Juresic v Flexiglass Challenge Pty Ltd
[2011] VCC 278
•17 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00593
| DRAGAN JURESIC | Plaintiff |
| v | |
| FLEXIGLASS CHALLENGE PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 and 3 March 2011 |
| DATE OF JUDGMENT: | 17 March 2011 |
| CASE MAY BE CITED AS: | Juresic v Flexiglass Challenge Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 278 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1995, s.134AB(37)(a) – pain and suffering and loss of earning capacity – serious injury to the low- back – leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr JJ Mighell SC with | Arnold Thomas & Becker Pty Ltd |
| Mr MA Nightingale | ||
| For the Defendant | Mr T J Ryan | Lander & Rogers |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the lumbar spine caused as a result of heavy, repetitive work.
6 The plaintiff relied upon two affidavits, sworn 15 July 2009 and 18 October 2010. The plaintiff 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.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities,
that:
(a)
“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant over the period of his employment.[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph [33]
“… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering;
(ii) loss of earning capacity —
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d) under s.134AB(38)(c) of the Act, an impairment or loss of body function: “… shall not be held to be serious … unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases … fairly described as being more than significant or marked, and as being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[4]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[5]
[4] [2009] VSCA 181
[5] Ibid at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”[6]
[6] Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraph (b) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[7]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[8]
[7] S.134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that whilst the defendant paid compensation for a limited period of time in respect to a Claim Form that described “sore muscles right-hand side of back”, the injury was transient, the effect of which has ceased. Alternatively, if there is an ongoing “injury”, the consequences do not meet the requisite threshold. That this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of “seriousness” for pain and suffering and loss of earning capacity, in that the consequences could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range. Secondly, the plaintiff’s credit is in issue.
The Plaintiff’s Evidence
15 In his first affidavit sworn 15 July 2009, the plaintiff deposes that:
•
He was born on 22 September 1966 in Bosnia. He completed secondary school in Bosnia and worked as a store person and then did manual bookkeeping for six years. He left Bosnia in 1994 and lived in Sweden for five years as an asylum seeker. He did not undertake paid employment there. He then lived in London for two years where he worked as a bookkeeper for about eighteen months, which involved manual work with limited computer use. He moved to Australia in January 2001. Prior to commencing work with the defendant, he worked for about one to two months as a casual factory worker.
•
On 7 July 2003, he commenced working with the defendant as a tray builder, which involved lifting aluminium parts weighing up to 10 kilograms, and attaching the parts using screwdrivers and air pressure drills.
•
In late 2004, he noticed pain in his low-back while working at the defendant’s factory. This pain became worse and he later noticed pain in his left buttock and left leg in addition to the pain in his back. The foreman sent him to the Dundas Street Clinic and an entry was recorded in the defendant’s Register of Injuries dated 7 July 2006. He saw Dr K Bowes at the clinic on 7 July 2006 and lodged a WorkCover claim that month.
•
In June 2006, he developed pain in his right shoulder and he thinks the medical appointment and subsequent WorkCover claim in July 2006 were related to the shoulder injury, but may have related to both. The claim has always been treated as relating to or including a claim with respect to low-back pain.
•
In November 2006, the pain worsened considerably and on 5 December 2006, he saw Dr Daniel Lipson, also of the Dundas Street Clinic. An entry was recorded in the defendant’s Register of Injuries dated 5 December 2006.
•
On 18 December 2006, he ceased work because of the pain. Shortly after, he requested a WorkCover claim form from the defendant, but was told he did not need to complete the form as he had already lodged a claim for a low-back injury.
•
On 15 January 2007, he returned to work full-time on light duties, but on or about 31 January 2007, he ceased working due to pain. In March 2007, he returned to work part-time on light duties, but less than two weeks later he ceased work because of the pain in his low-back and left leg. He has not worked since.
