Holloway v Victorian WorkCover Authority

[2023] VCC 1536

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-03722

ANDREW HOLLOWAY	Plaintiff
V
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:	2 August 2023
DATE OF JUDGMENT:	1 September 2023
CASE MAY BE CITED AS:	Holloway v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2023] VCC 1536

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – impairment of the spine – pain and suffering – loss of earning capacity

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335

Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; O’Brien Glass Industries Pty Ltd v Pisani (2018) VSC 294

Judgment:                  Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison KC with Mr C O’Sullivan	Maurice Blackburn
For the Defendant	Mr P Scanlon KC with Mr S Martin	Hall & Wilcox

HER HONOUR:

1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) in relation to an incident at work with VFS Distribution Pty Ltd (“the employer”) on 6 June 2018 (“the said date”).

2The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.

3The application is brought pursuant to sub section (a). The body function said to be impaired is the spine.

4The plaintiff bears an overall burden of proof upon the balance of probabilities.

5By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:

“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”

6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

7Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

8In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

9Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

10Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Haden Engineering Pty Ltd v McKinnon[2] and Ellis Management Services Pty Ltd v Taylor[3] in reaching my conclusions.

[1] (2005) 14 VR 622

[2] (2010) 31 VR 1

[3] [2013] VSCA 326

12The plaintiff swore two affidavits and was cross-examined.  Also in evidence were medical reports and other material.  I have read all the tendered material.

13While pain and suffering was not conceded, counsel for the defendant made no submissions in relation thereto and the plaintiff was only cross examined briefly as to the matters deposed to. The defendant’s focus was on the loss of earning capacity application.[4] 

[4]Transcript “T”32-33

The plaintiff’s evidence

14The plaintiff is fifty-nine, having been born in July 1964.  He lives in Swan Hill and his ex-partner lives in a bungalow out the back of the property. 

15He left school in Year 11 and worked in a takeaway food shop and a furniture shop.  He then worked for Clark Rubber for about 10 years, where he eventually became the assistant manager.

16At Clark Rubber, he had experience dealing with the “process of staff and customers”.[5]  He was essentially “running the show”.[6]  He had good people skills. He agreed he used these skills and was able to converse well, deal well with people and was able to deal well with the product, because he knew it, and he knew the job.[7] 

[5]        T5

[6]        T5

[7]T5

17Eventually, he went into private business with his wife running a baby shop. Mainly his wife took care of the ordering.[8]  His main job was on the nappy run.  The business started with him doing the nappy run and they got the shop later. He agreed he still had his skills to work in a shop.[9]

[8]T6

[9]T27

18This business went quite well, although it took up a lot of time.  In the end, they sold it and he found work in various jobs before starting with the employer in a stone fruit orchard, in Woorinen, in about November 2013. 

19He was employed as a farmhand and carried out a range of farm duties, including tree pruning and fruit picking/packing, depending on the season.

20Before then, he had suffered injury to both shoulders.  He had also suffered a previous lower back injury in about 2015 when moving a box of zucchinis.  He had about seven weeks off and had some short term hands on treatment, but his back had come good and he was subsequently able to return to normal duties without any difficulty. 

The incident

21On the said date, while walking up to a tree and looking upwards, his right leg became caught on one of the water shoots that had been thrown or dropped to the ground.  He tripped and fell sideways, landing heavily on his right side.  His lower back, in particular, was jarred (“the incident”).

22After the incident, initially he thought he would be able to keep going, but the pain flared up a few days later.  He saw his general practitioner (“GP”) and was sent to an osteopath.  He was certified to go off work and then ended up having about 13 weeks off. 

23Besides osteopathic treatment,[10] he was referred to a neurologist, Dr Tan, who referred him for a lumbar MRI and a bone scan. He was advised the MRI scan showed a right sided L5-S1 disc prolapse pressing on the nerve root. Dr Tan referred him to Dr Aliashkevich, who was happy for him to continue dry needling with the osteopath. 

