Hogan v Victorian WorkCover Authority
[2018] VCC 2189
•21 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-01889
| JARRYD HOGAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2018 | |
DATE OF JUDGMENT: | 21 December 2018 | |
CASE MAY BE CITED AS: | Hogan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2189 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – Ss335 and 325 – application in respect of both loss of earning capacity and pain and suffering – reliance upon sub-paragraph (a) of the definition – injury to the low back – disentanglement of allegedly non-organic factors – plaintiff under the age of 26 years as at date of injury – permanence – s325(2)(g) – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr G Clark | Maurice Blackburn |
| For the Defendant | Ms S Manova | Hall & Wilcox |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings in respect of both loss of earning capacity and pain and suffering. Reliance is placed only upon paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act. Reliance upon paragraph (c) was abandoned ― see Transcript (hereinafter referred to as “T”) 1. The injury is one to the back, and, in the opening of the case, was described as being, in particular, a lumbar spinal injury. It shall hereinafter be referred to as “the injury”.
2 The injury occurred as the result of a specific incident which occurred on 6 October 2015, when the plaintiff was manoeuvring bags of concrete dust at a construction site in the course of his employment. This shall hereinafter be referred to as “the accident”. The employment was with an entity called Frame City Pty Ltd, hereinafter referred to as “Frame”. The defendant accepts that the plaintiff initially suffered a form of soft tissue injury to the lumbar spine and there is no issue in relation to the occurrence of the accident on the specified date. The defendant is asserting that the plaintiff’s symptoms do not have a substantial organic basis and that the situation is complicated by non-organic factors. There is also an issue as to whether the consequences of the impairment are permanent, as well as issues involving economic loss and whether there has been compliance with s325(2)(g) in relation to rehabilitation, retraining and the like. In relation to the discussion of these issues, I would refer to T13-15.
3 It should also be pointed out that, as at the date of the occurrence of the accident, the plaintiff was aged 24 years, he having been born in 1990. Accordingly, he being under 26 years of age at the time of the specific injury, the relevant parts of s325(2)(e) are applicable. This is particularly relevant in relation to the issue of loss of earning capacity.
4 Mr T Tobin SC with Mr G Clark of counsel appeared on behalf of the plaintiff. Ms S Manova of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of affidavits of 19 December 2017 and 9 November 2018 as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, education, training and employment prior to the injury
5 The plaintiff is now aged 28 years, he having been born in 1990. He lives with his female partner and they have no children. He was educated to Year 10 level and then obtained a brick-laying apprenticeship. After completing this, he worked for a period as a storeman and delivery person, before obtaining employment as a concrete cutter. Between June 2013 and February 2015 he worked in partnership with his father, operating a business which engaged in concrete cutting. That partnership was dissolved in approximately February 2015 and the plaintiff commenced work with Frame on approximately 23 February 2015. He performed physical work involving the treatment of concrete surfaces in order to give them a highly polished finish, and it was when performing work of this nature that he suffered the accident.
(b) The plaintiff as a witness
6 I found the plaintiff to be a reliable witness who did his best to give truthful and accurate evidence. I note that Dr Andrew Miller, general practitioner, who examined the plaintiff at the request of the defendant, described the plaintiff as being cooperative and articulate. Dr Timothy Entwisle, consultant psychiatrist, also examining on behalf of the defendant, described the plaintiff as pleasant, cooperative and a cogent historian. Dr Matthew Tagkalidis, consultant psychiatrist, who examined the plaintiff at the request of the defendant, described him as being cooperative, very pleasant and matter-of-fact in demeanour. Mr Robert Wilks, clinical psychologist, also examining on behalf of the defendant, described the plaintiff as being an engaged and generally clear respondent to questions. Associate Professor George Mendelson, consultant psychiatrist, described the plaintiff as being pleasant and cooperative. Mr David Stickels, clinical psychologist, who has treated the plaintiff, has described him as a very determined young man of considerable resilience. Dr Clayton Thomas, consultant in rehabilitation and pain medicine, who has treated the plaintiff, also described him as a cooperative man.
