Hodge v VWA
[2019] VCC 923
•26 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03175
| GLENN HODGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 & 11 February 2019 | |
DATE OF JUDGMENT: | 26 June 2019 | |
CASE MAY BE CITED AS: | Hodge v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 923 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious injury; Loss of earning capacity; Post-injury business;
“Income from personal exertion”
Legislation Cited: Accident Compensation Act 1985 (s 134AB(38)(f),
Transport Accident Act 1986 s6(2)
Cases Cited: Nicholson v VWA [2016] VSCA 146; Caratozzolo v Metroll Pty Ltd
& Anor [2007] VCC 1006; Boskovic v Road Maintenance Pty Ltd
[2006] VCC 51; Glazebrook v Accident Compensation
Commission 1988) VR 454; Guthrie v Campion Education (Aust)
Pty Ltd [2009] VCC 1141; McLaren v Dubbo Grazing Services {2009] VCC 0526; Howell v Border Express Pty Ltd [2012] VCC 1612; Adjemian v VWA [2017] VCC 1890
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Mighell QC with Mr E. Makowski | Arnold Thomas Becker |
| For the Defendant | Mr R. Kumar | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff, Glenn Hodge, was employed as a truck driver by a company related to the Toll Holdings Group (“the first employer”) when he suffered a back injury in the course of his employment on 8 May 2012. The circumstances of his injury are set out in some detail in his initial affidavit.[1] The defendant did not dispute the occurrence of injury in the present application.
[1]Exhibit A, pp 8-9 [4] to [7]
2 Following the incident in 2012 Mr Hodge was off work for a short period of time and then returned to light duties. It would appear that Mr Hodge initially consulted a doctor some four days after the incident when he experienced back pain radiating into his right leg. He seems to have had little treatment initially following the incident.
3 His employment came to an end shortly thereafter and he obtained some short‑term work through employment agencies, mainly involving truck driving.
4 He was then employed by Appliances On Line Pty Ltd (“the second employer”) and suffered a further injury to his back when delivering an oven to a private residence on 9 September 2013. Following this second incident he initially attended a doctor at Forest Hill and later another general practitioner in Mulgrave.
5 He was then off work for approximately one and a half years and believed he was only able to work for approximately two to three days per week.
6 In November 2015 he purchased a skip bin franchise with a truck and bins. He and his wife established a company and borrowed significantly to finance the business. Eventually the franchise was abandoned in June 2017, but Mr Hodge has continued to drive the truck delivering and collecting rubbish bins.
7 He has continued to have treatment for his back condition, which is largely of a conservative nature. He maintains that the back injury is such that he remains limited in terms of the hours he can work and the duties he can perform. Additionally Mr Hodge maintains that the non-employment consequences of his back injury seriously impact on his day to day activities.
8 At the time of this application Mr Hodge was 35 years old and married with two children. His employment background largely involved truck driving, although he had done some labouring work and cared for his mother after leaving school when aged 14. He suffers from dyslexia and has a very limited ability to read and write.
9 In the present application he seeks leave in accordance with the provisions of section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to claim damages at common law, both in respect of pecuniary loss and pain and suffering. His application relies upon paragraph (a) of the definition of “serious injury” as defined in section 134AB(37) of the Act.
10 Mr Kumar of counsel, who appeared on behalf of the defendant, did not take issue with the occurrence of injury, although he submitted that the incident with the second employer on 9 September 2013 should probably be described as an aggravation injury for the purposes of the present application. Although no concession was made in relation to leave for pain and suffering, Mr Kumar quite accurately described the major area of dispute as relating to the question of pecuniary loss.
11 The plaintiff was the only witness required for cross-examination. The parties otherwise tendered material from their respective court books as evidence in the application.
The lay evidence
12 Mr Hodge swore two affidavits in support of his application on 8 August 2017[2] and 24 January 2019.[3] His wife, Danielle Hodge, also swore an affidavit on 8 February 2019.[4]
[2]Exhibit A, pp 8-15
[3]Exhibit A, pp 16-20
[4]Exhibit A, pp 20A-20B
13 In Mr Hodge’s initial affidavit he set out the following matters:
· He suffers from dyslexia and has limited ability to read and write.
· He left school at 14 years of age, did some manual labouring work and cared for his mother. He had worked as a truck driver and occasional forklift driver since the age of about 18.
· He suffered a low back injury when working for Toll/Ipec Sensitive Freight in Altona on 8 May 2012. He had worked for companies associated with Toll Holdings Limited since about 2010.
· His initial back injury had occurred when moving a heavy metal cabinet with another worker. The other worker pushed the cabinet “causing me to fall backwards heavily on to the steps with the trolley and cabinet on top of me.”[5]
[5]Exhibit A, p 9 [7]
· He saw three general practitioners between 11 May and 17 May 2012 reporting to one that he “began to experience severe, sharp, shooting pains down (his) right leg associated with tingling.”[6]
[6]Exhibit A, p 10 [10]
· Following the first incident Mr Hodge believed that he was off work for a short time and then returned to light duties. He did not return to full duties. As a result of some dispute, apparently unrelated to his injury, he was transferred to do forklift driving. He believes his injury prevented him from doing that work and he states that he was forced to resign.
