Ho v Baiada Farms
[2012] VCC 1246
•31 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
No. CI-11-06261
| DUE NGOC HO | Plaintiff | |
| V | ||
| BAIADA FARMS PTY LTD | Defendant | |
JUDGE: | HER HONOUR JUDGE JENKINS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 & 17 August 2012 | |
DATE OF JUDGMENT: | 31 August 2012 | |
CASE MAY BE CITED AS: | Ho v Baiada Farms | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1246 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION Application for leave pursuant to s. 134AB Accident Compensation Act 1985 Paragraph (a) of serious injury definition; serious injury conceded by Defendant for pain and suffering; claim for economic loss only; lumbar surgery to insert Maverick discs; Plaintiff illiterate in English with minimal spoken English; No relevant education or vocational training; Unsuitable for pre injury unskilled manual labour; 45 y.o. Treating doctors not relied upon; Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin QC with Mr N. Dunstan | Slater & Gordon Pty. Ltd. |
| Vietnamese Interpreter | Ms H. Vichidvongsa | |
| For the Defendant | Ms. A. Sheehan | Ryan Carlisle Thomas |
TABLE OF CONTENTS
Nature of Application....................................................................................................................... 2
Evidence.............................................................................................................................................. 2
The Plaintiff’s Evidence.................................................................................................................. 3
Background.................................................................................................................................... 3
Pre Injury Health and Activities................................................................................................... 3
Employment with the Defendant and Workplace Injury.......................................................... 3
Initial Symptoms and Return to Work........................................................................................ 4
Surgery........................................................................................................................................... 5
Other Treatment and Medication................................................................................................ 6
Current Symptoms........................................................................................................................ 6
Current Treatment and Medication............................................................................................ 7
Work Capacity............................................................................................................................... 8
Earning Capacity........................................................................................................................... 9
Medical Evidence............................................................................................................................ 10
Treating Doctors......................................................................................................................... 10
Medico-Legal Experts................................................................................................................ 14
Relevant Statutory Provisions and Case Law........................................................................ 20
Analysis of the Evidence and Findings.................................................................................... 24
Defendant’s Counsel.................................................................................................................. 24
Plaintiff’s Counsel....................................................................................................................... 26
Conclusion................................................................................................................................... 27
Orders................................................................................................................................................ 30
HER HONOUR:
Nature of Application
1 This is an application for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 (‘the Act’) made by Originating Motion pursuant to section 134AB(4) on 21 December 2011 by the Plaintiff, in respect of an injury suffered by him in the course of his employment with the Defendant in November 2007.
2 At the outset of the hearing, the Defendant conceded that the Plaintiff suffered a serious injury as defined within section 134AB(37) under paragraph (a), by reason of a:
(a) permanent serious impairment or loss of a body function
3 Accordingly, leave is now sought in relation to damages for loss of earnings only.
Evidence
4 In support of the Application, the Plaintiff relied upon:
(a)Medical reports tendered from the Plaintiff’s Court Book, three affidavits of the Plaintiff; [1] and other documents; and
[1]Affidavits sworn 2 August 2011; 3 April 2012 and 7 July 2012.
(b) Oral evidence given to the Court by the Plaintiff; and medico legal expert Mr Brownbill.
5 Opposing the Application, the Defendant relied upon tendered medical reports of treating surgeon, Mr Brazenor.
6 The Defendant contends that the Plaintiff has a work capacity and has not proven the minimum loss of earning capacity.
The Plaintiff’s Evidence
Background
7 The Plaintiff was born on 6 June 1967 which makes him now 45 years old and 40 years old at the time of the workplace injury.
8 The Plaintiff is divorced and lives with his brother and family. His teenage daughter tragically died in November 2011; and he has not seen his now 2 year old daughter since his separation from her mother.
9 In his first affidavit the Plaintiff stated:
2. I came to Australia from Vietnam in 1990. I lived in a village in the middle of Vietnam. I went to school to Year 9 level. I did not work in Vietnam. I escaped when I was 18 and arrived in Hong Kong where I resided in a refugee camp. It was 1986.
3. I am unable to read or write English at all and my oral English is poor. I did an English language course in Hong Kong which gave me a very basic understanding of the language. I am still not very good at it.
10 Upon arriving in Australia, he looked for work while he studied English. He completed about half of a 500 hour English course before obtaining employment, after about six months, with Country Road as a presser in a factory. There were many Vietnamese workers there. He worked part time, between 15 and 17 hours per week, until 2000. [2]
[2]Transcript 20-22
Pre Injury Health and Activities
11 Prior to the workplace injury the Plaintiff stated that he had not suffered any significant illnesses or injuries.
Employment with the Defendant and Workplace Injury
12 The Plaintiff commenced working for the Defendant as a casual in about 2000, becoming permanent in 2004. In his first affidavit the Plaintiff described his work with the Defendant as follows:[3]
[3]Affidavit sworn 2 August 2011.
5. After commencing employment with the Respondent I was employed in the boning room as a labourer and I was to supply new stock to the boning table and remove cut off material from the tables. I had to pull a pallet loaded with 24 tubs of chicken meat to the boning table over a distance of 50 metres. I then lifted the tubs of meat off the trolley and placed them on the floor. There were approximately 24 tubs per pallet and each tub weighed between 15 and 17 kilograms. The work was very stressful and repetitive with the lifting, which required squatting, lifting, rotating and twisting my back. It was while performing these activities that I developed symptoms of back pain.
13 As a result of an acute onset of low back symptoms on 7 November 2007, the Plaintiff attended Dr Iliya Sleaby General Practitioner, some five days later, complaining of lower back pain with referred pain into the lower left leg.
14 Dr Sleaby arranged for a CT scan of the Plaintiff’s lumbosacral spine which demonstrated a prolapse of the L4/5 disc.[4] A subsequent MRI scan confirmed impingement of the L5 nerve roots, particularly on the left side. The radiological findings in November 2007 continued to be confirmed by radiological findings over the next two to three years. Furthermore, all reporting medical practitioners accepted that the Plaintiff suffered an acute prolapse of the L4/5 disc at work in November 2007.
[4]PCB 57.
