Jankoski v Wingfoot Aust Partner P/L
[2011] VCC 1104
•15 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-2010-02390
| PERE JANKOSKI | Plaintiff |
| v | |
| WINGFOOT AUST PARTNER PTY LTD & | Defendants |
| GOODYEAR TYRES PTY LTD AND VICTORIAN WORKCOVER AUTHORITY |
---
| JUDGE: | JENKINS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16, 17 & 18 May 2011 |
| DATE OF JUDGMENT: | 15 August 2011 |
| CASE MAY BE CITED AS: | Jankoski v Wingfoot Aust Partner P/L |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1104 |
REASONS FOR JUDGMENT
---
Catchwords: Accident Compensation Act 1985; s.134AB Application under para (a) serious injury; Pain and suffering and Economic Loss; Claimed lower lumbar spinal injury; Conflict in medical opinion; Preponderance of medical and vocational expert opinion consistent with serious injury.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Rattray QC | John Dellios |
| Mr R. Forsyth | ||
| For the Defendant | Mr J. O’Brien | Wisewould Mahony |
TABLE OF CONTENTS
Nature of Application ..........................................................................................................2
Evidence...............................................................................................................................2
The Plaintiff’s Evidence ......................................................................................................3
Workplace Injury...............................................................................................................4
Current Symptoms ...........................................................................................................7
Loss of Earning Capacity .................................................................................................7
Current Medication and Treatment...................................................................................9
Radiological Findings .......................................................................................................10
Medical Reports.................................................................................................................11
Medical Reports on Behalf of the Defendant ..................................................................20
The Nature of the Plaintiff’s Pre Injury Light Duties .......................................................25
Video surveillance .............................................................................................................26
Relevant Statutory Provisions..........................................................................................27
Assessment of Consequences .......................................................................................28
Relevant Case law .............................................................................................................31
Analysis of the Evidence and Findings ...........................................................................32
Conclusion .........................................................................................................................36
Orders.................................................................................................................................37
HER HONOUR:
Nature of Application
1 This is an application for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 (“the Act”) made by Application pursuant to section 134AB(4) on 2 June 2010 in respect of an injury sustained by the Plaintiff in the period 2002 to 2008 and more particularly in early 2008 in the course of the Plaintiff's employment as a tyre inspector with the Defendant.
2 The Plaintiff seeks a declaration that he suffered a serious injury as defined within section 134AB(37) under paragraph (a), by reason of an injury to his lumbar spine.
3 Leave is sought in relation to damages for both pain and suffering and economic loss.
4 The Defendants’ dispute the seriousness of the consequences of the Plaintiff’s claimed injury.
Evidence
5 In support of the Application, the Plaintiff relied upon:
(a) Medical reports tendered from the Plaintiff’s Court Book, affidavits, clinical notes and other documents; and (b) Oral evidence given to the Court by the Plaintiff, his treating General Practitioner Dr Ristevski, his treating Orthopaedic Surgeon Mr Brian Barrett; and Vocational Specialist and Psychologist Mr William Radley.. 6 Opposing the Application, the Defendant relied upon tendered medical reports and other documents.
7 The Plaintiff bears the overall burden of proof in addition to the burden specifically referred to in Section 134AB(19)(b) of the Act.
The Plaintiff’s Evidence
8 In his affidavits, the Plaintiff deposed as follows.[1]
[1] Sworn 20 January 2010; and 13 May 2011
9 The Plaintiff was born in Macedonia on 2 July 1965 and attended school there to Year 12. He came to Australia in 1987 and was first employed in a furniture factory for 2-3 years, then at Ford Motor Co. for one year before returning to the furniture factory for another 2-3 years. He did not suffer any work injuries in that time.
10 He commenced employment with the Defendant in December 1995 and worked on the line until 2002 when he became a tyre inspector at the Somerton plant. He worked night shift, 12 hours per day for 3 days a week.
11 His duties were physically heavy and involved constant handling and lifting tyres weighing from 10 kg to 24 kg every day. The completed tyres were transported to an inspection table on a conveyor. He was required to turn the tyres over a number of times in order to fully inspect them. He would inspect about 60 and up to 120 tyres per hour and as they came down the conveyor he would have to work very fast to keep up. He also had to lift tyres from a pallet onto the inspection table and then off the inspection table.
12 The Plaintiff describes one of the main problems with his work was caused by malfunction of the conveyor. When the conveyor rollers malfunctioned the tyres would jam up and he would have to remove 10-20 tyres from the line very quickly to clear the line. This would happen 3-4 times every shift. The conveyors were 4- 5 metres high and out of reach. He would have to climb a ladder to get to the top of the conveyor. He would have to reach over awkwardly and because the tyres were jammed together it was very hard to pull them apart and he had to apply a lot of force. All the tyres had to be lifted off the conveyor line. He had to work very fast because the tyres kept coming. He would throw the tyres onto the ground to be added to the line later after the problem was resolved so that he had to inspect these tyres in addition to the tyres from the normal production run causing him to inspect many more than 60 tyres per hour.
13 At the end of each shift, involving continual heavy lifting twisting and bending, he would be very tired.
14 In August 2003 he reported to the factory doctor following a gradual onset of back pain, but otherwise he put up with the general aching that he experienced as a result of his work.
Workplace Injury
15 In February 2008 he suffered the onset of more pain in his low back which was different because he also had pain going down into his left leg and some numbness in his leg. He continued to do his normal duties but the pain increased. He saw Dr Chawda who arranged an X-ray on 4 March 2008 and was told that it did not show any problem. He had some RDO’s in that period but when the pain became unbearable he had to stop working and he went to the factory doctor Dr Schon on 17 March 2008. He also reported his injury to his team leader. Dr Schon provided him with a WorkCover certificate but did not provide any restrictions, only “self care”. Dr Schon prescribed Brufen tablets and referred the Plaintiff to physiotherapist Laurie McCormack for treatment.
16 The Plaintiff was only able to continue working for 3 days. The pain was so bad he decided to take one week off work on sick leave and a week off on annual leave. He returned to Dr Schon on 31 March 2008 and on that occasion he was provided with a WorkCover certificate for modified duties. He returned to work and was put on sweeping duties. He could not cope with the pain. On 5 April 2008 he went to the emergency department of the Northern Hospital and was given an injection, On 10 April 2008 Dr Schon arranged a CT scan which revealed a large disc herniation. He was then referred to Dr Brian Lovell, Physician.
17 He tried to keep working. Dr Schon was being provided with return to work plans as the factory doctor. He certified the Plaintiff as being fit for 2 hours a day on restricted duties, which he complied with although he was having very bad pain in his low back and leg. On 14 April 2008 he decided to see his normal GP Dr Ristevski for continuing treatment. In May 2008 he increased his hours to 3 a day, and to 4 in July. The hours increased to 6 per day in September and to 8 per day in October 2008. In a WorkCover certificate dated 15 October 2008 Dr Ristevski applied restrictions “assisting with tyre weights, avoid bending, lifting pushing and pulling”.
18 The restricted duties that he performed involved measuring the weight of tyres before they were baked. They were weighed on a scale and he did not lift them. It was a special job created for injured workers. No worker who was not injured was allocated to this work.
I could sit if I needed to and stand when I needed to. Also I was allowed to go
for a walk every hour if I needed to.[2]
[2] Transcript 70
19 He performed these duties until he ceased work in November 2008, but in oral evidence he said he was in a lot of pain and it was very difficult. The factory closed on 31 December 2008, when his employment and that of all workers was terminated and they were given a redundancy package.
20 The Plaintiff has not worked since being retrenched. After the factory closed he returned to Macedonia for 2 months. He went to an agency named Integrated in Footscray in July 2009 and One Force Recruitment in November 2009 seeking assistance in finding the sort of restricted work that he had with the Defendant. He did a test in Mechanical Reasoning. He was unsuccessful in obtaining employment and is unsure that he will find full time employment because of his continuing back pain.