[10]Dr Carly Atkins and Dr Michael Crisp at Central Mallee Osteopathy

24After about 13 weeks off, he came back to work on light duties, three half days a week. Even so, he was still working in pain and very much needed painkillers and also needed time away from work to rest his back.

25In addition to lower back pain, he was also experiencing increasing pain and numbness going down both legs, which became a particular problem when he walked for only short distances.  He struggled at work and with basic household chores.

26He was happy to continue working with the employer and would have continued had his employment not been terminated.[11]  He was trying to work up to 20 hours a week, but never got there.[12] 

[11]T6

[12]T7

27He was aware that an employer did not have to keep someone on after 12 months if they could not go back to their full time job, but the employer kept him on longer so he was quite thankful for that.  He understood that they did what they could, but then they had to let him go because he could not go back to his usual job of pruning. It was heavy work and it was beyond him.[13]

[13]T16

28His employment was eventually terminated in April 2020 when he was told that there was no longer any alternative or light work for him and if he was not able to carry out his normal duties, then there was no longer a position for him.  While that was devastating news, he well knew by then he was never going to get back to normal duties.

29When his employment was terminated, he was working 15 hours a week and had a day off between each working day to rest.  His employer was giving him odd jobs and trying to find things for him to do, but it seemed obvious they were struggling to find tasks to fill his hours.  Then his employment was terminated.

30The employer wrote to him confirming their discussion that day – “We regrettably confirm you will not be offered ongoing employment with the company. Accordingly, we confirm your employment with us is terminated effective 22 April 2020.”

31As at April 2022,[14] despite having been off work for some time, things were no better.  He had constant lower back pain of varying severity.  He also still had pain and numbness that went down both legs.  He tended to keep the weight off his right leg when he could and more recently, he thought that had meant he was placing more reliance on his left.

[14]Plaintiff’s first affidavit

32He could do chores around the house, but had to wait for days when he would be up to the task.  Nothing got done on a bad day or week until he saw his osteopath.  He also broke tasks into smaller parts to avoid flaring up his pain too much.  However, he could trigger severe back pain when doing not much at all, like simply making his bed. 

33He used to be a very keen motorcyclist, but had to sell his motorbike as he was no longer confident to ride it when he experienced so much pain.  His leg numbness also concerned him in terms of being able to stand the bike up and balance when moving.

34He still had a road registered Holden Commodore that was set up for occasional drag racing.  Previously, he would carry out most of the work on the car and very much enjoyed the challenge.  However, his back was no longer up to the task and he had to pay a mechanic to work on the car.  This situation upset him.  Further, he was now no longer able to drag race these days.

35The limited cross examination in relation to claimed pain and suffering consequences focussed largely on the level of the plaintiff’s current involvement with cars, particularly drag racing. He denied he had raced his commodore since the incident, and he was only able to do very limited work on his car.[15] 

[15]T7

36He did not tell Dr Doherty he was able to work on cars, he cannot work on his own car. Before he was injured, he did what he needed to do, like servicing a car, changing the oil, changing the brake pads, and doing the mechanical work.  Before the incident, he had just got into drag racing. He does not do it at the moment.[16] 

[16]T7

37He was still taking medication to control pain, including Lyrica and Oxycodone.  He usually took each of the tablets a couple of times daily.  He realised they were very strong, but they did not make him pain free and, at best, took away the sharpest pain, and they always made him drowsy. 

38He also took Celecoxib and Mirtazapine to help him relax and hopefully get a few hours sleep, but that was not always possible and the pain made it harder to sleep and routinely woke him up.  The reality was that his days were largely controlled by his level of pain.  Many days, he was not able to do too much at all and, on better days, when he felt up to having a go at something, he had to be very careful with his back, as it was very easy to flare up significant pain.  His life was therefore almost entirely dominated by his back injury.

39As a result, he had lost a significant amount of income and would continue to do so.