15 The Plaintiff’s claim for compensation at the time was accepted and all subsequent treatment has been paid for him.
Initial Symptoms and Return to Work
16 In his first affidavit the Plaintiff stated that following the acute onset of symptoms in November 2007:
6. Since then I have continued to suffer from ongoing constant low back pain and it continues to be aggravated and made worse by activities such as bending, twisting and lifting. I worked on light duties until my employment was terminated on 7 June 2010, which was just after my workcover payments had been stopped by the claims agent, but even light duties aggravated the pain. I was working 6 hours per day, 5 days per week and I was being paid $19.90 per hour. I received partial weekly payments of compensation until May 2010. Prior to suffering injury I was earning $800 plus net per week as I was working overtime.
7. I had various periods off work until May 2010. I do not know the dates. When I was working light duties I was doing restricted hours, making cardboard boxes. I coped with the work duties with the assistance of other workers.
17 Subsequent to the work place injury, the Plaintiff was advised, by a number of doctors who examined him, that he should undergo surgery. In particular, when Mr N. Martins Consultant Neurosurgeon reviewed him in September 2009, he reported:
Given the degree of compression and the size of the disc prolapse, I feel that he needs to consider surgery very seriously if he wants to have any chance of cauda equine functioning returning.
18 Mr Martins further noted that because of the degree of effacement of his cauda equine, he was already experiencing erectile dysfunction.
19 The Plaintiff was unwilling to undergo surgery at that stage.
20 In December 2009, Dr Sleaby referred the Plaintiff to Professor Graeme Brasenor Neurosurgeon. A further MRI performed on 15 May 2010 demonstrated:
A small central protrusion of L4/5 disc and epidural fat, producing moderate central stenosis at L4/5. Epidural liomatosis opposite L5 and S1, producing moderately severe compression of the cauda equina.[5]
[5]PCB 94.
Surgery
21 In his first affidavit the Plaintiff stated:
8. I had an operation on my back on 24 January 2011.[6] Until then, apart from the symptoms of back pain, I also suffered from ongoing leg pain radiating from my back to the left thigh into my foot and the sole of my foot where I suffered pain and numbness with pain and numbness in my toes with numbness especially in the big toe. I used to have to use a walking stick on occasions before my operation. After the operation I still have back pain and numbness in my left leg, but it is a little bit better than before the operation.
[6]The Operation Report indicates that surgery was in fact performed on 24 February 2011: DCB 6.
22 Mr Brasenor operated on the Plaintiff to replace the L4/5 disc, described as a post-implantation of a Maverick disc at L4-5.[7] In simple terms, after performing a complete anterior discectomy, a metal [Maverick disc] prosthesis was inserted.
[7]DCB 8.
23 As part of the post surgical rehabilitation, Mr Brasenor sought to institute a strict regime of walking and a prohibition on certain activities such as physiotherapy and swimming.
Other Treatment and Medication
24 In his first affidavit the Plaintiff stated:
9. I have had a wide variety of treatment. I had physiotherapy and before my operation I took medication including Brufen, Endep, Durotram and Panadine Forte. After my operation some of my medication has been changed by my surgeon because some of it was having bad effects on me. I now take Tramal, Durotram, Digesic, Panadine Forte and a sleeping tablet Prothiaden. The Tramal makes me ill, so my surgeon told me to stop taking it. I could not handle the pain without it so now, with his approval, I take half as much, and other painkillers. I used to take a sleeping tablet, Dothiepin, but that made me feel unwell and I therefore changed, on the advice of my surgeon, to my current sleeping tablet. I wore a back brace at the time of my operation but I stopped wearing it, at the request of my surgeon, shortly after the operation.
25 In his second affidavit the Plaintiff stated:
6. I continue to take medication for my pain including Oxycontin, Digesic and Panadine Forte as required. I also take a sleeping tablet known as Prothiadon, and other medication being Meloxican and Zydol occasionally.
Current Symptoms
26 In his first affidavit the Plaintiff stated:
10. My symptoms are not improving. I continue to have ongoing back pain. I cannot sit in one position for a prolonged time and I find that usually I can drive no longer than 30 minutes without needing to take a rest. I continue to get numbness in my left leg, although not as bad as before. I am constantly tired because my sleep is interrupted. I have some episodes of pain at night and I also feel restless, uncomfortable and disturbed by the medication I have to take.
11. I should also add that I have suffered from injuries to my neck and left shoulder, but it is the injury to my back which is causing me the most pain with ongoing restrictions and limitations.
12. Apart from work restrictions as referred to, other activities of daily living which have been affected and from which I suffer impairment consist of gardening, cleaning and housework, household maintenance and repair. I also used to enjoy gardening and planting a variety of plants and I regularly went to weekend markets to buy roses, chillies, bok choy and salad vegetables which I planted and nurtured. There is a garden at the premises we rent, but I am not able to grow the vegetables as I previously did. I am still able to play the guitar but I am limited in that I cannot sit for lengthy periods while doing so due to back pain, and therefore participate in that past time, which I greatly enjoyed before my injury, very little compared to before the injury to my back.
13. I have not worked since I was sacked by my employer shortly after my WorkCover entitlement came to an end. I was struggling with my back injury at the time and my employer said there was no realistic job I could do, and put me off. Now produced and shown to me and marked with the letters “DNH1” is a letter from Baiada dated 7 June 2010. I have not worked since. I had my operation about eight months after finishing work. I have improved a little bit after the operation but I remained very severely restricted. I am not highly educated or trained. I am only suited to vigorous manual work and I do not believe I am fit enough to work now, and unfortunately that situation will continue into the future.
27 In his second affidavit the Plaintiff stated:
5. I continue to be troubled by low back pain and weakness. The pain I experience is exacerbated by physical activity, and in particular strenuous physical activity. I cannot perform heavy lifting and although I could perform a moderately heavy task I could not do so on a repeated basis as is required in a work environment.
28 In his third affidavit the Plaintiff stated:
2. Since swearing my last Affidavit I have continued to suffer from symptoms. I suffer from left leg pain and numbness and chronic low back pain. I have numbness in the calf of my leg and in to my foot and in to my two small toes. The back and leg pain varies in intensity and is worse with bending or prolonged sitting. Even sitting on the toilet causes pain.
3. I have difficulty sleeping because of pain and I am constantly awake for long periods, although I am assisted by sleeping pills, but I do not like taking them as they leave me with a hangover the next morning. I sometimes sleep during the day because of lack of sleep.
