Haidery v Victorian WorkCover Authority
[2017] VCC 139
•28 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00469
| HABIBULLAH HAIDERY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 February 2017 | |
DATE OF JUDGMENT: | 28 February 2017 | |
CASE MAY BE CITED AS: | Haidery v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 139 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering and loss of earning capacity – worker under twenty-six
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:State of New South Wales v Moss [2000] NSWCA 133; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 173; Abdulle v Advanced Wire & Cable Pty Ltd [2009] VSCA 170
Judgment:Leave granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Mr M Fogarty | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr R S Stanley | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Notepad Manufacturers Australia Pty Ltd (“the employer”) from May 2007 until May 2011 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
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 injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon is the lumbar spine.
5 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.
6 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, … fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.
7 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8 As the plaintiff was a worker under twenty-six years of age at the date of injury, pursuant to s134AB(38)(e)(i) of the Act, he must establish that at the date of the hearing, he has a loss of earning capacity of 40 per cent or more. Further, he must establish, pursuant to ss(e)(ii) of the Act, that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.
9 The rationale for the insertion of this section was not to disadvantage young workers in assessing an “after injury” earnings figure against their “without injury” earnings.
10 The relevant principles were summarised by Heydon J (as he then was) in Moss v State of New South Wales[1] as follows:
[1][2000] NSWCA 133 at paragraph [71]
(i) evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;
(ii) in general it is desirable to have precise evidence of what the plaintiff would have been likely to earn but for the injury and what [the plaintiff] is likely to earn after it;
(iii) where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work [the plaintiff] can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity;
(iv) the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;
(v) the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;
(vi) the task of the [court] is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.
11 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
12 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
13 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports, and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
14 The plaintiff is presently aged thirty-one, having been born in Afghanistan in December 1985. He lives with his wife and four-year-old daughter.
15 The plaintiff had only a couple of years of schooling in Afghanistan.[4] He later moved to Pakistan, where he did not work.
[4]Transcript (“T”) 5
16 In early 2013, the plaintiff came to Australia. He studied English for about a year.
17 The plaintiff first obtained employment in about 2007, when he worked as a kitchen hand for about a month in a restaurant in Dandenong, before commencing work with the employer in about May 2017.[5]
[5]T2
18 The plaintiff deposed that prior to commencing employment with the employer, he had some occasional back pain and in September 2003, he saw his general practitioner in that regard.
19 In cross-examination, the plaintiff was asked about medical attendances in 2003 when it was noted he was suffering severe low-back pain following an assault in Afghanistan three years earlier. The plaintiff denied having any back pain prior to working with the employer and he could not remember the assault. He recalled having an x-ray but could not remember the date thereof.[6]
[6]T16
20 The plaintiff worked with the employer as a factory hand. His duties involved packing notepads into boxes and loading them onto pallets. He also had to unload containers (“the work duties”). The work was physically demanding and his duties were generally heavy and repetitive.
21 As a result of performing the work duties, over time, the plaintiff developed low back pain. He saw Dr Tescher, his general practitioner, for treatment in about April 2008 and had an x-ray of his back.
22 In October 2010, whilst in New Delhi visiting his future wife, the plaintiff had a further lumbar x-ray organised by Dr Kapoor. The plaintiff told Dr Kapoor his condition was work related. At that time, the plaintiff had yet to have any physiotherapy for his back, although Dr Kapoor thought that treatment was continuing.[7]
[7]T17
23 In early 2011, the plaintiff returned to Dr Tescher because of increasing back pain, and underwent a CT scan in February 2011. He again saw Dr Tescher in late February 2011 because of ongoing low back pain and was given a certificate for some time off work.
24 On about 15 March 2011,[8] the plaintiff developed increased lower back pain whilst unloading a container at work. He again attended Dr Tescher, who prescribed pain-relieving medication and advised him to see an orthopaedic surgeon at the Orthopaedic Unit at the Austin Hospital.
[8]The date of the accepted injury – “the injury date”
25 The injury was reported to the employer and the plaintiff’s compensation claim was accepted.
26 A few days after the injury date, the employer took the plaintiff to a chiropractor, Dr Bongiorno, whom he attended about six times, but the treatment did not help.
27 The plaintiff believes he stopped work because of back pain on 16 March 2011.
28 Between April and August 2011, the plaintiff had physiotherapy at the Physical Spinal and Physiotherapy Clinic.
29 In about May 2011, the plaintiff attempted a return to work with the employer but only lasted for fifteen minutes. He was given duties working at a punching machine which put the rings into notepads. He could not cope with standing and has not worked since then.[9]
[9]T18
30 In September 2011, the plaintiff had an MRI scan of his lower back. Later that year, he was seen by a physiotherapist at the Austin Hospital and hydrotherapy was recommended.
31 As the plaintiff was on a waiting list to see an orthopaedic surgeon, he decided to see one privately. Mr Justin Hunt examined the plaintiff in June 2012, and recommended an repeat MRI scan, which was carried out in August 2012.
32 The plaintiff returned to Mr Hunt in October in 2012. Mr Hunt then suggested a spinal injection which the plaintiff decided not to undergo as he was scared to have the procedure. He denied telling Mr Hunt on a subsequent attendance that he had in fact had the injection.[10]
[10]T29
33 The plaintiff saw Mr Hunt again in March 2013 when they discussed the possibility of back surgery. The plaintiff was again reluctant to undergo that procedure because of the risks involved.
34 When the plaintiff last saw Mr Hunt in June 2014, he referred him to Dr Clayton Thomas, consultant in rehabilitation and pain medicine, for pain management. The plaintiff saw Dr Thomas once in September 2014.
35 When he swore his first affidavit in October 2015, the plaintiff continued to suffer constant low back pain, varying in intensity, and had flare-ups of severe pain. On those occasions he was unable to do much at all and generally had to rest and take medication. He often lay down if had a flare-up of severe pain. He also had left buttock, left thigh and left leg pain, down to the foot. His lower back pain was aggravated by activity and was generally worse in cold weather.