7 The bottom line is that I regard the plaintiff as being a truthful and reliable witness and I accept his evidence.
(c) The state of the plaintiff’s health prior to the injury
8 The plaintiff had previously suffered various physical injuries. These involved such matters as an injured right ankle, a fractured rib and an injured thumb. He has also had eye injuries. The most substantial pre-accident injury or condition which he suffered involved a diagnosis of bipolar disorder, this diagnosis being made in the period 2011-2012. There is no suggestion that he has suffered any prior back injury or condition of note.
(d) The injury, its treatment and diagnosis
9 As stated, the plaintiff suffered the injury as a result of the accident on 6 October 2015. He attended upon his general practitioner, Dr Victor Chang, the following day. He was complaining of increasing low back pain, radiating down his right leg. On examination, straight leg raising was restricted on the right side. Dr Chang prescribed Brufen and Panadeine Forte. When he reviewed the plaintiff on 10 October 2015, there had been no improvement, despite the medication, the rest in which the plaintiff had engaged and some chiropractic treatments.
10 Dr Chang ordered a CT scan of the plaintiff’s back. This revealed mild narrowing at L2-3 and L3-4, with mild diffuse posterior disc bulges at L3-4 to L5-S1, the greatest being at L5-S1. The bulge there effaced the left proximal nerve, but there was no focal disc protrusion. There was no definite right sided neural compression. There were degenerative changes in both sacroiliac joints, greater on the right, with osteophytosis anteriorly.
11 Dr Chang saw the plaintiff on 19 October 2015. He had decreased straight leg raising. The plaintiff was commenced on Endone/Targin for pain and the Brufen was changed to Celebrex. He also had other symptoms. An MRI of the lumbar spine was ordered. This showed congenital narrowing of the upper lumbar spine with mild diffuse broad based disc bulges, along with mild anterior thecal effacement at L4-5. There was also mild to moderate bilateral foraminal narrowing at L3-4 and L4-5. No neural compression was evident.
12 Dr Chang referred the plaintiff to Mr Myron Rogers, neurosurgeon, who saw him on 24 November 2015. Mr Rogers took an appropriate history. He diagnosed a lumbar soft tissue injury and advised that treatment be conservative, with the expectation that the symptoms should slowly settle. Mr Rogers also advised the plaintiff not to return to an occupation involving repetitive bending, twisting and lifting, but overall regarded the prognosis as good.
13 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff on referral from Dr Chang on 29 March 2016. Dr Thomas took an appropriate history. The plaintiff was complaining of feeling diffuse pain from the lower thoracic spine to the lower lumbar spine, with some pain into the upper buttock. The plaintiff was taking a considerable variety of medications. Dr Thomas formed the view that the plaintiff was suffering from a chronic pain syndrome. He suggested alterations in medication, with the plaintiff taking Palexia in increasing doses and cutting back on Endone, Panadeine Forte and OxyContin. Dr Thomas also thought that retraining was probably going to be the best way to go.
14 Dr Thomas reviewed the plaintiff on 10 May 2016, with some further adjustment of the medication by way of increasing the Palexia and stopping Panadeine Forte. He reviewed the plaintiff again on 5 July 2016. The plaintiff was complaining of ongoing sleeplessness. When seen on 18 August 2016, the plaintiff had commenced a pain management rehabilitation program and again there was a suggested change in medication in order to offset weight gain.
15 When seen on 13 October 2016, the plaintiff had completed the pain management rehabilitation program and had obtained significant benefit from it. His pain levels had improved. He was seen again on 8 December 2016. His rehabilitation program had been extended. It would seem that the rehabilitation program was conducted at The Victorian Rehabilitation Centre. Dr Thomas felt that the prognosis was quite positive in that the plaintiff had attended his pain management rehabilitation program and found significant benefit from it. He was coming to the end of his rehabilitation program. Dr Thomas suggested that he continue on with it, including a return to studies and retraining. Much of this history is contained in a report of 1 February 2017.