5. I remain restricted in many activities. I drive locally but not for long trips. My brother does the garden. My sister-in-law assists me with some domestic chores such as making and changing my bed and she does the cooking for the house and cleaning. Sometimes I do a bit of cooking on my own.
29 The Plaintiff also suffers depressive symptoms, particularly following the death of his daughter.
Current Treatment and Medication
30 In his third affidavit the Plaintiff stated:
4. I am continuing with treatment, I take multiple painkilling medications, the names of which I cannot recall, except for Panadeine Forte and I take anti-inflammatory medication. I walk regularly as advised by my neurosurgeon. I walk at least 30 minutes 3 times per day, but in cold weather I prefer not to. I walk in the nearby streets. I also perform some home exercises. In fact, I am shortly to undergo a further MRI scan upon the referral by my treating neurosurgeon who I saw recently.
31 Under cross examination, the Plaintiff said that following surgery he did not require a back brace or crutches. Initially he had to take more tablets, but that has now reduced and he is prescribed Panadeine Forte and two other medications he could not remember.[8]
[8]Transcript 25.
Work Capacity
32 In his second affidavit the Plaintiff stated that:
2. …I have had no formal education in Australia. I speak little English. I cannot read or write English. I have very little proficiency with computers. The only way I can work and earn income is by selling my physical labour or being able to perform a particular employment task. In addition to previously being able to perform labouring work I learned from a friend who owns a beauty salon (“T D Nails”) how to perform the tasks of a nail technician, but I do not have realistic prospects of being employed in that industry. Firstly, I could not sit in one position for a long time because of my back pain. Secondly, it is very rare for a man to work in that industry which is dominated by young females.
3. After my back operation and a recuperation period I have tried to find work.[9] [None of the applications] have come to fruition.
[9]The Plaintiff’s affidavit annexed a copy of his job search activities and logbook, maintained with the assistance of his rehabilitation providers, Matchworks.
4. I have also made other applications for work.[10]
[10]The Plaintiff’s affidavit annexed three copies of rejected employment applications.
33 In his third affidavit the Plaintiff stated that:
6. I recently enrolled in English language classes in St Albans but I could not continue because of the requirement to sit for long periods. The course was 4 days per week, but after 2 weeks I was unable to continue. I had paid for the course myself. At the moment I would not be capable of returning to that course because of my symptoms.
7. I have also tried to obtain part time light work at Vietnamese shops and restaurants but there is no such work. When I apply, I am told I would have to do everything required which I am incapable of doing. This leaves me with few options for the future in respect of employment given my physical limitations. If I am able to, if my condition improves sufficiently, I would like to return to complete an English language course. I also have difficulty standing for lengthy periods.
34 The Plaintiff is currently not working and is in receipt of Centrelink benefits.
35 Under cross examination, the Plaintiff said that
a) Mr Brasenor has been recommending for the last 12 months that he look for light work, or work in a shopping centre, in security, but not bending and lifting;[11]
[11]Transcript 26.
b) He has not sought assistance from a social worker and a psychologist or had grief counselling, as recommended by Dr Horsley;
c) He is currently attending an English course and upon completion he hopes to find work which does not involve excessive bending or lifting of heavy weights; and
d) His back has improved considerably since the operation;
36 Under re examination, the Plaintiff confirmed that since his employment was terminated:[12]
[12]Transcript 30-32.
a) The Defendant has not offered him any suitable employment;
b) He has not been offered any form of rehabilitation;
c) He is paying for English classes himself;
d) He does not think he would be capable of working full time, but may be able to perform work such as packaging, which did not involve bending or lifting, or sitting or standing for a long period; and
e) The Panadeine Forte affects his memory.
Earning Capacity
37 While working for the Defendant, the earnings of the Plaintiff to 30 June 2006, including overtime that was available at that stage, were $64,661. When this figure is adjusted for wage increases up to 2010, the Plaintiff claims a without injury earning capacity of $1,400 per week. The Plaintiff further claims that he does not currently have an earning capacity of at least $840 per week, representing 60% of his without injury earning capacity.
38 Alternatively, Counsel referred to the Plaintiff’s earnings at the date of his Workcover Claim Form which was $1,026 gross per week or about $52,000 per annum.
39 Defendant’s Counsel submitted that the Plaintiff’s without injury earning capacity should fairly be determined by reference to the earnings of a comparable employee, figures for which were: $44,676 gross for the year 2009; $36,382 gross for the year 2010, and $41,631 gross for the year 2011.
40 In light of later findings made in this case, I do not propose to resolve the difference in approach made by each party to the Plaintiff’s reasonable ‘without injury earnings’.
Medical Evidence
41 In view of the confined issues in this case I do not propose to examine the historical medical evidence any more than already referred to above.
Treating Doctors
42 Mr Graeme Brasenor Neurosurgeon, first examined the Plaintiff upon referral by his General Practitioner on 21 December 2009 and has been treating him ever since. A total of 16 reports prepared by Mr Brasenor, were tendered. Most of these reports were reporting back to Dr Sleaby and detail Mr Brasenor’s examinations and assessment of the Plaintiff, both before and after the surgery, which Mr Brasenor performed on 24 February 2011.
43 When first assessed, Mr Brasenor noted to the effect that the Plaintiff’s back pain was likely to be exacerbated when he stands up after sitting poorly. At that stage Mr Brasenor considered that the Plaintiff’s back pathology was improving and surgery was not indicated. The Plaintiff was advised to wear a back brace at all times.
44 When Mr Brasenor reviewed the Plaintiff in January 2010,[13] he noted that the Plaintiff had failed to follow instructions, was not walking twice daily and had failed to wear his back brace at all times. He advised the Plaintiff not to worry about his left leg numbness and that his pain will go if he follows instructions.
[13]DCB 76.
45 When reviewed in March 2010,[14] the Plaintiff was now walking as instructed but still not wearing his back brace. Mr Brasenor considered that he was progressing slowly and noted that he could now flex at the waist to 30° and did not demonstrate any lumbar muscle spasm.
[14]DCB 77.
