Jankovic, Nickolas v Holden Ltd
[2009] VCC 1492
•9 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-03230
| NICKOLAS JANKOVIC | Plaintiff |
| v | |
| HOLDEN LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 and 6 October 2009 |
| DATE OF JUDGMENT: | 9 November 2009 |
| CASE MAY BE CITED AS: | Jankovic, Nickolas v Holden Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1492 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Serious injury application – pecuniary loss – identification of effect of injury and associated impairment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC and | Maurice Blackburn Pty Ltd |
| Mr G Coldwell | ||
| For the Defendant | Mr A Moulds | Wisewould Mahoney |
| HIS HONOUR: |
1 This is a proceeding in which the plaintiff seeks leave to commence an action seeking pecuniary loss damages for injuries suffered by him in the course of his employment with the defendant. The injury relied upon by the plaintiff is an injury to the lumbar spine and the loss of body function is that of the lumbar spine. In addition, it is alleged that the plaintiff suffered a right shoulder injury whilst undergoing rehabilitation with respect to his back condition and it is contended that this injury is a consequence of the injury to the plaintiff’s lumbar spine.
2 The plaintiff commenced employment with the defendant in 1998 and effectively ceased working with the defendant in September 2002. The plaintiff asserts that during this period he suffered a gradual process injury to his lumbar spine which resulted in prolapses of the L5-S1 and the L4-5 lumbar discs.
3 In an affidavit dated 7 April 2008, the plaintiff deposed that:
• He was a single man, having been born on 12 October 1951. •
Prior to commencing employment with the defendant he generally worked in unskilled occupations.
•
Following his injury he attempted to return to employment with the defendant on light duties but was forced to cease these duties by reason of the presence of back pain and referred pain into his left buttocks.
•
Having been treated conservatively by a number of specialists, which treatment included a course of treatment by a rehabilitation specialist, the plaintiff, by reason of the presence of increasing pain, eventually underwent surgery to his low-back in December 2006.
•
Following his operation he has continued to experience back pain and pain into his left leg. He described feeling like he was standing on pebbles and of suffering pins and needles into his foot and toes. He said that his pain was made worse by bending or twisting or sitting for long periods. He said that he was required to exercise care when he was bending or putting on clothes and that he had difficulty standing in one position for too long.
•
He suffered an injury to his right shoulder in February 2003 whilst undergoing rehabilitation for his back and he continued to suffer from pain in his shoulder, particularly if he lifted his arm above his head.
•
He had only ever undertaken manual work, that his reading was poor and his writing was even worse. He said he could not use a computer and that he did not believe that he had the skills to do any work other than factory type work.
The Plaintiff’s Cross-Examination
4 In contesting the level of the plaintiff’s disability, the defendant relies upon a number of medical reports which have been tendered together with video evidence taken of the plaintiff which revealed him engaging in activities such as shovelling compost, manoeuvring a wheelbarrow full of compost, repeatedly bending from the waist, carrying objects to and from his house in the course of moving his place of residence, bending and squatting for half an hour or so whilst using the hose to clean his driveway and lifting and using a drop saw.
5 Having observed those videos, I formed the opinion that the plaintiff was displaying an unrestricted range of movement and that he was not moving in a way which was guarded or was designed to protect his back from the pressure associated with bending at the waist or twisting as he manipulated a shovel. I enquired of the plaintiff as to whether there was anything to be seen on the videos to which he would like to draw to my attention which suggested that he was moving in a way designed to guard or protect his back, to which the plaintiff responded: “no”.[1] The plaintiff said however, that in performing the activities shown on the videos, he was aware that activities such as manipulating the drop saw were at the “point where it was – it’s getting too heavy”,[2] and that he could not perform activities of the type shown in the video all day and every day.[3]
[1] T 58
[2] T 59
[3] T 65
The Medical Evidence
6 Although a number of medical reports were relied upon by the parties in support of the application, I am of the opinion that the medical reports which were generated as the result of medical examinations of the plaintiff undertaken prior to the surgery performed by Mr Johnson in December 2006 are of only marginal relevance in determining the issues which I am required to consider in this application, namely the permanent consequences of the injury assessed at the present time.
