Ince v Supply Chain Management Pty Ltd

[2010] VCC 1966

IN THE COUNTY COURT OF VICTORIA (Un) Revised

(Not) Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-04222

MICHAEL FRANCIS INCE	Plaintiff
v
SUPPLY CHAIN MANAGEMENT PTY LTD	Defendants
AND VICTORIAN WORKCOVER AUTHORITY

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 November 2010
DATE OF JUDGMENT:	26 November 2010
CASE MAY BE CITED AS:	Ince v Supply Chain Management Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2010] VCC 1966

REASONS FOR JUDGMENT

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Catchwords: Serious Injury Application; aggravation of lumbar spine degeneration; whether effects or injury permanent; whether plaintiff meets test of “serious” as to loss of earning capacity; whether minimal medication indicates minimal pain or minimal impairment; Accident Compensation Act (Vic) 1985 ss 134AB(19)(b), (38)(e),(f),(g).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Smith SC with	Arnold Thomas & Becker
Mr I. Fehring
For the Defendant	Mr D. Myers	Wisewould Mahony
HER HONOUR:

1 Mr Michael Ince applies to the Court for leave to bring a claim for damages against his former employer, Supply Chain Management Pty Ltd, in respect of injury he suffered to his back in the course of that employment. To obtain leave, he must satisfy the Court that he suffered a “serious injury” within the definitions and requirements of s.134AB of the Accident Compensation Act 1985. He relies on part (a) of the definition of “serious injury”, claiming to have suffered permanent serious impairment of the function of his lower back. He seeks leave to bring proceedings in respect of both pain and suffering and pecuniary loss damages.

2          Mr Ince claims that his employment duties with the first defendant required him to drive a forklift repeatedly – between 50 and 150 times a day – over a lip or small step between the level of the warehouse floor and the level of the bitumen yard at his employer’s bondstore premises. He claims that repeated jolting and jarring from this task caused injury to his low back, with pain first occurring in about April 2005, increasing from about June, and culminating in severe pain after an instance of jolting over the floor lip on 18 August 2005. He was unable to continue work that day, reported the injury, sought medical attention a few days later, and lodged a workcover claim. Although he returned to work some weeks later, at light or modified duties, he was retrenched in December 2005. His case is that his back injury has caused very considerable pain and suffering and loss of enjoyment of life, and has been a material cause of his being unable to undertake full-time or sustained suitable employment, causing loss of earning capacity of at least 40%, and that he is likely to remain so disabled for the foreseeable future.

3          The defendants do not dispute that at the relevant time the plaintiff was employed by the first defendant[1], and reported such an injury. They do not seriously argue that he suffered no work related injury to his back at about that time. They argue, however, that the effects of that injury were not permanent, or, if any were permanent, then the consequences do not reach the level or extent required to meet the test for serious injury, either as to pain and suffering or as to loss of earning capacity. In particular, the defendants argue:

i)          in respect of pain and suffering he is not disabled from

performing normal everyday personal activities, has had very limited
medical treatment, and takes minimal medication;

Ii) that the plaintiff has ongoing employment capacity which he has not fully utilized. They argue that he has not made reasonable attempts to obtain alternative or additional work to what he has in fact obtained, or to retrain or rehabilitate himself for further or alternative employment. They argue that he cannot satisfy the Court under the requirements of sub-sections 134AB(19)(b) and (38)(g) that he has a permanent loss of earning capacity of at least 40 per cent.

[1]             No point was taken that the initial onset of pain on his version was in April 2005 when he was working through a labour hire company, and before he became a direct employee of the first defendant. He

4          The evidence consisted of the documents tendered as set out in the attached schedule, the oral evidence of Mr Ince on cross-examination and re- examination, and the oral evidence of his treating GP, Dr Mei Pang, who was required to attend for cross-examination.

5          Mr Ince acknowledges that he has poor memory as to dates. My impression of him as a witness was that he was genuinely trying to tell the truth as best he could recall, and was not deliberately vague or misleading. He answered frankly and at times against his interest. I did not regard him as embellishing or exaggerating his disabilities. I am satisfied that overall his evidence should be believed. However, he was shown to be unreliable on some details,

has told some doctors that it was over the two months before 18 August that felt the pain, but I regard
his estimates of time as vague.

especially in his recollection of timing or dates, and where that occurred if
there is alternative more reliable evidence it will be preferred.

6          Dr Pang impressed me as a witness who knows and understands her patient well, he having been treated at her clinic since April 2000. She made appropriate concessions, but was firm when she did not agree with the suggestion on cross-examination. My impression was that she gave answers honestly and was not trying to embellish or deliberately support her patient’s case.

The legislative tests

7          The plaintiff bears the onus of proof, and must satisfy the court that as a result of a compensable injury he has suffered consequences which meet the descriptions “permanent” and “serious”. To be permanent he must show that they are likely to last for the foreseeable future[2]. To be “serious”, he must show that such permanent consequences can be fairly described as “more than significant or marked” and “at least very considerable”[3] when compared with the range of possible other impairments of a body function [4].

[2]             Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at para 33.

[3] S 134AB(38)(c)

[4] S 134AB(38)(b) and (c),

8          Further, to obtain leave to bring a claim for pecuniary loss damages, he must satisfy the court that he has suffered permanent loss of earning capacity from personal exertion of at least 40%[5]. That loss must be measured by comparing the worker’s without injury earnings, by considering his earnings in the 3 years before and 3 years after the injury to determine a figure to fairly reflect his earning capacity had the injury not occurred[6], with what he is actually earning or is capable of earning[7]. What he is capable of earning must take into account the reasonableness of his attempts to participate in rehabilitation or retraining for alternative or further or additional employment[8]. The worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment, and the extent of such inability[9].

[5] S 134AB(38)(e)

[6] S 134AB(38)(f)(ii)

[7] S 134AB(38)(f)(i)

[8] S 134AB(38)(g)

[9] S 134AB(19)(b).