46 When reviewed in June 2010, the Plaintiff’s employment had now ceased. He was having physiotherapy and swimming, both of which Mr Brasenor considered to be contraindicated. Mr Brasenor strongly recommended to the Plaintiff:
… Whilst he is off work he must avail himself of whatever facilities exist for him to learn English and get into it. His ability to get back into the workforce will be determined by the extent to which he can learn English.[15]
[15]DCB 78.
further."
47 When reviewed in July 2010,[16] Mr Brasenor noted:
[16]DCB 79.
…he says he is no better. He does show functional behaviour in the cautious invalided way he walks, but to be fair, he must be pretty scared because this disc injury + little English, = grim outlook, and I think he knows that. MRI performed a month ago shows the L4-5 disc still bulging significantly in a diffuse manner, and really not looking much better than it did the last time we scanned in December.
48 Mr Brasenor now raised with the Plaintiff the option of an implantation of an artificial disc and asked Dr Sleaby to discuss this with the Plaintiff.
49 In September 2010,[17] Mr Brasenor advised the Defendant’s insurer that the Plaintiff’s L4/5 disc has failed to heal despite good conservative measures and that surgery was now being considered.
[17]DCB 5.
50 Mr Brasenor performed the implantation of the Maverick disc at L4/5 on 24 February 2011 . The Plaintiff was discharged from hospital on a regime of pain medication, with instructions to walk 10 minutes six times per day, lying flat supine for one hour our after each walk. He further advised Dr Sleaby:
… this man has been so timid, both before operation and since. We are going to have to be very firm with him, particularly with respect to his walking.[18]
[18]DCB 81.
51 When reviewed in March 2011, 15 days post surgery, Mr Brasenor, noting the terribly slow way he walks, commented:
He is inappropriately scared (paralytic in fact) and flinched when I even lightly touched his abdominal wound. He won't flex at the waist more than 15° and he wouldn't extend more than 5°.[19]
[19]DCB 82.
52 Mr Brasenor increased his pain relief medication and provided him with a walking regimen.
53 When next reviewed on 31 March 2011 Mr Brasenor noted that the Plaintiff did not look nearly as scared and was following his working program. To this program he now added some further exercises, increased his pain medication, added anti-inflammatory medication and continued the antidepressant/sleeping tablet Prothiaden. Mr Brasenor further noted that the wound today looked beautiful and upon being asked, advised the Plaintiff he could have sex again now any time he liked.[20]
[20]DCB 85.
54 Mr Brasenor also advised the Defendant’s insurer that the Plaintiff was now making excellent progress, but recommended as follows:
You might also start to mobilise your rehabilitation people for this man. He has only rudimentary English and the reason I went to the trouble and expense (to GIO) of putting in an artificial disc at L4‑5 is to try to render him fit for jobs that do involve some bending at the waist and accessing of levels below his waist, although not for very heavy pick and shovel jobs.[21]
[21]DCB 84.
55 When next reviewed in May 2011, Mr Brasenor noted that:
… He still looks like a rabbit in the headlights. He is just so scared of pretty much everything including driving, having sex, doing his exercises etc.
I note that he is on Panadeine Forte and I think we should stop that. The codeine can be very dependent making in people such as Mr Ho…
I had him demonstrate his back exercises to me today and he has an excellent range of movement for somebody 2.5 months post operatively.
56 Mr Brasenor increased his dose of Prothiaden, because of his continued sleep disturbance.
57 When next reviewed in June 2011, Mr Brasenor noted that:
I had another slightly trying interview with…Ho today, but he pleased me greatly by walking, sitting and moving very easily. He bends easily as he placed his coat on the back of the chair and there is only mild spasm of his erector spinae now. He can flex at the waist to 50°… And extension to 20° is pain free.
I have certificated him back to almost unrestricted work, but with a lifting limit to begin with.[22]
[22]DCB 87.
58 When next reviewed in July 2011, Mr Brasenor noted that:
We must get this man back to work, and I don't mind if it has to be a bit of bending in it, but at first I would like us to try to observe the lifting limit of 5 kg…. He shouldn't need anything stronger than Nurofen or Panadol from this point onwards. [23]
[23]DCB 88.
59 When next reviewed in August 2011, Mr Brasenor noted that:
I have to say that he is now looking like a typical workers compensation disaster. He moves beautifully when he is not under observation and he walked up my hall and the four steps therein as if there was nothing wrong with him. In fact there is nothing wrong with him. He has an artificial disc which is virtually indestructible and as time post-operatively goes on his complaints proliferate and become more and more functional sounding.
Please don't give this man narcotic. In fact he shouldn't need anything stronger than a Panadol and a Nurofen taken together 2-3 times a day.
What I am quite sure of at the present time is that he is fit for full-time employment with the single restriction that I wrote in his certificate of capacity today [ that is a 5 kilogram lifting limit.][24]
[24]DCB 89.
60 When next reviewed in June 2012, Mr Brasenor noted that:
he still claims to have left leg pain and numbness and to give him credit, there was 1/5 spasm of his lumbar erector spinae muscles. He can flex at the waist to 50° and extend to 20°, allegedly limited by low back pain, but there was no weakness distally and he could easily stand symmetrically on the balls of his feet or on his heels, demonstrating normal power in dorsiflexion and plantar flexion bilaterally. Then he told me he thought the left leg was weak and I don't really accept that.
I understand he is taking Panadeine Forte and I recommend against that. I think this man should have no narcotic and no codeine containing analgesics and I do recommend nothing stronger than 50mgm sustained release Tramal twice a day, supplemented (if he wishes) with a long acting Panadol Osteo.
To give him the benefit of the doubt, I have sent him off for a CT scan and dynamic plain films to make sure the disc is mobile, but at the end of the day I think we will always be unsure about Mr Ho, and I don't think he will ever go to work, which is a tragedy because I am sure he is capable of non-bending, non-lifting work if only his English were better.[25]
[25]DCB report dated 20 June 2012.
61 In his final report dated 18 July 2012 Mr Brasenor notes that the results of the dynamic plain films of lumbar spine and CT are perfect:
… this disc moves beautifully and on the CT the placement of the disc is perfect, and the facet joints at that level look beautiful. There is no sign of pathology at any other level.
At the end of the day… The most I will credit Ho with is some mild low back discomfort if he bends. Had he followed my advice and pursued English studies whilst he was recovering from his injury/surgery he would now be fit for non-bending, non-lifting employment.[26]
[26]DCB report dated 18 July 2012.