21 The Plaintiff still has pain in his low back which is present for most of the time and varies between an ache to strong pain depending on what he is doing. The pain goes into and down is left leg, which often becomes numb. The numbness is in the left calf, left foot and big toe. The pain disturbs his sleep and restricts his ability to move properly. His back is very stiff and bending causes pain, as does lifting and sitting or standing for long periods. Walking helps a little, but if he walks too far the numbness in his leg increases and his leg becomes weak.
26 22 The injury has affected his day to day activities. He has to be careful when he tries to perform normal tasks around the house. He tries to do as much as possible with rest breaks, but is unable to do any heavy gardening or maintenance as before. He can drive short distances and helps with the shopping and tries as much as possible to continue living a normal life.
23 The Plaintiff has become very depressed about the continuing pain and the restrictions in seeking employment. He has lost a lot of energy and his sleep is disturbed by worry about his future as well as pain. He finds it difficult to socialise and his relationship with his wife has been badly affected. He finds it increasingly difficult to cope with his wife working while he is unable to support his family.
24 The Plaintiff continues to see Dr Ristevski regularly and is prescribed Tramadol. He continued to have physiotherapy once a week until September 2009 when the treatment was terminated by the WorkCover insurer. The physiotherapy treatment helped. He also attended hydrotherapy and gym once or twice a week. He also does exercises at home to try and keep fit.
25 He had intended to work until the normal age of retirement. He believes that because of his injury he is going to find it very difficult to find and then maintain work.
The Plaintiff is married with 2 children. He can speak some English fairly well Current Symptoms
27 The Plaintiff continues to suffer the effects of a low back work injury, which is always present albeit of varying severity and is increased by activities that place a strain or stress on his low back, such as bending and lifting or by prolonged periods of sitting or standing. The pain is in his low back, his left buttock and into his left leg. At times he also experiences numbness in part of his left leg.
28 He experiences flare-ups of his pain from time to time and suffers very severe pain. When he does suffer these flare-ups he is forced to stop the activity that he is performing and rest and or take medication. These severe symptoms may last for a day or so up to a number of days at a time. At other times, he is more active. The onset of pain is not predictable and sometimes can come on for no apparent reason. In colder weather the pain and stiffness increases.
29 His symptoms were better managed and controlled with physiotherapy treatment and a gym program that had been prescribed for him by his physiotherapist. He can no longer participate in these as WorkCover has ceased funding them and he can not afford them. He continues to walk for exercise on most days, but not on every day for about 15 to 40 minutes, depending upon his symptoms.
Loss of Earning Capacity
30 His gross annual income from personal exertion for the period of three years prior to the injury was as follows:
2005 - $56,209 2006 - $65,762 2007 - $66,431
31 His gross annual income from personal exertion years after the injury (including WorkCover weekly payments) was as follows:
2008 - $68,644 2009 - $33,195
32 The Plaintiff has not engaged in paid employment since the termination of his employment with the Defendant.
33 Had the injury not occurred, he believes that his gross annual income from personal exertion in his employment with the Defendant for the period of three years after the injury would have been at least $68,644. Accordingly, his loss of earning capacity as a result of the injury exceeds 40 per cent.
34 Neither his former employer nor WorkCover have provided the Plaintiff with any retraining, educative courses or job assistance. He has attended 2 employment agencies in 2009 enquiring whether any lighter part-time jobs were available but was informed by the agencies that no such work was available for him.
35 The Plaintiff considers that certain jobs suggested by WorkCover as suitable are not suitable for the following reasons:
• his English speaking is very basic; • his reading and writing in English is even more restricted; • he has no office skills; • he has no computer skills; •
he is limited in the amount of time that he can sit or stand or walk or drive;
•
he does not consider himself reliable as when he has severe flare-ups he cannot attend or remain at work;
• getting in and out of the car regularly will worsen his pain; •
he would not be able to chase or restrain a person [as a security guard]; and
•
his ability to communicate effectively in a commercial setting or record information is limited and not at the required level.
36 His injury affects his day to day activities. He drives the car, and at times he will drive his wife to the shops, and the children to and from school or tennis. If he drives for longer than short periods then his symptoms can increase. He is restricted in the tasks that he can perform around the house. His wife or his son Christian now clean outside the house and mow the lawn. He will provide them with some limited assistance for short periods but if it were not for his injury then he would perform the heavier task of mowing the lawn and maintaining the garden.
37 Before his injury he rode a push bike and played soccer with his children and swam. He also went on occasional fishing trips and outings. He no longer performs these activities because of his injury and the increase in his symptoms that these activities will produce and accordingly he no longer enjoys them.
38 He continues to see Dr Ristevski regularly for treatment and medication and advice and WorkCover certificates of incapacity.
Current Medication and Treatment
39 In the past he has been prescribed Voltaren Cream, Brufen and Panadeine Forte. Currently he takes Tramal 50mg to manage his pain. The prescribed dosage is 1 to 2 tablets as required. Generally he takes the tablets 3 -4 times per week. He takes these mostly at night when he finds the pain is more severe. He tries to avoid taking them as much as he can.
40 In September 2009 he ceased Physiotherapy and swimming and no longer attends the gym.
The best activity for me is walking…At least once and sometimes twice a
day….It can vary between 20 to 30/35 minutes.[3]
[3] Transcript 101
41 His injury affects his relationship with his wife and also with his children. He is more frustrated when his children are making noise or misbehaving. He argues with his wife more since his injury as she practically does most duties around the house as well as her casual job and she is often tired. They also argue about money because of their limited finances and they can no longer afford the things that they could before when he was working.
Radiological Findings
42 A CT scan of the lumbosacral spine on 10 April 2008 demonstrated, in part:[4]
At the L4-5 level there is a large disc herniation more prominent in the left paracentral aspect and extending into the left lateral recess and causing marked compromise of the left anteriolateral dural sac.
[4] PCB 77
43 A CT scan of the lumbar spine on 5 August 2009 demonstrated in part:[5]
Slight loss of disc space height. No central canal, lateral recess or exit
neoriforaminal stenosis. Mild bilateral facet degenerative joint disease….Conclusion: Mild lower disc degeneration without overt neuroimpingement.[5] PCB 78
44 An MRI of the lumbar spine on 14 September 2009 demonstrated in part:[6]
L4-5 level: Desiccation is seen without narrowing. There is a posterior annular tear and there appears to be a very minor degree of posterior disc protrusion associated with this. This is not consistent with the description on the request form and presumably the previous CT examination is an older study showing a large extrusion which has now almost completely resolved. The central canal remains adequate and further laterally the L4 foramina remain adequate. Mild facet joint hypertrophy is seen.
L5-S1 level: normal appearances apart from very minimal desiccation and a minor degree of posterior disc protrusion which does not contact the S1 nerve root origins or the thecal sac. Mild facet joint hypertrophy is seen.
Conclusion:
1. Mild disc degenerative changes L4-5 and L5-S1
2. It would be helpful to compare with the previous CT examination but it appears very likely that the large relapse described on the request form has resolved;
3 there is now no significant neural compression.
[6] PCB 79
Medical Reports on behalf of the Plaintiff
45 Dr Andrew Schon General Practitioner[7] at the Northern Industrial Clinic. Dr Schon normally saw workers from the Defendant and first examined the Plaintiff on 17 March 2008 when he complained of 3 weeks of gradual onset of lower back pain radiating to the lateral side of his left calf including an area of numbness. Dr Schon made a diagnosis of left sided lumbar disc prolapse, commenced him on Brufen and sent him back on light duties.