16 Dr Thomas provided another report of 4 October 2018. He recounted much of what had been in his earlier report. Dr Thomas then provided a review of developments since 14 February 2017 – effectively, continuing the history from where it left off in that earlier report. He noted that the plaintiff had been highly compliant with the pain management rehabilitation program. Given the age of the plaintiff, Dr Thomas preferred to be more conservative and not look at any interventional pain management techniques if they could be avoided.
17 He saw the plaintiff again on 5 October 2017. The plaintiff was continuing his studies at home, but had difficulty in this regard. There was still significant sensitivity across his lower back, more on the left than the right, and palpation referred the pain into the buttock. Dr Thomas suggested a Ketamine infusion and further variation in the regime of medicine, so as to tackle the problem of weight gain associated with the existing regime.
18 The plaintiff had the Ketamine infusion and, although there was initial improvement in his back and left leg pain, when reviewed by Dr Thomas on 14 December 2017, he felt that he was “back to square one”. When reviewing the plaintiff on 15 February 2018, Dr Thomas again suggested changes to the medication, suggesting that it would be appropriate for him to try Gabapentin by itself in order to see what it did for his pain.
19 The plaintiff returned for review on 12 June 2018. He was continuing to work with Mr Luke Surkitt, physiotherapist, in a structured exercise program. Dr Thomas noted that the plaintiff was certainly tender in the lower back on both sides, worse on the left, and particularly at L4-5 and L5-S1, although spinal movements were not specifically reduced. Pain was present virtually constantly and the plaintiff alternated between sitting and standing, even during the consultation. (I might add that I noted that the plaintiff regularly changed his position both whilst in the body of the court and in the witness box.)
20 Dr Thomas last saw the plaintiff on 21 August 2018. He understood that there had been some discussions with the plaintiff by Professor Richard Bittar and Dr Richard Sullivan (who had seen him for medico-legal purposes) regarding possible further investigations and interventions, a pathway down which Dr Thomas had not been inclined to go. Upon examination, Dr Thomas noted lower back tenderness, limited range of movement and some restricted straight leg raising. He did not alter the plaintiff’s medication regime.
21 Dr Chang has provided an updated report, this being of 16 September 2018. Dr Chang noted that the plaintiff had finished his Certificate IV in Building and Construction. The plaintiff had encountered problems when undertaking that course, because sitting was at times too painful and during these difficult times he had to study lying down. He also missed several classes because of back pain.
22 By mid-2017, the plaintiff’s back pain had increased significantly. On 23 November 2017, the plaintiff underwent a Ketamine infusion. There was a temporary reduction in his pain, but he presented again on 9 December 2017 with a marked increase in pain. On this occasion, he was greatly limited in his back movements, especially forward flexion.
23 On 11 December 2017, he underwent a further MRI. The opinion of the radiologist was that there were stable appearances compared to the previous study. There was mild canal stenosis at L2-3 and L3-4. There were mild posterior disc bulges, but no definite neural compression.
24 It was following this that the plaintiff was referred to Mr Luke Surkitt for a structured exercise program, which the plaintiff found helped him manage his back pain. He was having physiotherapy weekly and counselling from Ms Yogetta Kiran, clinical psychologist, on a fortnightly basis.
25 A SPECT-CT scan was performed on 29 August 2018 and the results of this examination were within the normal limits.
26 When the plaintiff was seen on 1 September 2018, he was tender over his lower lumbar area and pressure over the left sacroiliac area caused him to experience a shooting pain down his left thigh and leg. He could flex his spine partially, but back extension was very difficult. His straight leg raising was 80 degrees bilaterally and his lower limb reflexes normal.
27 Dr Chang concluded by stating that the plaintiff continued to experience significant back pain, greatly limiting his day to day activities, despite such things as the multiple medications that he takes, the exercise program and the ongoing psychological treatment.
28 Mr Luke Surkitt, physiotherapist, reported on 10 October 2018. He noted that the plaintiff presented with moderate to marked severity of persistent non-specific low back pain and dysfunction. He considered that the plaintiff’s injuries were consistent with the stated cause and that, as at the date of reporting, the plaintiff was unfit for work. Mr Surkitt also stated that the plaintiff’s incapacity appeared highly likely to be ongoing for the foreseeable future.