Medico-Legal Experts
62 Mr David Brownbill Consultant Neurosurgeon examined the Plaintiff once at the request of his solicitors on 20 March 2012. He also gave oral evidence.
63 Mr Brownbill commented as follows:[27]
[27]PCB 38-39.
Examination on the 20th March 2012 has shown some restriction of thoracolumbar flexion on extension. His demeanour and responses indicated some emotional reaction component with likely depression, There was no objective neurological abnormality of his lower limbs, there was no signs of radiculopathy.
Radiological investigation had demonstrated a single level L4-5 lumbar intervertebral disc derangement for which he has undergone artificial disc replacement.
It would be prudent for him in the future, to avoid heavy lifting and I agree with Associate Professor Brasenor’s present limitation of 5 kg. It is likely in the future that a limit of 10 kg would be appropriate.
From a physical neurosurgical point of view, I consider that he would be capable of attempting a return to work programme that avoids heavy lifting, forced spinal mobility or repeated bending and that this should commence in a graded fashion.
The number of hours he could work would be dictated by his responses to the physical activity but from a physical neurosurgical point of view I consider that if the activity restrictions referred to above were adhered to, he could build up to full-time employment.
However, I agree with the opinions expressed by Associate Professor Brasenor, that the combination of required light duties and lack of any English language facility would make the obtaining of employment difficult.
64 In a subsequent report Mr Brownbill clarified that, in light of the Plaintiff's limited education; extreme poor grasp of the English language; his previous work experience having always involved heavy physical activity; the nature of his spinal injury and surgery; and his continuing ongoing fluctuating lower back pain:
he would not be able to pursue any employment for which he is suited in an ongoing or reliable fashion.[28]
[28]PCB 42.
65 When asked to explain where he might differ in his clinical examination to Mr Brasenor, Mr Brownbill suggested to the effect that he was prepared to take the Plaintiff at face value and did not consider that he was consciously intending to mislead in his presentation, particularly given his difficulty in communicating:
…sometimes you look at it and you say, yes I really do think they're trying to pull the wool over my eyes. But there's some you look at and you say, I think they fit into that group that I just mentioned, education, social economic group, language and actually fear of the system.[29]
[29]Transcript 66.
66 Under cross examination Mr Brownbill agreed that, upon reflection, he considered that the Plaintiff was less likely to be able to resume full-time employment, particularly having regard to his level of English and his past employment.[30]
[30]Transcript 57.
67 In oral evidence Mr Brownbill confirmed that the surgical procedure undertaken by Mr Brasenor:
a) has produced an anatomically excellent result;
b) is relatively modern and accordingly it is too early to assess the long-term outcome of such surgery;
c) does not guarantee that the Plaintiff's back will be pain free;
d) on a patient such as the Plaintiff, who had chronic pain and cauda equine involvement, is probably more likely to experience ongoing pain;
e) necessarily involves soft tissue damage, which may cause ongoing pain; and
f) will require ongoing protective restrictions, such as no really heavy lifting, no forced bending, no repetitive bending.
68 In relation to a chronically prolapsed disc, as experienced by the Plaintiff prior to surgery, there may be greater stress upon the adjoining apophyseal and facet joints, with consequent nerve root irritation.[31]
[31]Transcript 68-69: Mr Brownbill gave a lengthy technical explanation.
69 In relation to work capacity, Mr Brownbill said that there must be close medical supervision, preferably by his general practitioner who knows him or an occupational physician, who can observe his responses.[32] He could not predict how many hours per week he may be able to work, but more likely than not he would not be able to work full time, perhaps 10 to 15 hours per week and would be likely to need a day or two a week off to recuperate from some pain recurrence.[33]
[32]Transcript 49
[33]Transcript 52-53.
70 When referred to Mr Brasenor’s opinions, Mr Brownbill said to the effect that a perfect surgical result may not take sufficient account of the Plaintiff individually.
I would be unhappy about anyone in that situation going to do a full unrestricted physical job, I would not be able to predict how they would go in a number of years to come, or how they'd go in the number of hours they will work.
71 Dr Robyn Horsley Occupational Physician examined the Plaintiff once at the request of his solicitors on 3 of May 2012.
72 Dr Horsley noted the Plaintiff’s symptoms as ongoing back pain which is chronic in nature and varies on a scale of 6 to 7 out of 10. After clinical examination and taking account of his history, Dr Horsley recommended the following work restrictions:
a) avoidance of repetitive;
a. over reaching; pushing and pulling; bending and lifting;
b) avoidance of truncal rotation;
c) avoidance of working in awkward and confined spaces;
d) avoidance of lifting items:
a. greater than 10 kg on a permanent basis; and
b. up to 5 to 8 kg on a repetitive basis;
73 In addition, the Plaintiff’s functional tolerances include:
a) a sitting tolerance of up to an hour;
b) a dynamic standing tolerance of 1 to 2 hours;
c) a static standing tolerance of 15 to 20 minutes;
d) a walking tolerance of 30 minutes before experiencing left leg pain; and
e) a driving tolerance of 2 to 3 hours in an automatic vehicle.
74 Dr Horsley recommended referral to a Vietnamese speaking Psychiatrist for an assessment of his emotional status and advice about further management. Dr Horsley also recommended that the Plaintiff needed assistance from a social worker and a psychologist and some grief counselling.
Mr Ho presented with no fear avoidance behaviour, but ongoing and persisting disability primarily related to ongoing pain in the lumbar spine and left leg.
Once his emotional status has been assessed and managed, I believe that he would benefit from an upgrading of English skills… His verbal English skills remain poor and his literacy skills are negligible. This really limits him to the manual area.[34]
[34]PCB 51.
75 I note that Mr Brownbill also confirmed, under cross examination, that the Plaintiff presented with a flattened effect, indicative of some anxiety, depression and/or fear, and may well benefit from psychiatric assessment or the assistance of a social worker.[35]
[35]Transcript 52-53.
76 Dr Horsley further noted:
His opportunities for redeployment without an upgrading of his English skills lie in the manual arena. With the physical restrictions outlined above to his lumbar spine I believe that he will find it very difficult to find suitable employment. An employer is unlikely to find him the most attractive candidate in a competitive marketplace.