· After leaving that employment he believes he had a few casual truck driving jobs and a casual position doing warehouse work and then truck driving. He then commenced employment with the second employer.
· At the time of commencing with the second employer he informed them of his earlier back injury and underwent a medical examination. He stated he was passed as fit. Nevertheless the work was heavy and Mr Hodge stated that he had suffered two minor incidents affecting his back prior to 9 September 2013.
· He suffered a further injury on 9 September 2013 when delivering an oven, said to weigh 75 kilograms, to a private residential address in Olinda. Mr Hodge experienced severe pain in his back whilst attempting to lift the oven with the owner’s assistance. Following that incident he attended a Dr Winter at Forest Hill Medical Centre, but was not happy with that treatment and changed to medical practitioners at Valewood Clinic in Mulgrave.
· Following the second incident Mr Hodge was unable to return to work for approximately one and a half years and then obtained casual truck driving work through various agencies. He stated he was only able to work about two to three days per week on average.
· In November 2015 he and his wife purchased a Jim’s Skip Bin franchise, borrowing $254,000 to pay for the franchise, truck and bins.
· Mr Hodge discontinued the franchise but continued to operate the same sort of business from 30 June 2017:
“I drive the truck and deliver and pick up bins. Most of the customers are householders who need a bin to put their rubbish in as a one-off. The business has not been going very well and I have not been able to pay myself a wage for the last three or four months.”[7]
· Mr Hodge described the value of the assets of the business at that time and stated that the business became busier in the warmer months when there was a greater demand for such services. He stated:
“I am capable of doing the job because I am able to get in and out of the truck quite regularly and this helps with my back. Also, there is no heavy lifting involved.”[8]
· Mr Hodge then described the treatment he was then receiving and set out in considerable detail the pain and other abnormal symptoms he was suffering. He also described the impact of his injury upon his day-to-day activity and his ability to perform work.
[7]Exhibit A, pp 11-12 [16]
[8]Exhibit A, p 12 [17]
14 In his supplementary affidavit sworn shortly prior to the hearing, Mr Hodge maintained that his initial back injury had largely resolved at the date he commenced with the second employer. The most recent affidavit set out his ongoing treatment and use of medication. It also described in some detail the work currently being performed by Mr Hodge.
15 Essentially Mr Hodge maintained that in his current employment he is generally limited in both his hours of work and the type of work performed.
“… I perform limited working hours and I control and limit the type of work that I do and the geographical areas in which I work.
I work 5 days per week, generally starting from between about 6.30 a.m. to 7 a.m. and ending generally between about 11 a.m. to 1 p.m.
Sometimes I work more hours.”[9]
[9]Exhibit A, p 18 [14] to [16]
16 Mr Hodge went on to describe those aspects of his present employment which were restricted by his back pain.[10] He also explained that he had ceased his relationship with the Jim’s franchise as:
“… I was unable to expand the areas in which I was able to accept jobs because this would increase the hours that I would have to drive the truck, which in turn would increase the back pain that I experience.”[11]
[10]Exhibit A, p 19 [25] to [27]
[11]Exhibit A, p 19 [28]
17 When Mr Hodge was cross-examined I noted the following matters as relevant to this application:
· After his initial back injury in May 2012, when working for the first employer, he had returned to light work but not full duties for a number of weeks before he resigned for an issue not related to his back injury.[12]
[12]Transcript (“T”) 21, Line (“L”) 10 to T 22, L 10
· He had then worked for a company called Speedy, employed as a truck driver, but also doing some work operating a machine. The machine operator work involved standing, bending and twisting, which he was able to do for a short period. He left employment with Speedy because he believed the truck he was given was unroadworthy.[13]
[13]T 22, L 25 to T 23, L 16
· He had two incidents involving his back while working with the second employer prior to 9 September 2013. He had no treatment for the first incident and for the second one he took some medication and had a couple of days off.[14]
[14]T 24, L 1-5
· The incident on 9 September 2013 occurred when Mr Hodge was delivering an oven and felt pain in his back when he picked it up off a trolley.[15]
[15]T 25, L 1-20
· Following this incident Mr Hodge agreed he was able to return to some modified duties by April 2014.[16]
[16]T 26, L 12-30
· Mr Hodge agreed he had told a doctor in 2015 that for about seven weeks he had worked for 36 hours a week doing casual work doing driving and forklift work.