After an initial response to physiotherapy he resumed light duties, unfortunately sweeping caused a relapse of his back pain and at this time I ordered a CT scan which revealed a large left-sided L3-4 disc prolapse extending into the left lateral recess and causing marked compression of the left anterolateral dural sac.[8]….
[7] PCB 80; Report dated 5 March 2010
[8] PCB 81
46 Dr Jim Ristevski General Practitioner first examined the Plaintiff on 14 April 2008 when he took a history of lumbar pain and pain radiating down and the left thigh and leg. The Plaintiff also gave a history of no prior lumbar pain or spinal condition or injury. The Plaintiff first developed sudden onset of lower back pain on 20 February 2008 during the course of his normal work. Subsequently the pain extended down to his left thigh and left leg and despite a week’s break from work, upon resuming his normal duties his pain did not improve and on 5 April 2008 he attended the Northern Hospital Emergency Department where he was given oral and intramuscular analgesics.
47 Dr Rivsteski noted that the Plaintiff commenced on light duties after being assessed by Dr Schon and thereafter continued with analgesics and physiotherapy. He also commenced a gym programme to improve his lumbar muscles. He gradually increased his work hours to 6 per day by September 2008 and ten to 12 hours per day by November 20018 and appeared to be managing despite ongoing back pain, continuing with physiotherapy an gym exercises. The Plaintiff continued to complain of lumbar pain and left-sided radiculopathy. During a late December 2008 the Plaintiff's employment was terminated. The Plaintiff has remained unemployed ever since.
48 Throughout the period when the Plaintiff was performing light duties, Dr Ristevski provided Work Capacity Certificates certifying that he was capable of performing such duties with the restrictions in place. Clearly there was an imperative for the Plaintiff to qualify for a maximum redundancy payout and in order to do that he had to demonstrate a capacity to perform full time duties and eventually return to his preinjury duties. Curiously, since the termination of his employment, Dr Ristevski has continued to issue such certificates, indicating a capacity to perform light duties of the kind he was performing immediately prior to the termination of his employment. In reality I accept that his pre-injury duties was in the nature of protected employment which would not be available to workers in the marketplace.
49 The Plaintiff has continued to be treated by Dr Ristevski and since the termination of his employment he has continued to complain of lumbar pain with episodes of spasm and left-sided radiculopathy. Examination has also demonstrated lumbar tenderness. His symptoms worsened with prolonged sitting or prolonged maintenance of a fixed posture. He experienced more pain bending and lifting and he-obtained temporary relief with analgesics.[9]
[9] PCB 146
50 In oral evidence Dr Ristevski was taken through his clinical notes between 2008 to late 2010 where he had recorded ten attendances by the Plaintiff when he had complained variously of back pain, sciatica and/or muscle spasm. He agreed that the severity of the pain fluctuated.
Each of the presentations is consistent with the underlying pathology and his
initial presentation of back related pain with radiation down his left lower limb.[10]
[10] Transcript 48
51 In relation to work capacity, Dr Ristevski reported that the Plaintiff is currently unfit for unrestricted pre injury work. He would be fit for work not requiring heavy lifting and repeated bending. He needs to be able to sit or stand as he requires. He may be capable of light work initially part-time but will require frequent rest breaks and time off work. Dr Ristevski doubted whether the Plaintiff would be capable of being a reliable attendee at work.[11] Dr Ristevski agreed that the Plaintiff may benefit from referrals for occupational rehabilitation and pain management in addition to courses to improve his English skills.
Mr Jankoski is currently fit for work not requiring heavy lifting and repeated bending. He needs to be able to sit or stand as he requires. As noted he has not returned to work since December 2008. …Despite having limited work capacity when all aspects of Mr Jankoski's current state of well being and social functioning are considered, the open labour market work prosects are very limited….[12]
Mr Jankoski may be capable of light work, initially part-time. The work nature limitation would be required throughout the foreseeable future….will most likely to require frequent rest breaks and time off work….likely to be required once per week or two during a full-time working week. He will require hourly rest break of five to ten minutes, is unlikely to be reliable or punctual,… There is a low realistic probability that a prospective employer on the open labour market with knowledge of the work injury and the resultant restrictions caused by that injury and other limitations such as age, employment history, language difficulties would provide Mr Jankoski with suitable employment." [13]
Mr Jankoski has limited English capacity. He may benefit from English classes but other retraining is not appropriate…The consequences are that the work injuries are likely to continue for and throughout the foreseeable future.[14]
[11] PCB 149-151
[12] PCB 149-150
[13] PCB 150-151
[14] PCB 152
52 Dr Brian Lovell Physician at the Metro Spinal Clinic examined the Plaintiff once on 29 April 2008 upon referral by Dr Schon. Dr Lovell took a history of gradual onset of low back pain two months previously [February 2008] which had become worse over some days or weeks, eventually extending into his buttock and leg. The Plaintiff kept working until his pain became too severe and in mid-March he attended hospital for pain relief.
53 On presentation he had no significant low back pain, but had persisting numbness in his leg (worse at times with prolonged sitting or standing). He had a good range of movement with no back or leg pain… Peripheral nervous system examination demonstrated some weakness of left big toe dorsiflexion and some reduced sensation in the dorsum of the left foot.[15]
[15] PCB 112-113
54 Dr Lovell noted the results of the CT scan which demonstrated a clearly compromised L5 nerve root. An epidural was not indicated in view of the significant improvement in his symptoms.
55 Dr Lovell recommended light duties for six months and suggested that a full resolution could be expected to take approximately 12 months. He was otherwise making a good recovery.[16]
[16] PCB 113
56 Dr Schon reviewed the Plaintiff on 2 May 2008 when he was still complaining of left first toe numbness and there was still demonstrable weakness of his left big toe extension though his reflexes had returned to normal. Although Dr Schon has not seen the Plaintiff again, the symptoms at his last presentation suggested an evolving worsening disc prolapse that may need decompression.[17]
[17] PCB 81
57 Mr Gerald Moran Orthopaedic Surgeon conducted an independent medical examination of the Plaintiff at the request of the WorkCover Authority for the purposes of a s.98C entitlement on 22 July 2009. I note that the history taken is consistent with that reported by other reporting doctors. Mr Moran noted the following presenting symptoms:
Mr Jankoski has intermittent low back pain and his back movements are restricted. Mr Jankoski does not have any left leg pain… Mr Jankoski has constant numbness in the left lateral aspect of his left calf, left foot and left toe.[18]
[18] PCB 221
58 After examination Mr Moran gave, in part, the following opinion and assessment:
Mr Jankoski has an L4-5 disc prolapse…
Mr Jankoski has significant signs of radiculopathy.
[He] has signs of L5 radiculopathy in his left leg. He has decreased sensation to light touch in the L5 dermatome and weakness of extensor hallucis longus in the left foot. [He] has 1 cm of wasting of his left side compared to his right thigh and 1 cm of wasting of his left lower leg compared to his right lower leg. Accordingly even though [he] does not have 2 cm of wasting of his left thigh or left lower leg he does have significant signs of radiculopathy with the 1 cm of wasting, decreased sensation to light touch and weakness of extensor hallucis longus in his left foot…
59 Mr Brian Barrett Orthopaedic Surgeon examined the Plaintiff twice upon referral by his general practitioner on 26 August and 24 September 2009. After taking a history consistent with other reporting doctors Mr Barrett noted that since his termination of employment the Plaintiff has been unable to return to any form of work and continues to complain of the following symptoms:
1. Low back pain which radiates out to his left buttock region
2 pain radiating in to the left posterior thigh, left calf as far as the left foot and left great toe, associated with numbness and coldness in his left foot and great toe
the symptoms are aggravated by prolonged standing, prolonged sitting, ending lifting etc and somewhat eased by taking analgesics and anti-inflammatories. Lying down helps for a while but he requires medication most days. He states the pain has not improved over the past months.[19]
[19] PCB 128
60 On examination Mr Barrett noted that his lumbar movements were very limited producing low back pain radiating out to the left buttock area. There was some moderate lower lumbar tenderness, neurological examination of the lower limbs revealed some slight weakness of the left ankle joint dorsi flexor muscle power and sensory testing showed significant depression of sensation in the left L5 dermatome and slightly in the S1 dermatome regions. Mr Barrett concluded:
In my opinion Mr Pere Jankoski has sustained painful ruptures involving his two lower lumbar intervertebral discs following a number of years as a Tyre Inspector for South Pacific Tyres, this work involving much bending and lifting of these heavy car and truck tyres, these two lower lumbar disc disruptions finally producing significant pain on 20 February 2008.
