Haftu v Victorian WorkCover Authority
[2017] VCC 287
•24 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00361
| HAILE HAFTU | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2017 | |
DATE OF JUDGMENT: | 24 March 2017 | |
CASE MAY BE CITED AS: | Haftu v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 287 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury– injury to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment: Leave granted in respect to pain and suffering and loss of earning capacity damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC Mr M Roche | Arnold Thomas and Becker Lawyers |
| For the Defendant | Mr S O’Meara QC Mr J Hooper | Minter Ellison |
HER HONOUR:
Preliminary
1 The plaintiff was an Ethiopian migrant, whose only job in Australia was that of a process worker for Australian Truck and Auto Parts (Vic) Pty Ltd (“the defendant”) from February 2003, until he was made redundant in April 2014. The plaintiff assisted in the production of brake parts for big and small trucks, and he claims that over the course of his employment, and in particular on 19 June 2012, that he suffered injury to his lower back, as a consequence of repeated and heavy lifting.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for both pain and suffering and loss of earning capacity. The body function said to be impaired is the functioning of his spine.
3Mr T Monti QC and Mr M Roche of counsel appeared for the plaintiff and Mr S O’Meara QC and Mr J Hooper of counsel appeared for the defendant.
4Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
Relevant background
5 The plaintiff is 55 years of age and lives in shared accommodation in Footscray. He is not married, but is in a relationship with the mother of his four children, each of whom live with their mother and are aged between 2 and 14 years.[1]
[1]Transcript (“T”) 5, L 28-31
6 The plaintiff was born in Ethiopia to a family of peasant farmers. He grew up on the family’s property, and never attended school. The plaintiff’s native language is Tigrinya, and he cannot read or write Amharic/Ethiopian.[2]
[2]Plaintiff’s Court Book (“PCB”) 1
7 In approximately 1998, the plaintiff came to Australia.[3] He looked for work unsuccessfully for about five years, before ultimately obtaining employment with the defendant in February 2003. The plaintiff said he had no problems with his lower back prior to commencing his employment with the defendant.[4]
[3]PCB 1
[4]PCB 2
8 Prior to suffering his lower back injury, the plaintiff said that he enjoyed attending church, social activities and ceremonies, and playing with his children.[5]
[5]T17, L27-31, T18, L 1-3
9 Despite having lived in Australia since 1998, the plaintiff has very limited English speaking skills, and he gave his evidence, in its entirety, through a Tigrinya interpreter.
Injury and its consequences
10 The plaintiff had suffered occasional lower back pain since 2004, especially after busier days at work.[6] In May 2004, he was pulling a jack at work and struck a bin, which caused him to suffer lower back pain. At that time, the plaintiff saw his local doctor and obtained physiotherapy treatment for about two months. He lodged a WorkCover claim and his medical expenses were paid.[7] The plaintiff did not have any time off work, and continued working full duties.[8]
[6]PCB 2
[7]PCB 2
[8]PCB 2
11 On 19 June 2012, the plaintiff suffered injury to his lower back when lifting a heavy jig, from the factory floor, to chest height.[9] The plaintiff said he felt a crack in his lower back and he thereafter suffered severe lower back pain. He said the pain was so great that his left leg could only gently touch the floor, and that he could take no weight through it.[10] The plaintiff said that he asked his supervisor to see a doctor but was advised that the company doctor was not available.[11]
[9]PCB 3
[10]T17, L4-6, L11-14
[11]T17, L1-3
12 On 25 June 2012, the plaintiff attended the defendant’s company doctor, Dr Suren Haripersad. In his report dated 2 July 2012, Dr Haripersad noted that the plaintiff had complained of lower back pain for a long time, and that his work involved heavy lifting and bending. It was recommended that the plaintiff not lift more than five kilograms, and that he not undertake any repeated bending or prolonged standing.[12] He was also referred for physiotherapy, as well as hydrotherapy treatment at the Maribyrnong Aquatic Centre.[13]
[12]PCB 24
[13]PCB 31
13 On 11 August 2012, a CT scan was taken of the plaintiff’s lumbar spine, which demonstrated a broad-based disc prolapse at L4/5.[14]
[14]PCB 31
14 On 24 August 2012, the plaintiff underwent a CT-guided left L4/5 foraminal nerve block.[15]
[15]PCB 18
15 On 9 November 2012, an MRI scan was taken of the plaintiff’s lumbar spine. It was reported as demonstrating no evidence of significant central canal, lateral recess, foraminal or extra-foraminal stenosis.[16]
[16]PCB 19
16 At about this time, the plaintiff attended upon his local general practitioner, Dr Anthony Lo, at the Sunshine Central Medical Clinic. Dr Lo arranged for the plaintiff to be referred to neurosurgeon, Mr Patrick Lowe, in November 2012. Mr Lo reviewed the plaintiff’s recent MRI scan and was of the opinion that surgical intervention was not an option, as there was no evidence of central canal stenosis or nerve root compression.[17]
[17]PCB 25
17 In February 2013, the plaintiff was referred to a second neurosurgeon, Mr Nair, who also advised against surgery. He instead recommended that the plaintiff continue with analgesic medication and that he undertake core para-spinal muscle strengthening exercises. [18]
[18]PCB 3 and 32
18 The plaintiff continued working normal hours, but on light duties, and with a five kilogram lifting limit.[19] He said that whilst he continued to work, he struggled with even the light duties.[20] This aspect of the plaintiff’s evidence was not challenged by the defendant.