36 The plaintiff had become anxious and depressed as a result of his pain and his restrictions.
37 The plaintiff continued to see Dr Tescher every two to four weeks. He took Tramadol, Diazepam, Lyrica and Mianserin.
38 As a result of his injury, the plaintiff had then not worked for about four years and worried about his chances of future work. He had very limited education and limited English skills. He had only ever done manual work and never done an office job.
39 The plaintiff would have worked if he could. His wife was not working and they had planned to buy a house. He was happy at work and enjoyed it. He had some good friends there and missed the social aspect.
40 The plaintiff’s ability to sleep had been greatly affected by back and leg pain and he was woken regularly by pain each night. He would then get up and walk around for a while. He usually slept for only about four to five hours each night and often had trouble getting back to sleep when woken by pain.
41 As a consequence of his back condition, the plaintiff could not pick up his daughter and was not able to play with her like a normal father. He had to be careful that he did not do anything to aggravate his back pain and it upset him that he could not engage with his daughter as much as he would have liked.
42 The plaintiff had difficulty with prolonged sitting because it caused back pain. Sometimes he experienced a sudden sharp pain in his lower back and had a similar sharp pain if he stood for too long.
43 The plaintiff had difficulty going to the toilet as he suffered from constipation caused by his medication. He had recently been diagnosed with haemorrhoids as a result of his medication intake.
44 The plaintiff sometimes felt unsteady on his feet as his left leg felt weak at times. As a result, he sometimes used a walking stick to avoid putting pressure on his leg and felt more stable using it. He started using the stick of his own accord and had not been advised by any doctor to use it.[11]
[11]T20
45 Whilst he was able to drive, the plaintiff tried to avoid driving long distances and his wife often drove instead of him.
46 The plaintiff did the shopping and did what he could do around the house but he was limited because of his back pain. As a result, he relied on his wife a lot more around the house than he used to. It made him sad to see her doing much of the work.
47 Before the injury, the plaintiff used to play social volleyball occasionally with friends. His back was too painful to continue playing. He then spent most of the time at home. He had become depressed and frustrated. He used to be more sociable but then socialised far less and did not feel motivated to go and see people like he was in the past.
48 In his recent affidavit of 13 February 2017, the plaintiff confirmed he had basically continued to suffer the symptoms, consequences and effects of his back injury as earlier deposed to.
49 The plaintiff continues to suffer from ongoing pain in his back and left leg. He is never pain free. The pain varies and he continues to experience flare-ups of severe pain. When that occurs, he often needs to lie down and rest and wait for the pain to settle.
50 The plaintiff’s back and leg pain continues to be aggravated by activities such as bending, lifting and twisting, and is made worse if he sits or stands for too long. His pain is worsened by the cold weather.
51 The plaintiff’s constipation difficulties remain.
52 The plaintiff has continued to feel down and depressed at times due to his back condition.
53 In January 2016, the plaintiff was referred for a lumbar CT scan. In April that year, he was referred to a psychologist, Ms Moll, whom he continues to see every two to four weeks.
54 In about mid 2016, Dr Tescher referred the plaintiff back to Mr Hunt. As the plaintiff could not see him, he was referred to Mr de la Harpe, orthopaedic surgeon, whom he has seen twice.
55 In about July 2016, the plaintiff was referred to a pain specialist, Dr Neels du Toit, at Metro Pain Group. He recommended the plaintiff have an injection in his lower back, which was carried out in October 2016. Immediately thereafter, the plaintiff had a numbness sensation around the injection area, which lasted about two hours. Gradually, the pain returned to its pre level and he got no lasting benefit from the injection.
56 The plaintiff continues to see Dr Tescher about once a month. He attends the pool to do hydrotherapy approximately once a week.
57 The plaintiff continues to take daily medication for his back, with Tramadol every four hours. He usually takes five tablets each day and sometimes more when he gets really bad pain. He also takes Lyrica twice a day and Diazepam and Mianserin. He sometimes takes medication for constipation.
58 The plaintiff remains off work and currently receives a Disability Support Pension. Dr Tescher provides this certification, but the plaintiff does not know the details thereof.[12] The plaintiff does not believe he could currently work because of his back pain, and his English skills and computer skills are limited.
[12]T44
59 The plaintiff’s sleep continues to be disrupted due to back and leg pain and is broken by pain every night. As a result, he is often tired during the day.
60 The plaintiff continues to be restricted in his ability to play and interact with his five year old daughter. He sometimes takes her to the park and drives her to kindergarten, swimming and karate lessons. However, he is unable to run around and play games with her as he would like, and that upsets him a lot.
61 The plaintiff continues to use a walking stick at times. His left leg feels weak at times and he feels more stable using the stick. He does not use it all the time. He sometimes goes for walks to the park or the shopping centre.
62 The plaintiff continues to be restricted in his ability to drive long distances and help out around the house because of his back pain.
63 In 2009, the plaintiff’s gross earnings were $34,536; in 2010, $36,744 and in 2011, $30,271.
The Plaintiff’s treaters
64 Dr Tescher from Wantirna Road Medical Centre has provided a number of reports, having seen the plaintiff since 2003.
65 In these reports, Dr Tescher repeated details of various examinations and his referral of the plaintiff for different treatment regimes.
66 Dr Tescher did not provide his opinion as to the plaintiff’s work capacity, progress or prognosis. He did, however, complete Certificates of Incapacity in 2012 and 2013, certifying the plaintiff was fit for modified duties, not specifying any restriction on hours, which avoided worsening his back condition.[13]
[13]T22
67 The plaintiff first saw Mr Hunt on 18 June 2012. Following that examination, Mr Hunt thought the plaintiff had ongoing back symptoms, with left leg pain, without clear evidence of radiculopathy on the MRI scan of 1 September 2011.
68 On examination, there was reduced lumbar lordosis. The plaintiff had a subjective sense there was reduced sensation to his left lower limb on light touch at all dermatomes. Mr Hunt noted it was difficult to assess muscle power testing.
