Jenner v Victorian WorkCover Authority

[2016] VCC 1484

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-16-01287

PETER JENNER	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Bendigo
DATE OF HEARING:	22 and 23 September 2016
DATE OF JUDGMENT:	23 September 2016
CASE MAY BE CITED AS:	Jenner v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2016] VCC 1484

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION                  

Catchwords:   Serious injury application – injury to the back – loss of earning capacity, pain and suffering conceded

Legislation Cited:                Accident Compensation Act 1965, s134AB

Judgment:  Leave granted to the plaintiff leave to bring proceedings for pecuniary loss damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell QC with Mr D J N Purcell	Slater & Gordon
For the Defendant	Mr W R Middleton with Mr R Kumar	Hall & Wilcox

HIS HONOUR:

1       In this application, there is one discrete issue for judgment.  It is whether the plaintiff has discharged the onus of proving a permanent loss of earning capacity of 40 per cent or more.

2       The plaintiff suffered a “serious injury” to his back when handling a very heavy steel flange on 26 July 2011.  He was working full time at a welding company.  He was doing 38 hours per week plus overtime.  In 2010-2011, he grossed $75,598.  It is an admitted compensable injury.  The defendant sensibly conceded at the outset it satisfied the test of “serious injury” with respect to pain and suffering consequences.  Commendably that saved the Court time.

3       The plaintiff is a man with limited education.  He turns thirty-seven years of age next week.  He is a married man with a family.  He left school after Year 10.  In this day and age for a person with English as his first language, that is a very low level of formal education.  Apart from a certificate in welding, he has no real qualifications.  He has obtained licences to drive heavy vehicles.

4       After being injured, he never returned to his full-time job performing welding duties with the employer.  He worked on performing light duties trying to put up with the pain as best he could.[1] 

[1]Plaintiff’s Court Book (“PCB”) 7

5       It was work of a supervisory nature.  Further flare-ups occurred.  One put him off work for months.  He tried to perform more duties and hours and suffered further pain flare-ups.  In 2014, he was only doing some 16 hours per week on modified duties in spite of a willingness to increase those hours.  He was then put off by his employer in May 2014 for reasons not related to the back injury.[2]

[2]PCB 8, exhibit 2

6       All the while treatment, including specialist treatment and advice, were ongoing.  In view of the concession about serious injury, it is not necessary to go into his treatment regime in the usual way.  As well as other conservative measures, his treatment did include very heavy medication and as well, referrals and re-referrals to a treating neurosurgeon, Mr P D’Urso, in Melbourne.

7       The plaintiff found casual work in June 2014 as a delivery driver for a garden supply firm.  It was obvious early on this involved some duties that were beyond his capacity.  The loading and unloading had to be avoided.  He kept working nevertheless and took the casual hours offered to him.  It was really only a day-by-day arrangement.  He would usually know the night before if he had work the next day with this firm or not.

8       He kept going but ingesting narcotic medication daily for pain.  This obviously caught up with him medically as he left his home in rural Victoria and from 24 November to 1 December 2015, he was hospitalised in Melbourne.  That special treatment successfully weaned him off the opiate drugs he had become reliant on.[3]

[3]PCB 12 – 13

9       A specialist in rehabilitation pain medicine, Dr Clayton Thomas, achieved this result for him.  That pain specialist used ketamine infusion treatment to wean the plaintiff off the opioids.[4]  The plaintiff had been on Fentanyl patches, Lyrica and up to six Endone per day.[5] 

[4]PCB 75

[5]PCB 12 – 13

10      Unfortunately Dr Thomas was not able to wean him off the need for ongoing medication in spite of the success with respect to the opiates.  He still takes daily medication for his constant pain.[6]  He presently takes Lyrica in the form of Pregabalin for neuropathic pain morning and night.  He also needs Pristiq by way of daily medication. 

[6]PCB 13

11      At the garden supply firm he needed days off due to back pain.  As a casual, he received no sick pay for time off.  He avoided unloading and loading and would just say “No” to such tasks.  The uncertainty about whether he had work was reflected in the casual nature of his engagement and it just depended, it seems, on whether or not the firm had orders, and whether or not the firm required him for purposes of those orders.