[19]PCB 3
[20]PCB 3
19 At some stage in early 2014, prior to being made redundant, the plaintiff began to experience pain in his neck, with referred symptoms into his left arm.[21]
[21]T10, L25-31, T11 L1-2
20 On 29 April 2014, the plaintiff was advised that he was to be made redundant, as there was no longer suitable employment available for him. The plaintiff said this came as a surprise to him, as he was the longest serving employee, and he felt that he had been both a reliable and a faithful employee, who had continued working despite his ongoing lower back pain.[22]
[22]PCB 3
21 In the financial year prior to ceasing his employment, the plaintiff earned $778 gross per week.[23] The plaintiff has not worked at all since that time.[24]
[23]Plaintiff’s Statement of Loss of Earnings dated 1 March 2017
[24]PCB 5
22 In September 2014, the plaintiff transferred his care to general practitioner, Dr Elias Sleaby, who was closer to his then home.[25] At that time, Dr Sleaby noted that the plaintiff was suffering chronic lower back pain, together with neck pain. He also noted that the plaintiff had developed chronic pain and an adjustment disorder.[26]
[25]PCB 4
[26]PCB 44
23 In November 2014, the plaintiff was referred to neurosurgeon, Professor Richard Bittar. In a letter dated 17 November 2014, Professor Bittar noted that the plaintiff complained of lower back pain, together with neck pain and right brachialgia. Professor Bittar considered that the plaintiff suffered aggravation of both lumbar spondylosis and cervical spondylosis which he related to the heavy and repetitive lifting the plaintiff had performed with the defendant.[27] Professor Bittar considered it appropriate for the plaintiff to be examined by pain specialist, Dr Symon McCallum.[28]
[27]PCB 48
[28]PCB 34
24 On 28 November 2014, the plaintiff underwent a bone scan study, which demonstrated low grade right L5/S1 facet joint arthritis, together with evidence of degenerative arthritis in the plaintiff’s cervical disc region and sacroiliac joints regions.[29]
[29]PCB 21
25 The plaintiff attended Dr McCallum on at least two occasions in 2016. In a report dated 27 June 2016, Dr McCallum noted that the plaintiff’s:
“… pain is still bad in the left lower back and upper buttock than it is on the right. He has still got the right-sided neck pain but this does not seem to be bothering him as much.”[30]
[30]PCB 77
26 At that time, Dr McCallum recommended that the plaintiff undergo a left-sided L5/S1 diagnostic medial branch block, together with an anaesthetic and steroid injection.[31] This was performed by Dr McCallum on 26 August 2016. The plaintiff felt the injection “did not help at all.”[32]
[31]PCB 77
[32]PCB 90
27 The plaintiff was also reviewed by Dr McCallum in early 2017, at which time he arranged for the plaintiff to undergo a six week pain management course. The plaintiff commenced this course in late January 2017, and is required to attend two days per week.[33]
[33]PCB 15
28 In a report dated 22 January 2017, Dr McCallum stated that the plaintiff has pain in his lower back, from which he wakes often. It was noted that his lower back pain interferes with his walking ability and that sitting is difficult.[34]
[34]PCB 96
29 Dr McCallum also referred to the plaintiff suffering right-sided neck pain which was made worse with exercise and swimming. The plaintiff was cross-examined in relation to this aspect of Dr McCallum’s report. The plaintiff denied that Dr McCallum obtained this history in 2017, and stated that his right neck pain had resolved by that time. He acknowledged that whilst it had previously troubled him, it had in fact improved as a consequence of undergoing physiotherapy treatment.[35] The plaintiff said that his neck injury has not stopped him working in the past and that it would not stop him from working now.[36]
[35]T13, L18-28
[36]PCB 6
30 The plaintiff said that he has been left with constant lower back pain which varies from day to day and is worse in cold weather.[37] The plaintiff said that his pain increases after periods of sitting or standing,[38] and that he is very limited in his ability to squat and crouch.[39]