69 Mr Hunt explained to the plaintiff a repeat MRI scan would be worthwhile in order to clarify the pathology, as something may have changed since the previous scan.
70 Mr Hunt considered physical therapies did not seem to have much value as they seemed to aggravate the plaintiff’s symptoms. He thought another option for conservative management was a rehabilitation program; however, that tended to not be very successful where there were language barriers.
71 On further review on 16 July 2012, the plaintiff described severe symptoms of back and left leg pain and he was prescribed oral analgesics in the form of Endone, as Tramal and Diazepam were failing to provide pain relief of his severe symptoms.
72 On further review on 8 October 2012, the plaintiff was experiencing trouble with ongoing back pain and, also, left leg pain, felt mainly around the left knee, which Mr Hunt thought did fit with an L3 nerve-related problem.
73 Mr Hunt described the MRI findings of August 2012, which demonstrated evidence of a significant disc prolapse at the L2-3 motion segment, posterolateral to the left side, but the disc prolapse was broad based and came very close to both L3 nerve roots.
74 Mr Hunt explained these results and suggested a CT guided epidural as that would clarify whether the plaintiff was experiencing irritation of the L3 left nerve root, as well as potentially provide some pain relief.
75 On review on 1 March 2013, the plaintiff advised he had had the injection, but it had not helped to improve symptoms substantially.
76 The role of operative intervention in the form of a microdiscectomy was discussed, and the plaintiff was told the risks and benefits of such procedure. The plaintiff considered surgery as an option as the symptoms were worsening. Mr Hunt noted funding for surgery had previously been requested and he was awaiting a response from the insurer.
77 At that stage, Mr Hunt thought it was clear the plaintiff was suffering greatly from ongoing and severe back and leg symptoms. He believed he had also developed trochanteric bursitis as a result of the long-term limp.
78 On the last review on 27 June 2014, the plaintiff advised he continued to experience ongoing trouble with back and leg pain symptoms. Mr Hunt noted that he was under the wrong impression the epidural had taken place. He again discussed surgery with the plaintiff and noted that the insurer had rejected funding.
79 The plaintiff then described pain radiating down his entire leg, made worse by prolonged sitting, and he changed positions to gain relief. He was using a walking stick and taking Panadeine Forte.
80 Mr Hunt advised he believed it appropriate to consider pain management review and wrote to Dr Thomas, asking whether he could review the plaintiff to determine whether he would be suitable for a rehabilitation program.
81 Mr Hunt diagnosed a work-related injury with development of pain, and back and leg pain while working for the employer. He noted clinical presentation and MRI scan findings were consistent with L2-3 disc prolapse, with lower back and leg radicular pain.
82 Mr Hunt did not think the plaintiff had a capacity for work at that time, as his ongoing back and leg pain symptoms were debilitating. He thought it unlikely the plaintiff could perform his pre-injury or any alternative employment at that stage and given the ongoing nature of his symptoms, his limited training and education, and the lack of spoken English, it would be difficult for him to find even sedentary work in the future.
83 Mr Hunt also noted restrictions in relation to domestic activities and leisure and lifestyle activities.
84 Mr Hunt thought the plaintiff would require ongoing activity modification and oral analgesics and there was the possibility of an epidural providing him with short-term relief, as well as the possibility of surgical intervention.
85 Mr Hunt did not believe the plaintiff had a capacity for work, and taking into account his age, education, skills, work experience, limited English and place of residence, he believed the plaintiff was likely to be incapacitated for work in the foreseeable future.
86 Mr de la Harpe wrote to Dr Tescher in October 2016.
87 Mr de la Harpe advised that he did not think any surgery would benefit the plaintiff. He thought he needed a more active rehabilitation program, depending on the availability of WorkCover funding, which should include core stability strengthening exercises and, possibly, a pain management program.
88 Dr Neels du Toit reported to Dr Tescher in September 2016, having seen the plaintiff on his referral.
89 Dr du Toit noted the MRI scan of 2012 and the CT scan of early 2016 which, again, showed well preserved lumbar discs and no sign of nerve compression at any level.
90 Dr du Toit thought that there was a diagnostic dilemma, given the plaintiff presented with radicular signs and symptoms, but the scans could not show any specific nerve compression. Included in his differential diagnosis was pain from the sacroiliac joint, lower lumbar facet joints or radicular or extra spinal nerve compression.
91 Dr du Toit suggested the plaintiff consider a diagnostic intervention pathway. He recommended a left sacroiliac joint injection and, if that was negative, to target the lower lumbar facet joints. If both interventions were negative, he would consider an extra spinal nerve compression cause, including the piriformis muscle.
92 Dr du Toit advised he might conclude with a diagnosis of neuropathic pain and leg pain. He did, however, think, given the plaintiff’s clinical signs, he had to rule out somatic or radicular contributors to his pain before making that diagnosis.
93 Ms Moll, psychologist, from Fernhills Clinic, provided a report of 8 February 2017, the plaintiff having been referred in April 2016.
94 Ms Moll diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood. She considered the plaintiff met the diagnostic criteria for that condition, noting his psychological symptoms had been developed in the context of chronic pain after the development of his work-related back injury.
95 Ms Moll considered the plaintiff’s presentation was characterised by persistent depressed mood, anxious distress, ruminating thoughts, lethargy, loss of interest and pleasure in usual activities, sleep disturbance, irritability and feelings of helplessness.
96 The plaintiff advised Ms Moll of his constant back pain and need for a walking stick, and restrictions in daily function and social activity.
97 The plaintiff advised his inability to work had had a significant impact on his financial status and he now relied on a Disability Support Pension. That, in turn, had caused him significant stress in being able to adequately provide for his family. She considered the plaintiff’s chronic pain and physical limitations remained as a constant stressor and the cause of his psychological condition.
98 From a psychological perspective, Ms Moll thought the plaintiff’s psychological condition was unlikely to improve to a point of being fit for employment and he certainly was not fit for employment in his present state.