12      He only managed to keep working by taking the prescription medication in the form of narcotic drugs.  I accept him when he said: “I was in a bad way and struggling to cope with my work”.[7]  As indicated, he could not in fact cope and ended up in hospital in Melbourne in late November-early December 2015 to deal with the weaning exercise with respect to the narcotic painkillers.

[7]PCB 13

13      I accept that due to concerns about the precarious nature of his casual job, he decided in mid-2015 to purchase a prime mover to explore self-employment.  This was so he could control his own hours and work when he felt well.[8]  At the garden supply job he had genuine concerns about his future employment and I accept his evidence at that time: “I live in constant fear of being sacked”.[9]

[8]PCB 9

[9]PCB 9

14      That fear is perfectly understandable when a manual worker has to, in effect, say no to certain duties expected of him by his employer.  It was understandable in the circumstances for an unskilled man, who had to support himself and his family, and who was reliant on opiate medication to get by at work to be seriously looking at self-employment as opposed to working under a boss.

15      His views about the casual job were well-founded.  As soon as he left hospital in December 2015, after Dr Thomas weaned him off the opiates, he was given no more work by the garden supplies firm.  His casual employment was at an end.

16      This man’s motivation to work is beyond question, in my view.  Undeterred, he then sought work by purchasing a drop-deck trailer to go with the prime mover.  He went into debt to achieve this.  He looked for long trip haulage work as a self-employed driver.  The trailer he purchased was again a sensible choice, as there was in effect an automated loading ramp that accommodated vehicles driving on and off prior to haulage.  Vehicles could drive up and down the ramp apparatus and this bypasses the manual loading and unloading incumbent in a lot of truck driving jobs.

17      Also by pursuing interstate work, there was not as much of the constant getting in out and out a high vehicle that aggravates his back pain and which is more often required in local delivery driving work accommodating short trips.

18      Nevertheless, he is quite limited still by back pain in regards to the miles he can drive.  Getting in and out of the vehicle still must be accommodated and that causes heightened pain.  He still suffers constant pain as well as pain down his left leg to his foot.  I accept him when he said: “I am never free of pain.  When it is bad, it is very severe”.[10]  I find that the back impairment, in effect, forced him into self-employment:

“I started work as a self-employed truck driver as I believe it is the only work I'll be able to do because it is part-time and I can pick when I want to work.”[11]

[10]PCB 14

[11]PCB 14

19      I find this man is a very highly motivated man in terms of work.  If he could do more he would.  In the end, I accept he is the best judge of what he can do and not do regarding work.  I also accept he has reached his absolute limit in a sensible, self-employment capacity, on limited hours, picking and choosing what type of work he does and when he does it.

20      I also accept that he has had to knock back jobs on the truck because of his back pain.  The necessity to do that does not augur well for successful business.  It is not a promising start from a man trying to get a business off the ground in a no doubt highly competitive industry where he must inevitably compete with big players in the interstate field.

21      What is even more concerning when looking at the future is that his pain is stronger now than it was last year.  As he said, the narcotics blocked the pain.  Fortunately though, he is off those narcotics.  For obvious reasons, he could not follow that path of medication any longer and advice was given to him about possible addiction.[12]  Hence he went to Melbourne on medical advice and got off the opiates.  It is perfectly understandable that the pain is now not blocked as it used to be by such powerful medication, so it is a stronger pain that he has to endure daily.

[12]Transcript 36

22      It is also of great concern with respect to his business that the longer he drives, the worse the pain gets and still the getting in and out of the vehicle causes an exacerbation of pain.  These are the core duties of truck driving.

23      Given I accept he is working at present to his realistic maximum, I reject the suggestion his earning capacity is any greater than is presently reflected.  In fact, the probabilities are that he is an unduly optimistic man that is embarking on this self-employment in the interstate trucking business.

24      Of course, he indicated in cross-examination his hopes are to make his business grow.  I accept he will give it a “red hot go”, but on the probabilities, that hope and his general optimism are not well-founded.  Given the amount of time since he was injured, his undoubted motivation, his willingness to put up with pain in order to work and the requirement of still taking daily medication indicate to me a very limited capacity that will probably remain for the foreseeable future.  Any success or improvement in the productivity of his self-employment, in my view, runs against the probabilities.

