Josevski v Diva Metal Products Pty Ltd
[2015] VCC 639
•20 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01750
| BLAGOJA JOSEVSKI | Plaintiff |
| v | |
| DIVER METAL PRODUCTS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 April 2015 | |
DATE OF JUDGMENT: | 20 May 2015 | |
CASE MAY BE CITED AS: | Josevski v Diva Metal Products Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 639 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric impairment – impairment to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd (2009) VSCA 454, (2009) VSCA 170; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Nightingale | Patrick Robinson |
| For the Defendant | Ms K Galpin | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular on 22 May 2012 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) and clause (c) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function;
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder … .”
4 The body function relied upon in this application is the lumbar spine. The plaintiff also relied upon a psychiatric impairment pursuant to clause (c).
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
11 Winneke P, in Mobilio,[3] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect).
[3](supra)
12 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
13 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
14 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
15 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
16 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grech v Orica Australia Pty Ltd & Anor[5] in reaching my conclusions.
[4](2005) 14 VR 622
[5](2006) 14 VR 602
17 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
18 The plaintiff is presently aged sixty-two, having been born in Macedonia in February 1953. He came to Australia in 1980. He is married with two adult children.
19 The plaintiff worked as a machine operator and also as a sewing/machinist operator from 1972 until 1988, returning to Macedonia in 1989 for five years for family reasons.
20 On his return to Australia in 1994, the plaintiff worked as a mill operator/press setter. He commenced employment as a welder with the defendant in Reservoir in 2001. The plaintiff then moved to the defendant’s Thomastown plant and worked as a machine operator/setter.
21 This job was heavy and involved using force and a level of physical activity.[6]
[6]Transcript “T” 66
22 On the said date, the plaintiff was required to work on the coil dispenser. When a coil came off its mandrel, the plaintiff pushed it back into position and, whilst doing so, felt pain in his lower back and left leg limb (“the incident”).
23 After the incident, the plaintiff felt a pain immediately in the whole of his leg.[7] He then said he thought he had a separate ankle problem but he did not know – the leg pain all started together. The pain started that evening from the lower back going all down his leg.[8]
[7]T9 – Dr Dzartov’s clinical notes detail left ankle complaints in February 2012 and an x‑ray on 23 February.
[8]T12
24 The plaintiff could not remember having a left ankle problem prior to the incident and having seen his general practitioner in February 2012 in relation thereto.[9]
[9]T12
25 Following the incident, the plaintiff complained to his supervisor about his work duties, and he took three days off work. The plaintiff submitted a Worker’s Injury Claim Form a few months later but the defendant refused to acknowledge his condition and provide him with light duties.
26 The plaintiff first saw Dr Vaso Dzartov, general practitioner, about his incident injuries on 23 May 2012. He was prescribed rest and Panadeine Forte. Later that month, Dr Dzartov referred the plaintiff for a lower back x‑ray.
27 Throughout that time, the plaintiff was complaining of low back pain and pain radiating into his left leg.
28 In June 2012, Dr Dzartov referred the plaintiff for a CT scan of his lumbar spine and also referred him to a neurosurgeon, Dr Caroline Tan, whom he saw that month. She organised an MRI scan, which the plaintiff underwent in July 2012.
29 The plaintiff agreed he had continuing problems with his left ankle after the incident for which he was seen by Dr Tan. He disagreed that was then his main problem. He also could not walk because of his leg. Dr Tan gave him tablets for both conditions.[10] He would not have said to her in October 2012 that he did not have any sciatic pain because he was struggling to work. He denied he only had ankle problems then.[11]
[10]T13
[11]T15
30 The plaintiff was not happy with his treatment from Dr Dzartov and Dr Tan; therefore, he started seeing a general practitioner, Dr Maccar, who referred him to Mr D’Urso, neurosurgeon, whom he saw in July 2013.
31 Mr D’Urso prescribed Lyrica, which the plaintiff took once a day. He advised the plaintiff he needed to undertake steroid injections for his lower back.
32 The plaintiff was also referred to Dr Wahr, psychiatrist, in September 2013. Dr Wahr prescribed Xanax and Avanza, which the plaintiff took daily. The plaintiff also had physiotherapy and hydrotherapy sessions once a week.
33 The plaintiff agreed that from May 2012 to October 2012, he was doing his normal job, save for two and a half days off work initially.[12] His old job put a lot of demand on his back and legs.[13] He did not ask for time off work, because he liked working and he worked with pain. He did not ask for certificates early on; he did not want them. He wanted to work, and he thought he could feel better. Thus, he had no time off.[14]
[12]T16
[13]T17
[14]T18
34 Initial certificates from Dr Maccar related to an ankle injury which the plaintiff explained was a misunderstanding.[15] The certificates for modified duties extended to his back – discogenic back pain in December.[16] The plaintiff agreed both his ankle and neck affected his ability to work.
[15]T41
[16]T42
35 Only after seeking legal advice and subsequently submitting a further claim, was the plaintiff moved by the defendant to a new position as a press operator in January 2013. By that stage, he could not work anymore and he complained every day that his light duties’ certificates were not being followed. However, the new duties were not light or restricted. The plaintiff had to work a normal shift with regular duties, although he complained he should be given work in accordance with his light duties’ certificate.
36 The plaintiff denied he was okay, as his physiotherapist’s notes in October 2012 indicated to Dr Hwang, a medico-legal examiner. The plaintiff denied that his physiotherapist told him he could do normal work at that time.[17] The pain was then the same.[18] The plaintiff confirmed ongoing back problems and the contents of a physiotherapy management plan prepared at that time.
[17]T79
[18]T80
37 The plaintiff disagreed that he would have had a full range of movement when he was examined by Dr Davison in January 2013.[19] The plaintiff agreed at that time, he could stand for two or three hours, with pain, if he pushed himself. He wanted to keep his job and he tried to do things, as he told Dr Davison.[20] The defendant was forcing the plaintiff to go back to work from the first day and while it offered the plaintiff treatment, none was forthcoming.[21]
[19]T33
[20]T34
[21]T35
38 At an early stage, the plaintiff tried everything, including gardening, but he required help from his son.[22]
[22]T36
39 Between January 2013 and January 2014, the plaintiff’s condition became much worse. Some days he felt better but most of the time he felt bad. Overall it was getting worse.[23]
[23]T45
40 In May 2013, the plaintiff was moved to the defendant’s factory at Reservoir because he could not work in Thomastown as there were no light duties. He commenced on light duties, working 38 hours per week, doing spot welding duties seated all day.
41 Even though those duties were light, the plaintiff was pressured by his supervisor to reach daily targets, and the medical restrictions imposed by Dr Maccar were not followed.