The Plaintiff’s Medical Evidence as to the Injury to his Back
7 Immediately following his accident the plaintiff was managed by Dr G Wyatt, a general practitioner practising at the Dandenong City Clinic. In a report dated 10 June 2004, Dr Wyatt commented that the plaintiff presented at the Clinic on 12 September 2002 with symptoms of lower back pain radiating into his left buttock. On that occasion a diagnosis of the presence of a back strain was made, the plaintiff was prescribed anti-inflammatory medication, and he was provided with a certificate for light duties.
8 On 17 September 2002, the plaintiff was reviewed by Dr Wyatt who was told that the plaintiff was not coping with light duties. The plaintiff was given a certificate to be off work for one week and a CT scan was arranged which revealed the presence of a large broad-based L5-S1 disc protrusion, together with some displacement of the L5 spinal nerve.[4] Thereafter Dr Wyatt reviewed the plaintiff on a number of occasions, at which time he complained of continuing symptoms of low-back pain.
[4] No issue arises as to whether the plaintiff suffered the injury described by the CT scan. The issue in the proceedings involves the extent of the plaintiff’s recovery from that injury ad his capacity for work
9 The plaintiff was subsequently referred by Dr Wyatt to Mr Stanley Schofield, orthopaedic surgeon, who advised him that he should undergo surgery. Having regard to the plaintiff’s refusal to accept this advice, Dr Wyatt referred the plaintiff to Mr Michael Johnson who initially opined that the plaintiff should be managed conservatively as Mr Johnsons experience with manual labourers who underwent spinal surgery when presenting with major back problems of the type with which the plaintiff presented, had not been particularly good.
10 In a series of medical reports commencing 11 June 2003, Mr Johnson described the plaintiff as presenting with low-back pain with some radiation into his left buttock and down into the left calf. The plaintiff described his symptoms as being worse with bending and relieved by resting. Whilst Mr Johnson originally referred the plaintiff to Dr C Thomas for the purpose of undergoing a pain management program, when the plaintiff presented to him in mid 2006 with worsening symptoms including severe left-sided S1 sciatica, Mr Johnson treated the plaintiff with the administration of a lumbar epidural injection which was unhelpful, and finally recommended that the plaintiff undergo a lumbar discectomy, which procedure he undertook on 5 December 2006.
11 In March 2007, Mr Johnson reported to the plaintiff’s general practitioner that the plaintiff was complaining of suffering from minor symptoms at that stage, that he had advised the plaintiff that this was common and that it was very likely that the plaintiff would improve slowly with the passage of time.
12 In September 2007, Mr Johnson obtained a history from the plaintiff that he could walk for sixty minutes and sit for two hours and that he only required the use of occasional Panadol. He commented that whilst the plaintiff had not yet returned to work because he was concerned about re-injuring himself, it was his opinion that the plaintiff had achieved a satisfactory result from his surgery, and whilst he continued to have minor residual symptoms, this was not unusual and it was unlikely that his symptoms would be made worse with activity.[5]
[5] Given the surgery undertaken by Mr Johnson, I interpret his comment as to the activities in which the plaintiff could safely engage in as referring to activity of a restricted physical nature. I consider it unlikely that Mr Johnson would be suggesting by this comment that the plaintiff was fit to undertake a full range of physical activity, including heavy physical work or work which involved repetitive bending and lifting.
13 In a series of reports which commence with a report dated 22 September 2003 and conclude with a report dated 9 September 2009, Dr C Thomas, a rehabilitation specialist, opined:
(i)
In August 2004, that the plaintiff’s employment should be restricted to work which involved a 5 kilogram lifting limit between waist and shoulder and an embargo upon repetitive lifting, bending or twisting, as key component parts of any job which he should apply for.