40Towards the end of 2022, he was diagnosed with diabetes and since then was taking Metformin. He believes his diabetes is under control.

41He has not worked since his employment was terminated in April 2020 and received weekly payments until about the middle of 2021. He then lived off his savings until he started getting Jobseeker in September 2022.  He is not required to apply for jobs and provides medical certificates to Centrelink.

42Since then, he has been applying for jobs.  He applied at Bunnings and also Auto Cheap.  He would not say he knows a lot about cars, but he has got a basic idea of them – “I don’t know if I have the greatest skills about my knowledge, but I’m – I’m good with customer service.”[17]  If he was offered a job at Supercheap Auto or Repco, that is the sort of job he would be looking for – “part time.”[18] He agreed he was very keen to go looking for that work and knew it was within his capacity.[19]

[17]T13

[18]T14

[19]T16

43He was capable of working as a sales representative in hardware, automotive or horticulture.[20] He could do that sort of work with restrictions, “like all the things they had to do to get him to work”.[21]  He knew what doctors had certified in terms of prolonged postures and not lifting more than five kilograms. If all those restrictions were in force, he could work in a sales job.[22] He understood the restrictions Dr Slesenger imposed.[23] 

[20]Dr Khan’s 2019 report

[21]        T15

[22]T15

[23]T27

44He misses working and prior to his injury was always a hard worker.  With the employer during the busy harvest periods, he worked up to 80 hours a week earning the following:

Financial Year	Earnings
Financial year ending 2015	$51,502
Financial year ending 2016	$50,708
Financial year ending 2017	$59,918
Financial year ending 2018	$55,155
Financial year ending 2019	$49,516
Financial year ending 2020	$59,013
Financial year ending 2021	$45,262

45His lower back and the pain and numbness in his leg remains much the same and there has been no real change since his swore his April 2022 affidavit.

46He uses medical cannabis daily for pain relief, which he finds more effective than the painkilling medications he had previously taken, like Oxycodone, Targin and Lyrica, although he still takes those occasionally.  He also takes Celebrex, but has been told by his doctors he can only take it for no more than a week at a time, and then needs to have a break.

47He had been a recreational user of marijuana since he was young. Medicinal marijuana is more potent and more effective at temporarily reducing his pain. 

48He also takes Mirtazapine each night, which he understands is prescribed for pain, depression and helping him sleep.  He attends Swan Hill Medical Group, where he gets certificates and prescriptions, but he does not have a regular GP.

49He is no longer having osteopathic treatment, as he cannot afford it.

50He has chosen not to have surgery, he is not keen on it, and he is balancing his life with some medication and exercises, without the need for surgery, and that is the way he wants it now.[24]

[24]T5

51He lives an inactive life these days.  He tries to avoid anything that will increase his back and leg pain.  He avoids bending and twisting and lifting anything heavy, because those movements increase his pain.  He avoids walking for long periods or walking up hills, because that caused an increase in his leg pain and numbness, and often when he walks, he ends up with burning in his feet.

52His two grandchildren aged nine and seven live nearby.  His back injury affects his interaction with him which upsets him.  He cannot pick them up and throw them around, or run around and chase them and kick balls like they want him to, and he is not the fun granddad he would like to be.

Plaintiff Medical Evidence

Treating practitioners

Dr Swee Tan, Neurologist

53Dr Tan saw the plaintiff on Telehealth on referral from Dr Khan in September 2018 for an opinion and management of back pain issues, mechanical back pain. The plaintiff was then being prescribed Lyrica and Mobic.

54Dr Tan thought the plaintiff’s back pain could be attributed to aggravation of lumbar spondylosis caused by the workplace injury. The right lower limb pain was likely due to right S1 radiculopathy.

55In October 2018, Dr Tan advised the plaintiff to avoid heavy lifting and forceful pushing or pulling. He was content for the plaintiff to continue with the modified work plan for three months before reviewing the situation.