Findings as to the plaintiff’s relevant personal circumstances and background

9          Mr Ince is now aged 48. He grew up in Melbourne. He did not do well at school and left after Year 10, aged 15. He then undertook an apprenticeship as a motor mechanic, which he pursued for some years, but did not “get his papers” because he did not complete the schooling requirements. He also did not like the work. Since his late teens, he has worked in many different labouring type jobs, mainly in the transport area, including forklift driving and as a storeman. He still holds a forklift licence. He has never been employed for clerical work, and I accept his view that he is “no good” on computers.

10        At the age of 18 or 19, Mr Ince was diagnosed with bipolar disorder. He describes the condition as having waxed and waned over the years. He has been on long-term medication, including Lithium and, more recently, an anti- psychotic drug called Zyprexa. He has had multiple[10] admissions to hospital in respect of that condition. Although his bi-polar condition has rendered him unable to work from time to time, up to August 2005 he had always managed to return to full-time employment after flare-ups in that condition. He was and remains under the long-term care of a psychiatrist, with primary care from his GP, Dr Pang[11].

[10]           He says 10 such admissions, but it is unclear to me whether or not that includes the one in February 2008 discussed in para 3 of his Affidavit of 25/3/10 and at T 56.

[11]           There is no psychiatric opinion in evidence, presumably because his claim is in respect of a physical injury.

11        Mr Ince enjoyed and apparently did well at several sports. He played football into his 30s, but had ceased by the time of this injury. Football had resulted in several injuries leading to surgery - right shoulder reconstruction at about age 23 and left shoulder reconstruction at about age 28, both following dislocations; right knee reconstruction at age 33, and a metal fixation of one finger. All of those injuries and operations preceded his obtaining employment with the defendant, and he had returned to physically strenuous manual work after each of them.

12        He had also suffered previous injury to his back. He at first agreed in cross- examination that he had suffered injury to his back in 1988, but it emerged that he was thinking of a fall during employment from a mezzanine level, and that that was in 1996. In such incident he fell several metres and landed on his feet and severely jarred his back. He was taken to hospital, had some time off work, and had recurring back pain for some time afterwards, but denied that it was for as long as 4 years. If there was also a back injury in 1988, it is clear that he returned to full-time labouring jobs after it. It is also clear that he returned to further labouring jobs after the 1996 injury.

13        He was cross-examined about the content of notes from a CRS consultant in 2000, as to the effect of multiple orthopaedic injuries from football. It was put that that consultant noted various orthopaedic injuries, including what was said to be chronic back pain. Clinical notes, when he first attended his current GP’s clinic in April 2000, included a medical history noting chronic back pain. He says that he does not recall suffering particular back pain in 2000. I accept that he had no recollection of these conversations or of specific back pain in 2000. Whether or not he in fact suffered significant recurrences of back pain in 2000, does not ultimately make a significant difference in this case, because I am satisfied that he was not disabled from full-time heavy labouring work for some years after that. I am satisfied that at or after that time he was able to work for about a year on a garbage truck – jumping on and off and lifting heavy bins - as well as working in a factory for Nestle, and as a farm hand mainly fencing, before commencing with the first defendant.

14        I am satisfied that as at early 2005 he had no significant ongoing back pain, nor impairment in working as a forklift driver or storeman by reason of his low back condition. He was able to and did play regular social golf, albeit not as a club member but with friends a once or twice a week. He was not in a relationship at that time, but had regular contact with his children - a teenage daughter who stayed with him fortnightly, and a son. He could engage actively with them, and liked to engage in some sporting interests with his son, although the right knee restricted his kicking of a football. He lived in a rented flat.

The injury, treatment and subsequent events

15        Mr Ince started working for the first defendant in late 2002 or early 2003, through a labour hire company called Jobwire. When first working there, his duties were the unloading of containers and putting stock away, but, at least by early 2005, he was mainly driving a forklift for which he had long held a licence. He worked at the defendant’s premises full-time, but still through the labour hire company, until about June or July 2005 when he was offered and accepted a permanent position with the defendant.

16        From then onwards he was effectively working as a forklift driver, unloading trucks in the yard and transferring goods into the bond store, and in doing so driving repeatedly over a change in level between the bitumen surface of the yard, which was lower, and the store, which he describes as a difference of approximately three centimetres. This caused ongoing jolting to his back and, from approximately April 2005, he noticed back pain developing. However, nothing was done. He describes his back as starting to get worse and worse and then, on about 18 August 2005 when he drove over the bump, he felt a jolt in his low back and very severe low back pain, such that he could not continue at work. He went off work on that day and lodged a WorkCover claim.

17        On 22 August 2005, he attended his usual general practitioner, Dr Pang, at the Deer Park Clinic, reporting that the low back pain had been coming on over about five weeks and had got worse over the previous two weeks, and was worse with bending, lifting and driving a forklift over the step between the floor levels. On examination, there was tenderness over the L3 to S1 area, over the midline and to both sides, and spasm of the paralumbar spinal muscles with range of movement and straight leg raising restricted. He was advised on back care, told to apply heat and liniments to his lower back, was prescribed Panadeine Forte and referred for a CT scan and for physiotherapy.

18        The CT scan performed on 26 August 2005 was reported as showing multi- level degenerative disco vertebral disease, and a broad-based right posterolateral foramina disc protrusion at L2-3 which may be compromising the descending right L3 nerve root at its origin. He was referred to the neurosurgical clinic at the Western Hospital, where he was referred for an MRI of his lumbar spine. That MRI, performed on 6 December 2005, was reported as showing small right lateral disc protrusions at each level between L2-3 to L4-5 inclusive, without evidence of root compression at any level. There was root displacement apparent, most pronounced at the L2-3 level.[12]

[12]           Exhibit K

19        In the meantime, in late September 2005, on review at his general practitioner’s clinic, his back pain was found to have been improving and he commenced a return to work on light duties of up to six hours each day. He was initially advised not to drive a forklift or lift weights greater than five kilograms or bend repetitively and to avoid prolonged sitting. During that time he was assigned light duties in the office, but he says this was not real work but just some tasks found for him. He increased his hours over the following period until he resumed working full hours, and out of the office but still on modified duties, which included approximately two hours of forklift driving a day but on smooth surfaces. As to the office duties there was no training for them, he had no previous experience at them, and I am satisfied that these are likely to have been activities created specially for his return to work plan rather than being usual or productive duties for him to jperform as a regular full-time job.