[37]PCB 4
[38]PCB 4
[39]PCB 4
31 The plaintiff said that he finds it difficult to undertake cooking.[40] He also has difficulties getting dressed and undressed,[41] and said that he now tends to wear slip-on shoes or shoes without laces.[42]
[40]PCB 5
[41]PCB 5
[42]PCB 15
32 The plaintiff stated that he continues to go to the gym and do hydrotherapy. He also continues to take painkilling medication, together with antidepressant medication, as prescribed to him by Dr Sleaby.[43]
[43]PCB 15
33 The plaintiff said that he spends his days going for walks or going to the gym, but that he is otherwise mostly at home. He is able to go to the shops and purchase some groceries. The plaintiff said he sometimes goes to church, but not as often as before. He said he can no longer sit down and pray whilst at church.[44]
[44]PCB 15
34 The plaintiff said he is not as social as he used to be,[45] and that he misses his social life, especially when attending his church.[46] He is also now limited in his ability to play with his children.[47]
[45]T10,L7-8
[46]PCB 5
[47]T18, L2-3
Medico-legal evidence
35 The plaintiff’s solicitors arranged for the plaintiff to be examined by neurosurgeon, Mr David Brownbill, in March 2015. At that time, Mr Brownbill noted that the plaintiff complained of lower back pain, which was present all the time, without improvement.[48] Mr Brownbill also noted that the plaintiff had experienced the onset of neck pain during 2014.[49]
[48]PCB 36
[49]PCB 36
36 Mr Brownbill was of the opinion that the plaintiff’s employment had caused aggravation of previously asymptomatic degenerative changes in his lumbar spine. He considered the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.[50] From a neurosurgical perspective, Mr Brownbill was of the opinion that the plaintiff would be capable of commencing a return to work plan, on the basis that it avoided such activities, and occurred in a graduated fashion.[51] However, Mr Brownbill acknowledged that the plaintiff’s age, his work experience, his lack of capacity in English and the absence of any schooling, together with his ongoing activity-related back pain, were such that it was probable the plaintiff would have difficulty performing any work for which he was suited in an ongoing or reliable fashion.[52]
[50]PCB 38
[51]PCB 38
[52]PCB 38
37 Mr Brownbill re-examined the plaintiff in October 2016. In his most recent report, Mr Brownbill referred to the plaintiff’s lower back pain and depression, but made no further mention of any neck pain. Mr Brownbill again stated that in his opinion, the plaintiff would have “difficulty performing any employment for which he is suited in an ongoing or reliable fashion.”[53]
[53]PCB 92
38 The defendant originally arranged for the plaintiff to be examined by orthopaedic surgeon, Associate Professor Bruce Love, in May 2015. In his report dated 20 May 2015, Associate Professor Love noted that the plaintiff complained of left-sided lower back pain, as well as generalised spinal pain in his neck. He diagnosed a lumbar disc injury, for which he felt the plaintiff’s employment had materially contributed.[54] Associate Professor Love was of the opinion that the plaintiff did not have the capacity to perform his pre-injury duties, but that if he:
“… found suitable alternative light work that did not involve prolonged standing, repeated bending and stooping or heavy lifting, he would be capable of working.”[55]
[54]Defendant’s Court Book (“DCB”) 10C
[55]DCB 10D
39 The plaintiff’s solicitors arranged for the plaintiff to be re-examined by Associate Professor Love in September 2016. In his report dated 15 September 2016, Associate Professor Love obtained a history that the plaintiff’s lower back pain had persisted and worsened after April 2014.[56] He concluded that the plaintiff’s prognosis was poor and stated that he “does not have work capacity in view of his lower back injury, age, education, treatment, literacy skills and transferrable skills.”[57] He said that the plaintiff’s lower back injury restricts him in relation to employment, social, domestic and recreational activities and that such restrictions are likely to be permanent.[58]