In my opinion Mr Pere Jankoski has sustained a genuine physical injury to his lower two lumbar intervertebral discs and I consider it unlikely that he will be able to return to any form of work, however light in the foreseeable future.[20]
… The injuries that he has sustained have no significant capacity to heal or repair and I expect his inability to work will continue into the foreseeable future.[21]
[20] PCB 129
[21] PCB 130
61 In his oral evidence[22] Mr Barrett said that the Plaintiff complained of symptoms consistent with an L5 dermatome distribution, which was consistent with the radiology and that indicated to him that the Plaintiff was genuine.
[22] Transcript 22
62 Mr Barrett said[23] that the MRI demonstrated that both the L4-5 and L5-S1 are both desiccated and disrupted. The fluid part of the inner part of the disc is gone, it is dried out and it has no capacity to repair. There is also a posterior split in the annulus.
[23] Transcript 24
63 While there has been some absorption of the prolapsed disc material Mr Barrett said that the Plaintiff still has signs of impingement in the nerve supplying the left leg coming from the L4-5 disc. The restrictions of which the Plaintiff complains are in line with the damage done to his discs in terms of symptoms and in terms of the restrictions that he finds on a physical basis.[24] Accordingly, Mr Barrett was of the view that the Plaintiff is not physically capable of being able to undertake light work because he has got permanently ruptured discs which are painful both from the point of view of sciatic pain and discogenic pain. He confirmed that his examination was consistent with the following limitations: standing was limited to about 15 minutes; sitting was limited to about 30 minutes; walking was limited to about 30 minutes; lifting is limited to around about three kilograms; repeated bending at the waist is restricted; twisting at the waist is restricted, and driving was limited to about 30 minutes. Mr Barrett also noted that he detected no evidence of any psychological problems.[25]
[24] Transcript 27
[25] Transcript 27
64 When asked about the results of the clinical examination reported by Mr Brasenor, Mr Barrett said to the effect that these were consistent with his assessment of damaged discs.
65 Mr Barrett also suggested that in the context of damaged discs, further physiotherapy, hydrotherapy or pain management was a waste of time and money.[26]
[26] Transcript 36 cf Dr Ristevski who disgreed and said that such therapies assist in maintaining lumbar muscle and function: Tanscript 57
66 When asked about the history of improved symptoms recorded by Mr Lovell and Dr Davison, Mr Barrett said:
Well the symptoms will naturally fluctuate from time to time depending on the severity of the physical activities he's actually involved in. Now if he's not involved in much physical activity, and the bulge is not functioning out against the nerve to any significant extent the leg pain often settles down, because the bulge is not now pressing on the nerve on a regular basis, but then if he goes back to any sort of physical activity the symptoms will return, and therefore flourish[27]
[27] Transcript 42
67 Mr Kevin King, Orthopaedic Surgeon[28] examined the Plaintiff once at the request of his solicitors in October 2010. He reported in part:
He speaks slightly halting but clear and good English and I found him to be a clear, detailed and satisfactory historian. I could detect no element of exaggeration.[29]
he gives a very clear description of his duties at the tyre production line from 1995 onwards… The overall impression is of a busy, active, repetitive job involving a loss of bending and lifting… Despite the heavy, repetitive and uncomfortable nature of the work involved he did the job without trouble until August 2003 when, for the first time, during the course of one days working shift, he developed some generalised aching low back pain. There was no specific injury as such. He was seen by the factory Dr, was put off work for several days and he tells me that his symptoms settled completely and he returned to normal duties between 2003 and 2008 without any problems of any sort with back or leg pain.
[28] PCB 156
[29] PCB 156
68 The Plaintiff gave a history of his emerging back pain in the workplace and subsequent to his termination of employment, consistent with histories taken by other reporting doctors. Mr King further noted:
From the time of the recurrence of low back pain in February 2008 he has continued to be quite severely disabled by back pain, radiating into the left buttock and thigh, the symptoms being aggravated by exertion. He was struggling on light duties between February 2008 and up to the time of the factory closing in December 2008 but was working only with considerable difficulty.
"Present state - He complains of the following residual symptoms:
1. Constant aching and then pain in the lower back region, always present, fluctuating in intensity, always of mild to moderate severity during the average day with periodic severe flareups about once a week - usually brought on by exertion and particularly by bending and twisting his back.
2. As a lesser problem he has a nagging ache in the left side and an intermittent
feeling of pins and needles.
He tells me he could not manage his old heavy job… But thinks he might be able to manage light, part-time duties of the sort that he was doing up to the time of the factory closure. He has been unable to find such lighter work.[30]
[30] PCB 157-158
69 On examination Mr King noted that the Plaintiff was a pleasant earnest middle-aged man with a calm dignified manner and with no evidence of exaggeration. He presented with quite marked limitation of all low back movement by pain and spasm- approximately a third of the normal range of all movements were present.[31]
[31] PCB 159
70 Mr King concluded in part as follows:[32]
Degenerative changes of the type shown on his MRI scan in the lumbar spinal region in 2008 are of the type commonly found on routine scanning of lumbar spines in middle-aged manual workers and the majority of such manual workers have no symptoms. Therefore accepting Mr Janoski’s clear statement that apart from the one minor episode in 2003 he had no previous problems with backache, I would attribute all of his current impairment arising from low back pain and left sided sciatica to the effects of injuries sustained to his lower back at work in February 2008.
He continues to be disabled, is permanently unfit to go back to unrestricted manual duties of the sort that he has done over the years at the production line inspecting tyres, and while he could possibly manage light, part-time duties which did not involve bending and lifting, the probability of him being able to find such light work at the age of 45, lacking any special skills, is very low… I can find no evidence of exaggeration or any sort of psychosomatic overlay. A retraining is not a practical proposition at his age and with his lack of special skills.
[32] PCB 160-161
71 Mr Kenneth Brearley Surgeon examined the Plaintiff once at the request of his solicitors on 17 November 2010. I note that the history taken and complaints of current symptoms is consistent with that recorded by other reporting doctors. Mr Brierley also noted that the Plaintiff's presentation was straightforward and Mr Brierley had no sense of exaggeration of his symptoms. On examination the Plaintiff demonstrated marked restriction of movement in his back in all directions by pain.
72 Mr Brierley diagnosed:
Mechanical lumbar back pain and left leg pain secondary to L4/5 internal disk disruption and prolapse… Certainly… Work was a significant contributing factor to his low back injury…[Which]… Has caused him to be incapacitated for his pre-injury work indefinitely… He has no capacity for suitable employment because of the severity of his ongoing back pain and also his left leg symptoms. There would be no work which he could perform consistently...If per chance he were considered capable of some suitable employment, he could work part- time only of two hours per day, three days a week… He would require time off work because of exacerbations of his symptoms and the effects of his treatment and medication… He would require rest breaks of 10 min every hour… He would not be a reliable or punctual attendee…
The prognosis is not good. The likelihood is that his pain will continue for the foreseeable future and so will his inability to carry out any suitable employment. There is no likelihood of any surgical or interventional treatment being required and his treatment will remain conservative.[33]
[33] PCB 166-169
73 Dr Charles Castle General Practitioner and Specialist in Occupational Medicine. Dr Charles examined the Plaintiff once at the request of his solicitors on 16 November 2010.