25      I have had the advantage of hearing the plaintiff and observing him give evidence.  It was indeed refreshing to see a young man still in his mid-thirties with such a serious back injury so motivated to work in the face of constant pain.  I found him a reliable and honest witness.  I accept he has done everything to continue working, and his move into self-employment was really due to the fact that he was no longer capable of being a paid employee and required to do all the things an employer demanded.

26      He candidly admitted there had been some improvement over the years with respect to back pain.  This is not surprising in view of the extent of his treatment over the last five or so years.  However, I accept that over the last year or so the pain has become stronger and is still constant.  It includes leg pain as well as spasms in the back.  While the severity might vary at times, it is so severe he cannot drive without pain.  It goes without saying this is a major handicap for a man trying to make his way as a professional self-employed truck driver on interstate routes.  He is only able to achieve the part-time work that he does by being on continuous medication.  This is a plaintiff who had the capacity to work full time in welding, on any view a heavy trade, for 38 hours a week, plus overtime.  That particular capacity is now lost.  He can now only drive his truck four to five days a fortnight, and probably only on average about 20 hours a week, and the hours are of his own choosing.

27      He keeps more or less to this regime on current medical advice, given as recently by way of a certificate of incapacity only several weeks ago.[13]

[13]PCB 48A

28      I accept his evidence if he works more than that he has difficulty coping.[14]  When he does an interstate trip, which is his usual cartage engagement, he needs to rest for several days before attempting a return journey by way of back load.  About two to three hours behind the wheel sees him have to stop and rest.  The longer he drives, the worse his back gets.

[14]PCB 13

29      His capacity for truck driving is, indeed, very limited.  It does not bode well for his hope that the business will grow when one looks at the probabilities.

30      The advantage of course in self-employment is that he can choose whether to drive or not, as opposed to having a boss who dictates such things to him and which, as an employee, he must do if he was to stay in a job.

31      Given the lack of any real difference in the medical opinions on both sides, I do not need to discuss the reports in as much detail as is sometimes required in these applications.

32      In fact, I will make that obvious by starting with Associate Professor G Brazenor, neurosurgeon, who saw the plaintiff at the defendant’s request earlier this year.  He was clearly quite impressed with the plaintiff’s motivation and employment choices, as well as his presentation. 

“Mr Jenner is now working for himself.  He said that on average he works about four days a fortnight, and that is satisfactory because it gives him the rest of the time to take care of his back and let it recover.  The history that Mr Jenner gave me today was considered, plausible, and even on close questioning by me, consistent.”[15] 

[15]Defendant’s Court Book (“DCB”) 5

33      While the surgeon said disc damage at L4-5 level had improved, the other levels on radiology had not changed for years.

34      Professor Brazenor stated, as to work,

“As a result of this injury this man will never again do a job involving bending at the waist, accessing levels less than 600 ml above floor or ground, or vigorous pushing, pulling or twisting movements.”[16] 

[16]DCB 8

35      Professor Brazenor also said that he would only be able to continue working as a truck driver provided he did not have to manually handle freight.  Evidence is not required to convince me that manual handling of freight, even if it is just to secure a load and to get up and check on a load at times, must be part and parcel of many truck driving and delivery-type jobs.  Even hauling vehicles on the back of the trailer that the plaintiff has must involve securing and fixing loads as well as checking on loads.

36      Professor Brazenor had a number of job suggestions sent to him by the solicitors for the defendant.  He was really pessimistic about any capacity for these positions, which were delivery driver, service station attendant, administration officer, assistant, and general retail assistant.  Amongst other job suggestions that were thrown up in the course of this application were parking officer and security guard.

37      In effect, Professor Brazenor said:

“Mr Jenner could not do the duties of the service station attendant or general retail assistant, as there is far too much bending at the waist involved.  He probably could be a delivery driver, but the manual handling of even lightweight freight could exacerbate his condition and undo some of the healing which his body has achieved to date.  The ideal job for this man is the one that he has found for himself.”[17]

[17]DCB 9

38      I will very briefly deal with the other suggestions by way of a parking officer or security guard on patrol.  I accept the plaintiff’s evidence about his inability to walk any distances.  I accept his evidence about how when he walked recently, even 1 kilometre, he suffered in terms of symptoms.