56When seen in January 2019, the plaintiff had increased his working days from three to four days per week, but he was unable to do anything by the end of the day, with constant back pain and numbness.

57Dr Tan referred the plaintiff to neurosurgeon Dr Aliashkevich in February 2019. He advised that the plaintiff at that time had been managed conservatively for several months without substantial improvement.  The plaintiff had constant low-grade back pain and numbness, as well tingling in the legs which worsened as the day progressed.  He also had intermittent sciatica.

Dr Aliashkevich, Brain and Spinal Surgeon

58Dr Aliaskevich first saw the plaintiff on 11 April 2019 on referral from Dr Tan.

59Following re-examination on 21 May 2019, he recommended the plaintiff should not increase his working capacity (then working 12 hours a week) and lift anything heavier than five kilograms during the next at least three months.

60Dr Aliashkevich noted significant improvement on conservative management and discharged the plaintiff to the care of his GP.

Ms Lynne Baudinet Johnson, Psychologist

61Ms Johnson first saw the plaintiff in April 2020 on referral from his GP, Dr Viraj Rajagura.

62She noted the plaintiff had significant pain and discomfort despite consulting with an osteopath, neurologist and physiotherapist and engaging in pain management.  His psychological condition worsened because there had been very little improvement and terminating his employment was another severe blow for him as he had always placed his employer before himself.

63As at October 2021, she thought the plaintiff’s psychological condition had stabilised.

Investigations

64A CT of the lumbar spine in June 2018, was reported as showing degenerative disc changes throughout.  Moderate canal stenosis was noted at L3/4.  At L5/S1, there was moderate right foraminal narrowing.

65NCS performed on 11 September 2018 showed no evidence of a peripheral nerve lesion.  EMG of the right lower limb and lumbar paraspinal muscles demonstrated chronic right S1 radiculopathy.

66An MRI of the lumbosacral spine in September 2018 was reported to show a large right paracentral disc extrusion at L5/S1 causing right lateral recess stenosis and compression of the descending right S1 nerve root.  Spondylotic changes were present at other levels without causing nerve root compromise.  Moderate facet joint degeneration was seen at L4/5 and L5/S1 levels.

67A SPECT-CT bone scan carried out on 24 September 2018 showed no scintigraphy evidence of sacroiliitis fracture or inflammatory facet joint osteoarthritis.

Medico-legal

Mr Garry Grossbard, Orthopaedic Surgeon

68Mr Grossbard examined the plaintiff in November 2022.

69The plaintiff then described low back pain across both sides of his lower back, intermittent and present about 50 per cent of the time and variable.  He described it as a bruising pain with sharp episodes and could reach up to seven to eight out of ten on a visual analogue scale in severity. Leg pain tended to occur with walking. 

70Mr Grossbard thought the plaintiff had suffered a significant disc protrusion at the lumbosacral level on the right side, probably because of the incident.

71He believed ongoing conservative treatment was entirely appropriate and he anticipated the plaintiff would continue to have back pain and intermittently leg pain into the foreseeable future.

72The plaintiff was not going to be able to return to his pre-injury employment of orchard work.  He was not going to be able to undertake a job where a great deal of bending and lifting was required, or if he was required to walk anything more than a short distance.  He had a capacity for sedentary work and had demonstrated his ability to work as a forklift driver, even for short periods.  Mr Grossbard believed the plaintiff’s return to this alternative would be time-restricted because of his ongoing leg and back symptoms.

73From an orthopaedic perspective, the plaintiff’s injuries had essentially stabilised.  He did not think they would be great in extent or rapid in progress if there was minor improvement.

Dr Peter Blombery, Vascular Surgeon  

74The plaintiff was examined by Dr Blombery in March 2023.

75The plaintiff then complained of ongoing pain in his low back which radiated down into both buttocks and the back of both thighs, and below the knees and into his feet with some associated numbness.  The pain kept him awake. He rated the pain overall as four to five out of ten.  There was also some weakness in his legs.