“He said he coped with this work but felt it was an easy job with plenty of dead time between jobs. He was put off just before Christmas 2014. … It was through the casual agency, working for Australia Post.”[17]
[17]T 27, L 6-25
Mr Hodge later maintained that he had told the doctor that he had struggled through with this work:
“There was dead time, but it was still a long job and I struggled with it.”[18]
[18]T 28, L 3-14
· Before commencing the franchise with Jim’s Skip Bins he had had one other job driving a semi-trailer between a transfer station and the tip. This was between two and three days per week, before he purchased the franchise. He stopped this work because:
“… I couldn’t continue to do the work, I couldn’t do five days that they required.”[19]
· While attempting to return to work in 2014 and 2015 Mr Hodge was treated by Dr Herath, who he continues to see on a monthly basis.[20]
· Mr Hodge believed Dr Herath knew of the hours that he was working and the type of work he was doing. [21]
[19]T 28, L 19 to T 29, L 10
[20]T 29, L 16-30
[21]T 30, L 12-14
18 Mr Hodge was then cross-examined in some detail as to both the franchise and his current business. Mr Hodge agreed that the cost of his truck was $186,000, the bins “just over $39,000 and an initial franchise fee of $40,000 plus an ongoing monthly fee amounting to approximately $12,000 or $13,000 a year.”[22]
[22]T 31, L 1-16
19 Mr Hodge described the work as picking up rubbish and taking it to a transfer station. His work was mainly for domestic clean-ups.
“Some customers will ask for a replacement bin, some customers don’t. … We can leave one behind at the customer’s request, but generally it doesn’t happen.”[23]
[23]T 33, L 1-10
20 Since 1 July 2017 Mr Hodge had been operating independently of Jim’s Skip Bins:
“But is it the same work that you do?---Same work … I complained to Jim’s ‘cause I wasn’t getting enough work.
Yes?---Jim’s asked me to extend the areas that I was doing and to sort the rubbish. I explained to Jim’s I wasn’t capable of sorting the rubbish and I wasn’t capable of extending the areas.”[24]
[24]T 34, L 8-16
21 Mr Hodge agreed that since ceasing the franchise he had not been able to get back to the regular work that he was doing with Jim’s.
“I’ve never been able to get the same consistency.”[25]
[25]T 36, L 2-7
22 When asked about the financial returns for the business Mr Hodge believed that the business was basically the same, if not less than it had been the previous year. He could not comment on the financial records as, “I don’t have anything to do with the book keeping side of it.”[26]
[26]T 36, L 8-25
23 Mr Hodge stated that 90 per cent of his customers were household customers:
“They might get one bin one year and then they might get another one a couple of months later, they might not come back at all. Some do, some don’t, it just depends on the customer.”[27]
[27]T 37, L 20-27
24 Mr Hodge believed that he was working to his capacity:
“… I do know what my capacity is and how I’m travelling. It’s getting harder and harder.”[28]
[28]T 38, L 1-5
25 Mr Hodge agreed that he would work from 6.30 or 7.00, ending somewhere between 11 am and 1 pm.
“There are occasions, very, very rare occasions where I have worked past 1 o’clock.”[29]
[29]T 38, L 6-17
26 Mr Hodge agreed that there was a company created for the purpose of running his business and that he had also set up a family trust to distribute the business profits through the trust for tax purposes. He was told to do so by the accountant.[30] He agreed the business covered its costs:
“… if you look at the costs of what the costs of things are, it covers its costs, it doesn’t make a lot of money. There’s room to make more money in that business, but I can’t do it.”[31]
[30]T 39, L 4-31
[31]T 41, L 1-5
27 When questioned in relation to a drop in the gross receipts of the business from $240,000 in 2017 to $200,000 in 2018 Mr Hodge stated:
“I’m saying I can do the hours that I’m doing now, whatever work comes in, in those hours that I’m capable of doing is what I’m doing.”[32]
[32]T 42, L 9-17
28 Mr Hodge was asked about purchasing a Toyota Prado SUV for the business in the last financial year. He stated that living close to the Dandenong Ranges there were a lot of jobs that were not suitable for the size of the truck:
“… we couldn’t get in there. … so you’d go there with the car. You may have to require to go after the customer’s home to get payment from them, so you use the car. Getting in and out of the truck is hard on the back and bouncing around in the truck is hard on the back, it hurts. If the truck gets stuck, for example, which it has done in the past, the car is also there used to help get the truck out of that little stuck spot, whether it be bogged or whatever it may be, so that’s what it’s used for”[33]
[33]T 45, L 10-30
29 Mr Hodge stated that the truck would need to be replaced by trading it in on a new one when it was about five years old. Alternatively the lifting mechanism could be replaced at a cost of $60,000 to $80,000.[34]
[34]T 48, L 4 to T 49, L 12
30 Mr Hodge stated that 99 per cent of the invoicing was done electronically:
“I try not to carry cash. I’ve got an EFTPOS machine. I’d rather they paid that way.”[35]