[56]PCB 82
[57]PCB 83
[58]PCB 84
40 In May 2015, the plaintiff’s solicitors also arranged for the plaintiff to be examined by occupational physician, Dr Helen Sutcliffe. In her report dated 27 May 2015, Dr Sutcliffe referred to the plaintiff’s lower back pain, together with neck pain radiating into his right shoulder girdle.[59] Dr Sutcliffe noted that the plaintiff complained that the pain in his neck was on a level of five out of six and that it was “very strong pain”.[60] The plaintiff was cross-examined regarding this history. He said he cannot remember how he was when he saw Dr Sutcliffe, but that his neck condition had now improved.[61]
[59]PCB 53
[60]PCB 54
[61]T12, L3-5
41 Dr Sutcliffe ultimately stated that in her opinion, the plaintiff’s lower back injury had had a “very substantial adverse impact on his employment capacity.”[62] In providing this comment she had no regard for the plaintiff’s neck pain, which I accept also persisted at that time.
[62]PCB 60
42 The plaintiff also relied upon a medico-legal report from orthopaedic surgeon, Mr Peter Scott, which had been commissioned by the defendant. Following examination of the plaintiff in January 2017, Mr Scott provided a report in which he opined that the plaintiff suffers chronic lower back pain as a consequence of his employment.[63] Mr Scott noted that the plaintiff had developed a problem with “pain amplification”[64] and probable associated anxiety and depression, for which he considered it appropriate that the plaintiff undergo the pain management program.[65]
[63]DCB 6
[64]DCB 7
[65]DCB 7
43 Mr Scott concluded that the plaintiff had no capacity for his pre-injury employment, and that as a consequence, he would require retraining in order to perform even very light work in a part-time capacity.[66] He then contemplated that such light work could not require any prolonged standing or sitting, or repetitive bending, twisting or turning, or lifting weight of more than five kilograms.[67]
[66]DCB 7
[67]DCB 7
44 As the plaintiff had suffered from some depression following the development of his lower back pain and redundancy, the plaintiff’s solicitors arranged for him to be examined medico-legal psychiatrist, Dr Nicholas Ingram, in September 2016. Although the plaintiff did not seek to rely upon this report, as his application was limited only to sub-section paragraph (a), the defendant ultimately sought to rely upon Dr Ingram’s report, to demonstrate that the plaintiff has now developed a chronic adjustment disorder with depressed and anxious mood, which now prevents him from working.[68]
[68]PCB 88 and 89
45 In his report dated 29 September 2016, Dr Ingram noted that the plaintiff had been “emotionally traumatised”[69] by what had happened to him and that he now suffered a loss of motivation, to the extent that, at times, he felt almost “paralysed”,[70] and unable to do anything. Dr Ingram noted that the plaintiff’s situation had worsened over the last 6 to 12 months.[71] Dr Ingram concluded that the plaintiff was unable to work because of his pain, as well as his psychological problems, which he considered to have had a significant impact on his concentration, motivation and energy levels.[72] Dr Ingram thought there was a possibility the plaintiff’s depression would improve if he underwent active psychological treatment.[73]
[69]PCB 86
[70]PCB 86
[71]PCB 87
[72]PCB 89
[73]PCB 89
Vocational assessment reports
46 The defendant relied upon a NES vocational assessment report it obtained in July 2014, shortly following the plaintiff’s retrenchment. At that time, it was noted that the plaintiff had the following restrictions:
–sitting for 30-60 minutes, with postural variations required;
–standing for 15-30 minutes, with postural variations required;
–walking for 30-60 minutes, with postural variations required;
-lifting limit of up to 2 kilograms.
