count and stuff.
Q: But you're able to count it up if it goes through your hands?---
A: Count, yeah, yeah.
Q: In 2008 you decided to have a change of track, and you got a heavy rigid licence to drive trucks?---
A: Yeah.
Q: What did that involve?---
A: Just going - it was a week long course, you know, get a bit of practice - maybe just - yeah, practise going around - round a block in a truck, you know. Same sort of thing you do for a car licence, you know.
Q: But it's a week long course?---
A: Yeah.
Q: Can you describe to the court what a heavy rigid licence allows you to do?---
A: Drive a heavy - up to a heavy rigid truck, which is about - like about 14 tonnes. It's the - the biggest truck before you get to a semitrailer.
Q: So it's a fairly large truck?---
A: Yeah.
Q: But it's not a semitrailer?---
A: No.
Q: And you were able to cope with doing that course?---
A: Yeah.
Q: Was there any theory in that course?---
A: A little bit, but it's just road rules, you know.
Q: Road rules?---
A: Yeah.
Q: On the back of that licence you got a job working for the defendant?---
A: Yeah, firstly, yeah.
Q: First Fleet - - -?---
A: First Fleet.
Q: - - - you got a job working for First Fleet?---
A: Yeah.
Q: And that was a delivery driving job?---
A: Yep.
Q: Just local deliveries?---
A: Yeah, round Melbourne.
Q: Involved some loading and unloading?---
A: Yep.
Q: And you had to take orders?---
A: Yeah.
Q: Fill out job sheets?---
A: Job - yeah.
Q: So you had to do that sort of administration. You arrive at a place, you've got to make sure that everything's loaded on?---
A: Yeah, yeah, yeah, you've got - you've got a running sheet you've got to fill out, just because it's for the RTA as well, so.
Q: So what do you have to do for the RTA?---
A: You've got to keep a log of your hours, because you can't drive over so many hours, so you've got to - then you've got to take a break, you know what I mean? Even just doing local runs, yeah.
Q: And you kept that logbook yourself?---
A: Yeah.
Q: You had no difficulty keeping that?---
A: No, no.
Q: And you were able to obviously follow the instructions - deliveries have got to go to the right place?---
A: Yeah.
Q: And arrive at the right time?---
A: Yeah.
Q: No problems with your performance in that?---
A: No.
Q: And when you arrived - what sort of deliveries were you making?---
A: Anything and everything. We did a lot of stuff for Myer, Supertube, Kmart - it was - you know, it's all - all pallet stuff. Normally comes - comes off with a forklift, goes on with a forklift.
Q: And so when you arrive at that location, that's the
client's - - -?---
A: Yeah.
Q: - - - you had no difficulties dealing with those clients when you arrived at the location?---
A: No, no.
Q: You never had any run-ins, you were perfectly good to them
---
A: Yeah, yeah, you know.
Q: And you were also able to deal with people back at the depot?
---
A: Yeah.
Q: You've gone through a variety of vocational assessments?
---
A: Yeah.
Q: For the purposes of this and your weekly payments. One of those vocational assessments identified a number of skills, so I just wanted to go through them with you. This is their assessment, so I'll just suggest to you what they say and hear your response. "A very good knowledge of" - - -
MR BRETT:
Q: Where are you reading from?
MS GOLD:
Q: Defendant's court book p.117, at the top of p.4 of the vocational assessment from March 2012. (To witness) You've got a very good knowledge of the manufacturing industry. So from your years of working as a boiler maker you've got a good knowledge of the manufacturing industry?---
A: I understand basics, yeah.
Q: And you've got a very good knowledge of the transport industry from your time driving trucks?---
A: Truck - yeah.
Q: You've got an ability to work unsupervised?---
A: Yeah, yeah.
Q: ‘Good knowledge of machinery and power tools and their uses’? ---
A: Yep.
Q: ‘Problem solving and analytical skills, interested in practical work.’ You'd say that you've got those skills?---
A: Yeah, well, yeah, I guess so.
Q: So when you're applying plans, sometimes those - - -?---
A: Yeah.
Q: - - - or you're doing maintenance - - -?---
A: Yeah.
Q: - - - that involves some problem solving, doesn't it?---
A: Yeah, that's right.
Q: Sometimes you'd have to make decisions?---
A: Yeah.
Q: And make some choices on the job, and you were able to do that?---
A: Yeah, I was able, yeah.
Q: And cope with the intellectual demands of that?---
A: Yeah.
Q: ‘Aware of health and safety and practices’?---
A: Yeah.
Q: As a boiler maker that's pretty key?---
A: Yeah, that's right, yeah. Everyone knows that, yeah.