74 Dr Castle in part concluded:[34]
Although the MRI does not show any significant abnormality, there is clear evidence of radiculopathy on physical examination…. The underlying pathology is unclear but is probably due to an aggravation of disc degenerative changes.
He is totally incapacitated indefinitely for his pre-injury work. He is incapacitated for all of his pre-injury work. As the original injury occurred in 2008 and there has been very little minimal recovery since then despite adequate and appropriate treatment, I do not expect there will be any further recovery.
In my opinion your client has no current work capacity. He is now aged 45. He has always worked as a manual labourer. He continues to have severe back pain with evidence of radiculopathy. Considering all of these factors I consider that he has no capacity for any form of employment.
Because of his limited education and his restricted back movement and his limited sitting and walking tolerances and his limited English I do not consider he has any capacity to undertake any retraining.
Mr Jankowski would benefit from attending a multi-disciplinary pain program. I doubt this would enable his symptoms to reduce sufficiently to enable him to return to work but it would increase his quality of life and slow down the rate of deterioration
[34] PCB 174-175
Medical Reports on Behalf of the Defendant
75 Dr Gary Davison Occupational Physician examined the Plaintiff once at the request of the Defendant on 19 August 2008 with a view to assessing his capacity to return to his ordinary duties. The Plaintiff was still employed and performing light duties. I note that the history taken was consistent with the history given to other reporting doctors to that time. Dr Davison noted that the Plaintiff was a pleasant and cooperative historian. Dr Davison further noted:[35]
The claimant presents with diminishing left sided lower back pain and persistent sensory disturbance in the left leg. A CT scan of the lumbar spine has revealed evidence of a left sided intervertebral disc herniation at the L4/5 level which is resulting marked compromise of the anterior lateral dural sac. The L5 nerve root is implicated clinically. The radiological and clinical findings are consistent.
The claimant reported the insidious onset of lower back pain in about February 2008. There was no precipitating incident or factor. While the claimant reports that intermittently he was required to lift motor vehicle tyres weighing up to 20 kg, there was no specific incident that resulted in the precipitation of pain. There is therefore no definite connection between the claimant's employment activities and his injury. Recently the claimant experienced a symptomatic exacerbation when simply putting on his socks at home.
[35] DCB 18
76 Dr Davidson recommended the following work restrictions for up to another three months:
Avoid manual handling greater than 7.5 kilograms in force or weight at bench height; Avoid prolonged, sustained or frequent forward bending or twisting; Vary posture regularly at will; Ability to sit as required.
77 Otherwise Dr Davidson considered that the Plaintiff would be capable of gradually increasing his hours of work until full time hours were achieved.
78 Dr David Barton Consultant Occupational Physician, examined the Plaintiff once at the request of the Defendant on 28 July 2009. I note that the history taken is consistent with that recorded by other reporting doctors. Dr Barton recorded the following current symptoms:[36]
He feels that if anything his condition is now worse. He does not believe that he can return to the lighter duties he was performing prior to December 2008 as he has really bad days.
He describes lower back pain that extends towards the left buttock with this pain being present most of the time. He has pain in the big toe at times although this is not pain that radiates from the back. He feels his symptoms are increased with sitting and driving and at times he feels better with walking. He describes numbness around the back of the left calf extending into the foot and big toe…
He can drive a car but limits himself to trips of less than 30 minutes. At home he
does very little in the way of physical chores.
Examination: He stood during the consultation. He generally moved in a slow and tentative manner…He knelt and moved cautiously…
Specific examination of the back showed some moderate tenderness below and lateral to the left sacro iliac joint. Forward flexion and other act movements were significantly limited with reported pain and grimacing. He described increasing back pain with axial loading. Reflexes were normal in the lower limbs. Muscle power was generally reduced throughout the left leg with reported pain. Sensation to light touch was reduced throughout the left leg, more so distally.
[36] DCB 28-29
79 Dr Barton concluded:[37]
While his initial symptoms would fit with such a diagnosis [that is the disc herniation seen on his CT scan]. His history since raises some concerns about what is going on. At this stage he presents with no clear evidence of an ongoing radiculopathy. He does however present with a range of features that do not fit with a straightforward physical problem and suggest some developing overlay. ,
Of concern during the assessment were the following features:
the non-anatomical sensory changes in the left leg;
the increase in symptoms with axial loading;
the discrepancy between his limited straight leg raising and postures noted
at other times;
the generalised weakness in the left leg that did not fit with a muscular
neurological problem.[37] DCB 29-30
80 Dr Barton conceded that the Plaintiff possibly has some residual symptoms following a disc prolapse.
81 In relation to work capacity Dr Barton did not believe that the Plaintiff would be considered fully fit for unrestricted duties.
However I do not believe that he is as disabled as he portrays and would have a capacity for suitable work . A weight lifting limit and avoidance of awkward or constrained postures I believe would enable him to return to some work with these restrictions being met
82 Mr Graeme Brazenor Neurosurgeon examined the Plaintiff twice at the request of the Defendant’s solicitors: in March 2010 and March 2011. In his first examination he noted:[38]
At present his worst symptoms is his constant numbness in the left thigh and lateral leg below the knee, radiating into the great toe on that side. In addition there is pain in the left sacroiliac region which occasionally radiates right across the low back and into both buttocks. The pain also radiates down the left sided sciatic distribution if he bends at the waist... I noticed that as he picked up his X-ray bags off the floor he was careful squat in so doing."
On examination he was a slim and fit looking man with an absolutely normal gait. Standing quietly there was no lumbar erector spinae spasm and no abnormality of lumbar curve, which retained a nice lordosis…
From a standing start he would only flex at the waist 15 degrees and extend to 5
degrees. Both movements allegedly limited by left sacroiliac pain…
[38] DCB 39-42
On supine examination there was no wasting in any muscle group in the legs of
this well muscled man…
Sensation to pinprick was allegedly diminished on every aspect of the left leg
below the left knee which takes in four dermatomes between L5-S1 inclusive,
[in conclusion] I agree with those doctors who have remarked on functional aspects of Mr Jankoski’s presentation, because I found them today also. There is a large credibility gulf between the alleged symptoms and degree of disability on the one hand and on the other hand the absence of objective findings on clinical examination and a very clear evidence from scans that the pain producing disc has healed considerably since the first scan…
. .. There is … A significant credibility problem here in so far as this man alleges ongoing pain and severe disability unchanged since he ceased work in 2008 whereas there has been 90% healing in the L4/5 disc over that period as judged by scans and if we add to that the fact that there are no objective signs of pain and disability on examination and the fact that his lumbar excursions and straight leg raising are inexplicably severely limited then it becomes highly likely that Mr Jankoski is malingering, at least to some extent. It is therefore my considered opinion that on the balance of probabilities Mr Jankoski probably did accumulate some degree of lumbar disc injuries in his employment as a tyre inspector between 2002 and 2008. However also on the balance of probabilities I believe that he is now fit for full time employment, but will never again be able to do a job involving repeated bending at the waist or the lifting of weights to or from levels below his waist. This would completely preclude him from working in the job that he did as tyre inspector, but would not preclude him from working even right now, full-time at jobs such as parking inspector, security guard on patrol around factories at night or around the shopping centre during trading hours, reading gas or electricity meters, or being a courier for light weight articles weighing no more than 5 kg.