76The plaintiff was then taking Lyrica, Celebrex occasionally, and Endone which he took only when he was driving, to reduce the pain.  He had also been on an antidepressant.  On examination, the plaintiff presented well and there was no exaggerated pain behaviour.

77Dr Blombery noted imaging showed L5/S1 disc protrusion pressing on the right S1 nerve root and there was evidence on nerve conduction studies of dysfunction in the right S1 nerve root.

78The plaintiff would be classified as having chronic musculoskeletal pain associated with spondylosis.  His symptoms had now been present for almost five years and were stable. His prognosis for recovery was poor and it was unlikely there would be any significant change in his level of disability in the foreseeable future.

79The plaintiff had quite substantial pain requiring quite potent analgesic and intermittent anti-inflammatory medication to control it.  He had also developed secondary depression as a consequence thereof.

80The diagnosis was aggravation of pre-existing degenerative changes in the lumbosacral spine complicated by a pain syndrome.  Employment was a cause of the back injury. 

81The plaintiff was limited in being able to do any activities involving heavy lifting or movement, and that was permanent.  He had no capacity to return to fulltime unrestricted work in his pre-injury position.

82The plaintiff would be very limited in the amount of work he could do and he was taking quite potent painkillers as well as medical marijuana for pain relief.  He had a significant state of depression and anxiety and had only done manual work in the past.  Overall, it was Dr Blombery’s impression, the plaintiff really had no capacity to work on a consistent, reliable and permanent basis without risk of re-injury, considering all those factors.[25] The prognosis for recovery was poor.

[25]O’Brien Glass Industries Ltd v Pisani [2018] VSC 294

83The plaintiff was limited in being able to do any activities which involved heavy lifting or movement and those restrictions were permanent in nature. The plaintiff had no capacity to return to his full-time unrestricted work in his pre-injury position of employment.

84The plaintiff was very limited in the amount of work he could do and was taking heavy pain mediation and medical cannabis for pain relief. Looking at the plaintiff overall, he really had no capacity to work on a consistent, reliable and permanent basis without the risk of reinjury considering all those factors (pain medication, anxiety and depression and history of manual work).

Dr Gregory White, Psychiatrist

85Dr Gregory White examined the plaintiff in March 2023 on Telehealth.

86He thought the plaintiff appeared to have developed an Adjustment Disorder with depressed mood in the context of chronic pain and a work incapacity following the incident. With treatment and passage of time, his depressive symptoms remitted.

87From a psychological perspective, the plaintiff had a capacity to perform his normal duties. Having said that, were he to attempt to return to his full-time unrestricted work in his pre-injury employment, his ensuing chronic pain would undoubtedly result in a relapse of depressive symptomatology.

88The plaintiff’s capacity for employment was completely dependent on his physical capacity. Taking into account the history taken by the plaintiff, he may have some capacity for flexible self-directed employment in part-time hours, most likely in self-employment.

Vocational evidence

89Ms Erin Williams, vocational assessor, provided a vocational repot in March 2023.

90In her opinion, the plaintiff was no longer capable of meeting the inherent requirements of a farm hand/ fruit and nut picker due to the physical demands and environment of work (uneven ground).

91Given the plaintiff’s residence in Swan Hill, the limited and competitive local and regional labour market may be a barrier for him, as well as his age, physical restrictions and limited skills and experience.

92In any workplace, he would require an accessible workplace (limited stairs, flat ground, located close to place of residence), a suitable position and role modification of tasks and workstation flexibility in workdays/ hours. There needed to be realistic expectations in regard to his productivity.

93The light to medium physical demands of the role of sales assistant in automotive and hardware was outside of the plaintiff’s functional capacity and the prolonged standing and walking would quickly aggravate his condition. It was highly unlikely he would meet the inherent requirements of the role in an efficient, reliable and productive manner.

94However, in a sales representative type role, with the right employer who was understanding of his physical restrictions, it was theoretically suitable for the plaintiff. 