20        The first defendant closed its bond store in December 2005, and Mr Ince’s employment was terminated on 9 December 2005 under a redundancy. Some other workers were offered alternative employment with the defendant but he was not.

21        Since termination of his employment with the defendant, the plaintiff has not obtained further full-time employment.

22        He does not appear to have been assisted through the Commonwealth Rehabilitation Service[13] or by the WorkCover Authority in searching for alternative jobs, but he did make some effort on his own behalf. I am satisfied that he wanted to obtain some occupation, for financial reasons, and also for social interaction. I infer that both he and his psychiatrist believed that he should have occupation for the sake of his mental health, there being a notation by Dr Pang of what the plaintiff reported he had been told by his ongoing treating psychiatrist, that he should find occupation.

[13]           Refernence to a CRS assessment was confined to 2000, well before this injury.

23        Mr Ince was assessed as eligible for a Disability Pension from some time in 2006. Although there is no paperwork in relation to it in evidence, he says, and I accept, that it was granted in respect of the combination of his bipolar disorder and his physical restrictions, including his back.

24        In either April 2006, but more likely in about 2008[14], Mr Ince started working for a friend, David Tronson, who runs a business called ‘Get Wrecked 4 x 4’. That is a vehicle wrecking yard which concentrates on four-wheel drives. Apparently Mr Tronson, as a longstanding friend, has been willing to offer Mr Ince work at whatever duties he feels he can manage and taking his time to do them. I am satisfied that a significant part of this arrangement was that Mr Ince attended those premises for social interaction, necessary for his mental health, and that he attended three or four days a week although only working for one. It also seems that a regular feature of attending there was drinking of beer, and this went with his over-use of alcohol.

[14]           In his Affidavit of 8/4/09, in Exhibit A, the plaintiff said this was in April 2006, but elsewhere to some doctors he said March 2008. As April 2006 would be about the time of his applying for or being granted a disability pension, I consider unlikely to be his commencement time at this work.

25        In about 2008, he started working about one day a week for approximately an eight hour day, doing general cleaning at the yard, including cleaning the lunch room, cleaning the toilet, wiping down the front bench and windows, and washing the utility vehicles used by the business. That was done with a long- handled hose device. On cross-examination, he agreed that he did some detailing of these vehicles, but nothing strenuous as he could not bend his back much, and it emerged that he has never done detailing to the degree of mending upholstery or replacing carpet in vehicles – I am satisfied that he meant cleaning of these vehicles, for which he used a long-handled hose device, and at which he could take his time. He was paid $120 cash for an eight hour day by Mr Tronson whenever he worked there.

26        By March 2009, he had ceased that work, he says because his back was hurting too much. As he also says that on about 10 occasions last year he drove a tow truck for Mr Tronson’s business last year, I do not place much reliance on his version of when and why he ceased the cleaning work last year. He resumed that work in the middle of 2010, although it must have been interrupted during his hospitalization in August for a lung clot. He has resumed working on the cleaning jobs around the wrecking yard, being paid $120 per day, and is still employed at that. He continues to receive a disability pension. I accept that it is his belief that the amount he currently earns per week is permissible and does not decrease his entitlement to that pension.

27        Mr Ince is now in a relationship, and stays three or four nights a week with Ms Clarke who is described as his fiancé, although they both say that they cannot afford to get married until he obtains a job. He otherwise lives with a friend. Having the company of Ms Clarke, and trying to avoid exposure to alcohol, he now only attends the wrecking yard on the days he is working there. I accept that he has reduced his alcohol consumption although not yet low enough to satisfy his doctor, and has decreased or ceased his use of cannabis to which he admits, although he denies any use of other illicit drugs.

Compensable injury

28        There is no real dispute, and I am satisfied that, as a result of his employment duties between approximately April 2005 and 18 August 2005[15], the plaintiff suffered injury to his lumbar spine from the repeated jolting and jarring from driving a forklift over a lip or step in the ground surface.

[15]           To the extent that the injury was caused prior to the plaintiff being directly employed by the defendant as opposed to working for the defendant through the labour hire company, Jobwire, there were sufficient duties performed between the commencement of his informal employment with the defendant and 18 August 2005.

29        Dr Pang diagnoses the injury as musculoligamentous strain and L2-3 to L4-5 disc disease which was exacerbated by his employment at Supply Chain Management[16]. Dr James Rowe, occupational physician,[17] diagnosed mechanical back pain or strain to which driving a forklift with the defendant had been a significant contributing factor. Dr Philip Mutton[18] conceded that, if it were shown that there was an irregularity in the floor surface over which the forklift was driven by Mr Ince, then that jarring suggested that there was a specific aggravation of his underlying degenerative disc condition, although he thought that aggravation was temporary and by March 2006 he thought that the aggravation had ceased and Mr Ince’s then current presentation reflected the underlying degenerative condition in his lower back.

[16]           Exhibit B

[17]           October 2005, Exhibit 4

[18]           1 March 2006, Exhibit 2

30        Mr Brendan Dooley[19], orthopaedic surgeon, diagnosed aggravation of disc degenerative changes causing a chronic back strain which persisted to a mild degree. He pointed out Dr Mutton’s concession but did not agree that there was any connection with previous sporting activities[20]. Mr John O’Brien, orthopaedic surgeon, considered Mr Ince presented with non-specific back pain, not associated with any nerve root pathology although the 2005 investigation suggested some mild multi-level degenerative change. He did conclude that employment was a significant contributing factor to mild chronic back pain. After seeing the MRI of April 2010, he continued to diagnose non- specific low back pain but noted multi-level degenerative change, most marked at the L4-5 level but without nerve root compromise. He accepted from the history that employment was a significant contributing factor to what is now chronic non-specific back pain.