39      I accept his evidence when he said when he walked recently around his own property, there was an exacerbation of symptoms.  I do not consider job suggestions as a parking officer, unless parking officers are different than the ones I have to deal with, is a job that he is capable of doing because of the walking involved.

40      A security guard on patrol, similarly, on the probabilities is well beyond his capacity and he would be foolish to even try given the disability he has with respect to ambulation.

41      Very briefly, the latest general practitioner opinion from his clinic, Brooke Street Medical Centre, is reflected in the certificate I have already referred to.  It covers August and September of this year.  The limits set out there are very extensive, and very real for a basically unskilled worker with very limited education.  Those limits are:

“Sit, maximum five hours continuous with breaks as needed, up to five to ten minutes each hour.  Stand, stationary standing not recommended to exceed five to ten minutes.  Bend, not recommended/avoid with kneeling as alternative.  Squat, not recommended; not longer than five minutes if required at patient’s discretion.  Kneel, as tolerated.  Lift, maximum lifting off the floor 5 kg; above that, maximum 10-20 kg at patient’s discretion.”[18] 

[18]PCB 45A

42      I accept these limits are required due to the back impairment and they make it very commendable, in fact, that this plaintiff can do the 20 hours a week he is doing as a heavy truck driver.  They certainly reinforce my view he will not be able to do more in the foreseeable future, as well as my view that paid employment in the real world for this unskilled man is now permanently a thing of the past.  Self-employment, effectively, is his only resort.

43      There are some earlier general practitioner reports in 2014 that have been tendered that expressed some optimism as to work, but I must judge consequences now.

44      The WorkCover certificate I have quoted is the up-to-date opinion and, in view of the treatment that has been undertaken over the years involved, I accept it as accurate. Those limits will remain on him for the foreseeable future.

45      Some of those earlier general practitioner reports were more optimistic as to hours, but I do not accept time has justified that optimism.  A formal report from the clinic in August 2016 stated the back condition was chronic, and while some hope was held out about an increase in his hours of work, it was very guarded it seems to me on reading the report without hearing from the doctor.  Such an increase in hours could occur if:

“… well tolerated without significant exacerbation after one to two weeks, his hours could be increased with discussion with Mr Jenner.”[19] 

[19]PCB 44

46      What that really amounts to saying as I read it, is that the plaintiff is the best judge of what he can do.  Any opinion about any increase is really dependant on what he says about his own capacity.  On all the evidence in this case, and having heard the plaintiff express his very real limitations, the probabilities are that no increase in hours of work will be feasible in the foreseeable future.

47      The current treating general practitioner at the clinic is Dr Ng.  He was specifically asked what the maximum hours for the plaintiff were, in terms of work.  While earlier he had given a different assessment, when asked specifically by way of a question addressed to him by the solicitors for the plaintiff, he stated quite unequivocally 20 hours was the maximum.  Even that was with reservations.[20] 

[20]PCB 45

48      That 20 hours, in fact, was a figure adopted as reasonable by Dr Thomas and by a medico-legal neurosurgeon, Mr D Brownbill.[21] 

[21]PCB 76 and 124

49      A physiotherapist report recorded some improvement since 2012, but work capacity was very limited and ultimately, “at the discretion of Peter, based on his presentation each day”.[22]  This was another practitioner effectively saying that the plaintiff was the best judge of what he can cope with.

[22]PCB 54

50      The physiotherapist spoke about the “chronicity” of the condition and made the obvious comment that pre-injury work was beyond the patient because of the heavy lifting, squatting, floor height and sustained positions and he went on to speak about it.  The physiotherapist also set limits along the lines of the general practitioner’s WorkCover certificate and I have already elaborated on those.  The physiotherapist added:

“These restrictions are at the discretion of Peter based on his presentation each day and whether on a given day he feels he could do more, that is squatting for short periods of time or bending for short periods with repetition.”[23] 

[23]PCB 54

51      In the end, the physiotherapist added:

“Flexibility around being able to take appropriate breaks and modify positions during the day would greatly benefit Peter and would allow him to maintain appropriate employment.”[24] 

[24]PCB 54

52      In my opinion, an unskilled worker out in the real employment market, will not have the flexibility to take breaks when he needs to if he is going to maintain his job.  That is why, in my opinion, self-employment is probably the only option for this man who wishes to keep working.