29 A report was also obtained from Ms Yogetta Kiran, such report being dated 14 August 2018. The conclusion of Ms Kiran, who is a clinical psychologist and who had treated the plaintiff in some 32 sessions, was that, whilst the plaintiff found the psychological interventions extremely helpful and assisted him in having some quality of life, his pain was ongoing. She thought he would benefit from further sessions to help him manage the ongoing difficulties in living with chronic pain.
30 The plaintiff also put in evidence a report from Mr David Stickels, clinical psychologist, who had seen the plaintiff during his earlier mental health problems and had been more recently referred by Dr Chang in relation to his post-injury condition. Mr Stickels diagnosed an adjustment disorder with mixed emotions of anxiety and depression and a chronic pain disorder due to the lower back injury. In his report, he referred to the worry and stress caused to the plaintiff by reason of his back injury and the fact that he could no longer work in a physically demanding job. He also noted that the plaintiff had been working very diligently in relation to undertaking all recommended treatment, but progress was slow.
31 However, Mr Stickels stated that, from a psychological point of view, the plaintiff has no restrictions on his current or future work capacity. He referred to the plaintiff as being a very determined young man who has been significantly injured, but who had considerable resilience.
32 The plaintiff’s solicitors have also arranged for him to be seen for medico-legal purposes. Reports so obtained could be summarised as follows:
· Dr Richard Sullivan, interventional pain specialist, report dated 2 August 2018. As a result of the accident, the plaintiff has a chronic pain condition affecting his low back and both legs, the left being worse than the right. He has radiological evidence of lumbar spondylosis and multilevel disc pathology. He has developed a secondary psychological condition of a major depressive disorder and generalised anxiety disorder. His injuries are organically based. His condition is stable. It is unlikely that he will be able to return to the workforce into the foreseeable future. His chances of achieving gainful employment in the open labour market currently are extremely low and this will continue into the foreseeable future.
· Dr Joseph Slesenger, specialist occupational physician, report of 11 October 2018. The diagnosis is of a mechanical injury to the lumbar spine, chronic low back pain with radiating features, but no radiculopathy, and psychological impairment (said by Dr Slesenger to be outside his area of expertise). There is an organic basis for the impairment and disability. There is an absence of significant non-organic features. The prognosis is guarded. Given the plaintiff’s background, skills, medication and the like, he is unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.
· Professor Richard Bittar, consultant neurosurgeon, report of 31 May 2018. The plaintiff suffers from the aggravation of lumbar spondylosis and the facet joints are the most likely generators of his pain. He also suffers from chronic pain syndrome. The work injury remains the dominant contributing factor to his ongoing pain, disability and requirement for treatment. The plaintiff is permanently incapacitated for his pre-injury duties and, bearing in mind such matters as his age, education, training and the like, he is unlikely to be able to return to work in suitable employment. His total incapacity for work is permanent. He is likely to suffer from significant pain and disability into the foreseeable future.
33 The defendant has also had the plaintiff examined for medico-legal purposes. It placed no fewer than 17 such reports before me. I would refer to paragraph 64.1 of the Practice Note of 1 August 2018. In any event, reports obtained at the defendant’s request could be summarised as follows:
· Mr Michael Troy, surgeon, report of 17 December 2015. The plaintiff has a disc injury at L5-S1, which is giving him radicular pain into his upper legs. His condition was caused by the physical nature of his work on 6 October 2015. He has had an aggravation, as he has disc bulges at several levels, and the aggravation has not resolved. He is fit only for alternative duties and for light physical work.
· Dr Andrew Miller, occupational health consultant, report of 22 April 2016. The plaintiff sustained a chronic incapacitating injury to his lower back. His recovery has been complicated by the onset of a chronic pain state for which he is receiving treatment. The injury appears to be a new injury and is still active. He has a limited work capacity.