83 At his subsequent examination in March 2011 Mr Brasenor reached the same conclusions.
Return to Work and Work Capacity
84 Following termination of his employment in December 2008 the Plaintiff returned to Macedonia two months and upon his return he looked for suitable light work. In July and November 2009 he attended job placement agencies: namely Integrated and One Force Recruitment but no suitable work was found for him.[39] The Plaintiff has not been offered any re training.
[39] PCB 164 History taken by Mr Brearley; Transcript 75-76
85 Mr William Radley Psychologist and Vocational Assessment Specialist conducted a vocational assessment of the Plaintiff at the request of his solicitors on 11 November 2010. In summary, having regard to the Plaintiff's existing qualifications, skills and experience and his physical limitations as disclosed in the medical reports Mr Radley concluded that the Plaintiff:[40]
[40] PCB 179
• has no current capacity to return to his pre injury employment or any similar employment; • has no current work capacity to return to any type of alternative employment; • has some potential for occupational retraining; • may have some capacity for part-time employment in certain identified occupations in the future, but would first need to complete an appropriate occupational retraining course; and • may benefit from a referral to a multidisciplinary pain management program and an occupational rehabilitation provider.
86 Mr Radley provided a further report dated 12 May 2011 in which he considered in detail the suitability of seven occupations proposed by the work safe insurer as potentially suitable employment for the Plaintiff. In each case, Mr Radley concluded that none of the proposed occupations were suitable for the Plaintiff by reason of one or a combination of the following: his limited English skills particularly in writing; he has no relevant skills, experience or training for the particular occupation; or his physical limitations would preclude him from undertaking the work involved.[41]
[41] PCB 202-216
87 Mr Radley also gave oral evidence and was first appraised of certain medical evidence not available to him prior to the preparation of his reports, namely the opinions of Mr Barrett, Mr Brearley, Dr Davison, Dr Stern, Mr Brazenor and Dr Moran. [42] In response Mr Radley revised his reported opinions:
I notice in the medical evidence that you've given to me, or the medical reports you've quoted to me so far considerably more medical information regarding his impaired ability to sit and stand, lift more than light weights, bend, twist and engage in physically strenuous work. So those medical reports added to the medical reports I already had would suggest a quite significant level of physical impairment, and higher than I had taken into account from my report….
If I take into consideration the medical evidence that you've quoted to me just previously, if I take that into consideration I would probably change my view that he now does not have a part-time capacity for any of those occupations and would probably go so far as to say I now can't see that he has a capacity for any type of employment.
… he requires a reasonable ability to be able to sit for extended periods of time, work in a stooped posture, bend at the waist and neck, and the medical reports you're quoting to me indicate that his ability to sit for more than a short period of time is also supported by the medical report by Mr Davison - that the medical reports by Mr Brearley, Davison, Barton, Brazenor and Moran are all indicating him to be impaired in his ability to bend or twist at the waist, and that level of impairment would preclude him from undertaking any type of occupational retraining.
… given the additional medical reports that you've quoted to me I would now change that conclusion to that based on the medical evidence he does not have a capacity to undertake any type of occupational retraining and therefore has no capacity to undertake any type of fulltime or part-time employment.
[42] Transcript 82-84
88 Mr Radley then considered in some detail various occupations which had been recommended for the Plaintiff and in each case he considered that they were beyond the physical limitations set out in the medical reports.[43]
[43] security guard on patrol; gas or electricity meter reader; car sales and car part sales; job as a courier
89 Defendant’s Counsel then referred Mr Radley to the opinion of Mr Brasenor which was to the effect that there was a 90% healing in the L4/5 disc; there were no objective signs of pain and disability on examination, and the Plaintiff was described as malingering. In response Mr Radley acknowledged that it is common in cases like these for medical specialist to disagree.[44]
So what I try to do with my reports is I try to note what everybody's saying and that's what I've done on p.8… if I look at all the medical evidence what I have is his ability to stand for more than short periods of time are impaired. There's four medical reports suggesting that. Four that suggest that he's impaired his ability to sit. One that suggests his limited ability to work. … five are indicating he's limited to lift only light weights… seven are indicating he's limited in his ability to bend, or twist at the waist … and seven are indicating that he can't engage in any physical work duties, physical strenuous work duties. So I look at the weight of the evidence, in other words how many medical reports and specialists are indicating a level of impairment. If I look at the weight of the evidence overall, then … I don't think this man has a capacity for any type of occupation, or retraining, nor for any type of employment…
[44] Transcript 94
90 In relation to the Plaintiff’s capacity to perform light duties Mr Radley said:[45]
…there are no manual practical light duties occupations. Light duties occupations invariably required some other skill other than physical work duties. In other words this guy does not have any qualifications for any other type of work except low skilled manual practical work, that's the only thing he has any experience for. In order for him to get light duties employment he needs to be up skilled, he needs to be able to participate in some form of occupational retraining to get the qualifications for an occupation which is sedentary, or light work duties. And given the weight of evidence he does not have the ability to sit for long periods of time, bend, or twist at the waist and given his quite poor skills in reading and writing in English his chances now of being able to participate in any type of occupation, or retraining are next to nil.
[45] Transcript 94-95
91 Mr Radley otherwise agreed that the Plaintiff would benefit from participation in a pain management program and occupational rehabilitation
The Nature of the Plaintiff’s Pre Termination Light Duties
92 Mr McIntosh Operations Manager for the Defendant provided an affidavit and witness statement in which he said in part:
The task of weighing tyres before they were cured was a data collection job, a quality monitoring program that had to be done, but we used people on light duties for the task as it did not involve any heavy manual activitty.[46]
[46] DCB 10
93 When it was suggested to the Plaintiff that the weighing of tyres was a normal part of the operation of the employer, he responded:
I'm not sure whether that's the case. I was in the job because I was injured and there were - there was also other workers who were injured doing that job. Nobody else was doing that job.[47]
[47] Transcript 70
94 The Defendant wrote to the Plaintiff prior to his retrenchment where it characterised the light duties as follows:
The Tyre Weight's position is not a budgeted role and your previous budgeted
role (in Final Finish) is being covered by overtime.[48]
[48] PCB 218
95 The Defendant sent a facsimile to Dr Ristevski, which included:
As noted Pere would need to be fully cleared for a budgeted job rather than a temporary non-budgeted job to ensure there are no issues with redundancy payments.[49]
[49] PCB 218A
96 Mr Radley was asked about a budgeted role as distinct from a non budgeted role in a factory:[50]
What we’re talking about here is what's called a rehabilitation position… which means it's a position made only available to injured workers for a limited period of time and is usually not taken into consideration with things like performance standards and meeting targets and things like that; in other words it's only for a limited period of time. It's strictly a rehabilitation position or in other words protected employment position
[50] PCB 87
97 Defendant’s Counsel submitted that the Tyre measuring role was in fact a data collection job, and part of a quality monitoring program that had to be done. It was therefore part of the factory's normal operation. To this suggestion Mr Radley responded:[51]
…but it wasn't available to anybody else in the workforce other than those who were injured… usually in a factory those light jobs would be done on a rotational basis; in other words somebody would be offered the protected light duties position while somebody else had to do all the heavy work… in order to minimise the risks of particularly over use injuries factories invariably rotate people through various jobs including the heavier ones, and the lighter ones… [the lighter jobs] wouldn't be available to anybody on a fulltime permanent basis.
[51] Transcript 87-88
Video surveillance
98 I note that no covert video surveillance of the Plaintiff was played or tendered during the hearing. Accordingly I infer that if indeed there was any such surveillance taken by the Defendant then it was not inconsistent with the evidence of the Plaintiff.
Relevant Statutory Provisions
99 Division 8A of the Act contains the current regime for determining whether a worker is entitled to seek recovery of common law damages for a work related serious injury. Specifically, this regime applies to injuries arising on or after 20 October 1999.