95The plaintiff would not be able to safely perform all the inherent requirements of the role of forklift operator given the likelihood of additional repetitive bending, twisting or heavy manual handling requirements.

96The role of spare parts interpreter could be very physical and required constant standing and walking. If the role was purely office based, the plaintiff’s success would depend on his ability to learn the computer software and ability to be detail oriented and accurate in processing customer inquiries. There were no spare parts interpreter roles in Swan Hill area at the time of writing her report.

97The nursery worker and traffic controller roles were unsuitable for the plaintiff.

98Her overall opinion was that the plaintiff’s suitable employment options were minimal.

Defendant Medical Evidence

Treating practitioners

Dr Sayeed Ahmed Khan, GP

99In September 2019, Dr Khan thought the plaintiff had capacity to work as a sales representative, nursery worker or traffic controller.

Dr Viraj Rajaguru, GP

100In May 2020, Dr Viraj Rajaguru thought the plaintiff could perform some duties that do not involve heavy lifting, squatting or excessive bending.

Medico-legal

Dr David Elder, Occupational Physician

101Dr Elder first examined the plaintiff in April 2019. He then diagnosed mechanical lower back pain.

102He thought the plaintiff’s restrictions were appropriate. Whether he could return to any duties was dependent on the opinion of the neurosurgeon.

103On re-examination in August 2020, he thought the plaintiff had capacity for work. Sales assistant (hardware, automotive or horticultural) would be the most appropriate out of IPAR’s list of suggestions. He did not think forklift driver or sales representative roles were appropriate. There was no prospect for farm work.

104Occupational rehabilitation and retraining would be appropriate.

Dr Joseph Slesenger, Occupational Physician

105Dr Slesenger examined the plaintiff in December 2022. He diagnosed a soft tissue injury and aggravation of a degenerative disc.

106He then thought the plaintiff did not have capacity to return to his pre-injury duties as the job demands lay outside his capacity limits. He recommended the following restrictions:

(a)   No push, pull carry or lift over five kilograms on a repetitive basis and 10 kilograms on an occasional basis

(b)   No repetitive bending or twisting

(c)   No prolonged static postures

(d)   No exposure to whole body vibration

107With those restrictions in place, the plaintiff could return to work performing alternative duties on a graduated return to work plan.

108He recommended the plaintiff commence work four hours a day, four days per week graduating to pre-injury hours over six to eight weeks.

109He was optimistic the plaintiff could return to sales assistant or sales representative work with restrictions. Forklift driving and the role of spare parts interpreter were outside his capacity limits, as was the role of spare parts interpreter.

110The plaintiff could return to work in a light packing or light assembly role, adhering to the suggested restrictions.

111The plaintiff could return to pre-injury hours over a gradual period of six to eight weeks.

112The prognosis must be guarded given the length of the plaintiff’s impairment and disability and his limited response to treatment to date.

113On the same “optimistic” graduated return, Dr Slesenger made the following comments in relation to jobs suggested in the June 2023 vocational report:

(a)   He was generally optimistic the plaintiff could return to a general sales assistance role, motor vehicle parts interpreter, receptionist, parking inspector, customer service officer, adhering to the restrictions outlined above

(b)   Sales representative in motor vehicle parts and accessories, commercial clear and office cleaner roles lay outside the plaintiff’s capacity limits.

Dr Graeme Doig, Orthopaedic Surgeon

114The plaintiff was examined by Dr Doig in February 2023. He then diagnosed a lower back injury with an L5/S1 intervertebral disc extrusion on the right side.

115He thought the plaintiff did not have the physical capacity to perform at pre-injury status.

116The plaintiff was fit for alternative duties from a purely musculo-skeletal perspective. He would have a less than 10 kg lifting, pushing and pulling restriction with limited bending and twisting through the spine and require breaks from prolonged sitting and driving.

117In view of the plaintiff’s time out of the work-force, restricted hours initially would be beneficial in view of his deconditioning, perhaps four hours per day, three days per week with alternate days off to recover and up-grading as tolerated.