· Dr Timothy Entwisle, consultant psychiatrist, report of 19 December 2016. The plaintiff has a pain syndrome and adjustment disorder with anxious and depressed mood, having previously suffered bipolar illness, that is in remission. His depressed mood has resolved. From a psychiatric perspective alone, he has a capacity to perform pre-injury duties and hours, as well as other employment.
· Dr Timothy Wood, sports and exercise medicine physician, reports of 19 October 2016 and 6 December 2017. The plaintiff suffers from non-specific somatic low back pain. There was no significant back pain prior to the accident. The plaintiff does not have a current work capacity. He should be ready to participate in a retraining program after completing a further 10 weeks of pain management. (These observations are contained in his earlier report.) As at 6 December 2017, the recent Ketamine infusion has resulted in an initial improvement in back pain. There is disagreement with the general practitioner, who is still certifying him as unfit for all work duties. The plaintiff has recently completed his Certificate IV in Building and Construction and should utilise this. A future review should be conducted. His condition still relates to the initial injury, but he does have a work capacity. Employment will be possible in the next six to nine months.
· Dr Matthew Tagkalidis, consultant psychiatrist, report of 16 May 2017. The plaintiff is suffering from an adjustment disorder with mixed anxiety and depressed mood relevant to the accepted injuries. That condition has substantially stabilised. (The report seems largely directed to an Evaluation of Psychiatric Impairment.)
· Mr Robert Wilks, clinical psychologist, report of 15 August 2017. The plaintiff is suffering from a moderately severe adjustment disorder with depressed mood related to his back injury. The disorder is not severe enough to be incapacitating him in relation to work.
· Dr Majid Rahgozar, consultant occupational physician, reports of 21 August 2017, 18 October 2017 and 19 December 2017. The plaintiff has been experiencing chronic low back pain for nearly two years. This might have started as a musculoligamentous injury. That is likely to have resolved, but his pain has become chronic in the context of a number of psychosocial risk factors, including a likely dependence on opioids. Because of this, he has limited capacity for driving, working at heights or near machinery and the like. An attempt should be made to reduce his reliance on Valium and opioids. Ketamine infusion might be a reasonable treatment option, as suggested by Dr Clayton Thomas.
At the most recent appointment, the plaintiff could not sit comfortably for more than 10 minutes. The range of motion of the lumbosacral spine was severely restricted in all directions. His pain is chronic, non-specific, and not related to any particular pathology. There must be focus on reducing his reliance on opioids and the like. This medication has probably produced a degree of cognitive dysfunction that renders him not fit for any work. His initial musculoligamentous injury has resolved, but his concurrent mental health condition renders him unfit for work and is still materially contributed to by the compensable injury. With appropriate treatment, he might gain capacity for work in the next 6-12 months.
· Dr Dominic Yong, specialist occupational physician, reports of 7 March and 9 October 2018. The plaintiff sat and stood during the consultation. It is likely he had an initial discal injury to the low back with pain and radicular features. There is current lumbar dysfunction and deconditioning. The matter is complicated by chronic pain syndrome involving the relevant region. It is likely that the plaintiff’s symptoms have an organic physical basis, but they have been complicated by factors that require comment by a psychiatrist. The plaintiff could perform suitable work with restrictions, including a reduction in working hours, such as two hour shifts for three days a week. (These observations are contained in his earlier report.) Work as an estimator, construction manager or warehouse administrator would be suitable. Various other suggested employments would require individual assessment. The plaintiff’s working hours could increase from six per week to approximately 20 per week over a three to four month period, but there would then be the need for further re-assessment to determine whether any further increase was possible.
· Mr Graeme Brazenor, neurosurgeon, reports of 13 April and 9 October 2018. The plaintiff probably suffered a soft tissue injury to the L5-S1 disc. The description of the symptoms have been far in excess of the complaints that would be made by the vast majority of patients. Probably, now he has only mild low back pain and possibly none at all. There is no reason for sciatica. The plaintiff is significantly exaggerating, if not entirely fabricating his symptoms, and is fit to return to work full-time in any job with restrictions. Such work should not involve bending at the waist, manoeuvring of heavy trolleys, repeated accessing of levels less than 600 millimetres above floor or ground level and the like. (Despite the fact that this was a medico-legal examination, Mr Brazenor wrote out a three-times-daily walking program for the plaintiff and told him to follow this “religiously”. He further told the plaintiff that he would soon become pain-free if he followed this program. It seems to me to be highly doubtful if this is appropriate conduct, given that this was a medico-legal examination of a person who has been receiving quite a high level of treatment and was taking prescribed medication.)