–driving limit of up to 30 minutes.[74]
[74]DCB 13
47 The plaintiff could not recall exactly what he had told the vocational assessor, but said that his tolerances were greater at the time he stopped work than at present, as he felt he had worsened over time.[75]
[75]T8, L26-31, T9, L1-27
48 It was proposed that, consistent with his restrictions, the plaintiff was capable of working as an assembly line worker, retail sales assistant, machine operator, and ticket collector/car park attendant.[76]
[76]DCB 14, 15, 16 and 17
49 The defendant also arranged for the plaintiff to be assessed by a further vocational assessor, Health e Work, in January 2017.[77] The plaintiff then ultimately sought to rely upon the report prepared by Health e Work, on the basis that the jobs proposed were so unrealistic, that it supported the plaintiff’s claim. It was stated the plaintiff could perform the following jobs: light assembly work, boom gate operator, retail assistant and mobile camera operator.
[77]Exhibit B
Credibility
50 I consider the plaintiff to be creditworthy and reliable. Through the interpreter, he gave consistent evidence.
51 Mr O’Meara did not attack the plaintiff’s credit, but suggested that he had been a little reluctant and non-responsive in his evidence. I did not form that view. I consider the plaintiff, through the interpreter, attempted to answer the questions asked of him as best he could.
52 The plaintiff has suffered a psychological reaction to his ongoing lower back pain. It has now been almost five years since he first suffered the injury. I accept that he suffers constant pain, which appears to have worn him down over the years. He has not worked for almost three years, and I accept this has also caused him ongoing upset and frustration. There is no suggestion that the plaintiff is dishonestly exaggerating his complaints of pain, or that his symptoms are not genuine.
Permanent
53 In order to satisfy the definition of serious injury, the plaintiff must prove that the injury and its consequences are both serious and permanent. The authorities have defined the latter to mean “likely to last for the foreseeable future”.[78]
[78]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]
54 Mr O’Meara submitted that the plaintiff had failed to establish that the consequences of the plaintiff’s lower back injury were permanent, on the basis he is currently undertaking a six week pain management program.
55 In recommending the WorkCover insurer pay for this program, Mr Scott stated that under the program, the plaintiff will receive treatment for anxiety, depression and pain, with hydrotherapy, physiotherapy and counselling. However, in his report, Mr Scott did not state that the program was likely to result in a resolution of the plaintiff’s physical condition, and acknowledged the numerous physical restrictions which arose as a consequence of it.[79]
[79]DCB 7
56 The only suggestion that the plaintiff’s lower back injury might likely improve, is a Centrelink medical certificate issued by Dr Sleaby on 22 November 2016.[80] However, whilst he stated that the plaintiff’s lower back pain is likely to “show considerable improvement within two years”,[81] Dr Sleaby did not provide any explanation as to the basis for such likely improvement. Further, this certificate appears inconsistent with his report of April 2016, in which Dr Sleaby stated that the plaintiff’s prognosis was “rather poor”.[82]
[80]DCB 29
[81]DCB 29
[82]PCB 71
57 I note that surgical treatment has not been recommended. The plaintiff received a nerve root injection in 2012, which provided him no relief. More recently he received a medial branch block, which again provided no relief. I consider any benefits gained from the pain management program will relate to his psychological condition and his ability to cope with his ongoing pain, but will not result in an improvement of his physical restrictions. I am therefore satisfied that the plaintiff’s lower back injury and the consequences which flow from it are permanent.
Loss of earning capacity
58 To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, that as a consequence of his lower back injury, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
59 The definition of suitable employment is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[83]
[83]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [25] and [28]
60 In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
“(a) the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b)the gross income the plaintiff would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[84]
[84]Accident Compensation Act 1985 (Vic) s134AB(38)(f)
61 It was agreed by the parties that the plaintiff’s earnings of $788 gross per week, in the financial year in which he was made redundant, was the figure which most fairy reflected the plaintiff’s pre-injury earning capacity. Applying the statutory test, I must be satisfied the plaintiff is incapable of earning no more than $472.80, and that such a restriction on his earning capacity will be permanent.
62 The defendant sought to challenge the plaintiff’s claim on the basis that the plaintiff’s ability to work full-time in light duties until April 2014, is demonstrative of his capacity to undertake suitable employment. It was further submitted that the plaintiff’s claim in relation to his condition now being worse, was not due to any physical deterioration, but due to psychological consequences which must be disregarded, as the claim was made only under sub-section paragraph (a).