53      The treating neurosurgeon, Mr D’Urso, discussed fusion surgery amongst other options.  He saw, after a number of referrals, even back in 2014, that the plaintiff had quite a gloomy prognosis. 

54      Mr D’Urso stated, as to work:

“Peter Jenner has a partial incapacity of a permanent nature which would prevent him from returning to pre-injury employment, full-time employment or any type of more arduous physical employment beyond the restrictions mentioned in the text above.  Peter Jenner's condition appears to have stabilised at the present time, although he is at risk of deterioration, particularly in regard to this conservative management of the cord.”[25] 

Plaintiff's court book 64.

[25]PCB 64

55      Even in February 2015 when the plaintiff was working as a casual at the garden supply firm, Mr D'Urso recorded what his patient needed to do to keep working, "Peter is taking Targin, Lyrica, Celebrex and up to eight Panadeine Forte a day," Plaintiff's court book 65.  A little later in 2015 in late April, the surgeon reported:

"Peter is struggling with back pain and neuropathic leg pain, worse on the left than the right but he describes the paraseizure in the legs from the knee down.  I note Peter has now changed to Fentanyl patch.  He has taken some Lyrica and Celebrex". 

56      Clearly, Mr D’Urso had discussed a number of potentially invasive procedures while the plaintiff was still working at the garden supply firm.  This discussion appears to have ended after the plaintiff went to hospital in Melbourne in November 2014 to get off the opiates.

57      I find, on the evidence, the plaintiff is a man of great stoicism, but that bravery to put up with symptoms and to work on, does not equate to any realistic ongoing capacity for work.  The general practitioner referred the plaintiff to Dr Clayton Thomas in that same month of April 2014 that Mr D’Urso last reported.  Dr Thomas noted the regime of medication that the plaintiff was taking:

“When I initially saw him, he was on a substantial amount of medication with Celebrex 200ml per day, anti-inflammatory.  Endone 5mls for times a day, opiate analgesic.  Fentanyl 37.5mcg/h patches, opiate analgesic.  Pregabalin 150mls in morning and 300mls at night time for neuropathic pain.”[26] 

Plaintiff's court book 75.

[26]PCB 75

58      Dr Thomas then proceeded to advise about treatment to wean the plaintiff off the opioid painkillers. 

"I reviewed him on 15 October 2015 and explained the rationale and the process that went with a ketamine infusion.  The ketamine infusion took place between 24 November 2015 and 1 December 2015.  I reviewed him on 9 December 2015 after discharge.  The ketamine infusion enabled him to wean off his opioid analgesia and his pain levels were mildly improved upon what they were prior to the ketamine infusion". 

59      As to prognosis, he stated:

“On 8 September 2016 he continues to complain of lower back pain with spasms in the lower lumbar spine and pain into the left leg.  The lower back pain is constantly present.  The left leg pain is more minor but when the back pain flares-up, the pain in the left leg becomes more severe.  Mostly the pain is in his left buttock and left calf.”[27] 

[27]PCB 75

60      This is a very recent opinion given within the last fortnight.  As to prognosis, Dr Thomas thought even the limited self-employment was a problem looking into the future.  He said:

“I think there is a one in three chance that his condition will deteriorate over the medium to longer term and with this deterioration his ability to continue to work in the manner that he is working will therefore be compromised.  I would accept that 20 hours per week is the average of what he could perform currently and I would accept that this is reasonable in the short to medium term but over the longer term, I would have concerns as expressed above.”[28] 

[28]PCB 76

61      I accept Dr Thomas’ views.  They are current.  He has seen the plaintiff on a number of occasions.  He has treated him in hospital.  He has reviewed him since his hospitalisation.  I accept he supports the plaintiff is working to his absolute maximum and on the probabilities will be able to do no more in the future, if indeed he can continue at that level.  In fact, Dr Thomas seems to say, without hearing him and just relying on his report, that there is some improbability about that.