[19]           Exhibit 3, November 2006

[20]           Exhibit 3 – page 2 with diagnosis missing****

31        Mr Michael Johnson, orthopaedic surgeon, had examined the plaintiff for the purpose of advising on surgical intervention. For that purpose, he was not certain enough of the cause of the plaintiff’s pain to recommend surgery, but he noted that the radiology demonstrated multi-level degenerative change maximal at L4-5, where there was a right-sided annular tear, and wrote to Dr Pang[21] that the abnormality on MRI may be the cause of his symptoms but that diagnosis could be guaranteed and therefore he did not consider surgical intervention could reliably assist.

[21]           Exhibit D

32        Dr Lim, the rheumatology consultant at Western Health, who examined the plaintiff on the referral of Dr Pang, diagnosed mechanical back pain but no obvious pattern, with spinal claudication or radiculopathy. He did not recommend surgery in that situation and recommended that what Mr Ince was doing, namely, back care and appropriate analgesia, was the right management[22].

[22]           Exhibit C

33 Mr John O’Brien, orthopaedic surgeon, considered that on the basis of the history employment was a significant contributing factor to mild chronic, non- specific, back pain [23].

[23]           Exhibit 5

34        Dr Charles Castle, occupational physician, assessed the plaintiff in March 2010[24]. His opinion was that Mr Ince’s back pain is due to an aggravation of degenerative change of his lumbosacral spine, although he did not consider that his work precipitated the small disc prolapses which are present on the MRI scan.

[24]           Exhibit G

35        Associate Professor Warren Boling, neurosurgeon and spinal surgeon,[25] in August 2010 reported that Mr Ince describes low back pain that is consistent with discogenic pain, and his MRI report is consistent with degenerative changes that could be aetiology for low back pain. He thought that the temporal relationship with the work at Supply Chain Management and the onset of the pain made it likely that the work did aggravate the degenerative disease of his spine, and resulted in what Dr Boling called his current pain complex.

[25]           Exhibit F

36        Mr Stanley Schofield, orthopaedic surgeon, diagnosed aggravation of degenerative change mainly affecting L4-5 which in his case is the lowest lumbar disc, and to a lesser extent L2-3 and L3-4[26]. After a further MRI was performed[27], he considered the prognosis poor without surgery, and recommended fusion and decompression at L4-5, with possible further surgery at L2-3 and L3-4 of decompression. No other examiner elicited signs of nerve root compression or radiculopathy and no other has recommended such surgery.

[26]           Exhibit J, in second report after recommended further MRI.

[27]           6/12/10

37        Taking all of these opinions into account, I am satisfied that all confirm that Mr Ince suffered a compensable injury from his work duties with the defendant in that the jolting or jarring to his low back from driving a forklift over an irregularity in floor surface, aggravated pre-existing degenerative changes in his lumbar spine, whether that is described as mechanical back pain or strain, musculoligamentous strain or simply activation of chronic low back pain.

Are the effects of the injury permanent?

38        For the injury and any resultant impairment to be regarded as permanent, in the sense that it is likely to last for the foreseeable future[28].

[28]           Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at para 33

39        The only doctors to query the likelihood of indefinitely ongoing symptoms were Drs Rowe and Mutton. Dr Rowe examined the plaintiff in October 2005 when the plaintiff was reporting improvement in his pain since its most severe stage in August 2005, and he was already back at work with the first defendant performing modified duties. Dr Rowe considered he would not be left with a permanent long-term impairment but has not examined the plaintiff since that time. That was before the first MRI scan had confirmed underlying degenerative changes in the lumbar spine, albeit no nerve root compression. It also seems that Dr Rowe did not view the CT scan or even its report, and only had the plaintiff’s version of what he believed it had shown.

40        Dr Philip Mutton’s opinion in early March 2006 was that the aggravation, which he conceded could have resulted if there was jarring from having to drive a forklift over an uneven surface, had by then ceased, and the underlying but pre-existing degenerative condition was responsible for ongoing symptoms. He has not examined Mr Ince since. He implied that the various sporting injuries which the plaintiff had previously suffered, and which were conceded to have brought about shoulder surgery and a knee replacement, had a causative link with the degenerative spine. This opinion was referred to Mr Brendan Dooley who specifically disagreed with it[29] as Mr Dooley noted that the plaintiff had never suffered any specific injury to the lumbosacral spine in any sporting accident. Mr Dooley, who had been asked to provide an impairment assessment, did not feel any apportionment of the impairment assessment was indicated for pre-existing conditions.

[29]           Supplementary report dated 11 December 2006

41        Given the preponderance of opinion, including all of the opinions over the last two years, I am not satisfied that the two early opinions of Dr Rowe and Dr Mutton should be preferred to the opinions of all subsequent examiners who have had the opportunity to assess the plaintiff’s genuineness in his reporting of symptoms as well as to examine him and his subsequent radiological studies in reaching their views that he does have ongoing and likely indefinite back pain. I am therefore satisfied, on the balance of probabilities, that there is permanent impairment brought about by Mr Ince’s compensable injury in the sense of being likely to continue for the foreseeable future.

Is the impairment “serious”?

42        The defendants concede that if the plaintiff satisfies the court that his degree of impairment meets the statutory tests for being “serious” as to pecuniary loss damages, then it follows that he would meet the test for “serious” as to pain and suffering damages[30]. It argues that he does not meet the test for economic loss nor the test for pain and suffering. I shall therefore deal first with his case as to loss of earning capacity.

[30]           T 13, line 31- T136, line 3

Loss of Earning Capacity

43        To determine whether Mr Ince has suffered a permanent loss of earning capacity of at least 40%, I must first decide what was the gross income that he was or was capable of earning from personal exertion during that part of the 3 years before and after the injury as most fairly reflect his earning capacity had the injury not occurred. His gross income for the three years before the injury was approximately $32,000, and there is no dispute that that is the figure that should be used, and 60% of that is $19,200 or about $370 gross per week.