He is fit for various suggested employments, but possibly not warehouse administrator, as this sometimes involves picking and packing and necessarily bending at the waist. His medication should be discontinued. The plaintiff could immediately return to full-time work in a number of suggested employment options including quantity estimator, automotive parts interpreter, concrete agitator driver, internal sales representative and the like.
· Associate Professor George Mendelson, consultant psychiatrist, report of 20 June 2018. This very lengthy report and its annexures (a total of 70 pages) is not easy to summarise. Essentially, it states as follows. At present, there is no indication that the plaintiff has a diagnosable mental disorder, such as a clinically depressive illness or any type of anxiety disorder. He describes some anxiety and depressive symptoms, but these are due to an understandable psychological reaction to what he describes as constant lower back pain and resultant restrictions in relation to activities. His condition could be described as persistent somatoform pain disorder. He does not present as having a diagnosable mental disorder and does not have a psychiatric condition. His current emotional symptoms result in a mild impairment at the most.
34 I accept that the plaintiff suffers from chronic low back pain as a result of a mechanical or soft tissue injury to the lumbar spine. I would refer to the reports of Dr Sullivan and Dr Slesenger. This is not a markedly different conclusion from that of Professor Bittar, who diagnosed aggravation of lumbar spondylosis, or from the diagnosis of Mr Myron Rogers, who described it as a lumbar soft tissue injury. The treating general practitioner, Dr Chang, has simply described it as an injury to the back consistent with the stated cause. Dr Clayton Thomas, who has treated the plaintiff, has described the plaintiff’s condition as being that of a chronic pain syndrome. I would add that I do not accept the argument that the opinions of Dr Sullivan and Professor Bittar are in some way weakened because they did not have before them the results of the SPECT-CT scan of 29 August 2018. They did have, and have referred to, the other radiological investigations. The MRI of 26 November 2015 was, like the SPECT-CT scan, essentially normal.
35 There seem to be differing opinions concerning this condition of chronic pain syndrome and as to whether it is or is not a physical injury. The impression gained from the reports of Dr Thomas is that he was treating it as a physical condition and certainly the emphasis placed by him on such matters as a structured exercise program is consistent with that. In that regard, he specifically referred to the treatment by Mr Luke Surkitt, physiotherapist, who has diagnosed moderate to markedly severe persistent non-specific low back pain and dysfunction with clinical features of neuropathic pain.
36 Mr Troy, examining on behalf of the defendant, specifically diagnosed a disc injury at L5-S1, and Dr Miller, similarly examining, referred to a possible intervertebral disc lesion. Dr Wood, also examining for the defendant, referred to non-specific somatic low back pain. Dr Yong, similarly examining, stated that the plaintiff was likely to have had an initial discal injury to his low back with radicular features and that, as at the date of his examination of 7 March 2018, there was current lumbar disc function and deconditioning.
37 I accept that the plaintiff has suffered a physical injury to his low back and that continues to be symptomatic and restrictive. I do not accept the view of Dr Rahgozar that the injury started out as being a physical one, but that is likely to have resolved and, effectively, been overtaken by such things as fear avoidance of further injury, likely dependence on opioids and the like.
38 As is evident, there has been regular treatment of the plaintiff, and this issue of if and when a physical injury disappears or is somehow converted into a different type of injury is a vexed question. As stated, I accept the plaintiff as a witness of truth and note the consistent treatment which he has had. Again as earlier stated, I accept that he has a physical injury to his low back producing what could be described as physical symptoms.