[35]T 50, L 2-5
31 Mr Hodge was cross-examined about his treatment. I noted the following evidence as relevant on this issue.
· He was attending a chiropractor:
“My physio was cut off by WorkCover as they said it was not beneficial to me.”[36]
[36]T 50, L 15-17
· He was also doing exercise at home. He did not do pilates. The exercise was “very basic stuff, just stretches and stuff.”[37]
[37]T 51, L 1-6
· He had not been assessed for a pain management program since approximately 2013 or 2014.[38]
[38]T 51, L 13-30
· He was attending the chiropractor at “Happy Healthy Bodies.” He regarded the treatment as a short-term benefit and paid for it himself. He now attends every couple of weeks, “it started off as every week.”[39]
[39]T 52, L 8-31
· He would normally attend the chiropractor after finishing work on a weekday.[40]
· He had seen a neurosurgeon, Mr Adamides, on two occasions. He had last seen him after having an MRI. Mr Adamides had spoken to him about two possible procedures, decompressive surgery or a micro discectomy.[41]
· Mr Hodge was concerned about the surgery, but believed he would need to have it done.[42]
· He was continuing to take the medications Palexia and Osteomol.[43]
· Mr Hodge believed his condition had been fairly constant in the last four years. He had withdrawn his claim against the first employer.[44]
· Over the last couple of years his condition has continued as a base‑line of minor back pain with intermittent flares. He speaks to his doctor regularly and has been told by his surgeon that it is necessary to have surgery.[45]
· He has seen a chiropractor for his back and has received a little bit of treatment for carpal tunnel syndrome.[46]
· He mainly communicates by text message and his wife assists with email communications.[47]
· When working for Appliances On Line Mr Hodge had a jockey to assist with the paperwork. At Toll, and with Australia Post, there was no paperwork.[48]
[40]T 53, L 1-6
[41]T 53, L 7 to T 54, L 1
[42]T 54, L 8 to T 55, L 16
[43]T 55, L 17-20
[44]T 55, L 21 to T 56, L 6
[45]T 56, L 17-31
[46]T 57, L 1-16
[47]T 58, L 5-25
[48]T 59, L 12-21
32 Mr Hodge was cross-examined about aspects of a vocational assessment report that had been prepared in August 2018.[49] He was generally in agreement that the duties of a recycling truck driver would be similar to the work presently performed by him, but did not believe he could move the weights of 15 to 20 kilograms.[50]
[49]Exhibit 1, pp 82-108
[50]T 62, L 20 to T 63, L 12
33 Mr Hodge stated that in his present job he could sit in the truck for 45 to 55 minutes and then get out, whereas driving a rubbish truck or similar jobs were:
“… not the type of job that you get out and frequently walk around. It’s a go, go job, to the point where you’re basically … it was 12 hours that they required and you would go, go, go until you stop, there’s no rest.”[51]
[51]T 63, L 24 to T 64, L 16
34 Mr Hodge also stated that he could not do a job using a pallet transporter as it required twisting, which he could not do.[52]
[52]T 65, L 7-23 & Exhibit 1, pp 96 & 97
35 Mr Hodge also stated that he did not believe he could perform work using a forklift:
“… they’re very rigid, they’ve got no give in the suspension.”[53]
[53]T 66, L 4-28
36 Mr Hodge was also cross-examined about working as a medical courier involving lifting items generally less than five kilograms and very occasionally up to 12 kilograms. He did not believe he could do this job stating that most of the jobs he was aware of in transport required lifting 10, 15 or 20 kilograms in his experience.[54]
[54]T 67, L 26 to T 68, L 14
37 He was also cross-examined about the hours which he could work. He agreed he was currently working 30 to 35 hours and stated:
“… I’m doing the hours now and I’m struggling to do that as it is. I’m pushing myself harder than I should be doing.”[55]
[55]T 69, L 16-27
38 Mr Hodge disagreed that it would be economical for the business to replace the lifter on the truck at a cost of $60,000 to $80,000. He stated that the truck was now more expensive to maintain and was breaking down more frequently now that it was three years old. He maintained that the lifter and the truck should be replaced together.[56]
[56]T 70, L 19 to T 71, L 10
39 When asked about potential surgery Mr Hodge stated that he had been given a 60 to 70 per cent chance of it working by the surgeon.
“My understanding is it won’t increase the capacity for work. It’ll just help out with the pain, the constant sciatic shooting down the leg.”[57]
[57]T 71, L 27 to T 72, L 19
40 Finally in cross-examination Mr Hodge maintained that the financial affairs associated with the business were handled by his wife or the accountant.[58]
[58]T 72, L 25 to T 73, L 19
41 When re-examined I noted the following evidence given by Mr Hodge:
· He was not capable of extending his work area as the timing for dropping off bins would have meant he was travelling at peak times.