42 The plaintiff tried to work and do the best he could with his pain.[24] There was a lot of pressure and he was working with stress and he could not concentrate when his back was sore. The plaintiff agreed he was spoken to by a manager on 29 May 2013 about a problem with a welding job.[25]
[24]T21
[25]T22
43 The plaintiff confirmed a record of a conversation between himself and the defendant on 4 June 2013 in which it was noted the plaintiff was counselled about not achieving output target. The spot welding was hard because of the targets.[26] The plaintiff was then working with a lot pain, and the defendant was pushing him and gave him more stress.[27]
[26]T72
[27]T73
44 The plaintiff agreed that on 5 July 2013, he was annoyed when he received a written warning about making faulty parts.[28]
[28]T23-24
45 The plaintiff agreed he then attended his general practitioner and told him he had been harassed at work and felt he was in the “crosshairs” to be sacked.[29] The plaintiff denied he did anything wrong on the job.[30]
[29]T23
[30]T24
46 The plaintiff had pain in his leg, a lot of stress, on the press work as he could not make the targets. The pain affected him emotionally. He got nervous.[31]
[31]T71
47 The plaintiff was referred to a counsellor, Dr Pastore, over issues that had been raised regarding the warning at work. The plaintiff was prescribed Antenex around that time by Dr Maccar. The plaintiff saw Dr Pastore four times,[32] and Dr Maccar continued to prescribe Antenex.
[32]T25
48 The plaintiff started to see Dr Wahr in September 2013. He thought he told Dr Wahr everything about issues at work.[33]
[33]T45
49 The plaintiff stopped work some time in July 2013 after the warning. He tried to work, do his best, but he was always asked why he did not make the targets although he tried to do what he could. The plaintiff denied having told Dr Duke the machines he operated were not capable of making the targets required.
50 The plaintiff stopped work in July 2013 because he could not work any more because he had a lot pain. The defendant gave him a lot of pressure. The plaintiff could not concentrate and he could make mistakes any time.[34]
[34]T26
51 The plaintiff agreed that before 8 July 2013, Dr Maccar had been certifying him fit for full-time duties with no prolonged standing, working four hours a day, with rest breaks and sitting down, and a 10-kilogram lifting limit.
52 The plaintiff then had nine or ten months off work, returning to work in the middle of 2014 on a return to work plan.[35]
[35]T31
53 As of November 2013, when he swore his first affidavit, Dr Maccar prescribed Panadeine Forte, which the plaintiff took several times a week.
54 The plaintiff had a seizure in September 2013, which he deposed he believed was caused by stress and anxiety from his work injuries. In cross-examination however, he denied he had thought his seizure was related to stress.[36]
[36]T46 – T47
55 As of late 2013, the plaintiff had trouble getting off to sleep and took Avanza at night. He was restricted by his injuries and unable to help with household chores.
56 The plaintiff used to enjoy gardening, renovating the family home and socialising with friends and family, but was then restricted by his pain and unable to undertake previous social and household activities. He felt as though his life was restricted and he was unable to live as before.
57 The plaintiff has been motivated to get back and remain at work since the injury. Whilst he ceased work in July 2013, notwithstanding difficulties confronting him, he was prepared to try and return to work on the program with the defendant in June 2014.
58 The plaintiff agreed when he was interviewed by the rehabilitation provider in January 2014, he advised he was not prepared to return to work as he was unwell and he did not feel well enough to do light duties.[37] The plaintiff agreed he reported at that time that his pain had worsened since August the previous year.[38]
[37]T32
[38]T32
59 The plaintiff told the rehabilitation provider that a cortisone injection had been suggested but he had not had it as he could not be given any guarantee as to its success.[39]
[39]T56 – T57
60 The plaintiff started the return to work program in mid-2104, working about 8 hours a week. He increased his hours with difficulty until the pay period ending 8 August 2014, when he had increased his hours to 38 to 48 hours per week; however, by that time, his back condition was such he was not able to continue working.
61 When he attempted to stay at work and return to work, the plaintiff worked in pain and tried to give it his best shot. Notwithstanding that, the defendant continually placed him under pressure and the plaintiff received warnings on occasions for failure to perform his work property.
62 The duties provided for the plaintiff on his return to work were physically stressful on his back and the criticism of his work performance contributed very much to his overall psychiatric condition.
63 On this return to work in 2014, the plaintiff did some data entry, giving workers time sheets. The computer entry work was hard for him because he was not good at the computer and he made mistakes.
64 The plaintiff also did some manual light duties, gradually working up to 40 hours a week.[40] Half the time was clerical work and the other half, the lighter duties.[41] He worked for about two weeks on the full-time light duties.[42]
[40]T50
[41]T53
[42]T55
65 After the fourth day on the press in August 2014, the plaintiff advised the defendant that he could not keep going as he was experiencing severe pain.[43]
[43]T52
66 In cross-examination, the plaintiff said had he continued on the light duties and not been put on the press, he would have tried the best he could.[44] He would have tried to work with rest, with pain. He tried, and would have continued to try, if the defendant allowed him to do so.[45]
[44]T58
[45]T59
67 However, in re-examination, the plaintiff said had it not been suggested he go back on the press, he could not have continued light work full time, as it was very hard because he had a lot of worsening pain.[46]
[46]T74
68 On that return to work program in 2014, the plaintiff had increasing pain. At the end of the day, he felt pain in his left leg and back and had problems with sleeping and he did not feel very well the next day.[47]
[47]T60
69 The plaintiff has only ever done factory and physical work, having completed an apprenticeship as a tailor as a teenager in Macedonia.
70 The plaintiff has difficulty with English, particularly reading and writing. Given his age, background, training and experience, the plaintiff does not see retraining or rehabilitation being reasonable options open to him in trying to qualify for other work. Unfortunately, with his back condition, there is no employment which would be suitable for him.
71 The plaintiff has continued to have constant low back pain which varies in intensity. On very bad days, it is hard for him to get out of bed and, once up, it takes a long time to try and get mobile. Even then, he has to spend much of the time resting. On these occasions, he takes more painkilling medication.
72 The plaintiff never knows from one day to the next whether he will have a bad day; his condition is unreliable. His back pain radiates into his left buttock, down the back of his left leg to his knee, and from there, down the outer side of his left leg.
73 The plaintiff has had, and continues to have, difficulties bending, twisting, lifting, walking for long periods and sitting and standing for long periods. Driving for long periods is also difficult.
74 The plaintiff’s pain interferes with his sleep, as it often keeps him awake and frequently wakes him in the middle of the night, and he has difficulty getting back to sleep. He hardly ever gets a good night’s sleep and frequently feels tired during the day.
75 Notwithstanding his back pain, the plaintiff still tries to do as much as he can but it is difficult for him as activity increases his low back pain.
76 When the pain is bad, the plaintiff often feels as if his muscles are cramping. He experiences changes in sensation in the lower part of his leg on occasions and at times, the pain going into his leg feels like an electric shock.
77 Unfortunately for the plaintiff, his emotional condition has not improved and he continues to remain under Dr Wahr’s care. He prescribes Avanza and Largactil. That medication is in addition to that provided by Dr Maccar, which includes Lyrica for nerve pain and painkilling. The plaintiff also takes Epilim for seizures, although that condition does not significantly interfere with his life.
78 The plaintiff continues to remain depressed and feels very low much of the time. He has feelings of uselessness and hopelessness and finds his memory and concentration have reduced. He feels a lack of energy much of time and is frequently short tempered and argumentative. He is frustrated and upset he cannot do the things he used to do. He cannot do home maintenance.[48]
[48]T75
79 The plaintiff does not go out like he did before. He misses everything in terms of his social life and he does not visit friends like he used to.