I believe without improving his verbal English skills that his opportunities for redeployment are so limited that he is likely to remain off work into the longer term. He has been off work for five years already. He is only 45 years of age. He needs to work at least on a part-time basis into the future to become more integrated in the local community. I believe there's ongoing and significant disability. His prognosis for work is poor.[36]
[36]PCB 52.
77 Dr David Middleton Occupational Health and Rehabilitation Consultant examined the Plaintiff once at the request of his solicitors on 12 July 2012. Dr Middleton had available to him the reports of Mr Brownbill, Mr Brasenor, Dr Sleaby, doctors who treated him in hospital, as well as medicolegal reports obtained by the Defendant, all of which he cites in some detail.
78 Dr Middleton noted that following surgery, the Plaintiff was provided with no formal physical rehabilitation beyond Mr Brasenor’s walking program. In particular, there was no occupational rehabilitation provider retraining and he has subsequently become reliant upon Centre link payments.
79 Dr Middleton further noted that the Plaintiff continues to see his general practitioner for medication and certificates, but otherwise does not have any active physiotherapy or exercise guidance, except for simple exercises previously provided, which he performs on a daily basis at home. Medication is now limited to Panadeine Forte.
80 During his examination, the Plaintiff's English skills were severely limited and he was heavily reliant upon the interpreter.
It is my opinion that Mr Ho has basically lost any residual physical capacity that in the absence of any form of skill base would equate to his ability to obtain suitable employment. I do agree with Mr Brazenor that disc injury plus lack of English skills equals poor outcome and point to the agent involved as being responsible to initiate this rather than simply close the claim when Mr Ho was terminated by his employment. It seems even when Mr Brazenor pleaded with the insurance agent to address Mr Ho's poor English skills the insurance company, in my opinion, failed … to provide any support …[37]
[37]PCB 52o
I see no real future in Mr Ho gaining paid employment. Before any consideration as to seeking work, which seems to have been the only activity of the rehabilitation provider, he requires adequate training in English including verbal, writing and reading. It is my opinion Mr Ho is entitled to funding for a pain management program even though this will address the quality of life issues that Mr Ho continues to have to contend with.[38]
[38]PCB 52p
…Mr Ho no longer has a reliable physical capacity and on that basis his attendance at work is likely to be spasmodic.
For work hours, they must vary between one and three hours per day, three or four days per week, where I would consider a maximum work attendance at 10 hours per week.
Mr Ho is totally incapacitated for his pre-injury employment, being relegated to cardboard box construction.
Mr Ho has only Vietnamese education to Year 9, extremely limited verbal English skills and no English reading and writing skills or any other recognised certificate.[39]
[39]PCB 52p
His work experience has by and large been that of a labourer in a chicken processing plant.
There has been no realistic or relevant occupational rehabilitation services provided in this case.[40]
[40]PCB 52q
Relevant Statutory Provisions and Case Law
81 This application falls to be determined in accordance with Section 134AB of the Act. Sub-section 134AB(2) prescribes the conditions which must be satisfied before a compensable injury may give rise to an entitlement to recover damages:
(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.[41]
[41] By Act No. 95/2003 s.3(8) the words “employment of that nature was a significant contributing factor, and” were omitted from sub-section 134AB(2) as from 3 December 2003, which was before the injury relied upon by the Plaintiff in this case.
82 For the purpose of the current application “serious injury” means:
(a) permanent serious impairment or loss of a body function[42]
[42]Section 134AB (37)
83 Section 134AB (38)(b), so far as it is relevant to the present case, sets out what must be shown in order to establish that impairment or loss of a body function [under paragraph (a) of the definition] is “serious”. It does this by reference only to the consequences to a worker.
(38) For the purposes of the assessment of “serious injury” in accordance with the sub-sections (16) and (19)-
(b)the terms ‘serious’ and ‘severe’ are to be satisfied by reference to the consequences to the worker of any… impairment or loss of a body function… with respect to-
(i) pain and suffering; or
(ii) loss of earning capacity -
when judged by comparison with other cases in the range of possible… … impairments or losses of a body function ….
84 Section 134AB (38)(c) deals with paragraphs (a) and (b) only of the definition of serious injury and provides, so far as it is relevant to this case, as follows:
(c) an impairment or loss of a body function … shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function,… fairly described as being more than significant or marked, and as being at least very considerable;
85 Paragraphs 134AB(38) (e), (f) & (g) make further detailed provision as to loss of earning capacity. In particular, paragraph (e) expressly casts upon the worker the burden of establishing that he or she has, at the date of the hearing of the application…’a loss of earning capacity of 40 per centum or more’ and that that loss will “continue permanently’.
86 Paragraph (f) then explains how to measure the loss and paragraph (g), directs the court to bring to account the possibility of rehabilitation or re-training. Throughout, the burden of proof lies on the Plaintiff.
87 Paragraph 134AB(38)(e) directs that:
…a court shall not grant leave under sub-section (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraphs (c) or (d), as the case may be, that –
(i) …at the date of the hearing of an application under sub-section (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured …as set out in paragraph (f); and
(ii) the worker ...will after the date of … the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more.
88 Paragraph 134AB(38)(f) sets out how the loss of earning capacity is to be measured. It requires a comparison of ‘after-injury earnings’ and ‘without-injury earnings’.[43] These terms are defined.
[43]Barwon Spinners Pty Ltd & Ors v Podolak; St. Laurence Community Services (Barwon) Inc & Ors v. Gledhill; Stojanovski v Bartter Enterprises Pty Ltd & Ors; and Pausak v Barwon Health & Ors [2005] VSCA 33 (herein collectively referred to as “Barwon Spinners”) @ para 22
89 ‘After-injury earnings’ is described as:
…the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date [being the date of the hearing of the application before the court]
90 ‘Without-injury earnings’ is described as:
…the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion ..., had the injury not occurred.
91 ‘Without-injury earnings’ are calculated by reference to:
… that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.
92 The Court is therefore required to go well beyond actual pre-injury earnings and consider (on the hypothesis that the worker was and remained free of the compensable injury at base) both earnings and capacity to earn during that portion of the six years marked out ‘as most fairly reflects the worker’s earning capacity’.[44]
[44]Barwon Spinners @ paragraph 23
93 Paragraph 134AB(38)(g) provides:
(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or re-training, and taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment. which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred”.