118From a purely musculo-skeletal perspective, the plaintiff was capable of undertaking suitable employment with these restrictions in place. His use of medicinal cannabis and depression may also be precluding his ability to return to work.

119The sales assistant and spare parts interpreter roles most likely would be the most appropriate given the restrictions. All suggested positions may be suitable if the restrictions were in place with ability to take breaks.

120The overall prognosis with respect to the lower back condition improving was poor in that it was now four and a half years since the initial injury. The current treatment will be ongoing and continue into the future.

A/Prof Saji Damodaran, Psychiatrist 

121The plaintiff was examined by A/P Damodaran in August 2020. He diagnosed an Adjustment Disorder with depressed mood along with a chronic pain disorder associated with a general medical condition.

122The plaintiff then had a current work capacity for alternative duties or modified pre-injury duties with the current or another employer.

123From a psychiatric viewpoint, suitable employment options identified in the occupational rehabilitation report were sales assistant, forklift operator, sales representative and spare parts interpreter.

124The plaintiff had no capacity for his pre-injury duties and hours at his usual or alternative workplace.

Associate Professor (“AP”) Peter Doherty, Psychiatrist

125AP Doherty examined the plaintiff in June 2023. He thought the intensity of the plaintiff’s psychiatric symptoms was mild and did not warrant the making of a psychiatric diagnosis.

126In his view, the plaintiff had capacity to work full hours from a psychiatric point of view.

Overview

127Taking into account all the evidence, I am satisfied the consequences of the plaintiff’s spinal impairment are serious.

128When I indicated during the hearing that this was my preliminary view, counsel for the defendant said he “would say nothing about it, as that was not the defendant’s focus”.[26]

[26]T32-3

Credit

129As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[27]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[27](2010) 31 VR 1 at paragraph [12]

130There was no successful attack on the plaintiff’s credit. Cross examination focused largely on the level of his involvement in working on cars and drag racing.  There were no matters put to him, or any surveillance film in relation thereto, that undermined his affidavit evidence in that regard.

131I found the plaintiff to be a truthful, credible witness and had no difficulty accepting his evidence that his capacity for work is only part time and that he would now be working if he could.  I accept that the employer considered him a valued employee providing him with very light duties until terminating his employment in April 2020, 18 months later. As the plaintiff said openly, he would still be working for the employer part time on those duties if they were available.

132There is no dispute the plaintiff suffered a lumbar injury in the incident. Diagnoses include aggravation of lumbar spondylosis and an L5/S1 intervertebral disc extrusion on the right side.

133The plaintiff has experienced constant back and referred pain to his legs, particularly the right, since the incident and still requires potent painkilling medication. He is an unsuitable candidate for surgery given his diabetic condition so his treatment has been conservative, largely osteopathic at the suggestion of his treaters, including Dr Aliaskevich, neurosurgeon.

134On a daily basis, he has problems with bending, lifting and prolonged postures, and leads a relatively inactive life.[28]

[28]T43

135He breaks up household and daily tasks and modifies the way he does them.  He can go and get petrol in the jerry can and then fill the mower. He can mow the lawn at his own pace. [29]  He can do weeding and gardening, but everything is modified – “Like, (he) has to be on (his) hands and knees, and cannot bend over.”[30] 

[29]T26

[30]T17

136Domestic chores are done at his own pace.  He “looks after this stuff” while his partner lives in a bungalow out the back.  He does his own cleaning, cooking, washing and domestic chores.[31]

[31]T17

137Because of his back issues, he modifies things.  He does not throw his washing on the floor, he keeps it in a basket, up.  He keeps his loads small so they are easier to carry.  He does the vacuuming slowly, he does not really do any dusting, he does meal preparation.  He tries to keep all of his appliances high up so he does not have to bend over.[32]

[32]        T26

138He has to take a break when driving a long distance.[33]

[33]T24

139He does not attend busy crowded places, because he does not, then, having to fight people or bump into them and move around them.[34]

[34]        T26

140He can no longer ride his motor bike or go drag racing in his car. He is unable to work on his car to the extent he previously did and now requires paid assistance.