Investigations
99 On 25 September 2003, Dr Tescher arranged a series of x-rays.
100 It was reported that in the lumbosacral spine, there was normal alignment, vertebral height and disc height. There was no fracture, focal bone lesion or degenerative change. There was normal appearance of the facet joints and intervertebral foramina.
101 On 11 August 2008, Dr Tescher organised a further x-ray of the lumbar spine. It was reported spinal alignment was normal. No disc or osseous abnormality was detected and the sacroiliac joints were normal.
102 Dr Tescher organised a CT scan of the lumbar spine in February 2011. It was reported there were mild degenerative changes which would account for back pain and no radicular compression was seen.
103 On 1 September 2011, Dr Tescher organised an MRI scan of the lumbar spine. Disc degenerative changes at L1-2 and L2-3 were reported and no significant central canal or foraminal stenosis, or neural compression.
104 On 23 August 2012, Mr Justin Hunt organised an MRI scan of the lumbar spine.
105 It was reported there was moderate degenerative change at L2-3, with mild changes at L1-2. At L2-3, there was a broad based central to right paracentral soft disc protrusion that effaced the right anterior theca and caused mild central canal stenosis. There was no definite neural compression.
106 Dr Tescher organised a CT scan of the plaintiff’s lumbar spine in January 2016. It was reported there was mild lumbar spondylosis. There was a mild posterior disc bulge at L2-3. The broad based central to right paracentral disc protrusion at L2-3, shown on previous MRI scan dated 2012, was no longer identified. There was no significant central canal or foraminal stenosis.
Medico-legal evidence
107 Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff on 14 September 2016.
108 The plaintiff then described ongoing severe lower back pain radiating to the left leg and left leg pain. He advised he had become depressed and anxious and felt much of his psychological problems were due to his lower back pain.
109 The plaintiff reported a sitting, standing, walking and driving tolerance of five to ten minutes.
110 Dr Slesenger noted the plaintiff manoeuvred regularly during the course of the narrative and was unable to sit for more than five minutes. He required a stick to manoeuvre in and out of the chair. He had to sit on the floor during the examination to relieve symptoms. He was able to climb on and off the couch with some degree of difficulty.
111 Dr Slesenger thought the plaintiff had suffered a mechanical injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine with left radicular symptoms, with no evidence of radiculopathy on examination. He also commented there was psychological impairment, although that was outside his area of expertise.
112 Dr Slesenger concluded there was evidence of a psychogenic element to the plaintiff’s presentation. Nevertheless, he thought there was a significant organic component.
113 Dr Slesenger was satisfied the plaintiff’s injury was consistent with the occupational exposures as described.
114 Based on physical organic impairment alone, Dr Slesenger thought the plaintiff’s work capacity had been compromised. He considered the plaintiff had a residual capacity to work with restrictions, namely: no push, pull, carry or lift over 5 kilograms; no repetitive bending or twisting; sit and stand as required, working four hours a day, four days a week.
115 Nevertheless, taking into account the various factors under the definition of “suitable employment” in s5 of the Act, Dr Slesenger was not optimistic that the plaintiff would be able to work performing suitable employment for which he had training and experience.
116 Dr Slesenger thought the plaintiff would benefit from referral to a pain specialist and, as a result, there was an opportunity for improvement in his symptoms. Nevertheless, given his current presentation, Dr Slesenger was not optimistic the plaintiff would see a significant improvement in his symptoms to the point where he would be able to return to work.
117 Dr Slesenger recommended the plaintiff continue to see his general practitioner for certification and medication purposes.
118 Dr Slesenger was unable to advise as to their permanency of the plaintiff’s work restrictions, as the plaintiff’s response to further treatment had yet to be identified. He noted, however, the plaintiff had responded poorly to treatment to date and there may be a behaviour element that was affecting his adherence to treatment recommendations. That, in turn, would affect the success, or otherwise, of any therapy interventions.
119 Dr Slesenger thought it was unlikely the plaintiff was able to return to work in the roles outlined in the NES Vocational Assessment. However, he thought the plaintiff may have capacity to perform work as a process worker within restrictions. Forklift driving would be unsuitable with the vibration forces involved and, perhaps, manual handling. The plaintiff would not be able to work as a cashier. He had a theoretical capacity to work as a packer, but was unlikely to be able to attend work performing this role on a consistent and reliable basis.
120 Dr Slesenger thought the plaintiff would not be able to climb in and out of a crane to work as a crane hoist lift operator and would not be able to secure a load. He was also worried about the influence of medication on the plaintiff’s ability to perform those duties.
121 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 11 July 2016.
122 The plaintiff then complained of constant lower back pain, with fluctuations, increasing with physical activity. He had constant left leg pain extending from the buttock down the back or front of the thigh to the lower leg, and he used a walking stick.
123 Examination showed restriction of the thoracolumbar spinal movements, palpable guarding to the left of the upper limbs on the spine, but no objective neurological abnormality of the lower limbs and no signs of radiculopathy.
124 Mr Brownbill noted radiological investigations demonstrated degenerative changes of the lumbar spine, with progressive disc protrusion at L2-3 on serial examinations.
125 Noting the absence of previous ongoing lower back pain, Mr Brownbill considered, on probability, the plaintiff sustained progressive aggravation of lumbar spine degenerative changes with disc derangement that acted as the basis for a later disc prolapse. Surgery was appropriate, but he noted the plaintiff had declined that suggestion.
126 Mr Brownbill thought, on probability, the plaintiff’s pain would continue to fluctuate. He should, in the future, avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing and sitting. He would not be able to return to any manual type labouring, or labouring jobs in the future, or to his previous employment.
127 Mr Brownbill considered, on probability, the plaintiff would not be able to perform any work for which he was suited in an ongoing or reliable fashion. An assessment of any emotional reaction component lay outside the neurosurgical province.
The Plaintiff’s vocational evidence
128 A vocational assessment was carried out by Vocational Directions in January 2017, during which the plaintiff attended with the assistance of a Dari interpreter.