80 These problems continue, although the plaintiff takes antidepressant medication. He does not have the focus, and also lacks the passion. He very rarely goes to restaurants and sometimes watches soccer.[49] He goes shopping with his wife sometimes.
[49]T47
81 Looked at independently, the plaintiff believes his emotional state has, and will continue, to incapacitate him for all work.
82 In early 2015, the plaintiff had a job assessment from Centrelink which he understood concluded his baseline work capacity was zero to seven hours a week and, with a limited residual capacity, he would be unable to benefit from intervention to attempt to get him back to work.
Income from personal exertion
Financial Year Gross Earnings 2008-2009 $37,822 2009 $45,877 2010-2011 $41,773 2011-2012* $38,287 2012-2013* $39,656 2013-2014 $33,588 1 July 2014 – 29 April 2015 $2,389 * includes weekly payments
The Plaintiff’s medical evidence
Treaters
83 On 19 October 2012, the plaintiff saw Dr Maccar, who noted the plaintiff worked for the defendant as a machine operator, pushing and pulling all day. On the said date, a 100-kilogram coil came off the machine as the plaintiff was pushing it back into place. He ended up with a sore back and a sore ankle. He had three days off work because he was very sore. He had x‑rays to his back and ankle, which showed nothing.
84 Linda Ho, physiotherapist, provided an occupational physiotherapy management plan on 10 November 2012.
85 Ms Ho noted that the plaintiff still had a lot of pain and was unable to do heavy lifting, and he was placed on alternative modified duties for 38 hours a week.
86 The plaintiff first saw Dr Maccar at the Epping Family Medical Centre in October 2012, when he complained of having suffered lower back and left leg pain since the incident.
87 When the plaintiff first attended, he advised that the pain in his ankle and back was getting too much out of hand and no one was able to sort out his problem.
88 Dr Maccar noted the results of the MRI scan of the lumbar spine and ankle and that the plaintiff was subsequently referred to have a nuclear scan to his ankle, the findings of which were compatible with soft tissue inflammation.
89 Dr Maccar noted the plaintiff was instructed to start physiotherapy and anti-inflammatory medication and was ordered to modify his work in order to incorporate his injury.
90 Dr Maccar noted that due to the fact the plaintiff was very keen to get back to work as soon as possible, a certificate was given indicating he was able to return to modified duties provided he was restricted in terms of pulling and pushing, working above shoulder and below the waist. He was also instructed to have regular break times to give his ankle and his back some rest.
91 As of March 2013, Dr Maccar thought the plaintiff’s ankle injury was more of a soft tissue type injury, and complete recovery should be expected, although it could take a few months. However, he believed the plaintiff’s back problem might be long term, for which he would be assessed by a back specialist in the coming few weeks.
92 Following that examination, the plaintiff’s condition started deteriorating, with his back pain getting much worse, limiting his ability to work full time. He also felt he was harassed by his work colleagues and bosses because he was not able to return to work as quickly as they had expected him to, which made him feel persecuted and mocked.
93 Dr Maccar reported in October 2014 that Dr Wahr, psychiatrist, diagnosed depression, anxiety, sleep problems, reduced concentration and memory and lack of libido. He prescribed the plaintiff some relaxants and antidepressants and thought the plaintiff could not work in any capacity.
94 The plaintiff was also referred to Dr Thomas, consultant in rehabilitation and pain medicine, to assess his work capacity. The plaintiff was then experiencing worsening pain, and his ability to do any kind of work was starting to decline.
95 Dr Maccar noted the plaintiff continued to work despite his physical and psychological problems, and was managing to cope with clerical duties. Despite significant back pain, the plaintiff was keen to maintain work and was also welcoming an increase in his duties which started earlier that year, in the hope of getting him back into some physical work besides the clerical duties.
96 Dr Maccar noted that in August 2014, the plaintiff’s anxiety and stress became significantly worse as he felt unable to set foot at the workplace and he was given a certificate for no work capacity.
97 Dr Maccar believed the plaintiff’s problems were all work related, both his discogenic back issues and his psychological problems. He also believed that with proper treatment, the plaintiff should be able to return to some kind of full duties. However, he was not sure if he was able to return to his pre-injury work and unsure if he was ever going to able to return to work in his previous environment in which he had already been traumatised psychologically.
98 From 8 August 2014, Dr Maccar has certified the plaintiff as able to work from his back point of view, but severe work-related depression and anxiety renders him unfit for any duties. The last certificate prior to that date following examination on 29 July 2014 set out the plaintiff was expected to be fit for clerical duties for 8 hours a day, four days a week with rest periods when needed – to increase hours as per the plan, with no increase in duties.
99 Mr D’Urso, neurosurgeon, first saw the plaintiff on 12 July 2013.
100 Mr D’Urso noted investigations had revealed degenerative arthropathy in the plaintiff’s left ankle and foot. There also appeared to be a degree of degenerative disc disease at L5-S1 with some foraminal stenosis of the left L5 nerve root which Mr D’Urso thought may have been aggravated by workplace activity.
101 Mr D’Urso recommended the plaintiff have a left sided foraminal block of the L5 nerve root for diagnostic and therapeutic purposes. He also prescribed Lyrica to assist with the management of leg pain.
102 Mr D’Urso then thought the plaintiff appeared to have capacity for light employment but not for his pre-injury employment or unrestricted physical or manual employment.
103 Mr D’Urso thought the prognosis of the plaintiff’s condition was likely to be satisfactory. He noted there may be a degree of degenerative progression, which was somewhat difficult to determine and predict, and suggested that the plaintiff’s foot problems would be better determined by an orthopaedic surgeon.
104 Mr D’Urso thought the level of disability relating to the lumbar spine was mild.
105 Dr Wahr first saw the plaintiff on 17 September 2013.
106 The plaintiff then told him about the incident and his medical treatment thereafter and having stopped work on 22 July 2013, because the pain was too strong and the defendant pushed him so hard at work.
107 When examined, the plaintiff was taking Lyrica; Antenex, 5 milligrams, half at night; and Panadeine Forte. He complained of low back pain, depression and left leg pain.
108 Having told Dr Wahr he drove for short distances, the plaintiff was advised not to drive, as his concentration was not up to it. The plaintiff told Dr Wahr he visited friends and went to restaurants sometimes; he did no gardening; did not attend sporting matches now, and his hobby was watching soccer.
109 On examination, the plaintiff’s affect was anxious and depressed and his concentration was only reasonable. There was no evidence of delusions or hallucinations, thought disorder or emotional detachment.
110 Dr Wahr considered the plaintiff was suffering from an agitated depressive reaction which was a direct consequence of the injury.
111 Dr Wahr thought the agitated depressive reaction, despite psychiatric treatment and treatment with psychotropic medication, had become chronic. He considered the plaintiff had no capacity for employment from a psychiatric point of view alone. The plaintiff required ongoing psychiatric treatment consisting of supportive psychiatric psychotherapy and monitoring of psychotropic medication.
112 Dr Wahr most recently reported in February this year. He has continued to see the plaintiff and prescribes Avanza, 30 milligrams, one at night; and Xanax, 1 milligram, one at night, and provides supportive psychotherapy.
113 On the return to work in mid-2014, the plaintiff told Dr Wahr that the defendant sent him for light duties but he felt he could not carry them out. He advised Dr Wahr that in July 2014, he had been pushed to work 6 hours and it was not going well.