Q: And working as a truck driver as well, you obviously have to be aware of health and safety matters?---
A: Yeah.
Q: That wasn't something that was beyond you, you were able to do that?---
A: Yeah.
Q: ‘Able to work in a team’? Yes?---
A: Yeah.
Q: Sorry, for the transcript you have to - you can't nod?---
A: Yeah, yeah, sorry.
Q: You have to give an answer. ‘Good ability and knowledge of quality control procedures.’ Would you agree with that?---
A: I've never done a quality control sort of job.
Q: So when you're working as a boiler maker, of course you've got to make sure that things are working?---
A: Yeah.
Q: So while I agree - and there's no evidence you've done quality control - of course you're able to make sure a job is done right?---
A: Yeah, yeah, I do my own quality checks on my own jobs, yeah. But what other - some other blokes do, I don't know.
Q: You haven't done other people's, but you're certainly able to do quality checks on your own jobs?---
A: Yeah.
Q: And you weren't the sort of bloke who'd just let something go off when it wasn't working?---
A: No, no, no, no.
Q: So that's the quality control skills - ability to work unsupervised, and goods and product handling. That's presumably when you're dealing with items delivering trucks?---
A: Truck, yeah, yeah.
Q: That involved goods and products?---
A: Yeah.”[75]
[75]T38, L30 – T43, L27
81 Defence counsel reasonably relies on these answers to demonstrate a wide range of retained abilities. It is also consistent, in my view, with the witness being guileless, as referred to above.
Suitable work
(a) The Plaintiff’s evidence
82 In his first affidavit, the plaintiff swore:
“3. I was off work for a couple of months and then went back on modified duties, helping drivers with their paperwork and so on. I did this, even though I am not very good at paperwork. It was just general experience that got me through. I also did a little forklift work but as they have no suspension, that was terrible. My employer tried me in the office for about a month but then they decided that I wasn’t suited to office work. I agree. I am used to working with blokes, on building sites. I was retrenched, and I have not worked since that time. I think that I last worked in about March 2012.”[76]
[76]Exhibit “A”, PCB 11
83 Apart from alleging his employer decided that he was not suited to office work, the plaintiff alleged that, while performing light duties, his back was prone to exacerbation as follows:
“4. Since suffering the injury, I have aggravated it on two further occasions. In a return to work, I was asked to deliver a load of goods to Keysborough. When I arrived, I found that unloading the goods was to be done by hand. This involved shifting a number of boxes. That caused my back to become worse for at least a day. It then went back to how it had been prior to the unloading. If I had not injured my back, I believe that the tasks required of me that day would have been well within my capability.
5. I also aggravated it when I was attempting office work with my employer. At one stage I went to sit down on a chair but the castors moved and I slipped. This hurt my back quite badly and it took quite a few days before I was back to where I was prior to that incident.”[77]
[77]Exhibit “A”, PCB 11
84 Further on, the plaintiff swore:
“8. I am aware that a vocational assessment has been undertaken at the request of the WorkCover insurer. In terms of the options identified, I say as follows. I do not think I could drive a forklift. I am familiar with that job. Forklifts do not have suspension and the seats are usually not padded. Accordingly, it is very hard on the spine and I could not do it. I have never done store work, but I have restrictions on bending, lifting, twisting, pushing, pulling and prolonged sitting or standing, so I do not think I could do store work. I cannot drive for the long periods required of a delivery driver, or do the heavy worked required of a labourer.
…
10. I cannot run. I am very limited in my activities and I believe I am incapable of full time or manual work. If I sit for any length of time, I am very stiff when I get up. I have pain radiating down my buttocks and into my thighs, particularly on the right. The limitations associated with my pain and stiffness mean that I do not know what I could do for work. At one stage I contemplated a business making garden ornaments but there are many cheap imports from China and I could not run a successful business doing that, even if I could cope with the physical demands.”[78]
[78]Exhibit “A”, PCB 12-13
85 In his third affidavit, the plaintiff swore:
“11. I further wish to address a recent occupational assessment, which was performed without my input, and which I understand the Defendant relies upon. I did not meet the person who prepared that report.
12. In relation to the suggested jobs contained in that report, I say as follows. First, and generally, as previously stated, I cannot drive for long periods. It is uncomfortable for me to drive for more than perhaps an hour, without having rests. I certainly could not work as a driver, driving all or most of the day.
13. In response to the specific recommendations, I say as follows. With regard to the role of Radio Despatcher, I say that I have never performed work of this type. I am not a particularly quick thinker, and I am not good at multi-tasking. I have not completed year 10. I have never worked in anything like that role, and I do not believe I would be capable of performing it. Further, as stated in previous affidavits, I am really an outdoor worker. I do not like to work around people.