“I would ultimately cover my time where I could get out of the truck and I could stretch and walk around.”[59]
· His working hours in the last week were 28 and a half. They always fluctuate. Last week was a longer week than average.[60]
· The truck would need to be replaced after approximately five or five and a half years. Mr Hodge estimated the replacement costs as between $240,000 and $260,000.[61]
· He currently had 25 bins. They would require maintenance. He would do simple maintenance but someone else would do painting.[62]
· Mr Hodge was asked about alternative employment as a recycling truck driver, a forklift driver and courier driver. He gave evidence in each case that he would be unable to do the full duties required or would struggle.[63]
· Mr Hodge confirmed that he continued to take Palexia, the synthetic narcotic on a daily basis for back pain.[64]
[59]T 74, L 4-19
[60]T 75, L 1-10
[61]T 75, L 19 to T 76, L 10
[62]T 76, L 11 to T 77, L 11
[63]T 77, L 28 to T 79, L 8
[64]T 79, L 9-12
42 The plaintiff’s wife, Ms Danielle Hodge, swore an affidavit in support of this application on 8 February 2019. She deposed generally as to her observations of Mr Hodge’s difficulties due to apparent back pain. She also deposed to doing the paperwork for the transport business:
“Glenn is not capable of doing any of the paperwork or administrative side of the business. He is dyslexic. His reading is very poor. For example, he does not read a newspaper. His writing is very poor. He has not computer skills.”[65]
[65]Exhibit A, p 20B [4]
43 Ms Hodge was not required for cross-examination.
The medical evidence
44 There was no dispute between the parties that Mr Hodge had suffered a compensable back injury in the course of his employment with the second employer on 9 September 2013. The nature and extent of that injury remained to be determined. Mr Hodge relied upon six reports from his current general practitioner, Dr Herath, prepared between 1 April 2014 and 12 November 2018.[66] There were also three reports tendered from another practitioner at the same clinic, Dr Bansal, dated 8 January 2014, 20 January 2014 and 22 April 2014.[67]
[66]Exhibit A, pp 38-50
[67]Exhibit A, pp 34-37
45 In his most recent report, Dr Herath regarded the back injury as having largely stabilised.
“He is plagued by acute relapses which settle with time, medication, and rest. This is likely to be an ongoing pattern into the future.
…
He is likely to continue as he is, with a baseline of minor back pain with intermittent flares.”[68]
[68]Exhibit A, p 49
46 Dr Herath also noted Mr Hodge’s ingestion of medication and the possibility of either a nerve root injection or surgical management to be performed by the neurosurgeon, Mr Adamides. Dr Herath expressed an opinion that Mr Hodge had a capacity for employment with restrictions. Those restrictions included no lifting over 15 kilograms and no repetitive bending/twisting at the waist. Dr Herath did not specify any restriction on the hours which could be worked.
47 Mr Hodge was seen by Mr Alex Adamides, neurosurgeon, in October 2018. Mr Adamides wrote to Dr Herath on 25 October 2018 noting the recent radiology and indicating the potential for decompressive surgery at the L4/5 L5/S1 levels, or alternatively a less invasive micro discectomy and rhizolysis.
48 Mr Adamides reported to the plaintiff’s solicitors on 7 February 2019. That report and his earlier letter to Dr Herath were both tendered in evidence.[69]
[69]Exhibit A, pp 50-55d
49 Mr Adamides diagnosed Mr Hodge’s condition as follows:
“Low back pain from degenerative disease and left-sided sciatic and dysesthetic type pain from compression of the L5 nerve root.”[70]
[70]Exhibit A, p 55b
50 Much of the opinion expressed by Mr Adamides relates to the question of causation which was ultimately not in issue before me. In terms of capacity his opinion was as follows:
“I expect that Mr Hodge will suffer with low back pain and a degree of radicular/neuropathic type pain long term. He is likely to have long term sensory changes and possible weakness in an L5 distribution. Decompression surgery may help with the radicular symptoms, but not the back pain.”[71]
[71]Exhibit A, p 55c
51 Mr Adamides was of the view that these symptoms would interfere with Mr Hodge’s quality of life in both the social or recreational sense and also with activities of daily living. He believed Mr Hodge should avoid heavy lifting, bending and twisting of his lumbar spine, and also cautioned against certain treatments including forceful manipulation of the spine. He did not specify any particular number of hours in terms of the employment restriction.
52 Mr Hodge tendered into evidence a report from his chiropractor, Dr Tamzyn Smith, dated 26 October 2018. She had treated Mr Hodge since April 2014. She believed her diagnosis of discal injury at L4/5 and L5/S1 with some neural impingement was supported by the recent MRI report. In terms of employment restriction she stated:
“Mr Hodge’s ability to work has been negatively impacted as he is physically limited as to what tasks he can perform. Work of a laborious nature is likely to exacerbate his condition.”[72]
[72]Exhibit A, p 56
53 Dr Smith regarded ongoing treatment as necessary to maintain a reasonable quality of life. Without such treatment she felt it improbable that his condition would improve.
54 Mr Hodge relied upon a number of relatively dated medico-legal opinions from Mr Paul D’Urso, neurosurgeon, and Mr Douglas Gardiner, orthopaedic surgeon. More recent opinions were provided by Mr Aliaskevic, neurosurgeon, dated 17 October 2018 and 7 January 2019. Mr Aliaskevic diagnosed Mr Hodge’s injury as:
“… a muscular ligamentous injury of the lumbar spine. Workplace activity may have contributed to a minor L4-5 disc prolapse.”[73]
[73]Exhibit A, p 89
55 Much of the opinion expressed by Mr Aliaskevic relates to questions of contribution as between the various activities in employment with each of the two named employers. Given the manner in which the case before me was ultimately argued, this material is not of any real assistance.