114 The plaintiff told Dr Wahr that in August 2014, he had a lot of back pain and he did not go to work on 6 August 2014 and he saw his general practitioner, Dr Vaiso.
115 Dr Wahr noted supportive psychiatric psychotherapy and psychotropic medication had contained the plaintiff’s condition and prevented it from worsening but had not been able to resolve it.
116 As of February 2015, Dr Wahr reported the plaintiff continued to have problems with anxiety, depression, sleep disturbance, reduced concentration and irritability. He considered the plaintiff had no capacity for employment from a psychiatric point of view.
117 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on referral from Dr Maccar in December 2014.
118 The plaintiff told Dr Thomas of his injury, subsequent attempts to return to work and ceasing work on 8 August 2014.
119 On examination, the plaintiff complained of lower back pain in the left hip and down that leg. He described the pain as constant, 7 out of 10 at worst, and 6 on average.
120 The plaintiff was then taking Lyrica, twice a day; Panadeine Forte, but not daily; Xanax, one a day; Avanza, one at night, and Antenex, over the recent two weeks.
121 On examination, there was fairly diffuse tenderness to the upper lumbar spine and the left hand lower back. Spinal movements were negligible. Neurologically, there was no ankle reflex in either ankle; power seemed to be more give-way; straight leg raising seemed to be more limited lying than seated, and it was not possible to examine the plaintiff’s hip.
122 Dr Thomas thought it was not really possible to determine the underlying organic problem. He thought there certainly seemed to have been an industrial reaction accounting for a number of signs which did not fit with an organic lesion.
123 Dr Thomas was not convinced that formal rehabilitation was likely to add anything. He was not convinced that intervention or treatment was likely to be any benefit. He was unclear as to what, if anything, the medication the plaintiff was on was actually doing for him. It was not possible to truly understand what his work capacity was under the circumstances, as there seemed to be a significant non-organic component contributing to his stated complaint.
Medico-legal evidence
124 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff in February 2015.
125 The plaintiff told him that whilst lifting the coil dispenser, he felt a sudden pain in his lower back and in the left leg to the ankle.
126 The plaintiff told Mr Brearley of his subsequent treatment and that he had returned to work in June 2014 on a graduated basis but had to cease on 8 August 2014 and had not worked since.
127 The plaintiff complained of constant pain in the lower back irrespective of his posture or activity. At night, he frequently had a sensation of an electric shock travelling down the left leg with pain. He reported some pain in his foot and ankle but that was part of the pain which radiated down the whole of the left leg.
128 The plaintiff advised he was unable to help his wife with heavier housework and he could not do the gardening, lawn mowing or any home maintenance.
129 On examination, there was moderate restriction of lumbar movement with some restriction of straight leg raising on the left.
130 Mr Brearley diagnosed mechanical lumbar pain due to aggregation of pre-existing degenerative changes in the lower lumbar spine, with possible left L5 nerve root impingement responsible for the left leg pain. In his view, the incident was certainly consistent with the condition.
131 Mr Brearley thought the plaintiff required conservative treatment only and it was likely his symptoms would continue for the foreseeable future.
132 Mr Brearley considered there had been serious inference with the plaintiff’s everyday activities and enjoyment of life. He had been quite unable to carry on with his work and was now unfit in the foreseeable future to return to full or part-time work because of his back.
133 Mr Brearley thought the plaintiff had psychological issues; namely, quite severe anxiety, but it was the physical injury to his back which was responsible for his inability to work now or in the future.
134 Mr Brearley noted that the soft tissue injury to the left foot had now resolved and there was no abnormality to find on physical examination. The pain the plaintiff had in his foot and ankle, he said, was part of the pain which radiated down the whole of his left leg – the result of nerve root irritation in Mr Brearley’s view.
135 Mr Brearley thought the plaintiff had a significant injury to his lower back and it was this injury that was preventing him from returning to his former heavy work or other work which would otherwise be suitable for him. The plaintiff was not capable of doing any significant manual work involving repeated bending, and stooping and attempts at lifting caused pain, as did standing and sitting for long periods.
136 Dr Nathar, psychiatrist, examined the plaintiff in February 2015. The plaintiff told him of the injury to his back with pain spreading to his left leg.
137 Since the incident, the plaintiff was put off work for three days and then tried as best he could to do his normal duties until January 2013. He was getting worse and he obtained light duties certificates but they were not accommodated.
138 Dr Nathar noted the plaintiff moved to the Reservoir factory, where he found it difficult to cope, as the duties were not suitable and the defendant was scrutinising his work. The production manager was watching his every move. It was like they were playing games. The plaintiff was asked to do spot welding, which he could not do, and not only did his pain increase, but he also became very depressed and anxious.
139 Eventually, the plaintiff’s hours were increased to 8 hours a day and he was to go on a particular machine, which he tried, but the pain was so bad he had to stop work, last working in the middle of 2014.
140 The plaintiff advised he was really unable to do very much around the house and in any case, he had no interest. His son cut the grass. The plaintiff no longer went out with friends, and restricted his driving to short distances and only when necessary.
141 The plaintiff reported the difficulty experienced, particularly when he was changed over to Reservoir, had contributed in a big way to his depression, which started off in any case as a result of his pain and inability to work. Dr Wahr was prescribing various antidepressant medications.
142 The plaintiff advised he became depressed most of the time and tended to ruminate how he used to be able to work and now he could not, and also he could not do things as he could before. He had lost his friends and his work, which was a big part of his social life.
143 When he was injured, the defendant pushed the plaintiff to do things he could not do as if it was finding excuses to get rid of him. The defendant eventually gave him a warning after accusing him of making the wrong part. The plaintiff thought that was unfair because the defendant did not know the part came from the plaintiff as all the workers pooled all their finished products.
144 The plaintiff felt useless and hopeless; he was argumentative and upset with his family; his sleep was disturbed by pain and his memory and concentration were not as good as before and he had lost a lot of interest in things and did not want to socialise.
145 On examination, the plaintiff’s affect was moderately depressed and anxious, with normal form and stream of thinking. He was preoccupied with his pain and physical problems and loss of work capacity and capability. He had insight and his judgment was generally intact.
146 Dr Nathar thought the plaintiff had developed a major depressive reaction with symptoms of anxiety and that had been a secondary reaction to his physical problems. In Dr Nathar’s view, there seemed to be significant ongoing physical problems affecting the plaintiff and he did not see that there was any need for any additional diagnosis of any psychological pain-based disorder. Dr Nathar thought the psychiatric condition was of moderate severity.
147 Dr Nathar thought the injury was consistent with the stated cause, as it had been the result of the physical problem sustained at work. The plaintiff had also alleged he was unsupported by his employer, which distressed him, so there were both predominantly secondary and some non-secondary or primary causation of his psychiatric problems. Dr Nathar thought there seemed to be no other contributing factor outside the work environment.
148 Dr Nathar considered the plaintiff would need continuing psychiatric support for some years yet, as per current intervals, and he would probably need to take antidepressant medication for many years.
149 Dr Nathar thought overall, the psychiatric prognosis was poor, noting the plaintiff had significant ongoing physical stresses and had not responded to expert psychiatric treatment and was likely to have long-term ongoing deficits at around the current level.