100 The Plaintiff’s application in this case relates to an alleged work related injury arising in the course of his employment between 2002 and 2008 and principally in February 2008. Accordingly, his application falls to be determined in accordance with Section 134AB. The Plaintiff must prove that his alleged injury is permanent[52] and:
…arising out of, or in the course of, or due to the nature of, employment …;[53]
and
… the consequences to the worker of any impairment or loss of body function… with respect to (i) pain and suffering; or (ii) loss of earning capacity, …is… when judged by comparison with other cases in the range of possible impairments or losses of a body function,… fairly described as being more than significant or marked, and as being at least very considerable;[54]
[52] Refer definition under paragraph (a) of serious injury in section 134AB (37)
[53] Section 134AB(2)
[54] Refer section 134AB (38)(b) & (c)
101 Section 134AB(38)(h) provides:
The psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
102 In addition, paragraphs 134AB(38) (e), (f) & (g) make further detailed provision as to loss of earning capacity. In particular, paragraph (e) expressly casts upon the worker the burden of establishing that he has, at the date of the hearing of the application, “a loss of earning capacity of 40 per centum or more” and that that loss will “continue permanently”. Paragraph (f) then explains how to measure the loss and paragraph (g), directs the court to bring to account the possibility of rehabilitation or re-training. Throughout, the burden of proof lies on the Plaintiff.
103 In summary, for the purpose of assessing loss of earning capacity, a Plaintiff must in effect first satisfy the requirements of paragraphs (e), (f) and (g) and then the Court must still be satisfied that the consequences to the Plaintiff of the impairment or loss of body function with respect to loss of earning capacity is, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked and as being at least very considerable.[55]
Assessment of Consequences
[55] s.134AB(38)(d) and refer also Barwon Spinners paragraph 75
104 I must assess the consequences in terms of pain and suffering which the Plaintiff’s injury has occasioned to him, and determine where the facts of this case sit in the broad spectrum of cases. This task involves “a value judgment in which matters of fact and degree, and of impression, are operative”.[56]
[56] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
105 I must also take into account:
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of the consequences, may be informed, to some extent, by what is retained.”[57]
[57] Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
106 In Haden Engineering Pty Ltd v McKinnon[58] Maxwell P. undertook a useful analysis of the kinds of considerations to which judges have routinely had regard when considering pain and suffering consequences. His Honour pointed out that the following summary was intended to be more descriptive than prescriptive.
[58] [2010] VSCA 69 @ paras 9-17; cited with approval in Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ paras 46-50
Evaluating the “pain and suffering consequence”
[T]he "pain and suffering consequence" of an injury encompasses both the plaintiff's experience of pain as such and the disabling effect of the pain on the plaintiff's physical capabilities (including capacity for work) and enjoyment of life ...
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale "mild/moderate/severe". Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the
following:
(a) what the plaintiff says about the pain (both in court and to doctors); (b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment); (c) what the doctors say about the extent and intensity of the plaintiff's pain; and (d) what the objective evidence shows about the disabling effect of the pain.
107 Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a plaintiff's credit. He said:13
As to (a), 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. The Court will make its own assessment of the plaintiff's credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff's accounts of pain.
108 His Honour recognized that an assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Maxwell P observed:[59]
As to (d), the cases recognise that some plaintiffs may be more "stoical" than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the "stoical" plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the "objective" evidence of the disabling effect may be of less significance than usual.
[59] Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 by Nettle JA
109 To identify the disabling effect of pain requires an understanding both of a plaintiff's pre-injury and post-injury employment and activities, although this does not amount to a simple comparison.[60] As Maxwell P explained:
The disabling effect of pain
As to the disabling effect of the pain, it is necessary to identify the extent towhich the pain limits the plaintiff's physical functioning, and interferes with the plaintiff's enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): " ... [I]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained."
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which "an area of work which [the plaintiff] enjoyed has been closed off to [him or her]."
[60] Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 49
110 Justice Tate further observed that:[61]
[61] Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 50
Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff's daily life and activities.[62] In this respect, Maxwell P said:63.
[62] Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 50
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff's:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or
indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court's task in a particular case will, naturally, depend on the circumstances of the case.
When judging the pain and suffering consequences for the plaintiff by comparison with other cases, it is relevant to look at the plaintiff’s life expectancy in order to determine the likely period for which those consequences will be experienced.
111 I will be guided by these principles.
Relevant Case law
112 In Giankos v SPC Ardmona Operations Ltd[64] the Court of Appeal considered the relevance of medical opinions to the issue of capacity for particular employment:
Expert opinion evidence must relate to matters which are wholly or substantially within the expert’s field of expertise.[65] It follows that medical opinions about the suitability of particular employment for an injured worker should focus on the physical restrictions which a particular impairment imposes, rather than on whether the injured person is able to do a particular job. There is a danger that medico-legal experts will stray beyond their field of expertise, and give unqualified opinions about the jobs which can or cannot be done by the worker. Except where a medical practitioner has specialist occupational health and safety qualifications or experience, a medical opinion as to the work which an injured worker can perform may fall outside the doctor’s area of expertise. Mr Horton’s opinion that ‘he would have thought’ that the appellant was fit to return to forklift driving, comes close to transgressing this boundary.
On the other hand, if the tasks required in a particular job are analysed by reference to the physical capacities required (for example lifting weights or unwrapping pallets), a medical practitioner is qualified to express an opinion about whether a person with a particular impairment has the physical capacity to perform that particular task.
[64] [2011] VSCA 121 @ paragraph 95-96
[65] J D Heydon, Cross on Evidence (8th Australian ed, 2010) [29043].
113 In this case, as indicated below, I found the report and oral evidence of Mr Radley most reliable for the purpose of assessing the Plaintiff’s capacity for suitable employment.
114 The actual pre termination of employment duties were described by Plaintiff’s Counsel as protected employment because he could sit or stand as he wished; he could go for a walk around the factory if his back was troubling him; he had rest breaks; and working 12 hour shifts for 3 days he then had 4 days off to recover.
115 In Smorgon Steel Tube Mills Pty Ltd v Majkic[66] the appellant contended that the term “suitable employment” encompassed income from personal exertion which the worker was earning and it was irrelevant whether the worker could find suitable employment on the open market. Buchan J rejected this proposition:[67]
In my opinion the phrase ‘in suitable employment’ applies equally to income the worker is earning and is capable of earning. The element to be ascertained is the worker’s loss of earning capacity, and requires comparison between what the worker was earning or was capable of earning at the date of the decision and what he was earning or would have earned had the injury not occurred. If the phrase ‘suitable employment’ qualifies only the income from personal exertion the worker is capable of earning, the work on one side of the comparison may be a contrived, adventitious, short-term occupation bearing little or no resemblance to the work for which the worker is suited. I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work.
[66] [2008] VSCA 230
[67] @ paragraph 10
116 For reasons indicated below, the reasoning adopted by Buchanan J has application to the present case.
Analysis of the Evidence and Findings
117 I have set out above a brief synopsis of evidence. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence, including submissions of Counsel and the tendered documents.
118 The case for serious injury has been presented on the basis that the Plaintiff suffered an impairment to or loss of function of the lower lumbar spine in the course of the Plaintiff's employment in the period 2002 to 2008 and more particularly in February 2008 where the consequences for the Plaintiff are serious and permanent.
119 As commonly occurs in cases such as these the Plaintiff has been subjected to examination by a great number of doctors over a prolonged period. I have no reason to believe that any of the reporting doctors have been other than thorough in their clinical examination and objective in their assessment. Nevertheless, there are significant differences in their interpretation of radiological findings; their clinical assessment of the Plaintiff; their conclusions as to his current impairment and their assessment of work capacity.