63 There is no dispute as to the plaintiff having developed a psychological reaction to his physical condition. Dr Sleaby referred to the plaintiff suffering chronic pain, and an adjustment disorder. Dr Ingram noted that the plaintiff suffered a chronic adjustment disorder with depressed and anxious mood, which he considered to be a secondary consequence of the plaintiff’s chronic pain and inability to work.[85] Most recently, Mr Scott observed that the major barriers to the plaintiff’s recovery appeared to be related to non-organic problems of pain amplification.[86]
[85]PCB 88
[86]DCB 8
64 In the Court of Appeal decision in Meadows v Lichmore Pty Ltd,[87] Maxwell ACJ identified a two-step process of analysis for cases in which a physical injury was present, as well as a pain syndrome.
“The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative - and, of course, if the pain and suffering consequences satisfy the statutory criterion - then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.”[88]
[87][2013] VSCA 201
[88]Meadows v Lichmore Pty Ltd [2014] VSCA 201 at [21]
65 Mr O’Meara submitted that Meadows was not a “one size fits all” tool. He sought to distinguish this case on the basis that the issue in dispute is not whether the plaintiff’s lower back injury has an organic basis, as this has been accepted, but instead the correlation between that organic injury and its consequences.
66 Mr Monti submitted that the plaintiff did not seek to rely upon any psychological consequences, as the medical opinions all focused on the physical incapacity arising from the plaintiff’s lower back injury.
67 In assessing the plaintiff’s claim for loss of earning capacity, I am obliged to do so realistically, by reference to the plaintiff’s physical limitations and by reference to what might or might not amount to “suitable employment” in the foreseeable future.[89] This is a test of physical capacity, not employability, and it involves a consideration of what the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after undertaking vocational education.[90]
[89]Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188 at [48]
[90]Ibid [49]
68 The plaintiff is 55 years of age. He has lived in Australia for almost 20 years, and still speaks almost no English, and has no ability to read or write in English. The plaintiff relied upon an interpreter for the entirety of his evidence. I accept that the plaintiff has never been inside a classroom and that he has no computer skills. I therefore conclude that there is no realistic prospect of the plaintiff undertaking any vocational education or retraining.
69 I note that the plaintiff has only ever done process work in Australia. I accept that he struggled with lower back pain when he was working light duties. I also accept his evidence that he suffers constant back pain, which is aggravated by bending and lifting, as well as prolonged sitting, standing and walking. I accept the plaintiff’s evidence that his sitting tolerance is now limited to 10 to 15 minutes, and that he needs to frequently vary his posture in order to obtain some relief from the pain.
70 The doctors accept that the plaintiff cannot return to his pre-injury duties.
71 Mr Brownbill, Associate Professor Love, Dr Sutcliffe and Mr Scott accept that, due to the physical restrictions from his lower back injury, and having regard to his age, work experience and lack of English skills, the plaintiff does not have a current capacity for work. Only Mr Scott is hopeful, that with some retraining, the plaintiff may be able to obtain some suitable work, on a part-time basis. However, given my findings above that there is no realistic prospect of the plaintiff undertaking any vocational education or retraining, I disregard this opinion as I consider it only a remote possibility.
72 I do not consider the job of light assembly worker, as referred to in the vocational assessment reports, to be suitable employment for the plaintiff, given his limited sitting and standing tolerances. I also do not consider the other jobs of retail assistant, machine operator, car park attendant, ticket collector, boom gate operator and mobile camera operator, to be suitable for the plaintiff in circumstances where his spoken English is very limited, he cannot read or write in English, and where he has no experience with computers. I consider the suggestion of such jobs by the vocational assessors, as realistic occupations for the plaintiff, to be so fanciful as to give me little confidence in the balance of such reports.
73 I have ultimately concluded that as a consequence of his lower back injury, and the restrictions it causes him, there is no suitable work that the plaintiff is capable of performing. I am satisfied this loss of earning capacity will be permanent.
74 Given my acceptance that the plaintiff’s lower back injury prevents him from working, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
75 As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his lower back injury, it is not necessary for me to consider separately his pain and suffering consequences.[91]
[91]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
76 I am satisfied that the plaintiff suffers a serious injury to his lower back, arising as a consequence of his employment with the defendant, and the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
77 I will make the consequent orders.
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