56 The supplementary report provided to the plaintiff’s solicitors on 7 January 2019 again dealt with questions of causation that were ultimately not pursued. What the plaintiff’s solicitors did manage to achieve was to obtain Mr Aliaskevic’s opinion on the extent of disc bulging as follows:
“After reviewing his MRI scans dated 5/12/2013 and 2/10/2018 I consider the described minimal, tiny and small disc bulges as having minimal clinical significance. I was unable to find any strong evidence that it would have been more likely than not that he would have sustained the L4/5 disc bulge (reflected in the 5/9/2013 MRI scan) only as a result of his employment with Toll Holdings.”
57 He made a similar comment in relation to the bulge at L5/S1.[74]
[74]Exhibit A, p 98
58 The final medical opinion relied upon by the plaintiff was from Dr Joseph Slesenger, occupational physician, in a report dated 15 November 2018. Dr Slesenger saw Mr Hodge for an assessment on 8 November 2018 and provided a report to the plaintiff’s solicitors dated 15 November 2018.[75]
[75]Exhibit A, pp 99-112
59 Dr Slesenger diagnosed the plaintiff’s injury as:
“Mechanical injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine, chronic lower back pain with radiating features.”
60 He also made mention of psychological impairment, although stating this was outside his area of expertise.[76] He believed Mr Hodge was restricted in his work capacity with a lifting tolerance of five kilograms and various other postural restrictions. He also formed the view that Mr Hodge could work four hours a day, four days a week, noting that he was currently working outside the limits suggested.[77]
[76]Exhibit A, pp 108 & 109
[77]Exhibit A, pp 109 & 110
61 Dr Slesenger also commented on the alternative roles which were contained in the vocational assessment report relied upon by the defendant. He set out in his report reasons why he would advise Mr Hodge against returning to work in the roles of truck driver, despatch loader/forklift driver or medical courier.[78]
[78]Exhibit A, p 111
62 The defendant relied on a number of early medical opinions from Dr Virginia Li, Associate Professor Antony Buzzard, Dr Andrew Miller and Mr Michael Shannon. Recent medical opinions were obtained from Dr David Barton on 2 November 2018 and Dr Graeme Brazenor dated 11 September 2018.
63 Dr Barton initially examined Mr Hodge on 10 March 2015 and reported to the second employer’s insurer on the following day. At that time Dr Barton believed Mr Hodge had developed a chronic pain problem, partly contributed to by his employment, but also a psycho-social situation.[79]
[79]Exhibit 1, p 40
64 Dr Barton provided a supplementary opinion on 20 March 2015 dealing with treatment which had been sought at that time. He did not comment further in that report on any issue of relevance to the present application. More recently Dr Barton again examined Mr Hodge on 1 November 2018 and reported to the defendant’s solicitors on 2 November 2018.[80] He expressed an opinion following his most recent examination that Mr Hodge had:
“… a combination of mild unresolved soft tissue injury of the back complicated by degree of pain behaviour.”[81]
[80]Exhibit 1, pp 45-49
[81]Exhibit 1, p 47
65 Dr Barton believed the radiological findings were fairly minor and believed there was considerable discrepancy between those findings and the ongoing claimed symptoms and presentation to an examiner. Dr Barton was of the opinion that Mr Hodge could return to normal delivery work on a full-time basis. He believed all of the positions suggested in the vocational assessment report were suitable.
66 Mr Graeme Brazenor, neurosurgeon, examined Mr Hodge on 11 September 2018 and reported to the plaintiff’s solicitors on the same date.[82] Mr Brazenor believed the injury was only of a soft tissue nature “which would have healed completely after some months.”[83] He believed each of the jobs suggested in the vocational assessment were suitable, “so long as he avoids recurrently bending at the waist.”[84] Mr Brazenor also expressed a view that Mr Hodge could return to work in suitable employment on a full-time basis.
[82]Exhibit 1, pp 57-81
[83]Exhibit 1, p 72
[84]Exhibit 1, p 74
67 The defendant also tendered into evidence a detailed vocational assessment report from Recovre, co-authored by Nikki Burden, vocational consultant, and Janette Ash, occupational therapist.[85] This report identified suitable employment as a truck driver, rubbish truck driver, forklift driver or courier.
[85]Exhibit 1, pp 82-109
68 Finally the defendant tendered into evidence the business financial statements of D & G Hodge Transport Pty Ltd for the financial years ended 30 June 2016 and 30 June 2017.[86] I will discuss aspects of these records during my analysis of the issues in this application.
[86]Exhibit 3, pp 109-152
Analysis
69 The plaintiff’s counsel in final address based the application on the consequences of injury sustained in the course of Mr Hodge’s employment with the second employer and the specific incident of 9 September 2013. The submissions on behalf of the defendant identified the specific incident of 9 September 2013 as being productive of compensable injury.