150 Dr Nathar believed that the moderate severity of the plaintiff’s psychiatric injury, particularly with symptoms such as poor morale, low stress tolerance and anhedonia, poor memory and concentration functions, lethargy and propensity towards anxiety and depression, were all problems that would incapacitate him from returning to any kind of work, physical or otherwise.
151 Due to the plaintiff’s age and lack of formal education and past work history, Dr Nathar did not believe the plaintiff was a suitable candidate for retraining or to alternative light duties, full or part time. In any event, emotionally, Dr Nathar thought the plaintiff was far too depressed and anxious and would not be able to cope with any retraining activities.
Vocational evidence
Flexi Personnel
152 Diane Forster, human resources consultant from Flexi Personnel, reported in March 2015, having interviewed the plaintiff for an hour and a half on 18 February 2015.
153 The plaintiff told Ms Forster of the incident and his injuries and the return to work in January 2013 on work which was not light or restricted.
154 The plaintiff told Ms Foster of the relocation to the Reservoir plant, where he worked as a spot welder, and was able to sit through the shift. He reported his pain increased in July 2013 and he was declared by his general practitioner to be medically unfit.
155 The plaintiff returned to work on a plan on 2 June 2014, working 4 hours a day, four days a week; on 15 July 2014, he increased to 6 hours a day, four days a week, and on 30 July 2014, 8 hours a day, four days a week.
156 On 8 August 2014, the plaintiff was advised he was to return to work on the press, working full time. He was unable to return to those duties, as the nature of the work aggravated his pain and symptoms, and he ceased work.
157 On interview, the plaintiff complained of constant occasionally sharp lower back pain and constant left leg and ankle pain and swelling.
158 Post injury, the plaintiff was limited in the household tasks he could do, carrying only light shopping. He dressed and showered more slowly. His day consisted of watching television and walking around the back garden.
159 Prior to the incident, the plaintiff enjoyed watching soccer and tennis, either live or on television. He also enjoyed gardening, going on picnics and visiting friends. Post injury, he no longer participated in those activities.
160 Ms Forster noted the following reports – Dr Nathar in 2015; Dr Maccar in October 2014; Mr D’Urso in April 2014, and Dr Wahr in December 2013.
161 Ms Forster concluded, from a recruitment perspective, the plaintiff would not be able to efficiently perform alternate sedentary-type work such as light factory bench-type work. His physical restrictions, constant pain and symptoms, especially when combined with his medication dependence, may also impede his ability to work safely around or operate machinery, or any type of driving work, including forklift. However, the plaintiff’s doctor should be consulted regarding this matter. She thought, therefore, the plaintiff would need to undertake a study program to be considered for alternative duties such as office work.
162 Even if the plaintiff passed the necessary training to perform an alternative vocation, Ms Forster thought the plaintiff may be hindered by his pain and tiredness, and his psychological condition may negatively affect his ability to learn new information and to interact with others, as would his poor English skills.
163 Based on the plaintiff’s medical reports, Ms Forster thought the plaintiff had physical and psychological restrictions which prevented him from returning to his pre-injury duties or to the workforce in any unrestricted manual capacity. According to the medical reports, the plaintiff was unlikely to be able to return to significant physical or manual work in the future. She considered sedentary work may also present as difficult due to the plaintiff’s lack of commercial skills in that area and likely inability to complete comprehensive retraining.
164 Based on the relevant factors, Ms Forster would not consider the plaintiff for any vacancies without a medical clearance from his doctor, clearly stating the hours and duties he could safely perform.
165 A registered psychologist from Centrelink prepared a Job Capacity Assessment Report, having interviewed the plaintiff on 12 January 2014. It was noted the diagnosis was agitated depression, confirmed by Dr Wahr.
166 The plaintiff’s baseline work capacity was assessed at being between zero to 7 hours per week within the next two years. That capacity was said to be a result of the permanent medical barriers outlined and the functional impacts on day-to-day functioning, as noted elsewhere within the report.
167 It was noted the plaintiff experienced agitation, anger, difficulty coping with stress, limited social engagement, reduced memory and impaired concentration which impacted on his baseline work capacity.
168 Based on the information contained within the report, the assessor thought the plaintiff had limited residual capacity for work and was unable to benefit from intervention at that time.
Investigations
169 Dr Dzartov organised a lumbar spine x‑ray in May 2012.
170 It was reported there was a mild scoliosis concave to the right and prominent osteophyte formation and mild disc space narrowing at L1-L2 with minimal similar changes seen at T12-L1 and L3-4. There were mild degenerative changes involving the L5-S1 facets. The sacroiliac joints appeared within normal limits and in view of the plaintiff’s symptoms of nerve root compression, a CT scan was recommended.
171 Dr Dzartov organised a CT scan of the lumbar spine in June 2012.
172 It was reported the lumbar intervertebral discs in general showed mild degenerative change with small marginal osteophytes and early diffuse disc bulges. No disc herniation or central canal stenosis was seen.
173 There was narrowing of the left L5-S1 neural exit foramen of a moderate to marked degree, raising the possibility of left L5 nerve root impingement and clinical correlation was necessary. Otherwise it was noted there was no evidence of possible nerve root compression throughout the lumbar spine.
174 Dr Tan organised an MRI scan of the lumbar spine in July 2012.
175 It was reported there was multilevel disc degeneration. At L5-S1, there was minor asymptomatic left-sided broadbased disc bulge, together with minor ligamentum flavum bulging causing minor compromise of existing left L5 nerve root.
The Defendant’s medical evidence
The Plaintiff’s treaters
176 The initial certificate from Dr Dzartov dated 23 May 2012 certified the plaintiff unfit to resume work from 23 May 2012 until 25 May 2012.
177 Dr Tan advised Dr Dzartov in June 2012 that examination revealed no convincing restriction of straight leg raising. Lower limb reflexes were symmetric and the only neurology found was possible weakness of the left extensor hallucis longus.
178 Dr Tan advised the plaintiff needed an MRI scan of his lumbosacral spine which she had arranged, and would see him after obtaining the result.
179 Dr Tan next saw the plaintiff on 1 August 2012. She noted the plaintiff then denied any sciatic-type leg pain. He was complaining of swelling of his left ankle and problems walking.
180 Dr Tan noted the MRI scan revealed predominantly L5-S1 disc degeneration with resultant minor left L5 foraminal stenosis. There was some swelling around the left ankle and mild tenderness.
181 Dr Tan did not believe that the plaintiff had a convincing L5 radiculopathy. She thought he had probably strained his left ankle somehow. She therefore reassured him that he did not require any back surgery. She recommended regular use of Tramadol and that the plaintiff avoid wearing heavy work boots while his ankle was swollen. She thought if the ankle continued to be problematic, an MRI scan may be worthwhile.
182 Dr Tan last reviewed the plaintiff on 17 October 2012. He then advised his ankle was better since she had written a letter to the defendant to exempt him from having to wear heavy boots.
183 Dr Tan discussed the left ankle MRI scan and noted, interestingly, the plaintiff had evidence of a chronic strain injury in the flexor hallucis longus muscle, which would fit with his pain. Dr Tan advised, given she had no expertise in the treatment of ankle injuries, the plaintiff go to a sports medicine clinic or an orthopaedic ankle specialist.