44        Following his injury, he returned to work with the defendant on modified duties, but his wages would have been supplemented as this was a return to work plan. I am satisfied from his evidence that since he was retrenched in December 2005, his only earnings from personal exertion have been the amounts earned from Mr Tronson, and although there is no evidence from Mr Tronson of these amounts I find on the basis of the plaintiff’s own evidence, after testing on cross-examination, that when he has worked, his earnings have been mainly $120 gross per week[31].

[31]           He says that he did try to work two days running once but could not cope due to pain – even if he earned $240 that week I do not consider that it changes the average earnings from being $120 per week for the months during which he did this work.

45        The main issue in this case is whether Mr Ince has been, or will in the foreseeable future be, capable of earning more than 60% of his “pre-injury earnings” – ie more than $19,200 or about $370 per week. This issue requires assessment of his physical capacity including his own and the medical evidence about it, and consideration of whether there is suitable employment (likely to pay more than $370 per week or $19,200 gross per year) of which he is capable or for which he would be capable after rehabilitation or retraining. This includes consideration of any inability to be retrained or rehabilitated and the extent of that inability.

46        Mr Ince’s evidence is that there is always pain present in his back, but that it is worse at times when aggravated by particular activities, including walking, standing for long periods, bending and lifting or other awkward movements. He can sit comfortably but not for prolonged periods. He also finds the pain present at night and that it disturbs his sleep, and this is confirmed by his fiance[32]. He also has referred pain in both buttocks, but not in either leg.

[32]           Exhibit E

47        He does not currently take prescribed medication for his pain, and only disprin or similar at times. An examination through Dr Pang’s evidence from her records shows that originally he was prescribed and took Panadeine forte, but not for more than the first couple of months after the injury – he says because he has found that most of these medications do not have much effect[33]. This year Dr Pang has prescribed Panadol Osteo, which she describes as a longer lasting version of Panadol than the ordinary one, and in March 2010 she prescribed Prodeine Forte, which she described as the same as Panadeine Forte but cheaper, to be taken in combination with Panamax. Dr Pang confirmed in cross-examination that her notes show that in July 2010 he had not bought the Panadol Osteo which she had prescribed. He said he would after his next pay day but her notes confirm he did not, at least not by 17 August. He confirmed that he is not currently taking painkilling medication.

[33]           T 52,l 4-6

48        The defendants argue that the minimal medication regime reflects that he must not be in nearly as much pain as he describes, or that there is not a lot wrong with him. In many cases that would be a reasonable inference to draw, but in my view there are other factors relevant in this case as to why he might not be taking medication despite suffering considerable pain.

49        First, he is a man whom I take to have a considerable degree of tolerance to pain and general discomfort. He has a history of surgery to his right knee and to both shoulders, as well as the inserting of a pin into the fingers of his right hand, which did not deter him from continuing to play football (at least until the knee replacement) or from engaging in quite heavy manual labouring, including fencing and general farm work for approximately 18 months, and driving a garbage truck for about 12 months, requiring a lot of running, jumping on and off the truck and moving heavy wheelie bins at speed. All of those jobs, as well as his employment for two to three years with the defendant, indicate a man prepared to tolerate degrees of pain or discomfort from old injuries in order to keep working and that, in my view, is consistent with taking minimal analgesic medication for pain relief. Secondly, he says that he stopped taking Panadeine forte because he finds that most of these medications do not have much effect[34].

[34]           T 52, lines 4-6

50        Further, and significantly, Mr Ince has a long history of bipolar disorder for which he has been taking Lithium and, more recently, another anti-psychotic medication. While Dr Pang said there was unlikely to be interaction between such medication and analgesia for pain relief, and I do not have the benefit of his psychiatrist’s opinion as to whether the underlying psychiatric condition might affect his attitude to pain relief, I find it likely that his attitude to taking analgesia is partly shaped by his experience with long-term medication for his bi-polar condition. In addition, I note that he has an admitted problem with over-use of alcohol and Dr Pang confirmed that she has told him not to take analgesic medication when drinking alcohol. He further admits to previous use of marijuana although he says he ceased this about four months ago.

51        In Mr Ince’s particular circumstances I am not prepared to infer that it is more likely than not that his low or even minimal use of analgesic medication is indicative that he does not suffer much pain. I do accept that if his analgesic medication is limited as he says to some disprin or similar tablet, it would not affect his concentration or ability to use machinery.

Medical Evidence as to Capacity for Work

52        Dr Pang had certified Mr Ince for return to modified duties in September 2005, with those modifications being long-term, and confirmed that they would still apply to his physical condition - namely to avoid lifting more than 5 kg, no repetitive bending, no sitting for more than about two hours at a time, 10 minute breaks each hour forklift driving, and no driving forklift on uneven ground[35].

[35]           T 114,l24 – T 115, line 8

53        Asked about entries in her notes on two occasions as to him not wanting or intending to get a regular job until after his compensation claim was finished, she said she did not recall them but accepted that he must have told her that at the time. She explained that he is a patient who suffers from bouts of depression and when he feels depressed everything is negative to him and he lacks motivation[36]. Given that she deals with his long-term bi-polar condition I accept her insight into these comments, and into his genuineness in saying at various times that he wants to get a job and knows that being occupied with a job would be good for his mental health. She understands him to be comfortable with the present job he has with his friend one day a week.

[36]           T 110, lines 3-5.

54        Mr Dooley’s report was primarily directed to an impairment assessment, but he gave the opinion that Mr Ince is fit for multiple forms of suitable lighter work, and even his pre-injury duties providing he does not have to do any repetitive bending or lifting[37].