62      The medico-legal reports the plaintiff tendered are very up-to-date.  Dr Helen Sutcliffe, occupational physician, last month stated the obvious, in that the plaintiff had no capacity in the foreseeable future to undertake his pre-injury duties.  More to the point, she said:

“He is currently undertaking alternative employment as a self-employed truck driver with limitations on his capacity for driving and lifting.  He can drive only three to four hours and he can perform no lifting and only take on work where the load is lifting on by forklift and unloaded by forklift.  I believe he can undertake work for four hours three to four times a week in his occupation.  I believe that incapacity for full employment is permanent and likely to last for the foreseeable future.”[29]

[29]PCB 117

63      I accept that opinion as a realistic appraisal of his capacity.

64      I reject the suggestion by the defendant that Dr Sutcliffe’s opinion is based on an inadequate history or insufficient information.  The report is easily understood and based, in my view, on accurate enough information and is consistent with the thrust of the evidence I have heard.  In effect, her view is that even the 20 hours per week that he is working at the moment is beyond what she would be advising and a regime of 12 to 16 hours, on her view, was more appropriate.

65      Mr D Brownbill, neurosurgeon, reported even more recently, two weeks ago, on 6 September 2016.  He stated again as to work that it was really in the plaintiff’s hands:

“I consider the number of hours he could work at any stage would be dictated by his responses.  I would anticipate that on probability he would be able to continue working with the physical restrictions referred to above, albeit on reduced hours into the future.”[30]

[30]PCB 124

66      What he meant by “reduced hours into the future” is not entirely clear because he noted in the sentence above that the plaintiff was doing 20 hours a week at the present time.  Without hearing from the doctor whether he was opining that 20 hours was above what the permissible maximum would be is really speculation on my part, but to reconcile the two statements, it would appear to me at least to support the view that at 20 hours the man is working at his optimum.

67      Mr Brownbill returned to this question that I have already indicated I accept as expressed by other doctors that the plaintiff is the best judge of what he can do given that he is so well-motivated.  Mr Brownbill said:

“… he is currently working but observing the activity restrictions referred to above.  The number of hours he could work would be dictated by his responses.  It is likely that his current capacity will remain.”[31]

[31]PCB 125

68      This final expert thus adds to the majority of the medical views that the plaintiff is working to his maximum capacity as a self-employed driver doing 20 hours a week, knocking back jobs, surviving on medication and being careful what he does and does not do.

69      The question for any residual capacity for alternative employment always needs to be looked at with the factors s5 of the Act dictates by way of “suitable employment”.  I am satisfied on the probabilities this man has no realistic capacity to be employed by an employer and hold down a job for any length of time that is suitable to his work experience, skills and education.  He simply could not meet, in my view, the everyday demands of an employer who will tell a worker what to do and where to go and when to do it.  Self-employment is his only refuge from unemployment.

70      He is trying stoically and determinedly to the best of his ability in his self-employment.  Sadly, his optimism is not well-founded, in my view.  After eight or nine months and doing the best he can, the figures indicate that the business is not as successful as he would have hoped.  He has not got near a real wage after expenses.  He well might give it “a red hot go” and I am satisfied he will.  Sadly though, on the probabilities, there are no indications that it will be successful given the limitations I have expressed and in particular the fact that he has to knock back work in a highly competitive industry.  I am satisfied that in his self-employment, he will not get to the 60 per cent bar of the $75,590 earned in 2010-2011.

71      In a thorough submission, Mr Kumar suggested three approaches that he suggested indicated the plaintiff failed to discharge the onus with respect to the 40 per cent loss or more test.  Within the three-year pre and post-injury methodology that the Act requires, it was submitted that I should find the plaintiff fails by looking at these matters.  Firstly, the time he worked on with the defendant.  Secondly, what his capacity was as demonstrated at the garden supplies firm.  Thirdly, in the context of his self-employment in a business where he indicated he hoped it would increase in terms of its success, as indicated by the fact that the figures do show some improvement between the first six months and the last nine or so weeks.

72      Across these three approaches, Mr Kumar submitted I should factor in that there has been some improvement in the past and there is likely to be more in terms of symptoms.  This ought probably to lead to a consequential improvement in his capacity for work.  Dealing with that last submission, I reject it.  After more than five years, I do not see improvement on the probability in this case, looking at all of the medical evidence.  In fact, I accept the plaintiff when he said symptoms have worsened in the last twelve months because they are no longer blocked by the opiate-based drugs.  Quite properly he is off those drugs.