39 I certainly reject the opinions expressed by Mr Brazenor. His somewhat rambling reports refer to significant exaggeration, if not complete fabrication of symptoms, a view which I do not accept. That is particularly so as, in the same sentence, Mr Brazenor places quite a lot of restrictions upon the work which the plaintiff is fit to perform.
40 Pursuant to s325(2)(h), the consequences of a psychological or psychiatric nature are to be taken into account only for the purposes of paragraph (c) of the definition. Accordingly, they shall not be taken into account in the present case. However, whilst the plaintiff has had psychological treatment, I note that this seems to have been more to assist him in managing the ongoing difficulties in living with chronic pain.
41 In this regard, I would refer to the report of Ms Kiran, the treating clinical psychologist, who has been referred to earlier. I would also point out that, according to Dr Entwisle, consultant psychiatrist, examining on behalf of the defendant, from a psychiatric perspective alone, the plaintiff has a capacity to perform pre-injury duties and hours and his depressed mood has resolved. Mr Robert Wilks, clinical psychologist, examining on behalf of the defendant, stated that the plaintiff’s adjustment disorder is not severe enough to be incapacitating him in relation to work. Whilst Associate Professor Mendelson expressed the opinion that the plaintiff does not have a diagnosable mental disorder and does not have a psychiatric condition. Bearing these matters in mind, any psychological or psychiatric consequences, if they exist, appear to be of modest proportions and not interfering with the plaintiff’s capacity for work. In any event, they shall not be taken into account.
42 Given that there are some modest changes seen on radiological investigation, there could be an argument that the injury suffered is in the nature of the aggravation of a pre-existing condition, although this is not a diagnosis that seems to have been advanced with any force. In any event, I accept that the plaintiff was free of any low back symptoms prior to the occurrence of the accident. The consequences which he suffers arise directly from it.
43 I also accept that such consequences are permanent within the meaning of the Act, in that they will persist into and through the foreseeable future. Professor Bittar has expressed the opinion that the plaintiff is likely to continue to suffer from significant pain and disability into the foreseeable future, and that his total incapacity for work is permanent. Dr Sullivan has expressed the opinion that the plaintiff’s chances of achieving gainful employment in the open labour market are extremely low and it is his expectation that this situation will continue into the foreseeable future. Dr Slesenger stated that the restrictions from which the plaintiff suffers are likely to continue into the foreseeable future. I accept these opinions. Further, the plaintiff has undergone considerable treatment over the period since the accident – a period now in excess of three years – and, as stated by Dr Chang in his recent report, continues to experience significant back pain despite the multiple medications that the plaintiff has taken and the exercise program and psychological counselling in which he has engaged. In short, I am satisfied that the requirement of permanence has been satisfied.
(e) Other developments since the injury
44 As stated, in approximately April 2017, the plaintiff commenced studying online for the purpose of obtaining a Certificate IV in Building and Construction. In his affidavit of 19 December 2017, he has described how the requirement to study, combined with an exercise program, sent his pain levels “through the roof”. Indeed, he seems to have sent messages from time to time to those conducting the course outlining the problems with pain which he was having. In any event, he completed that course in November 2017. He has given evidence that he struggled to complete it – see T38 and 39. He has been unable to return to work.
Ruling
(a) Loss of earning capacity
45 As the plaintiff was under the age of 26 years as at the date of the accident, the more particular requirements of s325(2)(e)(i) and (f) do not apply. The plaintiff will succeed if, pursuant to s325(2)(e)(ii), he can establish that he will continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more. This necessarily involves a comparison with the plaintiff’s pre-injury earning capacity and his post-injury capacity.
46 I have come to the conclusion that the plaintiff has discharged the burden of proof for the following reasons, which are not set out in order of importance or significance.
(a) In order to satisfy the burden which he bears, the plaintiff must establish that the consequences of his permanent loss of earning capacity will be productive of a financial loss of 40 per cent or more. I have already discussed the issues of physical injuries and permanence. In my view, the consequences will result in the required loss.