70 On this issue it is apparent from Mr Hodge’s ability to return to employment initially following the injury with the first employer and subsequently after the two minor episodes with the second employer, support a conclusion that as a probability the incident occurring whilst attempting to lift the oven on 9 September 2013 was the most significant in terms of consequences for the plaintiff.
71 The medical evidence is far from clear as to the precise nature of Mr Hodge’s current back injury, it is in my view correctly described by Dr Slesenger in November 2018 as:
“Mechanical injury to the lumbar spine. Aggravation of degenerative disease at the lumbar spine; chronic lower back pain with radiating features.”
72 Dr Slesenger also refers to psychological impairment which was outside his area of expertise.[87]
[87]Exhibit A, p 108
73 The opinions expressed by the two neurosurgeons, Dr Aliaskevic and Mr Adamides, concentrate to a large extent on the relationship between the particular events in the employments with both employers and the existence of radiological abnormalities shown in the various studies taken between 2012 and 2018. Such opinion is useful to support a conclusion that the plaintiff suffers from ongoing symptomatology in the presence of degenerative disc disease, although I am unable to conclude the extent (if any) to which the incident of 9 September 2013 caused any discal injury at L4/5 or L5/S1 levels.
74 I am persuaded on the basis of the recent neurosurgical opinions, and in particular Mr Adamides’ recommendation for decompressive surgery, to prefer the diagnosis of injury expressed by Dr Slesenger to the opinions expressed by both Dr Barton and Mr Brazenor which are suggestive of short‑term soft tissue injuries with symptom aggravation, driven presumably by non‑organic factors.
75 In the application before me it was accepted that Mr Hodge had his employment with the first employer terminated for reasons that were not directly related to his back injury. Indeed Mr Kumar, on behalf of the defendant, cross‑examined in some detail suggesting that the full-time but short-term employment performed by Mr Hodge with Australia Post could have continued on indefinitely and remained within Mr Hodge’s capacity. This work pre-dated Mr Hodge’s employment with the second employer.
76 I can therefore find with confidence that whatever injury had been sustained in the earlier employment had not significantly compromised Mr Hodge’s capacity for employment at the time he commenced employment with the second employer in November 2012. It is equally clear from Mr Hodge’s description of the nature of that work that it was properly described as heavy, did cause further short-term injuries on at least two occasions before the incident of 9 September 2013.
77 Such a finding is consistent with the reasons given by the Medical Panel in the formulation of their opinion dated 2 June 2017.[88]
[88]Exhibit 2, p 8 of Reasons
78 Following the incident on 9 September 2013 Mr Hodge’s capacity for close to unrestricted heavy physical work on a full-time basis has been compromised. I accept Mr Hodge’s evidence that he is working to the extent of his physical capacity in his current self-employment as a truck driver. The extent to which he committed himself financially, first in obtaining the franchise with Jim’s Skip Bins, and more recently when he has worked independently, supports a conclusion that he is well motivated towards maximising the income for himself and in support of his family.
79 Such a conclusion is further supported by the ongoing provision of narcotic medication by Dr Herath, the suggestion of spinal surgery referred to by Mr Adamides, and the recent medico-legal opinions from Dr Aliaskevic and Dr Slesenger. I also accept the opinion of Mr Adamides that the persistence of back pain into the foreseeable future is likely to occur, even if decompressive surgery is undertaken.[89]
[89]Exhibit A, p 55c
80 Insofar as pecuniary loss consequences are concerned the parties agreed that a without injury earnings figure of $57,000 ($1096.15 per week) would be appropriate. In order for leave to be granted the plaintiff would need to demonstrate a loss of earning capacity of 40 per cent or more. On the agreed without injury earnings figure, Mr Hodge would need to satisfy the court that his earning capacity in suitable employment would produce no more than $657.69 per week into the foreseeable future.
81 Since November 2015 Mr Hodge’s business has been conducted through a company of which he is the sole director and shareholder. Whilst it is clear that his wife assists with the paperwork and general administration of the business activities, there is no evidence to suggest that any income flowing to the business is derived other than through the work performed by Mr Hodge in driving the truck and delivering the bins. Financial records relating to the business for the 2016 and 2017 financial years were contained in the defendant’s court book and were subsequently tendered in evidence before me.[90] The 2018 financial records were separately tendered during the hearing.[91]
[90]Exhibit 1, pp 109-152
[91]Exhibit 2
82 In the course of final addresses I was provided with authorities as to the methodology to be employed in assessing the extent of the plaintiff’s post-injury earning capacity for the purposes of section 134AB(38)(f) of the Act. In Nicholson v VWA[92] the Court of Appeal held that the expression “gross income from personal exertion” referred to in section 134AB(38)(f) was to be calculated:
“… in accordance with the text of the definition contained in section 6(2) of the Transport Accident Act 1986. It is not to be calculated by deducting, from the plaintiff’s income, deductions claimed in the plaintiff’s income tax returns for work-related motor vehicle and clothing expenses.” [93]
[92][2016] VSCA 146
[93]Ibid at [36]
83 The Court of Appeal made reference to the Second Reading Speech noting that the analysis to be made:
“… involved comparison of pre and post injury gross income so as to have ‘a simple basis of calculation and to avoid dispute as to a net income figure.’”[94]
[94]Ibid at [37]
84 I should note that the facts in Nicholson’s case concern an employee who was being paid amounts including a travelling allowance and a clothing allowance in his post-injury role working for a local council. It did not involve the proceeds of a business.