[37]           Exhibit 3

55        Mr Schofield thought him fit for light work, but only of a sedentary nature on a part time basis.

56        Mr John O’Brien, considered that with what is now well established chronic back pain, there was a moderately poor prognosis, and moderate disability secondary to his chronic back pain. He was sure that this resulted in the patient being unable to pursue any heavy physical activity and this included his pre-injury occupation, or any substantial manual physical labour. He did not consider him totally incapacitated noting he does work one day per week washing cars and detailing them, but did not expect that he would return to full-time employment as he was on a disability pension[38].

[38]           Exhibit 5

57        Mr Michael Johnson, orthopaedic surgeon, to whom he was referred for opinion about prospective surgery following Mr Schofield’s reports, did not recommend surgery as he could not guarantee that the source of his pain was the degenerative change shown on MRI, in particular a right-sided annular tear at L4-5[39]. He described himself as not qualified to perform vocational assessments, said he had gained the impression that Mr Ince would be able to perform work of a light nature, but noted that employment in these areas may be difficult for him to obtain due to his back pain and what he suspected were limited qualifications[40].

[39]           Exhibit E

[40]           Exhibit H

58 Dr Castle, an occupational physician assessed the plaintiff in March 2010 [41]. He considered that his back injury markedly restricted an employment activities of prolonged sitting, standing, walking, driving or stooping, that repetitive bending and/or twisting was precluded, and lifting restricted to no more than about 4-5kg. He considered him incapacitated for his pre-injury employment of driving a forklift without suspension.

[41]           Exhibit G

59        As to whether he was suited for any other employment, he noted that his age put him in the category of it being more difficult to find employment, and that with his education limited and no further education or training since his skill is as a forklift driver and storeman. Dr Castle considered he had no capacity to work as a storeman due to his back condition, and unable to work as a forklift driver indefinitely despite his expressed view that he could do some over smooth surfaces. As for the prospect of working as a tow-truck driver, if that involved chaining cars Dr Castle doubted that he would be able to do that for very long, even three days a week, because of the bending needed to put chains on and off vehicles, and lengthy periods of driving. He considered that at suitable employment such as the car yard cleaning he is currently doing he would be limited to a maximum of 24 hours a week, and that it is extremely unlikely that he could do that number of hours consistently and regularly for a long period. He thought it far more likely that he would only be able to work 12 – 16 hours a week.

60        Dr Boling at first said it was not clear to him whether the plaintiff’s low back pain would preclude him from returning to his pre-injury employment, and recommended a functional capacity examination to detail exactly what he could and could not do from an activity perspective[42], noting that if a functional capacity examination found him unfit to continue as a forklift driver it was very unlikely he would be able to transition into a more skilled and less labouring job, due to his poor level of education and having no skills beyond forklift driving. After reading the report of Dr Castle, he agreed with Dr Castle’s opinion on Mr Ince’s capabilities in relation to return to his pre-injury employment and limitations for other employment[43].

[42]           Report of 15/8/10, Exhibit F

[43]           Supplementary report dated 5 November 2010, in Exhibit F

61        I do not regard Dr Rowe or Dr Mutton as having any useful views on the plaintiff’s current or future capacity for paid employment as they each saw him once and very early in the circumstances as they have unfolded. Similarly, the physiotherapist, Mr Beecroft[44], last saw him on 6 January 2006, soon after his redundancy and knowing that he had been back at work on modified duties, and his opinion on future work capacity is in my view well out of date.

[44]           Exhibit 1

Attempts at retraining or rehabilitation to obtain other employment

62        A vocational assessment for the Victorian WorkCover Authority was conducted soon after his retrenchment, in February 2006, by Work Focus Australia[45]. He was noted to be well-motivated to work and quoted as saying that he had always worked and it was good for him to be working. However, he was described as unsure if he would be capable of returning to full-time forklift driving, but believing that he could continue in some driving of forklifts provided it was not on uneven surfaces. I do not accept that this was an acknowledgement of capacity to work full-time as a forklift driver, even if only on smooth surfaces, but rather as a reflection of Mr Ince’s wish to be able to continue with at least some forklift driving because it was a role in which he took some pride for having the qualification of a forklift licence. The person carrying out that assessment consulted the plaintiff’s general practitioner as to ongoing restrictions on his capacity, but otherwise had only a medico-legal report obtained by Workcover from Dr James Rowe[46] who examined Mr Ince at a time when he was working on modified duties with the defendant and coping with them, and before the MRI of his lumbar spine.

[45]           Exhibit 6

[46]           Exhibit 4

63        The Workfocus assessment[47] suggested occupations for which Mr Ince had capacity – Warehouse Assistant, Order clerk, Assembler and forklift operator. However, all were expressed to be subject to medical restrictions, and in my view all were unsuitable for him. When the restrictions imposed by Dr Pang – which I am satisfied were not overly protective of him - were applied to the jobs of full-time forklift driver or warehouse assistant/storeman, or assembler, in a practical sense, they meant that he could not be taken to be capable of performing those occupations full-time. Those jobs may have been suitable under a protected arrangement such as a return to work plan, where extra breaks and limited times on individual tasks could be incorporated, but not as full-time unprotected employment. As for the suggestion he could be an order clerk, I see no analysis in the vocational assessment of his capacity for that other than its noting that Mr Ince rated his English reading and writing skills as “OK”. He had no computer skills, having twice commenced but not completed introductory computer courses, even though he acknowledged that when he was shown how to do so, he had been able to input data into an in- house computer program as part of his pre-injury employment.

[47]           Exhibit 6

64        Mr Ince did obtain alternative employment, through a friend, David Tronson, who runs a business called ‘Get Wrecked 4 x 4’, whether that was from mid 2006 or as I find more likely, early 2008. He has been paid $120 cash per day he has worked there, and overall that has been about one day per week.

65        According to Mr Ince, Mr Tronson, as a longstanding friend, has been willing to offer him work for as many days a week as he wishes and at whatever duties he feels he can manage and taking his time to do them. The defendants argue that he has not taken up the availability of further work with this business, either more days per week, or in a position he says he was offered there of driving the tow-truck 3 or 4 days a week.