94 The Court of Appeal has said:[45]
[45]Barwon Spinners @ paragraph 27
… the expression “if exercised” means “if exercised in employment”. Parliament is looking here to a physical capacity for work which, if exercised in employment, would bring about the result that the worker was earning more than the limit relevant to serious injury. It is not concerned with whether employment will or will not be obtained: it is concerned rather with the economic yield of such work, if the capacity for that work was in fact exercised in employment.
95 The Court of Appeal further concluded:[46]
[46]Barwon Spinners @ paragraph 28
Accordingly, we would reject the argument that paragraphs (e) to (g) of sub-s.(38) are concerned with anything but the physical or mental capacity of the injured worker to work again. That appears consistent, too, with the expression found in paragraph (b) of sub-s.(38), and as well paragraph (c) – namely:-
". . . when judged by comparison with other cases in the range of possible impairments or losses of a body function etc. etc.”.
That describes an objective test, not a subjective one [As pointed out in Humphries v. Poljak.], and it supposes a wide spectrum of cases which, if the argument about non-employability by reason of the making of the claim were accepted, would be very significantly reduced – and reduced without sufficient justification .
96 Paragraphs 134AB(38)(f) & (g) both refer to suitable employment. Hence for the purpose of calculating after-injury earnings the Court must bring to account, in addition to actual capacity, any capacity for employment which is, or would be, the result of rehabilitation or re-training.
97 The term “suitable employment” is defined in section 5 thus:-
“’suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following –
(a) the nature of the worker’s incapacity and pre-injury employment;
(b) the worker’s age, education, skills and work experience;
(c) the worker’s place of residence;
(d) the details given in medical information including the medical certificate supplied by the worker;
(e) the worker’s return to work plan, if any;
(f) if any occupational rehabilitation services are being provided to or for the worker;
98 In applying the term “suitable employment” the Court of Appeal noted that:
…Obviously employment is not to be regarded as “suitable” if situated too far from the worker’s place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing “suitable employment” for a worker resident in Melbourne. The expression “whether or not that work is available” emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is “suitable employment”, whether or not the job is currently available.[47]
[47]Barwon Spinners @ paragraph 25.
99 In summary, for the purpose of assessing loss of earning capacity, a plaintiff must in effect first satisfy the requirements of paragraphs (e), (f) and (g) and then the Court must still be satisfied that the consequences to the plaintiff of the impairment or loss of body function with respect to loss of earning capacity is, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked and as being at least very considerable.[48]
[48]s.134AB(38)(d) and refer also Barwon Spinners paragraph 75.
Analysis of the Evidence and Findings
100 I have set out above a brief synopsis of evidence. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence and tendered documents.
101 The Defendant concedes that the Plaintiff has sustained a permanent impairment of the lumbar spine and that the pain and suffering consequences are serious within the terms of the statutory test.
102 The only issue in this case therefore, is whether the Plaintiff does currently and for the foreseeable future, will continue to suffer a loss of earning capacity of at least 40% of his without injury earnings capacity.
103 The conduct of the case, on behalf of the Plaintiff, was somewhat unusual and indeed, in my experience, unprecedented. The Plaintiff did not rely upon either his treating General Practitioner, who provided no reports subsequent to the Plaintiff’s surgery, or his treating surgeon. Instead, so far as medical evidence is concerned, the Plaintiff relied upon the opinions of three medico legal specialists, each of whom had examined the Plaintiff on one occasion only. In my view, this was a very unsatisfactory circumstance. The court was deprived of a considered written assessment by the Plaintiff's General Practitioner, who has treated the Plaintiff since the work place injury. Furthermore, the court was deprived of the oral evidence of the treating surgeon, in a context where his opinions in various reports were criticised by Plaintiff's Counsel and otherwise commented upon by a medical legal expert. This is not the manner in which these cases should be conducted.
Defendant’s Counsel
104 Defendant’s Counsel relied principally upon the opinion of treating surgeon Mr Brasenor, in support of the Plaintiff’s capacity to return to full time non-bending, non-lifting employment. The only impediment to the Plaintiff undertaking such employment is his minimal English speaking skills, which he is currently seeking to improve.
105 In my view, Mr Brasenor is in the most informed position to make an assessment of the Plaintiff's physical work capacity. He has now treated the Plaintiff for over 2½ years, including performing surgery, which Mr Brownbill acknowledged was performed perfectly by a highly respected surgeon. Mr Basenor has had the opportunity, through multiple consultations over a prolonged period, to come to know the Plaintiff and make an informed clinical assessment. Mr Brasenor has also maintained close contact with the Plaintiff's general practitioner. Importantly, Mr Brasenor has also maintained the confidence of the Plaintiff, as acknowledged by him in oral evidence.
106 Equally, it is clear, following through Mr Brasenor’s reports, that the Plaintiff was not an easy patient. He had difficulty following instructions, or it least doing so consistently, and he appears to have frequently been overcome by objectively unfounded fears. Mr Brasenor’s initial optimism, with the Plaintiff’s progress following surgery, progressively declined into despair as he perceived that the Plaintiff had become preoccupied with an illness mentality and was apparently unwilling to further help himself.
107 There are a number of other factors which support the Plaintiff’s physical capacity to return, at least progressively, to full time employment:
a) The Plaintiff’s prospects for employment are likely to be improved, perhaps significantly, once he has received the assessment and assistance recommended by Dr Horsley;
b) The Plaintiff continues to have confidence in the opinion of Mr Brasenor and has expressed his desire and intention to continue to seek suitable employment;
c) The Plaintiff is currently in receipt of a Newstart Allowance for which he is obliged to demonstrate that he is looking for work; and
d) The Plaintiff has not specifically sought vocational assistance or payment for an English course;
108 Accordingly, Counsel submits that it is not possible to be satisfied that there is any permanency in relation to the Plaintiff’s current unemployment or continued loss of earning capacity.