(ii) When he reviewed the plaintiff on 9 June 2009:
ƒ that the plaintiff suffered from an organic injury; ƒ
that the plaintiff was able to function reasonably well from day to day doing light activities which could be paced but that his primary problem would be that he would have difficulty undertaking sustained activities of a repetitive physical nature. Mr Thomas said that the plaintiff was fit to perform work which required lifting from waist to chest height only at bench level in a position which did not allow him to alter his posture and in which standing and sitting could be alternated. In order to manage that work the plaintiff would be required to have access to a 5-minute gap at the end of each 45 minutes of work and, accepting these restrictions, the plaintiff had a capacity to work up to but no beyond approximately twenty four hours per week;[6]
ƒ that the plaintiff’s prognosis was one for persisting pain and that the
restrictions he had outlined should be considered to be permanent.[6] I note that the comments of Dr Thomas as to the range of activity in which the plaintiff was fit to engage is consistent with my interpretation of Mr Johnson’s opinion in this regard
14 Mr Peter Wilde, orthopaedic surgeon, examined the plaintiff on 10 June 2009. He expressed the opinion that the plaintiff was suffering from an organic injury to his back and that the effect of the injury was to restrict his employment opportunities to activities which avoided bending, lifting, twisting and prolonged sitting, standing or walking. He said that in theory the plaintiff could undertake light or sedentary duties for up to twenty hours per week but in reality the plaintiff probably had no capacity for work given his age, education, previous employment, lack of transferrable work skills and the isolation of the place where he lived.
15 In a further report dated 2 September 2009, Mr Wilde considered the activities involved in a job entitled “picking in zone 74” which was the subject of an affidavit of Mr Michael Wheeler sworn 7 August 2009. Mr Wilde opined that these activities, which required the plaintiff to push and pull a 40-kilogram trolley, reach forward and up to 600 millimetres, squat often and walk continuously, and to intermittently carry parts weighing more than 10 kilograms, were beyond the plaintiff’s capacity.
16 Mr Wilde was cross-examined in the course of the application and the video evidence of the plaintiff’s activities to which I referred earlier was shown to him. After viewing the videos, Mr Wilde said that the picture which he had painted in his mind as to the plaintiff’s functional capacity on the basis of the history which the plaintiff provided to him was such that he would not have pictured the plaintiff undertaking the sort of activity demonstrated on the video. He qualified that statement by commenting that many patients in the plaintiff’s condition can do manual tasks around the house but only for short bursts of time.[7] When asked to comment upon the effect which viewing the video had upon the opinion expressed in his report that the plaintiff would be fit only for part-time restricted employment, Mr Wilde maintained his position that the plaintiff was no longer fit for work which involved the excessive use of his back over a long period of time and that he would encourage the plaintiff to return to work in selected duties on a part-time basis, perhaps twenty hours per week. He said that in the right environment he thought that the plaintiff could go back to full-time work. He explained that position with the following evidence:
“In an appropriate environment where – you know – my experience in these workplace situations is if there are people who have the right approach and some compassion to position the work they find themselves in then it usually works out. But if it’s a workplace that’s aggressive and you know foremen don’t feel that the worker’s heart’s there, then it’s never going to work out. And it’s a real challenge, it’s very difficult.”[8]
[7] T 48
[8] T 52. Mr Wilde commented that such a position was hard to find in the real world.
17 In re-examination, Mr Wilde said that having seen the video evidence, his opinion as to the plaintiff’s capacity for work was not altered from that which he had expressed in his report and that having regard to his back condition, the plaintiff:
(i) would not be a reliable employee; (ii)
would ideally require a position with sufficient flexibility to have some time off when his symptoms were exacerbated.[9]
The Defendant’s Medical Evidence as to the Injury to the Plaintiff’s Back
[9] T 53
18 The defendant relies upon a number of reports from Mr Tony Blue, an orthopaedic surgeon.
19 In his first report dated 10 October 2005, Mr Blue obtained a history from the plaintiff that he did not carry out any housework and gardening and that he suffered from continuing symptoms of low-back pain together with a feeling of pins and needles and cramping in his left calf. Mr Blue expressed the opinion that the plaintiff had suffered a disc protrusion at the L5-S1 level and that this injury had resulted in an incapacity for employment. On the basis of the perusal of a surveillance report which described the plaintiff as pushing a wheelbarrow full of concrete and shovelling sand however, Mr Blue opined that the plaintiff was capable of carrying out physical work which was moderately heavy and that he was capable of returning to many forms of non- physical gainful employment.
20 I note that Mr Blue was misinformed as to the activities undertaken by the plaintiff as depicted in the video. At no time was the plaintiff manoeuvring a wheelbarrow full of concrete. I would regard this task as involving significantly heavier work than that which was actually being undertaken by the plaintiff.