66        I accept that when Mr Ince tried to work two consecutive days, including on the second day whipper snippering grass, he was too “knocked up”. He describes cleaning vehicles as physically demanding if he does it for a full day. It was put to him that he could try working Mondays, Wednesdays and Fridays, and he agreed that that might be possible. However, on the basis of medical evidence I am not satisfied that there would be sufficient light enough duties for three days a week there.

67        He says that he was offered a job of driving the tow-truck three or four days a week and considered that, but decided he could not cope with it that many days a week and in the meantime someone else has been employed for that job. I am satisfied that it was not unreasonable for him to conclude that he was not capable of that job. The tow truck is used by the business to go to collect car wrecks which have been purchased by the wrecking yard. Those which are collected from auction premises, including Fowles, would be lifted onto the tow truck by forklifts operated at those premises, but, as the tow truck driver, he needed to secure them with chains to the truck, which necessitated him bending awkwardly or lying down to secure a chain to the axle of the vehicle. I accept that that activity is very difficult for him with his back injury, and would be likely to aggravate it if performed often. In addition, vehicles are collected from private sellers. On those occasions, the tow-truck driver must pull out the ramps from the rear of the truck, lower them to the ground, attach chains to winch the vehicle onto the tray of the truck, and then pick up the ramps and push them back under the tray of the truck, as well as securing the vehicle on the truck with chains, which involves awkward bending or lying on the tray. I accept that Mr Ince has, on single occasions, been capable of driving the truck and, at least so far as the collections from Fowles are concerned, to secure the wreck which has been lifted onto the truck by forklift. I am satisfied, both from his own estimation of his capacity and also from the vast preponderance of medical evidence, that he would not be capable of performing the tow-truck driver duties consistently for three to four days a week.

68        He gave evidence of thinking about doing TAFE courses to requalify for other work, and was interested in a warehouse management course. He went to Kangan Batman TAFE to make inquiries, but did not apply because he found out that he would first have to do an “extra” course for 12 months before starting the warehouse management side. I take this to be either a pre- requisite, or the first part of the warehouse management course. I am satisfied that Mr Ince does not have the ability to undertake any sustained coursework, given his history of leaving school after year 10, being unable to complete an apprenticeship because of the school component, and from appeared to me to be a limited ability to concentrate on details during the hearing.

69 He gave evidence of looking into a postal job of sorting and delivering mail. He says this would have been available to him had he thought he could cope with it. In order to find that out he apparently accompanied a friend, Danny, for about three weeks in Danny’s utility. The job involved sorting the mail before delivering it, and that meant standing and he was very slow at sorting, and thought that would have meant longer hours standing and drawing out the day. He also thought that starting as early in the mornings as Danny starts – 5am to 1pm- would be too stressful for “someone like me” – referring to his bi- polar condition. I note that he is recorded in the GP practice notes, on 3 December 2008, as feeling a bit depressed over the last 3 weeks; that the current episode is no worse than others, with no precipitating event but circumstances recorded include that he had not been sleeping past 3 weeks because of getting up early to do postal run with friend [48]. Given the requirement for sustained concentration on sorting, while standing, and needing to be reliable enough to complete a regular postal run, taken together with the difficulty for him in regular early starts given his underlying bi-polar disorder, that he was unlikely to have been capable of undertaking a regular job of postal delivery.

[48]           T 59, lines 8-17

70        He said and I accept that he has looked generally in newspapers as to the type of jobs he might be able to do, but not applied for any. He said he thought being a barman might be possible. I am satisfied that that would not be suitable employment for him whatever he thinks, first because of his own problem with overuse of alcohol and the likelihood of his succumbing in that environment, but also because such jobs are likely to require prolonged periods on his feet, whether serving or cleaning up and having to move quickly at these tasks, and often also involves moving kegs or heavy cartons of cans or bottles.

71        It was also my impression that Mr Ince is unrealistic in some of the occupations he has considered or says that he would be willing to try if available. He spoke about it crossing his mind to open a car detailing business – which it emerged meant washing cars[49] – but he acknowledged that there were problems such as water restrictions making it impossible to use hoses at people’s houses, so he thought he would drive their cars to carwash places, until he learnt of the need for and cost of insurance. He also noted that people would have to be willing to let him drive their cars – and he has lost his licence for drink-driving.

[49]           T 54, lines 15-16

72        I am satisfied that in his circumstances he has made reasonable inquiries as to retraining and reasonable attempts to look for alternative employment. They may appear dilatory on first description and extended over almost 3 years, but with his underlying conditions and limited educational prospects, together with his lower back injury and its restrictions, I am satisfied that he has made reasonable attempts.

73        In my view, although he had previously been able to find full-time employment after periods of incapacity for work due to his bi-polar condition, or his prior orthopaedic injuries leading to left and right shoulder replacements and a knee replacement, the addition of chronic low back pain has much more severely limited his capacity for alternative work than it was likely to in a person without those other conditions. I consider his past returns to employment as reflecting a man with strong motivation to pursue work despite underlying physical and mental health conditions. However I am satisfied that with the compensable injury to his lower back superimposed on those other conditions, his capacity to work has been even more seriously limited. I am satisfied that his lower back injury is a significant material cause to his current overall level of incapacity for further work than he is in fact doing.

74        He is not totally incapacitated and has proved that by obtaining and returning to the job made available by a friend, but I am satisfied that he is unable to perform that type of work for as much as three full days a week. I believe his evidence that he attempted it two days running and could not cope, and that is also consistent with the views of Dr Castle with whom Professor Boling agreed.

75        There is a range of medical opinion as to Mr Ince’s capacity for employment. The majority consider him unfit for his pre-injury employment. They mainly consider him capable of some work – as indeed he has shown by working at the wrecking yard.

76        Dr Castle’s opinion is described as the high-point of the plaintiff’s case, but I do not consider that that is a reason to reject it, as Dr Castle specialises in occupational medicine, and his assessment was approved and adopted by Associate Professor Boling.