14. In relation to the suggestion of Car Wash Attendant, I say that I have never dealt with customers on a regular basis. As a truck driver, I would deal with other employees from time to time, usually storemen or the like, but I am not good at dealing with the general public. I have a relatively short fuse. Again, I have never worked in any occupation which required me to deal regularly with a variety of strangers. I do not believe I would be good at it or capable of doing it.
15. The suggested vocation of Courier is unsuitable, as that requires driving virtually all of the day.
16. From time to time I have dealt with Weighbridge Operators. Again, I understand that that job requires dealing with various different people. Also, I believe that it requires concentration. I take medication including Lyrica, which knocks me around. I do not believe I would have the ability to concentrate adequately for that job, nor do I have any computer skills, nor would I be able to do any heavy cleaning work, nor have I ever worked in an occupation of that type. Further, from what I have seen of weighbridges, they are usually only open part-time, and often at a considerable distance from anywhere.
17. With regard to the suggested occupation of Trainer-Truck Driver, I say that I do not have a Certificate IV in Assessment and Training, nor a Certificate IV in Transport Logistics. My experience on trucks is very limited; I only have a Heavy Rigid Licence, and only worked as a truck driver in my employment with the present Defendant, which was for approximately 12 months prior to my injury. I have no experience in delivering training.
18. For these reasons, I believe that the suggested occupations are not suitable.”[79]
[79]Exhibit “A”, PCB 17(C)-17(D)
(b) medical opinion
86 Mr Hooper, on behalf of the defendant, in his report dated 9 July 2015, stated:
“He is managing, though he is incapable of returning to heavy work. He was able to continue with light work and office work until the Company became bankrupt and he was made redundant and indeed, he would be able to participate in light activities, but where he lives it is very difficult to get light work and he does not have a lot of transferable skills.”[80]
[80]Exhibit 4, DCB 42
87 Mr Battlay, on behalf of the defendant, in a report dated 18 March 2013, was asked a comment on the plaintiff’s redeployment as a forklift operator, warehouse assistant, store person, and other miscellaneous labourer for delivery driving. He opined that, in light of restrictions he had given in his first report dated 10 October 2013:
“… I am not entirely convinced that [the plaintiff] could work as a store person. Working as a ‘miscellaneous labourer’, would also have to be subject to the proposed restrictions not being exceeded.
I think it likely that he could cope with working as a delivery driver for light to moderate weights [see restrictions], and I think he could work as a forklift operator, redeployment as a warehouse assistant would need to involve similar physical restrictions.”[81]
[81]Exhibit 2, DCB 13-14
88 Occupational physician, Dr Dominic Yong, reported on behalf of the defendant on 17 August 2015.[82] On that occasion, he was in receipt of exhibit 9, but not exhibit 10. The plaintiff described his return to work in the office environment as taking phone calls. “He stated he was also taught to use a computer but struggled with this.”[83] His prior work history was stated to be a boilermaker:
“[The plaintiff] stated he worked for a number of different employers over a 27 year period. He stated in this role he would work with metal. He stated in his role he would use a welder and an oxyacetylene torch. He stated he would sometimes use a grinder. He stated that there were awkward postures and manual handling requirements.”[84]
[82]Exhibit 5
[83]Exhibit 5, DCB 47
[84]Exhibit 5, DCB 49
89 Further, Dr Yong opined the plaintiff:
“… has a current capacity to perform tasks within the following restrictions:
· Vary posture regularly between walking, sitting and standing
· Avoid repeated bending and twisting the back.
· Avoid repeated firm pushing or pulling.
· Avoid lifting more than 4kgs on a repeated basis.
· Reduction in working hours.”[85]
[85]DCB 53
90 Thereafter, he commented on six proposed job descriptions contained in exhibit 9, to wit:
·Fleet radio operator
·Storeperson
·Warehouse assistant
·Process worker
·Automatic car wash assistant
·Service assistant.[86]
[86]DCB 53
91 He did not consider the storeperson role reasonable, nor the warehouse assistant role. With respect to the process worker role, he noted it would require individual assessment. He did not think the automatic car wash assistant role would comply with the restrictions he had set out. Further, he considered the service assistant role would require individual assessment. As to the fleet radio operator role, he thought that it would comply with the restrictions, but had overlooked that it required a Year 10 qualification, which was not appropriate to the plaintiff. Overall, given the restrictions referred to above, I do not consider that the “individual assessments” would assist the defendant in this regard.
92 Dr Yong modified his opinion in his second report dated 6 October 2015, but had to resile from same because of surveillance provided not being that of the relevant worker.