129 In that report, Paul Hartley, senior rehabilitation consultant, was unable to put forward any job designations he believed the plaintiff would be able to undertake in a consistent and reliable manner and for which he would be able fulfil inherent demands. He believed the plaintiff was substantially disenfranchised from the workforce.
130 Mr Hartley thought it was appropriate for the plaintiff to undertake, via a Centrelink referral, a language, literacy and numeracy program (“LLN”), which would provide up to 800 hours of free accredited learning in those areas for eligible job seekers whose skills were below the level considered necessary for secure, sustainable employment.
131 Following that, Mr Hartley thought the plaintiff would require computer training from basic level upwards. Should he gain adequate foundation skills, it may be that, injuries permitting, he may have a capacity to undertake vocational education towards physically suitable and sustainable employment.
132 Flexi Personnel provided an earnings report on the plaintiff’s behalf in December 2016, setting out the current potential earnings, had he not sustained injury and continued as a full-time general factory hand, having regard to relevant pay increases and any applicable award or agreement.
The Defendant’s medical evidence
133 On 4 April 2013, the Medical Panel determined the plaintiff was suffering from a prolapse of the L2-3 intervertebral disc relevant to the claimed injury. It also found the plaintiff’s incapacity for work resulted from the claimed injury.
134 A Health Assessment Summary Form provided by Victorian Foundation for Survivors of Torture was forwarded to Dr Tescher in September 2003.
135 It was noted under the heading “health issues” that the plaintiff was severely beaten three years ago. He was repeatedly kicked in the back and his nose was broken. He currently experienced severe and recurrent back pain and reported difficulties with a blocked nose.
136 It was also noted the plaintiff and his family had a very severe history of physical and psychological trauma experienced in their country, having come to Australia as refugees from Afghanistan. His father and two eldest brothers were detained by the Taliban forces approximately three years earlier, and their present whereabouts was unknown.
137 Dr Loayza of Wantirna reported in October 2003 that, in addition to difficulty breathing, the plaintiff also suffered from back pain. These problems arose after being injured in Afghanistan. An assessment and help with management was requested.
138 Dr Kapoor in New Delhi wrote on 16 October 2010 that he had examined the plaintiff physically and ordered an x-ray of the lumbar spine. He further advised that the plaintiff continue physiotherapy and avoid any exertion.
139 Brendan McCarthy, physiotherapist, reported to Dr Tescher in July 2011, at which time he requested the doctor’s consideration of involving a psychologist and further investigation. Mr McCarthy advised he would certainly like to continue working with the plaintiff to address the myofascial component in his presentation and, more importantly, gradually build on functional and related movement control and exercise, along with pain-neurophysiology education.
140 The plaintiff attended Austin Health, where he saw Ms Wendy Peake, physiotherapist, in the Orthopaedic Unit in November 2011.
141 Ms Peake advised, in the absence of any signs of significant neural compression, continued conservative management was appropriate and she had suggested an aquatic exercise program may be useful and had attempted to make a referral through Eastern Health.
142 The plaintiff saw pain specialist, Dr Thomas, on one occasion on 9 September 2014, with the assistance of a professional interpreter.
143 On examination, the plaintiff walked with a single point stick and had a flat lumbar lordosis. He was fairly diffusely tender throughout the lumbar spine. Spinal movements were grossly limited and some indirect movements revealed that they were better. There were no neurological abnormalities.
144 Dr Thomas reviewed an MRI scan which showed the left-sided L2-3 disc bulge abutting the left L3 nerve root.
145 Following examination, Dr Thomas thought the L2-3 was probably the genesis of back and left leg pain syndrome. There were some non-organic components. Dr Thomas noted the level of disability appeared to be marked, as did the level of pain. He thought it was hard to get a true gauge as to what was actually occurring here.
146 Dr Thomas advised that he was not convinced that formal rehabilitation was likely to be a circuit breaker. He was not convinced that interventional pain management was likely to help the plaintiff, nor that altering his medication to any extent was likely to be beneficial.
147 In a more detailed report relating to that examination, Dr Thomas advised that, diagnostically, he felt that there were both organic and non-organic components presenting in the plaintiff's situation and contributing to his pain and disability. He had difficulty untangling the situation.
148 In view of the plaintiff’s non English speaking background and the length of time since injury, Dr Thomas felt quite nihilistic with respect to any likely traction from formal treatment under his care. With such, he felt a palliative support treatment regime primarily through the general practitioner was the appropriate way to go for the plaintiff.
149 Dr Thomas concluded it was difficult to untangle the plaintiff’s true level of disability and difficult to untangle the organic from the non organic. He had difficulty in determining the plaintiff’s true level of work capacity. He thought further medical treatment was supportive and had difficulty determining what the likely prognosis was.
The Defendant’s medico-legal evidence
150 Dr James Rowe, specialist occupational physician, first saw the plaintiff in June 2011.
151 Dr Rowe concluded the plaintiff had lower back pain on the left, with radiculopathy in the left leg that required further investigation. His condition had not resolved and was still work related. Although the plaintiff had mild degenerative changes, Dr Rowe thought it more than likely he had a disc protrusion which more than likely was at L2-3 or L3-4.
152 Dr Rowe then thought it was premature to arrange a work site visit and it was premature to comment on the jobs suggested by IPAR.
153 Dr Rowe re-examined the plaintiff in March 2012.
154 On that occasion, Dr Rowe thought the plaintiff had improved considerably since first seen. Dr Rowe noted some inconsistencies on straight leg raising and there was no wasting of the left thigh. The plaintiff proffered a change in sensation about the left leg, but it was not physiological.
155 Dr Rowe did not think the current treatment was appropriate because it was directed towards a physical back injury and he thought the plaintiff had recovered from any physical injury. He considered there was a strong element of exaggeration in the plaintiff’s presentation and did not think it was a true representation of his capacity. He did not see the need for ongoing hydrotherapy or, indeed, medication directed towards a physical injury.
156 Dr Rowe could see no reason why the plaintiff could not return to work. He thought the job offered as a punch operator seemed well within the plaintiff’s capacity and Dr Rowe would suggest the plaintiff’s capacity was greater than that which he proffered on that examination.