77        Taking all of these matters into account, I am satisfied on the balance of probabilities that he is not capable now, and would not be capable after any further reasonable attempts at retraining or applying for alternative paid work, of earning as much as 60% of his pre-injury gross earnings. I am satisfied that he could not work regularly and reliably as much as 3 full days per week at any suitable employment. Further, even if he were capable of 3 full days per week at his current employer’s – which I am satisfied he is not - as his current pay is $120 gross per day even three full days of work for Mr Tronson would not exceed 60% of his pre-injury earnings.

78        For these reasons I am satisfied that the plaintiff meets the test for serious injury as to loss of earning capacity, to which his compensable injury is a material contributing factor and is likely to be so for the foreseeable future.

Pain and suffering

79        For the impairment to be “serious” in relation to pain and suffering consequences, it must be fairly be able to be described as “more than significant or marked” and “at least very considerable” when compared with other possible injuries and impairments. Mr Myers for the defendants conceded that it would follow that this test would be met if I found for the plaintiff as to loss of earning capacity. I shall therefore deal only briefly with this issue.

80        I am satisfied from Mr Ince’s own evidence and his reports of his symptoms to doctors over many years, that after the initial severe pain in late August 2005, it improved in the following months and somewhat further during 2006 – late 2006 his pain has been much the same in that it has always been present, in his low back, and subject to exacerbation from time to time due to various activities or further strains on his back.

81        I accept that he is more constrained, as a result of his back injury, in his ability to engage in some activities with his children, but he still sees and engages with them. He is able to perform all personal tasks for himself. I accept that he has a history of active involvement in sports which he enjoyed, but he had ceased actively playing football before being injured in 2005. I also accept that he enjoyed playing golf, albeit not as a member of a golf club or with an established handicap. He said he enjoyed it for the company which, given his mental health issues, I accept as having been a link, as was his work, with social interaction and that as a result of his back injury, he no longer plays golf which he used to do once or twice a week.

82        Due to his long-term bipolar condition, which had hospitalised him approximately ten times prior to his back injury, and some prior failed relationships, his prior social activities were comparatively limited, but were of significance to him, including the playing of golf, the interaction at the football club, as well as his ability to work. He described enjoying working and the camaraderie of workmates and, from the notation in Dr Pang’s notes of what the psychiatrist, was advised to be working to keep occupied. I infer that work and interacting with others distracted him from the depression that Dr Pang describes his suffering in bouts. I am also satisfied that it gives him a sense of self-worth and stability as well as a source of income.

83        The permanent consequences of his injury to this plaintiff as to pain and suffering and loss of enjoyment of life are, in my view, borderline in meeting the test of being fairly described as more than significant or marked and at least very considerable, when compared with other possible impairments. However, as the defendants have conceded, if he satisfies the threshold as to loss of earning capacity, which I have found he does, then he also meets the test for pain and suffering damages.

Conclusions

84        I am satisfied that Mr Ince suffered injury to his lumbar spine in the course of his employment with the first defendant, in the months leading up to and culminating on 18 August 2005. I am satisfied that that the consequences of that injury amount to permanent impairment of his lumbar spine that meet the test for serious injury in relation to loss of earning capacity. It was conceded that if he met that test he would also satisfy the test for serious injury as to pain and suffering. I therefore propose to grant leave for him to bring a claim for damages in respect of both pain and suffering and pecuniary loss damages in respect of that injury.

INCE v Supply Chain Management Pty Ltd (CI-09-04222)

LIST OF EXHIBITS

Number and Short Description of Exhibit Submitted by

Identifying Mark Date

on Exhibit

A	Copy of the plaintiff’s affidavits	Plaintiff	8 Nov 2010
of 8 April 2009, 25 March 2010, 16 April 2010 and the Affidavit of the 8 Nov 2010.
B	Report of Dr Mei Yin PANG	Plaintiff	9 Nov 2010
dated 25 Sep 2006 and 4 Feb 2010
C	Notes of Dr Keith Lim,	Plaintiff	9 Nov 2010
Western Health Rheumatology outpatients 30 April 2010

D Letter from Mr Michael Plaintiff 9 Nov 2010

Johnson to Dr Pang dated 13

June 2010

E	Affidavit of Wendy Joy Clarke	Plaintiff	9 Nov 2010
of 25 March 2010
F	Reports of Assoc Prof Boling	Plaintiff	9 Nov 2010
dated 15 Aug 2010, 3 Nov 2010 and 5 Nov 2010
G	Report of Dr Charles Castle	Plaintiff	9 Nov 2010
dated 26 March 2010
H	Report of Mr Michael Johnson	Plaintiff	9 Nov 2010
dated 13 July 2010
J	Reports of Mr Schofield dated	Plaintiff	9 Nov 2010
18/3/09 and 13/4/10
K	Radiological Reports dated 26	Plaintiff	9 Nov 2010
Aug 2005, 6/12/05 & 6/4/10
L	Summary of Plaintiff’s income	Plaintiff	9 Nov 2010
for years ending 30/6/02 until 30 June 2006, and notice of amended income assessment for year ending 30 June 2005
M	Report of Dr McInnes, 17/2/97	Plaintiff	9 Nov 2010
1	Report of Mr Tony Beecroft	Defence	9 Nov 2010
dated 2 Oct 2006
2	Report of Dr Mutton dated 1	Defence	9 Nov 2010
March 2006
3	Reports of Mr B Dooley dated	Defence	9 Nov 2010
22 Nov 2006 and 11 Dec 2006
4	Report of Dr Rowe dated 3	Defence	9 Nov 2010
October 2005
5	Reports of Mr J O’Brien dated	Defence	9 Nov 2010
16/6/09 and 14/7/10
6	Report of WorkFocus Australia	Defence	9 Nov 2010
Vocational Assessment dated 27 Feb 2006
7	Patient Notes of Dr Pang	Defence	9 Nov 2010
relating to plaintiff dated 7 Oct 2009 to date