93 Accordingly, it would appear that the defendant’s solicitors obtained a further “urgent second supplementary medical report” from Dr Yong dated 9 December 2015.[87] Although the request for the report included clinical notes from the treating general practitioner,[88] there was no follow-up consultation arranged for an examination of the plaintiff. Further, the request also contained the “Labour Market and Task Analysis Report by CoWork” dated 25 September 2015,[89] containing a further set of proposed suitable duties. These options were:
[87]Exhibit 5, DCB 55G
[88]Exhibit 14
[89]Reference Exhibit 11, DCB 143
·Fleet Radio Operator
·Automatic Car Wash Assistant
·Courier
·Weighbridge Operator
·Truck Driver Trainer.
94 The plaintiff claims that these tasks were not discussed with him and, in any event, he considers himself unable to fulfil the duties for the reasons set out in paragraph 83 above.
95 The only other occupational physician to furnish an opinion in this matter is Dr David Middleton, in his report dated 29 July 2015.[90] At that time, he noted:
“Currently, [the plaintiff] has not had any physical treatment, just medication, together with attempting the exercises he was taught by Mr Hahne at home.”[91]
[90]Exhibit “E”, PCB 32-44
[91]Exhibit “E”, PCB 33
96 Further, the history he took with respect to the performance of light duties with the employer accords, in my view, with the plaintiff’s evidence referred to above.[92] With respect to his capacity for employment, Dr Middleton stated:
[92]Exhibit “E”, PCB 33
“Noting [the plaintiff’s] significantly restricted safe physical capacity, including marked limitations in postural endurances, it is my opinion that he no longer has the capacity to undertake his pre-injury duties or any of the work that he has performed in the past, all of which are dependent upon an excellent and reliable physical capacity.
It is my opinion that [the plaintiff] is now restricted to sedentary, non-manual duties to be performed in a self-paced manner with work breaks as required on a very limited part time basis.
Being 49 years of age and with no recognised qualifications besides a forklift licence and a heavy rigid truck licence, it is my opinion that [the plaintiff’s] ability to gain employment has been significantly impaired.
[The plaintiff] left school after Year 9 and failed to complete his apprenticeship as a boilermaker, although he worked in the metal industry for some 28 years prior to taking on his role at First Fleet as a truck driver. As such, his skills do not support sedentary, non-manual work.
[The Plaintiff] resides at Walpeup, which is a rural village, and at a significant distance to centres of employment from where sedentary non-manual work is available.
[The plaintiff’s] skills are related to duties requiring heavy manual work requiring a reliable and excellent physical capacity, which he no longer has. His work experience is in basically heavy manual work and provides no significant transferrable skills into sedentary non-manual duties.
On this basis, it is my opinion that [the plaintiff] no longer has a capacity for suitable employment as defined under The Act.”[93]
[93]Exhibit “E”, PC B 42-43
Loss of earning capacity
97 It is clear enough that the evidence adduced in cross-examination demonstrates the plaintiff’s physical capacity to undertake a wide range of activities. However, as Ashley and Kaye JJA stated in Richter v Driscoll[94] at paragraph [76]:
“[R]eturn to work in employment ... requires more than that a physical capacity to engage in a task or tasks.”
[94]Supra
98 The employment must be, as specified in the definition of “no current work capacity”, “suitable employment”. For their Honours, the definition of “suitable employment”:
“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise.”
99 Their Honours warned:
“… paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[95]
[95]Richter v Driscoll (supra) at paragraph [76]
100 Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours:
“... specifically requires consideration of matters travelling beyond physical capacity to perform a task.”[96]
[96]Richter v Driscoll (supra) at paragraph [77]
101 Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:
“... whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[97]
(Emphasis added).
[97]Richter v Driscoll (supra) at paragraph [95]
102 They further stated:
“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[98]
[98]Richter v Driscoll (supra) at paragraph [96]
103 Osborn JA agreed with Ashley and Kaye JJA in this regard. His Honour stated:
“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[99]
(Emphasis added.)
[99]Richter v Driscoll (supra) at paragraph [143]-[145]
Statutory definition
Section 5 of the Act, relevantly recites:
“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 employment is of a type or nature that is generally available in the employment market.”
104 In my view, the limitations placed upon the worker’s physical capacities referred to by Dr Yong in his first report, and then taking into account, in particular, the worker’s age, education, skills and work experience, I consider that the worker’s transferrable skills are not appropriate for a service industry occupation or office-type work. He has sold his welding equipment, he has had to move to a country area because of financial constraints placed upon him by virtue of the injury and, accordingly, I do not believe, looking at the plaintiff “holistically”, that he would be able to work in employment as a settled member of the workforce.
105 Accordingly, leave will be granted to the plaintiff to issue proceedings for loss of earning capacity and general damages.[100]
[100]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
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