184 In a later detailed report, Dr Tan advised she did not have any convincing evidence of a lumbar spine injury. She thought the plaintiff’s lower left limb pain appeared to completely resolved over a period of two months and if he did at any stage have sciatica, it also appeared to have resolved prior to seeing her.
185 Dr Tan did not go into an extended discussion with the plaintiff about whether he was still capable of doing his usual work duties. She said with confidence, that he had no objective evidence of limitation in work capacity on the basis of lumbar spine disease and she would have to defer to an orthopaedic surgeon or occupational physician with regard to the plaintiff’s left ankle diagnosis and any related disability.
186 On 8 July 2013, the plaintiff told Dr Maccar that he had been harassed by work, whom he stated to have had him in the crosshairs to be sacked. He stated that he had been reprimanded for doing a faulty job, which they could not prove that he had done. They got him to sign a written warning. The plaintiff was referred to Dr Pastore, and Antenex tablets were added to the previous prescription of Panadeine Forte.
187 WorkCover Certificates from Dr Maccar in October and November 2012 related to the plaintiff’s left ankle injury. Discogenic pain was added to the certificates in December 2012.
Medico-legal evidence
188 Dr Gary Davison, occupational physician, saw the plaintiff on 29 January 2013 in relation to his statutory benefit entitlements. At that time, the plaintiff remained at work on a full time basis undertaking his pre-injury duties.
189 The plaintiff told Dr Davison that following the incident, he had left lower back pain, and experienced pain in the left leg and ankle where there was also some swelling. He could not recall suffering any specific ankle injury.
190 On examination, the plaintiff reported the presence of a persistent pain in the left lower back region radiating down the outer aspect of the left lower limb, extending to the ankle. He advised his symptoms had not improved.
191 The plaintiff reported a sitting and standing tolerance up to two hours, never long driving and avoiding heavy lifting. His home activities included lawn and garden maintenance, and his wife did the housework and supermarket shopping.
192 On examination, Waddell’s signs were negative. There was unrestricted range of active movement of the thoracolumbar spine, and reflexes were brisk in the lower limbs. There was no restriction of straight leg raising. There was a subjective alteration in sensation of the left leg and the L5 distribution. There was no evidence of muscle wasting.
193 Dr Davison thought it reasonable to accept the plaintiff suffered a lower back strain when working as described. There was associated left lower limb pain and sensory disturbance. Dr Davison thought the history and clinical presentation were consistent with the radiological findings on MRI scan of an asymptomatic left-sided broadbased disc bulge at L5-S1 involving a minor compromise of the left L5 nerve root.
194 Dr Davison noted the plaintiff appeared to have a separate injury involving the left ankle joint, although there was no history of a specific incident.
195 Dr Davison considered the plaintiff’s employment had been a cause of his lower back condition and could not identify any causative factors in relation to the left ankle.
196 Dr Davison noted the plaintiff was apparently undertaking pre-injury duties and hours of work. However, he should observe appropriate restrictions; namely, avoiding frequent or sustained forward bending or twisting, change posture regularly and at will, the ability to alter posture between sitting and standing, avoid manual handling greater than 10 kilograms in force or weight between mid chest and mid-thigh height and avoid squatting.
197 Dr Davison noted a bone scan taken on 23 October 2012 was reported to show scintigraphic findings compatible with soft tissue inflammation about the left ankle and tibialis posterior tendinosis, with left mid synovitis.
198 Dr Davison noted the September 2012 MRI scan of the left foot and that Dr Tan thought it likely that strain to the flexor hallucis longus muscle distally at the musculo tendinous junction was the cause of the left lateral ankle region pain, as the reporter could see neither significant cause of acute pain and noted there was some prior strain injury to the lateral ligaments of the ankle.
199 Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff in December 2013.
200 On examination, the plaintiff complained to him of continuous pain in the lower back, mainly at the L4 level, and pain spreading to his left calf and foot.
201 Mr Battlay noted the plaintiff did not react excessively to examination. He had limited extension and left lateral flexion. There was no neurological loss in the lower limbs.
202 Mr Battlay noted the plaintiff had been put off work because of a back problem and it seemed that he had problems presenting his claim but continued to undergo treatment. Be that as it may, he had symptomatic lumbar spondylosis without radiculopathy and he was only fit for restricted duties. He thought the condition had not resolved.
203 Mr Battlay thought the proposed duties of welding small parts on an anti-fatigue mat, as well as quality control, were appropriate, starting at 32 hours and then 40 hours a week.
204 Dr Hwang, consultant occupational physician, examined the plaintiff in April 2014.
205 On that examination, the plaintiff described worsening pain. He had pain constantly in the lower back radiating to the left side and down his leg.
206 The plaintiff presented with a very serious demeanour and had a strong emphasis on the negative aspects of the way he was treated by the defendant. His affect appeared flattened.
207 On examination of the back, there was a significant amount of muscular tightness and tension in the lower lumbar region on the left. There was rather diffuse tenderness in a non-localised distribution. Neurological examination was difficult to achieve, as there was some degree of inconsistency on motor testing and non-dermatomal subjectively described altered sensation affecting the left leg. There were inconsistencies between formal examination and casual observation.
208 Dr Hwang thought the diagnosis was unclear. In his view, it would appear the plaintiff may have suffered from an aggravation of a pre-existing previously asymptomatic degeneration of his back but based on the findings that day, it was possible he may have had some degree of radicular pain affecting his left leg. However, there was a lack of diagnostic information to be certain.
209 Noting the plaintiff’s complaints of a deterioration since injury, Dr Hwang thought it possible this may represent a natural progression of the underlying degeneration. He thought it possible that psychosocial factors may amplify the pain perception, and he requested earlier treatment notes to comment further in this regard.
210 Dr Hwang then thought a capacity for work was difficult to assess. From a physical point of view, he would expect the plaintiff to have the capacity to undertake work of a light physical nature with a lifting limit of 5 kilograms and it would be reasonable to have a graduated return to work.
211 Dr Hwang was uncertain as to whether Lyrica was appropriate, as he was not convinced there was clear neuropathic pain. He thought the plaintiff probably suffered from an aggravation of a pre-existing condition. It was difficult to say whether the effect of the aggravation continued or whether it had been superseded by natural progression of pre-existing degeneration.
212 Dr Hwang was then provided with reports from Dr Tan, Dr Dzartov, and also Dr Davison.
213 Having reviewed all the documentation, Dr Hwang considered there had been some change in the plaintiff’s presentation, noting Dr Tan’s comments that any back complaint appeared to have resolved. Also, Dr Davison noted the plaintiff appeared to be doing normal duties.
214 In the absence of any clear identifiable pathology relating the original injury and noting the shift in symptoms, particularly lack of persisting back pain by the time of the last consultation with Dr Tan in October 2012, Dr Hwang concluded that any injury suffered to the plaintiff’s lower back had resolved, and any ongoing back symptoms at that stage appeared to have developed since then, although there were some inconsistencies.
215 On balance, Dr Hwang thought any ongoing symptoms relating to the lower back would relate to a naturally-occurring degenerative process. He considered the return to work plan was appropriate, with clerical and light machine operating duties.