(b) As stated, the financial loss required is one of 40 per cent or more. This necessarily involves a comparison of the plaintiff’s pre-injury earning capacity and his post-injury capacity. As stated in the Second Reading Speech in relation to the relevant enactments and as quoted by his Honour Judge O’Neill in Berthelot v Fleetweld Pty Ltd [2015] VCC 1453, essentially the common law position prevails.
(c) In relation to the plaintiff’s pre-injury earning capacity, I am satisfied that this is not constituted solely by the amount that the plaintiff earned in the financial years immediately prior to the accident. During the 2014 financial year, the plaintiff and his father had set up a business, which continued until 1 February 2015. The plaintiff has sworn that work for the business was patchy and there was quite a lot of unpaid work. He has further sworn that, with Frame, he was earning approximately $66,560 per annum, although he had not worked for Frame for a full year as at the date of the accident. If one went back to the financial year ending 30 June 2012, the plaintiff had demonstrated a capacity to earn $74,659.
(d) In relation to his post-injury earning capacity, I am satisfied that it has been destroyed. However, even if one adopted the approach of Dr Yong, specialist occupational physician, who examined the plaintiff at the request of the defendant, to the effect that the plaintiff could return to work performing six hours per week with the aim of increasing to approximately 20 hours per week, at which time reassessment would be necessary, the plaintiff, on an “hours worked” basis, would discharge the burden of proof. His claim form reveals that he worked a 38 hour week with Frame. A drop of 18 hours per week from a starting point of 38 hours represents a loss that well and truly exceeds 40 per cent. Of course, that is assuming that the plaintiff could find suitable work and arrive at a situation where he was working 20 hours per week. I appreciate that Dr Yong was saying that, if such a situation was reached, a reassessment might then be necessary. However, I repeat that my finding is that the plaintiff’s capacity for employment has been destroyed and is zero.
(e) I note and accept the opinion expressed in the detailed reports provided by Mr Paul Hartley, senior occupational rehabilitation consultant and vocational assessor. These reports were obtained by the plaintiff’s solicitors. Effectively, he stated that he was unable to suggest any employment options within the plaintiff’s medically assessed residual functional capacity in which the plaintiff would be able to fulfil the inherent requirements to a level required by industry or in an efficient, reliable and productive manner. This accords with my finding that the plaintiff is effectively totally incapacitated.
I have condensed what are very lengthy and detailed reports into their ultimate findings. The earlier report is dated 2 August 2018 and the second and briefer report of 6 November 2018 basically repeats the earlier conclusions. The reports seem to me to be both very thorough and logical.
(f) I am not persuaded that the plaintiff has failed to satisfy the requirements of s325(2)(g). The plaintiff has effectively engaged in retraining, in that, whilst he experienced considerable difficulties, he nevertheless completed the course and obtained a Certificate IV in Building and Construction. This seems to me to have been more than a reasonable attempt to participate in rehabilitation or retraining. Further, the plaintiff has undergone quite a lot of treatment and has been suffering marked symptoms, both factors which would have eaten into his capacity and availability for retraining. In my opinion, the obtaining of a Certificate still leaves him a long way short of having a capacity for employment.
(g) In summary, I find that the plaintiff has discharged the burden of proof in relation to pecuniary loss. I am satisfied that he will continue to permanently have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more.
(b) Pain and suffering
47 As the plaintiff has been successful in relation to his application in respect of loss of earning capacity, the requirements of the Act have also been satisfied in relation to pain and suffering damages – see the decision of the Court of Appeal in Advanced Wire and Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and various decisions of this Court.
48 In any event, I would have found that the plaintiff’s pain and suffering consequences are of such magnitude so as to satisfy the statutory requirements. I accept what the plaintiff has sworn in his affidavits in this regard. I also note the observations contained in the more recent report of his treating general practitioner, Dr Chang, to the effect that the plaintiff continues to experience significant back pain, greatly limiting his day to day activities. I also note the opinion of Dr Sullivan that the plaintiff has substantial functional limitation consequent to his chronic pain. In short, the requirements of the Act have been satisfied in relation to pain and suffering damages.
Conclusion
49 The plaintiff if successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages.
50 I shall hear the parties as to any ancillary orders that are required.
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