157 Dr Rowe noted there may be strong psychosocial factors contributing to the plaintiff’s condition and examination by a psychiatrist would be reasonable. He also suggested surveillance might be useful. He then did not see any point of a worksite visit. He saw no reason why, eventually, the plaintiff should not be able to return to his normal pre-injury duties. Whilst not a psychiatrist, he thought the plaintiff may be suffering psychological problems which needed assessment.
158 Dr Gregory White, consultant psychiatrist, examined the plaintiff in April 2012.
159 On mental state examination, the plaintiff used a walking stick and appeared to be in pain at various times. There was no evidence of depressive themes. The plaintiff denied significant long-term trait anxiety and instability of mood impulsivity, obsessionality or antisocial behaviour. He was well orientated. There was no disturbance of concentration or memory and no major disturbance of general judgment, insight, or motivation, apparent at interview.
160 Dr White noted the plaintiff disagreed with an occupational physician’s report, saying there was a strong element of exaggeration and that he was fit for work, relying on the view of an orthopaedic surgeon that his pain was severe and incapacitating.
161 Notwithstanding, Dr White thought there was no evidence of a psychiatric condition or the need for any psychiatric medications for any psychiatric disorder.
162 Dr Philip Mutton, consultant occupational physician, examined the plaintiff in May 2013.
163 On examination, the plaintiff was using a walking stick, sometimes held in the left and sometimes the right hand. There was no scoliosis and no paravertebral muscle spasm. The plaintiff was tender throughout the lumbar spine. There was no wasting and there was equivalent power in the lower limb. However, sensation throughout the whole of the left leg was globally different to that on the right and there was no differentiation between dermatomes.
164 Dr Mutton noted the MRI scans of 23 August 2012 and 1 September 2011, and the CT scan of 11 February 2011.
165 Dr Mutton thought the plaintiff’s presentation was fairly nonspecific, with fairly widespread nonspecific lumbar pain and fairly nonspecific pain/sensory changes throughout the left lower limb not meeting any dermatome distribution. Certainly there was a global loss of sensation and he would consider these to be poor prognostic signs for a good outcome from surgery.
166 Dr Mutton thought the plaintiff suffered from chronic lower back pain with radiation into the left lower limb which had not resolved and, by his account, was deteriorating. In view of the plaintiff’s ongoing symptoms, Dr Mutton would consider employment to still be a cause thereof.
167 Based on current symptoms, Dr Mutton thought the plaintiff would not be able to return to work in heavy physical duties. From a clinical examination viewpoint, he presented as quite well, with no significant abnormality.
168 From a physical examination viewpoint, Dr Mutton thought the plaintiff would be able to undertake physical work; however, it must be appreciated the most recent MRI scan of August 2012 did identify some disc related changes at L2‑3 which may be the source of his pain and, under those circumstances, the plaintiff should avoid heavy physical work.
169 Therefore, Dr Mutton would suggest the plaintiff could return to modified or alternative duties. He recommended a weight limitation of 10 kilograms and avoidance of pushing, pulling and twisting motions and repetitive lifting at the waist. He thought, given the plaintiff’s presentation and current domestic activities, he would be able to work on a full-time basis, but should have a graduated reintroduction to the workforce.
170 Dr Mutton concluded there was a mismatch between clinical findings and presentation; however, there was some pathology which may account for the plaintiff’s symptoms. He suggested some external observation of the plaintiff may be helpful.
171 Dr Mutton advised that at the present time, it was difficult to determine whether the plaintiff had or had no work capacity. He suggested, given the history and pathology, the plaintiff did require the suggested restrictions.
172 Dr Mutton was later provided with a surveillance report of May 2013 and the NES report of May 2013.
173 Dr Mutton thought the identified suitable employment options, one through to five, were appropriate with, perhaps, number five, the forklift driver role, being the least attractive in terms of the physical demands of getting on and off the forklift, and also sitting for prolonged periods. He thought the plaintiff had the capacity for full-time work within the restrictions he set out.
174 Dr Mutton considered the walking stick a “cosmetic indicator of the plaintiff’s perception of back pain”. He noted the plaintiff was not using the stick in an appropriate manner and, in fact, he used it left and right hand, as was demonstrable on examination.
175 As Mr Peter Battlay examined the plaintiff in July 2014 for the purposes of an AMA assessment, this report is of limited assistance in terms of the plaintiff’s work capacity.
176 Mr Battlay reported that on examination, the plaintiff presented limping heavily, favouring the left leg and leaning onto a walking stick. Mr Battlay noted the plaintiff held his lumbar spine in a normal position, and from that he only performed miniscule movements, and complained of back pain with all movement.
177 Neurologically, the plaintiff claimed diminished sensitivity of the left leg over the anatomically inconsistent area from groin to toes. There was a centimetre of calf muscle wasting on the left.
178 Mr Battlay noted the MRI scan of August 2012 and the September 2011 MRI scan.
179 Mr Battlay concluded the plaintiff had mechanical lower back pain without radiculopathy, noting he had an accepted WorkCover Claim for a back injury. He diagnosed lumbar spondylosis without radiculopathy
180 On 1 October 2014, the Medical Panel decided the plaintiff had a zero per cent whole person impairment resulting from the accepted prolapse of the L2-3 intervertebral disc.
181 Mr Michael Dooley, orthopaedic surgeon, first examined the plaintiff in January 2016.
182 The plaintiff then said he had constant lower back pain. At times, he noted pain radiating down his left lower limb posteriorly towards the sole of his foot and, at times, his left foot discoloured and became a blackish colour. He said his pain was worsening in time. He advised he had begun to walk with the aid of a walking stick in his right hand.
183 On examination, there was altered sensation in the whole of the left lower limb. There was tenderness of the lower lumbar region and restriction of movement.
184 Mr Dooley had available the January 2016 investigations which showed no evidence of nerve root compression or of spinal canal stenosis.