216 Dr Hwang thought there was no ongoing incapacity that continued to be materially contributed to by the incident injury. Any aggravation had resolved and any current incapacity related to the naturally-occurring condition.
217 Dr Hwang was then provided with notes from the plaintiff’s physiotherapist, who saw him on six occasions, the last visit being on 11 October 2012 when it was noted that at that stage, the plaintiff had reported to his supervisor being fine.
218 Dr Hwang concluded based on the available information, it would appear the plaintiff had sustained an acute back strain at work and it had resolved with the course of further symptoms developing gradually over the last two years unrelated to the claimed injury.
219 Dr Duke, psychiatrist, first examined the plaintiff in August 2013. The plaintiff told him of the incident and his treatment thereafter.
220 The plaintiff told Dr Duke he continued working at Thomastown on light duties until two and a half months ago, then moved back to Reservoir from Thomastown and thereafter, his psychiatric problems developed rapidly.
221 The plaintiff told Dr Duke of having gone from one of the best to one of the worst managers recently. The new manager had complained to the plaintiff he was not meeting his quota. The plaintiff told Dr Duke he was being told off and screamed at in front of other people. There was an issue with production targets but in any event, the machine could not produce the 400 target in a day.
222 Dr Duke noted, as a consequence of the browbeating by the production manager, the plaintiff had developed a brand new psychiatric condition; he had become agitated, sleepless, was worrying, and had consequently been referred by Dr Maccar to a psychologist, Dr Pastore, who began treating him three weeks earlier because of his nerves and anxiety.
223 The plaintiff described being less social, belonging to no groups or organisations, attending church less, and he did not go to the soccer or tennis as much as before. He had been taking Antenex for the past two months and also Lyrica at night.
224 On mental state examination, the plaintiff was cooperative, his thought was normal in form and content. He was indignant in affect about the way he had been treated by his manager and his own belief was he feared he would be dismissed rather than allowed to continue with modified or light duties. Perception was unimpaired and there were no illusions or hallucinations. Intelligence was average. Memory and concentration were unimpaired.
225 After the treatment by his manager, in Dr Duke’s view, the plaintiff developed his current psychiatric condition – an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
226 Dr Duke then thought there was no psychiatric impairment relating to full duties but understood there were significant physical impediments which required evaluation on site by an occupational physician or therapist.
227 Dr Duke thought psychological counselling was relatively futile because the plaintiff had the ongoing stresses in the workplace.
228 The plaintiff was re-examined by Dr Duke on 19 November 2014.
229 The plaintiff’s symptoms then included depression, low mood, nervousness, ruminating, poor sleep, lowered appetite and he considered he had lost weight.
230 The plaintiff considered he had a little better mood since being on the pills prescribed by Dr Wahr.
231 The plaintiff told Dr Duke that occasionally he went to the shops. He did not like noise or crowds. He had no hobbies and he was not so into soccer as he used to be. His attendance at church was limited.
232 On examination, Dr Duke noted the plaintiff was cooperative, his thought was normal in form and content, his intelligence was average and his memory and concentration were adequate.
233 Dr Duke diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood which now appeared to be more secondary to his physical complaints than due to any primary injury associated with the plaintiff’s workplace relationship.
234 Dr Duke thought the plaintiff’s depression was now at a sufficiently significant level, that from a psychiatric perspective alone, he was unable to work in any capacity. He thought Dr Wahr’s ongoing treatment was desirable and that medication may be revised depending on further response after the current medico-legal dilemmas had resolved.
235 In a further supplementary report, Dr Duke confirmed when he last saw the plaintiff, he was suffering from a diagnosable psychiatric condition as a direct result of his back injury.
236 Having been told that the plaintiff’s compensable back injury had resolved, Dr Duke then thought the consequential secondary Adjustment Disorder could also be resolved and logically, be no longer materially contributed to by the claimed injury.
237 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in February 2015.
238 The plaintiff told Mr Simm about the incident and the subsequent medical treatment and returns to work, the last being a build up to full-time work, at which point the plaintiff was asked to return to work on the presses. The plaintiff was not able to cope, and he stopped work on 8 August 2014 and had not worked since.
239 The plaintiff said there had been no improvement in his condition since he ceased work. He suffered from constant pain which was frequently severe. The pain occurred over the lumbar region to the left of the midline from where pain extended down to the left sacroiliac joint and around the iliac crest.
240 On examination, the plaintiff displayed illness and pain behaviour. He struggled to walk on his toes and heels. There was facial grimacing.
241 All movement of the thoracolumbar spine were associated with evidence of pain. The plaintiff was tender to palpation in the left lumbar region and tended to withdraw when touched.
242 There were no objective clinical signs of radiculopathy. There was collapsing weakness in a non-anatomical pattern around the left ankle. There was a generalised decrease to pinprick rather than focal or dermatomal change in the left leg.
243 Mr Simm concluded the plaintiff presented with subjective clinical signs of painful lumbar dysfunction in association with abnormal illness behaviour, which included collapsing weakness on formal manual muscle testing, a tendency to overbalance when assessed standing and walking, and frequent overt pain behaviour when assessed. Mr Simm thought there were no objective clinical signs of radiculopathy or left ankle dysfunction.
244 Mr Simm noted the diagnosis of the original injury was that of a back strain incident which aggravated pre-existing but previously asymptomatic degenerative changes in the lumbar spine.
245 Mr Simm noted the disabling symptoms were transient and although the plaintiff had persistent symptoms, he recovered sufficiently to return to normal work.
246 Mr Simm thought it relevant that when Mr D’Urso examined the plaintiff on 16 July 2013, he recorded normal movement at a time when the plaintiff was said to be no longer able to do light work.
247 Mr Simm noted Mr D’Urso’s physical findings were in contrast with the physical findings presented by the plaintiff, which would suggest there had been quite a marked deterioration in his condition since that examination.
248 In Mr Simm’s view, any such deterioration was probably a reflection of the development of a chronic spinal Pain Syndrome in the environment of the plaintiff’s work-related back injury. Alternatively, there may be some contribution to this deterioration from progression of the constitutional degenerative changes.
249 Mr Simm considered the plaintiff to be capable of suitable employment such as light welding. He noted the plaintiff’s clinical presentation was directed towards demonstrating disability and that patients who present in that way are unlikely to return to work in any capacity.
250 Mr Simm thought the plaintiff was not fit for pre-injury employment or any alternative physically demanding work. In his view, any assessment of the plaintiff’s capacity for suitable employment should include a psychiatric assessment, as the plaintiff was currently under the care of a psychiatrist.
251 Mr Simm noted the plaintiff had an established pattern of chronic symptoms. In his view, it was important that the plaintiff’s pain had not improved at all after the cessation of work, which Mr Simm thought was a poor prognostic sign, which would suggest the plaintiff’s back pain was now running independently of abnormal posture or mechanical loading of the back. He thought treatment should be confined to symptomatic conservative measures.
The Defendant’s vocational evidence
252 IPAR provided a work report on 8 August 2013, at which time the plaintiff had been off work since April 2013 upon certification by Dr Maccar that he was unfit for any duties.
253 There was a workplace visit on 15 January 2014. By that stage, the plaintiff had been examined by Mr Battlay, who thought he was fit for restricted light duties.