Plaintiff’s Counsel
109 Plaintiff’s Counsel principally relied upon the following submissions:
a) The Plaintiff was a creditable witness and historian. In particular, the Plaintiff’s credibility was not in any way attacked under cross examination. I accept that this was the case and constitutes a significant evidentiary factor in the Plaintiff’s favour;
b) The Defendant has not sought to rely upon any of the subpoenaed records of the Plaintiff’s General Practitioner. Whilst this is correct, I repeat that it is highly unusual and in my view most unsatisfactory for the Plaintiff’s case not to rely upon any report of the General Practitioner, subsequent to the Plaintiff’s surgery; and not to rely upon the treating surgeon at all;
c) I agree that the radiological evidence has always been consistent with the Plaintiff’s symptoms;
d) I agree that the Plaintiff was highly motivated and kept working, within his limits, until retrenched; and
e) I agree that, his work incapacity is primarily caused by his physical impairment, albeit that he is suffering a measure of psychological reaction in relation to matters unrelated to his work injury.
110 Counsel suggested that Mr Brasenor effectively transgressed the warning given by the Court of Appeal in Giankos v SPC Ardmona Operations Ltd:[49]
[49][2011] VSCA 121 @ para 96
Expert opinion evidence must relate to matters which are wholly or substantially within the expert's field of expertise. It follows that medical opinion about the suitability of particular employment for an injured worker, should focus on the physical restrictions which a particular impairment imposes, rather than on whether the injured person is able to do a particular job. There is a danger that medico-legal experts will stray beyond their field of expertise and give unqualified opinions about the jobs which can or cannot be done by the worker. Except where a medical practitioner has specialist occupational health and safety qualifications or experience, a medical opinion as to the work which an injured worker can perform, may fall outside the doctor's area of expertise.
further submitted that Mr Brasenor exceeded his area of expertise in relation to the Plaintiff’s capacity to perform certain kinds of work. Relying on the
111 In my view, such criticism of Mr Brasenor is unwarranted. He has not referred to any specific job in any of his opinions. Rather, he has opined as to the Plaintiff’s physical capabilities and the limitations, in terms of lifting weights, which he considered should continue to apply in any employment.
Conclusion
112 After considering all of the evidence, I am satisfied on the balance of probabilities that:
a) the Plaintiff does not have a current work capacity;
b) for the foreseeable future, the Plaintiff is not likely to have a capacity for employment which will yield to him earnings of at least 60% of his reasonable without injury earnings; and
c) the Plaintiff’s loss of earning capacity may fairly be described as being more than significant or marked and as being at least very considerable, when judged by comparison with other cases.
113 In reaching the above conclusions, I have had particular regard to the fact that all medical opinions are unanimous as follows:
a) The Plaintiff is illiterate in English;
b) The Plaintiff’s spoken English and comprehension is minimal;
c) The Plaintiff has had limited secondary school level education outside Australia; no secondary or tertiary education in Australia; and no vocational training in Australia; and
d) The Plaintiff’s work experience has been limited to un skilled heavy manual labour, for which he is no longer capable.
114 I accept that the above factors alone severely limit the range of suitable employment.
115 In relation to the Plaintiff’s potential physical work capacity, I accept that there is a general consensus amongst the medico legal opinions to the effect that, having regard to the individual circumstances of the Plaintiff and the physical restrictions which would have to apply, the Plaintiff’s realistic prospects of finding suitable employment are minimal. Equally importantly, while they find a theoretical capacity for light restricted employment, they find that the Plaintiff could not reliably sustain employment and would be likely to be limited to a maximum of 10 to 15 hours per week.
116 In his oral evidence, Mr Brownbill was at pains to emphasise the importance of monitoring the Plaintiff closely in any return to work programme and that it was difficult to predict how well he may cope with any particular light work or for how long. I accept this assessment.
117 I do not discount the opinions of Mr Brasenor and indeed I accept his assessment that, objectively, the Plaintiff does have a physical capacity to eventually return to full-time suitable employment. However, even Mr Brasenor has recognised that there are other factors influencing the Plaintiff’s ability to resume and maintain employment.
118 Dr Horsley, in particular, recommended that the Plaintiff be assessed by a Vietnamese speaking psychiatrist, for management of his emotional state; and that he needed assistance from a psychologist and social worker in relation to grief counselling and integration into the community. While I agree with Plaintiff’s Counsel that anxiety and depression is not the primary cause of the Plaintiff's work capacity, his psychological state is a significant factor which will limit his ability to undertake suitable employment.
119 Having criticised the Plaintiff for the manner in which this case was presented, I should also join in the criticism of the Defendant's insurer, in apparently failing to adequately, or at all, support the Plaintiff in achieving an appropriate level of English comprehension, conversation; and literary skills; as well as appropriate vocational retraining. On the face of the correspondence from Mr Brasenor to the insurer, and indeed the comments and recommendations of all medico legal specialists, it is patently clear that the Plaintiff would not be likely to be re-employed with his current level of English and minimal job skills.
120 Having regard to the kinds of physical restrictions recommended by Dr Horsley, in the context of any suitable employment, I cannot find that the Plaintiff has any realistic prospects or capacity for suitable employment in the foreseeable future. If indeed he were able to find suitable employment, then it is most likely that for the foreseeable future he would be limited to working no more that 10 to 15 hours per week, which would place him well outside the minimum 60% of without injury earnings.
121 I acknowledge that the Plaintiff has been unsuccessful in his application for a number of positions; and there is no evidence as to how he would actually cope in a graduated return to work.
122 I readily find that the Plaintiff’s loss of earning capacity is more than significant or marked and at least very considerable when comparison is made to other cases in the range of possible impairments, having particular regard to the fact that the Plaintiff:
a) would likely have looked forward to a working life of at least another 20 years;
b) has been gainfully employed for most of the time he has lived in Australia; and
c) will likely have significant difficulty in ever achieving a meaningful command of English, in view of the time he has already lived in a Australia,
Orders
123 The Plaintiff is granted leave pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985, to commence common law proceedings for the recovery of damages for both pain and suffering and loss of earnings in respect of injury to his lumbar spine, arising out of, or in the course of, or due to the nature of, employment with the Defendant in November 2007, relying upon paragraph (a) of the definition of serious injury.
124 After hearing the parties on the question of costs the following order was made:
125 The Defendant pay the Plaintiff’s costs of the proceeding pursuant to the Workcover (Litigated Claims) Legal Costs Order 2010.
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