21 When Mr Blue reviewed the plaintiff in August 2008, he again expressed the opinion that the plaintiff was capable of returning to assembly type work or driving a forklift, but noted that he would perhaps have problems working as a builder’s labourer.
22 In a further report dated 31 July 2009, Mr Blue commented that he had no doubt that the plaintiff could work as a forklift driver and that he was physically fit to carry out the work involved as a picker/packer, storeman and forklift driver.
23 It is clear that Mr Blue formed a strongly held view that the plaintiff was deliberately exaggerating the level of his disabilities. In his report dated 10 October 2005, he accused the plaintiff of fabricating his claims and being guilty of “nothing other than an attempted insurance scam”. The impression I gained as I read the subsequent reports by Mr Blue is that his examinations of the plaintiff were inappropriately influenced by the opinion he had previously formed that the plaintiff was attempting to perpetrate a fraud. My impression in this regard is reinforced by the fact that by 2009 the tension between Mr Blue and the plaintiff was such that it was not possible for Mr Blue to undertake an appropriate examination of the plaintiff. Having regard to the fact that Mr Blue is the only medical practitioner to report problems of this type in his dealings with the plaintiff, it seems likely that the problem which arose had its genesis in the attitude which Mr Blue demonstrated to the plaintiff.[10] My view in this regard is further reinforced by the fact that, when commenting that the plaintiff was fit to work as a storeman, forklift driver, picker and packer, Mr Blue did so on the basis of a job description with which he was provided which stated that the plaintiff would be required to pick and pack orders. The job description however contained no information as to whether the work involved repetitive bending or lifting, or as to the weight of objects which the plaintiff was required to handle. In the absence of this information, I am unable to accept that Mr Blue was in a position to express an informed opinion that the plaintiff was indeed fit to carry out the work.
[10] Having regard to the accusation levelled against the plaintiff by Mr Blue to which I have referred, I find it difficult to believe that thereafter Mr Blue would have been able to approach his dealings with the plaintiff in an appropriate and neutral manner.
24 I am of the opinion that it is likely that Mr Blue has allowed the opinion which he formed that the plaintiff was guilty of fraudulent conduct, to unduly influence the opinion he has expressed in his reports as to the effect of the plaintiff’s back injury upon his ability to work. In the circumstances I prefer the evidence of Mr Wilde to that of Mr Blue upon these issues as Mr Wilde appears to have employed a more balanced and measured approach when expressing his opinion.[11]
[11] I note that there was no attempt to correct Mr Blue’s misunderstanding as to the activity which the plaintiff was actually engaged which was the subject of the video. Had this been done, I may have found his opinions to be more persuasive.
The Incapacity Associated with the Right Shoulder Injury
25 Whilst the case was opened on the basis that the plaintiff’s claim included an incapacity which was present in the plaintiff’s right shoulder, I am not satisfied that the evidence establishes the consequences and permanence of that injury to the degree which allows me to make specific findings with respect to that injury.
The Effect of the Video Evidence
26 It was put on behalf of the defendant that the video evidence demonstrated that the plaintiff possessed a capacity for activity, and therefore work, much greater than that which he had presented to the doctors who had examined him following his recovery from the surgery which he had undergone. I do not accept this to be the case. Although I am of the opinion that the video evidence at no time showed the plaintiff to be moving in a guarded or restricted manner and whilst I accept that the level of the plaintiff’s activity as depicted in the video is greater than that which he described himself as being capable of in the histories he gave to Mr Wilde and Dr Thomas; having regard to the surgery which the plaintiff has undergone, I do not accept the contention that the video evidence diminishes the weight which should be given to the opinion of Dr Thomas as to the plaintiff’s capacity for work.[12] Nor do I accept that the opinion of Dr Thomas as to the plaintiff’s capacity for work would necessarily have been different to that contained in his report if the video evidence had been put to him. My opinion in this regard is influenced to a large degree by the fact that when Mr Wilde viewed the video evidence it did not cause him to alter the opinion which he had expressed as to the plaintiff’s capacity for work to any significant degree.
[12] In this regard it is of some relevance that the defendant did not challenge the opinion of Dr Thomas by seeking to cross-examine him.