254 At that visit, the plaintiff advised that he had not yet returned to work and felt his pain symptoms had worsened since August 2013, particularly with regard to his referred pain in his lower limb. He advised IPAR that he was not willing to consider returning to work with the defendant as he did not feel well enough to perform light duties.
255 It was noted that the plaintiff advised that further treatment may include a cortisone injection and referral to a neurologist.
256 A one-month progress report dated 26 June 2014 set out a return to work program of 4 hours per day three days a week in the first week; 5 hours per day for three days a week in the second week; 6 hours per day for five days a week in the third week and 40 hours per week from the fourth week.
257 A document entitled “Return to Work Arrangements” was compiled on 25 July 2014 setting out the details of the clerical role and also light machine operating duties, which the plaintiff confirmed he carried out.
Overview
258 The plaintiff brought the present application under two heads: clause (c) for a severe mental impairment, which it was submitted was the stronger application, and also clause (a) in relation to the lumbar spine.[50]
[50] T116
259 It is not disputed that the plaintiff suffered a compensable injury to his lumbar spine in the incident. His claim was accepted and payments made. The plaintiff’s claim in relation to his psychiatric injury was denied on the basis his mental injury was caused wholly or predominantly by management action taken by an employer.[51]
[51]Letter from CGU to the plaintiff dated 9 December 2013
260 Whilst in 2013, Dr Duke thought the conflict the plaintiff had with the defendant was a cause of his psychiatric injury, following the most recent examination in November 2014, he considered this injury was solely related to the plaintiff’s reaction to his incident injuries.
261 This view was shared by the plaintiff’s treaters, Dr Wahr and Dr Maccar, and also medico-legal psychiatrists, Dr Duke and Dr Nathar, who accept the plaintiff’s depression and Adjustment Disorder are related to his pain experience and frustration at not being able to continue working and live the life he did prior to injury.
Credit
262 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[52]
“… 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.”
[52](2010) 31 VR 1 at paragraph [12]
263 In my view, the plaintiff was a straightforward witness and there were no issues as to his credit. I accept, as his counsel submitted, the plaintiff was a credible truthful witness who tried to give as best account as he could.[53]
[53]T109
264 There was no real challenge to the plaintiff’s reported level of disability, although Mr Simm thought he was attempting to demonstrate disability that exceeded the reality of his situation.[54]
[54]T98
265 I accept the plaintiff is well motivated to work. He has had a good work history and has complied with the suggested return to work plans and worked under pressure when certificates provided were not complied with.
266 Significantly, the plaintiff returned to work after the Originating Motion was issued in November 2013. Further, he was prepared to concede there was an improvement in his condition from January 2014 such that he was able to resume work in the middle of that year.[55]
[55]T113
Psychiatric impairment
267 Counsel for the plaintiff placed most emphasis on the claim pursuant to clause (c).[56]
[56]T116
268 It was submitted that the plaintiff had tried to do his best post injury. He had tried to continue working whilst in pain with the defendant, paying little regard to modified duties’ certificates. When his duties were ultimately changed, the plaintiff was criticised for not reaching targets. His ultimate return to normal full-time duties on the press lasted only a matter of days because of his back pain.
269 This work situation and the restriction on the plaintiff’s activities resulting from his back and leg pain caused him to become depressed and require psychiatric intervention, which continues to date, and will do so for the foreseeable future.[57]
[57]T116
270 Most medical practitioners considered the plaintiff’s back and leg pain has an ongoing organic basis[58] although Mr Simm thought there were features of Chronic Spinal Pain Syndrome and Dr Thomas considered there seemed to be a significant non-organic component. Both Mr Simm and Dr Hwang attributed the plaintiff’s ongoing spinal problem to the naturally-occurring degenerative process.
[58]Dr Maccar, Mr D’Urso, Dr Davison, Mr Battlay, Mr Brearley
Consequences
271 Following reporting severe stress at work to Dr Maccar in July 2013, the plaintiff was prescribed the anti-anxiety medication, Antenex, and he was referred to Tony Pastore for counselling.
272 The plaintiff has required ongoing psychiatric treatment from Dr Wahr on a regular basis since September 2013. He continues to be prescribed Avanza and Largactil.
273 Dr Wahr and Dr Nathar considered the plaintiff required ongoing psychiatric treatment consisting of supportive psychiatric psychotherapy and monitoring of psychotropic medication. Dr Duke considered Dr Wahr’s treatment was desirable and that medication may be revised depending on further response after the current medico-legal dilemmas are resolved.
274 Whilst the plaintiff’s own description of his psychiatric state is somewhat general, with him describing himself as “very depressed, nervous and stressed”,[59] these subjective complaints have been accepted by both his treaters and also medico-legal examiners, Dr Nathar and Dr Duke, and a psychiatric condition diagnosed based on those clinical findings.
[59]T103
275 The symptoms of the plaintiff’s psychiatric injury, which include poor morale, low stress tolerance, anhedonia, poor memory and concentration functions, lethargy and a propensity towards anxiety and depression are all problems that would incapacitate him from returning to any type of work.[60]
[60]See Dr Nathar – examination in February 2015, Job Capacity Assessment Report of January 2015
276 Having found the plaintiff is a witness of truth, I accept his evidence that he is unable to work. As counsel for the defendant conceded, no medical practitioner considers the plaintiff has a capacity work as a result of his psychiatric condition.[61]
[61]T106
277 Further, Centrelink recently assessed the plaintiff’s work capacity on psychiatric grounds at zero to 7 hours per week and did not consider he would benefit from any intervention.[62]
[62]T117
278 Clearly, this is a consequence which meets the narrative requirements of the Act. Further, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
279 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
280 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
281 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
282 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
283 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
284 I am therefore required to determine a “without injury” earnings figure, [63]
[63]Barwon Spinners v Podolak (2005) 14 VR 622 at paragraph [70]
285 There is no real dispute as to the level of the plaintiff’s earnings prior to injury, earning in the range of about $40,000 a year.
286 As the plaintiff has no capacity for suitable employment on psychiatric grounds, he has clearly suffered the requisite loss of 40 per cent.
287 There is no suggestion in any of the medical evidence that this condition is likely to significantly improve in the foreseeable future.
288 Whilst Dr Maccar was somewhat optimistic in his October 2014 report about a return to some kind of full duties, although not sure if this involved pre-injury duties or working with the defendant, Dr Maccar’s certificates post August 2014 indicate no capacity for work on psychiatric grounds.[64] This view is shared by Dr Wahr, Dr Nathar and Dr Duke.
[64]T108, L29
289 Taking into account all the evidence, I am satisfied that the plaintiff has no capacity for work on psychiatric grounds and, on that basis, he suffered the requisite loss of 40 per cent.
290 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
291 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).[65]
[65]T115, Dr Thomas, rehabilitation physician, shares this view
292 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[66] and Advanced Wire & Cable Pty Ltd v Abdulle.[67]
[66][2009] VSC 454 at paragraph [147]
[67][2009] VSCA 170
293 Having found the plaintiff has a severe psychiatric impairment, I am not required to consider his application pursuant to subsection (a) in relation to his lumbar spine.
294 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering and loss of earning capacity.
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