85 Mr Kumar referred me to earlier decisions of this court in Caratozzzolo v Metroll Pty Ltd & Anor[95] and Boskovic v Road Maintenance Pty Ltd[96] which each concerned determinations by the court to exclude the deduction of expenses in calculating income from personal exertion. In neither of those cases could it be said that the plaintiff was truly conducting a business. This distinction was clearly recognised by His Honour Judge Strong in Boskovic.[97] In Caratozzolo Her Honour Judge Wilmoth appears to have relied on the authority of Glazebrook v Accident Compensation Commission[98] which relates to a situation of earnings in employment rather than proceeds of a business.
[95][2007] VCC 1006
[96][2006] VCC 51
[97]Ibid [70] to [72]
[98][1988] VR 454
86 More recent authorities in Guthrie v Campion Education (Aust) Pty Ltd[99] where His Honour Judge Coish discussed the question in some detail, concluding that:
“… the plaintiff’s income from personal exertion refers to the proceeds of his business which is the profit of his business, the earnings less expenses.”[100]
[99][2009] VCC 1141
[100]Ibid at [42]
87 A similar approach was taken by Her Honour Judge K.L. Bourke in McLaren v Dubbo Grazing Services.[101] That case concerned a shearer who set up a company post-injury to carry out his shearing contracting. Her Honour calculated the post-injury earnings in that case by reference to the actual wage received by the plaintiff from the company, together with his actual earnings from limited shearing activities performed by him. From that amount was deducted a relatively small amount of expenses.
[101][2009] VCC 0526
88 In Howell v Border Express Pty Ltd[102] His Honour Judge Bowman again approved the approach of calculating post and pre-injury earnings derived from a partnership or company by deducting expenses from the profit made by the business:
“I am of the opinion that, in determining whether the plaintiff has established the required financial loss of 40 per centum, s6(2)(b) of the TAA does not mean that the proceeds of the business, without regard to expenses, forms the foundation of the assessment. I agree with the reasoning of His Honour Judge Coish in Guthrie and His Honour Judge Wischusen in Tyrell. Whilst the factual situation in those cases differed from the present, it seems to me that the basic proposition that the definition of income from personal exertion involves the profit of the business less expenses is correct.”[103]
[102][2012] VCC 1612
[103]Ibid at [25]
89 Finally, I was referred to a decision of His Honour Judge O’Neill in Adjemian v VWA[104] where His Honour agreed with the approach taken by His Honour Judge Coish in Guthrie in cases involving the proceeds of a business as described in section 6(2) of the Transport Accident Act 1986.[105]
[104][2017] VCC 1890
[105]Ibid at [75] to [81]
90 The financial records relating to Mr Hodges’ business in the present case were tendered into evidence by the defendant. Adopting the approach which I have set out above, Mr Hodge received earnings of $20,500 in the 2017 financial year and $20,250 in the 2018 financial year. These amounts translate to $394.23 per week and $389.42 per week.
91 I do accept the submission made by Mr Kumar that the business expenses, and indeed the business income, may vary from year to year. Notwithstanding such a conclusion I am satisfied that the plaintiff has established as a probability, on the evidence before me, a loss of earning capacity of not less than 40 per cent indefinitely into the foreseeable future.
92 Mr Hodge impressed me as a credible witness. He is a young man with a wife and two young children. Further, his efforts to set up and maintain his skip bin business whilst working to the extent of his current capacity suggest that it is more likely than not that the earnings from personal exertion will not change substantially into the foreseeable future.
93 He is working in an area involving the Dandenong ranges. He is servicing private customers and the business appears to be subject to seasonal demand changes. He has given a clear explanation of why he could not take on further work under the earlier franchise arrangement due to his inability to sort rubbish or to drive for extended periods to enter into other areas. Similar limitations impact his current business. There is simply no evidence that satisfies me that his capacity is likely to improve significantly into the foreseeable future.
94 I am therefore satisfied that the plaintiff has made out his entitlement for leave in respect of loss of earning capacity.
95 Although it is unnecessary to separately consider an entitlement for leave for pain and suffering damages, I note in the present application the ongoing prescription and use of strong analgesic medication, the failure of long-term conservative medical treatment, the interference with sleep on a regular basis and the difficulties faced by a 35 year old plaintiff over many years into the future would, in my opinion, properly be described as pain and suffering consequences which are at least very considerable and more than significant or marked.
Conclusion
96 I propose to grant leave to the plaintiff in respect of both loss of earning capacity and pain and suffering damages on the basis that he has suffered a serious injury resulting from the incident which occurred during the course of his employment with the second employer on 9 September 2013.
97 I will hear the parties in relation to the formal orders sought and on the question of costs.
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