141When shopping, he gets a smaller trolley that is easy and he does not have to lean in as far. 

142He is no longer able to undertake heavy physical work or the type of work that he undertook in the orchard before his injury. The consensus of medical opinion is to this effect.[35]  

[35]        Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326

143There having been no significant improvement in his back pain since the incident over five years ago and the consensus of the medical opinion that his prognosis is poor, I am satisfied the plaintiff’s lumbar impairment is permanent.    

144Accordingly, I grant leave to bring proceedings for damages for pain and suffering.

Loss of earning capacity

145Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:

(a)   at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also

(b)   after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).

146The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)“without injury” earnings; and

(ii)“after injury” earnings. 

147The former must be calculated by reference to the six year period specified in s325(2)(f).

148“Without injury” earnings consist of 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.

149It is to be 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.

150The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[36]

[36]        Barwon Spinners & Ors v Podolak (2005) 14 VR 622

151The without injury earnings figure suggested on the plaintiff’s behalf was $60,000.[37] Counsel for the defendant did not take great issue with this figure.[38]

[37]T2

[38]T3

152Therefore, I accept that $60,000 is an appropriate starting figure. Therefore, he must establish, on a permanent basis, he does not have the capacity to earn in excess of $692 per week.

153No medical practitioner considers the plaintiff can return to pre injury orchard work or physical work of a heavy nature.

154It is clear from his work post incident that the plaintiff had a capacity for only very light part time work, 15 hours a week, with rest on alternate days, and that he was able to continue these duties until his employment was terminated by the employer.

155While the plaintiff agreed he would like to work in automobile parts shop or in some type of retail job, I can see no reason that, while he has experience in those roles, he would be able to work any more than 15 hours a week in those jobs given his experience with the employer in the last 18 months of his employment. He does not have the capacity to work on a consistent, reliable and permanent basis because of his constant and variable back and leg pain.

156As the plaintiff candidly stated in cross-examination, while he thought he could do jobs of a similar nature, and would like to, he could only do so on a part time basis.[39]

[39]        T14

157The medical opinion relied on by the defendant was in my view “optimistic”.[40] Those examiners suggested a graduated return to work. Nowhere was there a prediction the plaintiff was more likely than not to get back to full time duties.[41] 

[40]        T39

[41]T41

158The plaintiff’s evidence that he could work part time was never challenged.

159As counsel for the plaintiff submitted, the plaintiff is motivated, he does not blame the employer for his loss of work, he attributes it to his back.  He really valued his work and wanted to have a job, and still wants to have one.[42]

[42]        T41

160While the doctors relied on by the defendant thought the plaintiff had a capacity for some of the suggested jobs, Dr Slesenger, who was the high point for the defendant, was not definite as to a capacity for full time work and recommended the plaintiff commence work four hours a day, four days a week, graduating to pre-injury hours over six to eight weeks.

161Mr Doig also suggested a graduated return at four hours a day, three days a week with alternate days off to recover and “upgrading as tolerated”.  The plaintiff had already tried those hours on very light duties with the employer after the injury and was unable to cope with more hours, despite his attempts.[43] 

[43]T2

162I do not accept, as counsel for the defendant submitted, that the plaintiff’s back condition is improving. The consensus of medical opinion is in fact that the plaintiff’s prognosis is poor. 

163Taking into account all the evidence, I am satisfied the plaintiff has suffered the requisite loss of 40 per cent as a result of his lumbar impairment, on a permanent basis, excluding any psychological factors.[44]

[44] s325(2)(h)

164I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

165In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

166Accordingly, in addition to leave to bring proceedings for pain and suffering damages, I also grant the plaintiff leave to bring proceedings for damages for loss of earning capacity.

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