Findings as to the Plaintiff’s Capacity for Work
27 Mr Thomas is clearly of the opinion that the plaintiff is fit only for restricted duties on a part-time basis not exceeding twenty five hours per week
28 Mr Wilde essentially agrees with the opinion expressed by Mr Thomas as to the restrictions which should be placed upon the type of work which the plaintiff should undertake, although he accepted that in appropriate employment the plaintiff may be capable of undertaking full-time duties. Mr Wilde’s evidence as to the circumstances in which the plaintiff would be fit to engage in full-time duties,[13] however leads me to the view that the circumstances in which the plaintiff would be able to engage in such employment would be so rare that they are not representative of the situation which pertains in actual workplaces, or, to employ the term adopted by Mr Wilde, “in the real world”.
[13] T 52
29 I note that in expressing his opinion as to the plaintiff’s present capacity for work, Mr Wilde had the opportunity of seeing the video evidence relied upon by the defendant. Further, I have had the opportunity of considering the evidence of Mr Wilde after it was tested by cross-examination. In the circumstances I am of the opinion that Mr Wilde was very well placed to express a view as to the plaintiff’s current capacity for work and I am satisfied that his evidence establishes the true measure of the plaintiff’s capacity for work at the present time is one which involves the ability to undertake restricted work on a part-time basis of twenty or so hours per week.
Has the Plaintiff Suffered a Loss of Earning Capacity of Greater than 40 per cent of his Pre-Accident Earning Capacity?
30 In determining the plaintiff’s earning capacity but for his injuries, I am of the opinion that the figure which the plaintiff was capable of earning in suitable employment during the period within three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred, is represented by the average wage of the three comparable employees nominated by the defendant for the financial year ending 30 June 2006, being $61,374.00 per annum or $1,180.00 gross per week. Sixty per cent of this figure is $708.00 per week.
31 In fixing the gross income which the plaintiff is capable of earning in suitable employment at the present date, I am satisfied that the activities identified by Konekt in its report of 10 September 2009 are not within the plaintiff’s capabilities. The jobs referred to there clearly seek applicants who are variously described as being, fit, reliable, capable of hard and fast work and capable of unrestricted lifting if required. These activities are clearly beyond the plaintiff.
32 The activity identified by Mr Wheeler as a Zone 41 picker involves constant walking over an eight-hour shift, reaching between waist and shoulder height, regular squatting and intermittently handling weights of greater than 10 kilograms. I accept Mr Wilde’s evidence that the plaintiff would not be capable of carrying out these duties.
33 The Flexi Personnel report indicates that the award rate for light bench type work is $14.31 per hour. The wage available to a packer as set out in the Konekt report is $670.00 gross per week or $17.40 an hour. Employing a figure placed halfway between these two figures of $15.85 per hour,[14] the plaintiff’s earning capacity calculated on the basis that he is fit to perform part- time duties for twenty-five hours per week is $396.40 per week. I regard this figure as most reasonably representing the figure which the plaintiff is capable of earning in suitable employment at the present time.
[14] I regard this is an appropriate figure to employ in assessing the plaintiff’s current earning capacity given the restricted nature of the duties which I am satisfied he is fit to undertake
34 Having regard to the chronicity of the plaintiff’s symptoms and to the opinions of Mr Wilde and Mr Thomas, I am satisfied that the plaintiff’s condition has stabilised and that the current restrictions which his injury imposes upon his capacity to work are appropriately described as being permanent pursuant to the provisions of the Act.
35 Given the plaintiff’s age, his limited education, his poor literacy skills and his work history which has been limited to unskilled manual work, I am satisfied that any rehabilitation or re-training which might be available to plaintiff would be unlikely to expand the range of employment opportunities open to him to any significant degree such that it would influence in a positive way the income figure which I have found as being most fairly representative of his current earning capacity in suitable employment.
36 The figure which I am satisfied represents the plaintiff’s earning capacity in suitable employment at the present time is less than 60 per cent of the figure which I am satisfied represents the plaintiff’s earning capacity as calculated in accordance with the provisions of the Act had his injury not occurred. In these circumstances I am satisfied that the plaintiff has established that he has suffered a loss of earning capacity which is serious in accordance with the provisions of the Act and that he is entitled to leave to commence a proceeding against the defendant seeking damages for loss of earning capacity in respect of the cause of action pleaded in the plaintiffs draft statement of claim.
37 I will hear counsel as to the precise form of the orders sought and upon the issue of costs.
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