73      As to the first argument, that is that the period he worked with the employer post injury ought to indicate a failure by the plaintiff to discharge the onus, I have already indicated that in the last full year he worked, 2010-2011, the gross earnings were $75,598.  Over the three years effectively after he was injured in July 2011, even on the modified/light duties, he only got up to 16 hours a week as opposed to the 38 hours plus overtime pre injury. 

74      I do not accept the submission that he would have continued to increase the hours he was capable of working in spite of his intention and hope of doing so.  The natural healing spoken of at one level in the lumbar spine, would not, in my view, on all of the evidence, lead to any real further improvement that would have impacted on work capacity.  In fact, the weight of medical evidence is against it.  The weight of medical evidence is the condition has stabilised at where he is more or less now.  The fact is this motivated worker, even on light duties or modified duties, only got up to 16 hours a week and was performing at well below even 50 per cent of his previous capacity with the employer and was not likely to change on the probabilities.

75      As to the second approach, that is the garden supplies work that he did from the middle of 2014 onwards, I would make these comments.  In the year 2014-2015, he only grossed $34,944.  $75,598 being the pre-injury gross in 2010-2011, the garden supply figures fall well below the statutory bar.  Even if a few hours are added in this day-to-day casual job that he had because he started on lower hours and was gradually working up, I am satisfied it does not establish a figure that would indicate the plaintiff has discharged the onus.  I do not accept that it is a proper approach to just put 38 hours a week across the hourly rate that has been indicated in the exhibits. That ignores the fact, in my view, that he has taken time off, unpaid, because he is unable to go to work on occasions and it ignores the fact also that the man is on opiate medication to keep hanging on in this job.  He had to say “No” to the boss with respect to certain tasks. 

76      As I have already indicated, he needed treatment in Melbourne to avoid possible addiction.[32]  A capacity to work propped up artificially by narcotic medication that got to the stage where he needed hospitalisation is not, in my opinion, any reasonable reflection of a proper post-injury capacity.  The capacity depended on narcotic ingestion of the level that he was taking and is not a reasonable yardstick to take into account by way of a measure.

[32]Transcript 36

77      In any event, the figure that I accept as reasonably accurate, the $34,944 with perhaps a few thousand dollars added to it for an increase in hours, still falls well below the 60:40 bar set out in the Act in terms of measuring capacity.

78      As to the third approach submitted by the defendant, namely his self-employment, it was pointed out that there ought to have been a predictable increase in the profitability of that business.  I have already directed a number of comments as to why, on the probabilities, I do not accept that.  Some figures have been tendered to the Court that indicate in the last nine weeks or so he has made something like $3,700 or perhaps $400 a week when one takes the expenses away from the earnings.

79      I do not accept those figures are accurate.  When one looks at exhibit B, even a cursory glance indicates that the list of expenses there is so inadequate as to be of little use to the Court.  You cannot drive a truck without registering it.  You cannot drive a truck without insurance and I do not need evidence to tell me insurance on the sort of vehicle that this man is driving, with a prime mover and an automated trailer and carrying valuable vehicles, would be a major expense.

80      There are other expenses also, such as depreciation, wear and tear and all the rest of it, that on any view of a truck enterprise would be apparent.  None of those are reflected in the figures that have been put to me and hence why I have declared some pessimism about the future profitability of this self-employment exercise and that is no comment adversely on the plaintiff’s motivation and willingness to work.

81      I am not satisfied that the self-employment indicates anything other than a man struggling to find some way he can work and some way he can earn a living.  I am certainly not satisfied on the probabilities that it will be a profitable business.  If I am wrong, and I hope I am for the plaintiff’s sake, I am certainly not satisfied that he is going to have anything like the potential to earn him figures in the future that would mean he has failed to reach the statutory bar I have already indicated.

82      For the reasons I have indicated, I grant leave to the plaintiff to bring proceedings for pecuniary loss damages as I find the matters that I have articulated are likely to remain for the foreseeable future.

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