185 Based on the plaintiff’s history, Mr Dooley believed, at work, the plaintiff sustained a soft tissue injury to the lumbar spine that involved some aggravation of underlying degeneration at L2-3. Mr Dooley did not think there was a specific disc prolapse at the time of the incident.
186 Accepting the soft tissue injuries sustained, Mr Dooley thought the constancy and intensity of the plaintiff’s ongoing pain, and his described disability, were greater than one would expect to see for his organic condition. Even if one accepted there could be some nerve root irritation at L2-3, that did not explain pain radiating posteriorly in the lower limb to the sole of the plaintiff’s foot.
187 Mr Dooley considered the plaintiff had had a psychological reaction to his situation which dominated his current presentation. From an orthopaedic point of view, the plaintiff needed to increase his activity in general and to undertake low impact exercise. Mr Dooley thought, for the plaintiff’s overall wellbeing it was imperative he returned to suitable employment, and that surgery would carry a risk of compounding the plaintiff’s situation.
188 From an orthopaedic viewpoint only, Mr Dooley would expect the plaintiff to have a physical capacity to work in jobs such as forklift driving, crane hoist and lift operator, light packing, light process work and cashier type work. The plaintiff would not be able to carry out work that involved regular heavy physical activity and prolonged bending, twisting and lifting. From an orthopaedic view, he would expect the plaintiff to note some intermittent lower back pain and would not expect his orthopaedic condition to deteriorate in time.
189 On re-examination in November 2016, the plaintiff reported constant, ongoing lower back pain and intermittent left leg pain.
190 Essentially, Mr Dooley’s diagnosis, clinical impression and assessment remained as outlined in his previous report.
191 In general, Mr Dooley thought the plaintiff had a physical capacity to carry out light physical work and clerical duties and he would expect him to be able to carry out the job options, as identified by IPAR in May 2013.
The Defendant’s vocational evidence
192 In an NES Vocational and Assessment Report compiled by IPAR in May 2013, the following were identified as suitable employment options: crane hoist and lift operator, packer (light duties), cashier, process worker (light duties) and forklift driver.
Overview
193 There is no dispute the plaintiff suffered an injury to his lumbar spine during the course of his employment with the employer.
194 The plaintiff’s claim for weekly payments was accepted and he was paid for 130 weeks. His claim for an Impairment Benefit pursuant to s98(C) for a prolapse of the L2-3 intervertebral disc was also accepted.
195 Whilst the plaintiff had a previous back complaint in 2003 following an incident in 2000 in Afghanistan, it was not suggested this was an aggravation case involving the principles in Petkovski v Galetti.[14]
[14][1994] 1 VR 436
196 Dr Rowe is alone in his view following re-examination in March 2012, that the plaintiff had recovered from any physical injury. In any event, no submissions were made in these terms.[15]
[15]T77
197 However, it was submitted on the defendant’s behalf that the plaintiff’s current lumbar condition lacks a substantial organic basis.[16] Further, it was submitted that it was not possible to identify any physical injury and that there was a “diagnostic dilemma” as Dr Du Toit described.[17]
[16][2013] VSCA 201
[17]T47
198 In Meadows v Lichmore Pty Ltd,[18] Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… 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.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[18](Supra) at paragraphs [21]-[22]
199 Counsel for the defendant submitted the medical evidence failed to disentangle the organic from the non-organic components in the plaintiff’s presentation.[19] In particular, reliance was placed on the view of Dr Thomas, who had difficulty “untangling the situation” and found the presence of some non-organic components on examination.[20]
[19]T53
[20]T52
200 Further, reliance was placed on the view of Dr Du Toit who, having examined the radiology including the 2016 CT scan which did not reveal the earlier protrusion at L2-3, thought there was a “diagnostic dilemma”. It was submitted in those circumstances there may well be no physical injury.[21]
[21]T47
201 It was submitted the general practitioner, Dr Tescher, cast little light on the relevant issue, with his reports simply being a chronology of treatment to date without any opinion expressed by him as to the relevant issues.
202 Mr Brownbill’s opinion was criticised as he failed to mention non-organic factors and did not seemingly “acknowledge the great elephant in the room”. A similar criticism was made of Dr Slesenger.[22]
[22]T51
203 Mr Dooley thought the plaintiff’s complaints were over and above what could be expected for a physical injury. It was submitted in those circumstances, he did not need to go so far as to say the plaintiff was feigning. He thought there were non organic factors in the plaintiff’s presentation and they must be excluded. Further, it was submitted a soft tissue injury as diagnosed by Mr Dooley cannot have serious consequences.[23]
[23]T52
204 It was also submitted the plaintiff’s complaints of a very high level of pain, the inability to bend and the use of the walking stick were non-organically based.[24]
[24]T51
205 However, taking into account all the evidence, I am satisfied the plaintiff’s present lumbar condition has a substantial organic basis.
206 The only practitioner not supportive of this view, Dr Thomas, saw the plaintiff once in September 2014. He considered the L2-3 was the genesis of the plaintiff’s problem and in addition to non-organic factors, he also found there were organic components presenting in the plaintiff’s situation.[25]
[25]T72
207 Confining himself to his own specialty, Mr David Brownbill considered the plaintiff’s condition was organic in nature, diagnosing progressive aggravation of lumbar spine degenerative changes with disc derangement that acted as the basis for the later disc prolapse. He made no mention of any functional issues on examination and noted that the surgery suggested by Mr Hunt was appropriate.[26]
[26]T75
208 Whilst Dr Du Toit was unsure of the precise diagnosis, he did not exclude an organic explanation for the plaintiff’s complaints.
209 Although Mr Dooley thought the plaintiff’s level of pain and restriction was over and above what would be expected for his physical condition, he diagnosed a soft tissue injury to the lumbar spine that involved some aggravation of underlying degeneration at L2-3. He did not comment that the plaintiff’s present complaints lacked an organic basis or that there was a florid presentation on examination.[27]
[27]T72
210 Similarly, no comments of this nature were made by Mr de la Harpe, or the plaintiff’s original treating surgeon, Mr Hunt.