120 Defendant’s Counsel placed particular reliance upon the opinions of Mr Lovell, Dr Davison, Dr Barton and Professor Brasenor, and their respective clinical examinations; and the clinical records of Dr Ristevski which record either a resolution of symptoms or a significant improvement in symptoms from time to time. In my view, the reports of both Doctors Lovell and Davidson are now less relevant to the Plaintiff’s prognosis and current symptomotology, relating as they do to the period prior to the Plaintiff’s termination of employment.
121 Defendant’s Counsel also referred to the fact that the Plaintiff returned to work initially in his normal duties and then performed light duties, which he performed full time immediately prior to his retrenchment. In my view this analysis fails to acknowledge the difficulties which the Plaintiff reported after returning to normal duties and the fact that he was subsequently certified for light duties only in work designated for injured workers.
122 Defendant’s Counsel further relied upon the continuing certificates of capacity for light duties issued by his general practitioner. Counsel submitted that if the factory had not closed, there is no reason that the Plaintiff would not have continued to perform his work duties pre-termination of employment. As indicated below, I do not accept that the pre-termination of employment light duties constituted suitable employment.
123 Finally, Defendant’s Counsel submitted that any workplace injury has now substantially resolved, consistent with the most recent MRI examination; the Plaintiff has had minimal treatment and now requires only continuing conservative treatment for pain relief. Apart from his general practitioner, he has had two specialist consultations, but no suggestion of any other treatment or involvement.
124 After examining all of the evidence, I am satisfied on the balance of probabilities that the Plaintiff does indeed continue to suffer a chronically painful lumbar back referable to his employment, the consequences of which are serious.
125 In relation to his pain and suffering I accept that:
a)
The Plaintiff’s initial complaints and clinical examination were entirely consistent with the radiological findings;
b)
Since the termination of his employment the Plaintiff has consistently complained to his general practitioner of back pain, sciatica and/or muscle spasm, albeit that the severity of the pain fluctuated, mainly according to his level of activities;
c)
According to Mr Barrett; Mr Brierley, Dr Castle and Mr Moran, the Plaintiff demonstrated significant or clear signs of radiculopathy [cf Dr Barton and Mr Brasenor];
d)
The Plaintiff performs limited domestic and maintenance tasks and no longer undertakes a number of recreational activities in which he previously engaged;
e)
The Plaintiff continues to rely upon prescribed medication to relieve pain in the form of Tramal which he takes 3 to 4 times per week; and
f)
The preponderance of medical opinion, relying particularly upon his general practitioner and Mr Barrett, confirms that his continuing pain of fluctuating severity and physical limitations are likely to remain for the foreseeable future.
126 In relation to the Plaintiff's work capacity:
a) light duties was suitable employment or employment of a nature that would
I do not accept that the Plaintiff's last employment with the Defendant on the Defendant to the Plaintiff and the Defendant to his General Practitioner[68] confirms in effect that these duties would not be available to prospective employees;
[68] PCB 218 & 218A
b) which was meaningful and required by the Defendant. Rather it is
significant that the work duties were only performed by injured workers in
circumstances where their physical limitations were accommodated.
Plaintiff's Counsel in my view most succinctly identified the relevant
distinction when he submitted that if the relevant work was performed by
non-injured workers then the same indulgence, in terms of work breaks andIt is not to the point that the Plaintiff and other injured workers fulfilled work that is they would be expected to perform the work without additional breaks and at a faster pace. I accept Mr Radley’s assessment that these duties were in the nature of a rehabilitation position;
c)
I note that the Plaintiff has not been offered any retraining, educative courses or job assistance since the termination of his employment;
d)
I accept that the Plaintiff has limited reading and writing skills in English; no office or computer skills or experience; and no tertiary or trade qualifications; and
e)
I accept that the Plaintiff is subject to physical limitations in terms of sitting, standing, walking and driving;
f) I accept that the Plaintiff is prone to flareups of lumbar pain; g)
According to Dr Risteski and Mr King the Plaintiff was theoretically capable of light work duties but it was unlikely that there would be any employment which could accommodate his physical restrictions; and
h)
According to Mr Barrett, Mr Brierley, Dr Castle, and Mr Radley, the Plaintiff had no capacity for suitable employment [cf Mr Barton and Mr Brasenor].
127 The written report and oral evidence of Mr Radley were particularly comprehensive. In my view Mr Radley was an impressive witness who carefully considered all relevant material put to him in a balanced manner and offered a sound basis for concluding that the Plaintiff was unlikely to be capable of performing any of the occupations which had been recommended on behalf of the Defendant. I accept his conclusion that the Plaintiff is unlikely to be capable of performing any suitable employment, even with re training.
128 In relation to the medical opinions generally I note that the Plaintiff was reported as being:
a)
a reliable and genuine historian, without exaggeration by the majority of doctors [Dr Ristevski; Mr King, Mr Barrett, Mr Brearley cf Dr Barton and Mr Brasenor];
b)
permanently disabled by reason of a chronically painful lumbar spine [Dr Ristevski; Mr King, Mr Barrett]; and
c)
subject to ongoing chronic symptoms which are clearly related to painful ruptures involving his two lower lumbar intervertebral discs [Mr Barrett].
129 I acknowledge that there is a clear inconsistency between the findings of Dr Barton and Mr Brasenor and other doctors who have reported since the termination of the Plaintiff's employment. In particular both of these doctors detected inconsistencies between complaints and clinical examination; considered that there were elements of exaggeration and malingering; and concluded that there was a capacity for suitable employment. I cannot reconcile these opinions on their face with those of other reporting doctors. However, I am satisfied that the evidence of treating doctors and the preponderance of medical opinion overall does not support the findings made by Dr Barton and Mr Brasenor.
130 The Plaintiff was subjected to extensive cross examination in relation to the nature of his pre termination duties and his symptoms and limitations both before and following retrenchment. In my view the Plaintiff’s oral evidence was consistent with his affidavits and consistent with the histories which he gave to reporting doctors. Whether a pain management program and occupational rehabilitation may improve the Plaintiff’s employment prospects in the medium term is an open question.
Conclusion
131 I am satisfied on the balance of probabilities that the Plaintiff does currently suffer a permanent serious impairment or loss of a body function of his lower lumbar spine which arose in the course of his employment.
132 I am satisfied on the balance of probabilities that the Plaintiff does have a total incapacity for any kind of suitable employment.
133 I am satisfied on the balance of probabilities that the consequences to the Plaintiff in terms of both pain and suffering and loss of earning capacity, when judged by comparison with other cases in the range of possible impairments or loss of body functions, may fairly be described as being more than
significant or marked, and as being at least very considerable.
Orders
134 The Plaintiff is granted leave pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985, to commence proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of his claim relying upon paragraph (a) of the definition of serious injury in respect of an injury sustained by the Plaintiff in the period 2002 to 2008 and more particularly in early 2008 in the course of the Plaintiff's employment with the Defendant.
135 After hearing the parties on the question of costs the following orders were made:
136 Order that the Defendant pay the Plaintiff’s costs of the proceeding, including reserve costs, on County Court Scale D to be taxed in default of agreement;
137 Certify for:
138 Two Counsel for the Plaintiff;
139 Senior Counsel’s brief fee of $5,500; two Refreshers and two hours of special conference @ $550 per hour;
140 Junior Counsel’s brief fee on scale; two Refreshers and two hours of special conference on scale;
141 Junior Counsel to take judgement on scale; and
142 The reasonable costs of the preparation, filing and service of court books, the first copy at scale and each subsequent necessary copy at the commercial printing rate determined by the Costs Court, including any necessary attendances.
Hadden Engineering Pty Ltd v McKinnon [2010] VSCA 69 @ paras 16 to 17
0