211 Mr Hunt suggested the plaintiff undergo an epidural injection and sought funding from WorkCover for surgery, which was denied. He also suggested pain management. He made these treatment suggestions, having examined the plaintiff’s a number of times and being aware of the use of the walking stick and the plaintiff’s physical complaints.[28]
[28]T72
212 Whilst Dr Tescher’s reports lacked detail, he provided certificates during 2012 and 2013 in which he set out the plaintiff was fit for modified duties as a result of his back condition. Further, Dr Tescher has continued to prescribe strong painkilling medication for a physical injury. Dr Tescher was not required for cross-examination.[29]
[29]T79
Credit
213 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[30]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[30](2010) 31 VR 1 at paragraph [12]
214 When asked whether any issue was to be made of the plaintiff’s credit, counsel for the defendant suggested that his evidence was unreliable when one took into account his denial of any problems with a back injury before coming to Australia and his treatment in 2003 in relation thereto and, also, the issue of epidural injections and what he, in fact, told Mr Hunt.[31]
[31]T54
215 It was further submitted the plaintiff’s ability to work only 15 minutes on the punching machine raised some “alarm bells” as to his willingness to work and that it was “farfetched” to accept that he had not discussed his work capacity and WorkCover certificates with Dr Tescher.[32]
[32]T56
216 Counsel for the plaintiff submitted this was not a credit case. The plaintiff’s evidence was affected by language difficulties and his psychological condition. Whilst there may be some pain behaviour, the plaintiff was a genuine witness. Further, surveillance film was not shown.[33]
[33]T68
217 I found the plaintiff to be a relatively unsophisticated witness and thought he attempted to give a truthful account of his disability and pain without exaggeration. While I accept the walking stick is not supported on medical grounds, I do not think the use, thereof, raises any real issues as to the plaintiff’s credibility.
Pain
218 The Court of Appeal in Haden Engineering Pty Ltd v McKinnon[34] considered what was involved in a serious injury from a pain and suffering perspective.
[34]Supra
219 Maxwell P set out at paragraph [11]:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
· (a) what the plaintiff says about the pain (both in court and to doctors);
·(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
·(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
·(d) what the objective evidence shows about the disabling effect of the pain.”
220 The plaintiff, since ceasing work in 2011, has complained of constant lower back pain radiating to the left leg which, at times, is severe and of a shooting nature. During flare ups, he has to lie down.
221 The plaintiff reports limited postural tolerances and has difficulty driving and walking for extended periods. He is unable to bend and lift and carry out any physical activity of any significant nature.
222 The plaintiff continues to be prescribed significant painkilling medication.
223 In Kelso v Tatiara Meat Company Pty Ltd,[35] Dodds-Streeton JA said, at paragraph [199]:
“Secondly, the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[35](2007) 17 VR 592
224 As counsel for the plaintiff submitted due to his pain and restricted movement, the plaintiff no longer has the capacity to engage in unrestricted heavy work. This is my view is a serious consequence.
225 When it was suggested by counsel for the defendant that the plaintiff had a poor work record prior to injury, counsel for the plaintiff submitted that the fact the plaintiff was not employed in the first four years in Australia may be an indicator of difficulty obtaining work and that from May 2007, he had a good work record working for the employer for four years before he had to cease due to his back pain.[36]
[36]T69
226 It was submitted the plaintiff gave impressive evidence as to the satisfaction he derived from work and the status work gave a man in his ethnic community.[37] Given his background and limited English, the plaintiff was doomed to be a factory worker for his working life. His ability to do that work on an unrestricted basis has been significantly compromised by his back injury. In those circumstances, he has suffered the 40 per cent requisite loss for a worker under twenty-six.
[37]T69
227 Whilst precise figures could not be put and determination of the issue is a judgment call, it was submitted the plaintiff had suffered a 50 per cent loss of earning capacity, being precluded from engaging in unrestricted factory work. [38]
[38]T70
228 It appears to be conceded by the defendant, if the plaintiff was able to successfully disentangle organic from non-organic factors, the plaintiff does have a restricted capacity for work, only being able to do light duties, as Mr Dooley opined.
229 Counsel for the defendant however submitted that with these restrictions, factory work was not closed to the plaintiff who would still be able to do many of his pre-injury duties and he would not be 40 per cent worse off. With a capacity for light work, it was submitted the plaintiff’s earning potential was not starkly different post injury as earnings in light process work were similar to those in a heavier duty factory role.[39]
[39]T58
230 Further, reliance was placed on the plaintiff’s treating psychologist’s view that on a psychiatric basis, the plaintiff is unfit for work.[40]
[40]T59
231 I am satisfied, on an organic basis alone, the plaintiff does not have a capacity for unrestricted manual work and in those circumstances, a large range of manual jobs are no longer available to him.
232 In a case such as the present, where the plaintiff has suffered a significantly disabling injury which affects the range and nature of the work he can undertake, I am able without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity.
233 Accordingly, I am satisfied the plaintiff the plaintiff has suffered the requisite 40 per cent loss.
234 Whilst subsection (g) does not specifically apply to workers under 26,[41] I accept that issues of retraining and rehabilitation are relevant when considering the plaintiff’s future work capacity.
[41]T61
235 Whilst the plaintiff may be able to undertake study such as the LLN course mentioned by Mr Hartley, in my view, the completion of such a course would not alter the situation that he will suffer a 40 per cent loss of earning capacity on a permanent basis as his physical restrictions would remain.
236 The plaintiff has undergone a range of conservative treatment including referral to pain management in October 2016 where he underwent an injection in his lower back. Despite treatment, there has been no significant improvement in the plaintiff’s condition to date and I am satisfied that his lumbar impairment is permanent.
237 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[42] and Advanced Wire & Cable Pty Ltd & VWA v Abdulle.[43]
[42][2009] VSC 454 at paragraph [147]
[43][2009] VSCA 170
238 Accordingly, I grant leave to bring proceedings for damages for both pain and suffering and loss of earning capacity.
- - -
0
9
0