•
He has received treatment from one or more practitioners at the Dundas Street Medical Centre; Tony Flanagan, physiotherapist at Fairfield Physiotherapy and Sports Injuries Centre; Dr Hammond from Doctors of Northcote; Peter Langton, psychologist at Creative Solutions Consultations; and Mr Tiew Han, consultant neurosurgeon.
•
His current treating doctor is Dr Gabriel Hammond, whom he sees once a month. He receives twelve physiotherapy appointments per year paid for through insurance. He is not on regular medication, but he takes Mobic or Panadeine Forte when the pain is severe. He manages his injury through attending a gymnasium and walking and stretching regularly. His treatment expenses to date have been paid for under the Act and he has also received weekly compensation payments for periods where he has been unable to work.
•
He experiences low-back pain every day. He suffers low-back discomfit when sitting for five to ten minutes, requiring him to change his position, and after about thirty minutes of sitting he needs to walk to ease the discomfit. He also suffers from intermittent flare-ups of pain in his back and leg, which are very disabling, and he would be unable to attend work during these periods.
•
He is no longer employed, but he might be able to perform some very light work on a part-time basis up to about 20 hours per week. He can no longer undertake factory work and does not have the skills for bookkeeping in Australia. He has good English skills; he speaks and understands English well, but has poor written English skills. He has also obtained a truck driving licence, but believes his injury would prevent him from driving for long periods of time.
•
Before the injury he was fit and very active and had not injured his low- back or suffered from low back pain. Prior to the injury, he played indoor social soccer weekly, but can no longer play because of his injury. Prior to the injury, he was able to perform house maintenance and house painting, but can no longer do many of these tasks. He has to be careful when doing tasks like putting on his shoes and socks to make sure he does not aggravate his back. He tries to avoid bending, lifting and twisting.
•
He currently lives alone in a rented house and the landlord looks after the garden. He is able to do light housework and cooking. He walks regularly at a normal pace with short breaks to limit the build up of pain in his low-back, left buttock and left leg.
16 In his second affidavit sworn 18 October, 2010, the plaintiff deposes that:
•
He continues to feel pressure and tightness in his back every day, but not all the time. He struggles to sit or stand for long periods of time and he continues to suffer flare-ups every two or three months.
•
His current general practitioner is now Dr Charles [Ouna] as his general practitioner at the time of swearing his previous affidavit, Dr Hammond, has left the practice. He continues to see Dr Charles [Ouna] on a regular basis. He takes medication, but not regularly. He receives a limited number of physiotherapy sessions through Medicare, which he uses when he suffers flare-ups of the pain. He no longer sees his psychologist.
•
He manages his pain through exercise, physiotherapy when necessary and being careful when undertaking activities. He continues to walk about one hour every night with frequent breaks. After this exercise he is almost always tired and sore and needs to lie down and rest. He continues to walk as it alleviates the boredom of staying at home, but he is unsure if it helps his back.
•
Since swearing his previous affidavit, he has attempted to work on one occasion as a pizza delivery driver. He worked for approximately six nights but had to cease as the work aggravated his injury.
•
Since swearing his previous affidavit, his WorkCover payments have stopped and after a period receiving Newstart payments, he now receives a Disability Pension.
•
He presently lives alone in a small townhouse, which is affordable public housing. His current residence is small and does not require much maintenance. The landlord maintains the garden and does necessary repairs.
The Plaintiff’s Evidence in Cross-Examination
17 The plaintiff was cross-examined and gave the following pertinent evidence:
•
While in Bosnia he worked as an accounts clerk, which involved working in a warehouse and undertaking a manual stocktake. He then worked in England doing similar work. Since he finished work with the defendant, he has obtained a heavy-vehicle truck licence and a forklift licence.
•
He said when he has flare-ups everything is hard: sitting, taking off his socks. He said it is not something he has every moment of every day. It just depends on the level of pain or pressure.
•
He was asked whether he told Dr Castle that the pain does not wake him at night. He denied that. He said he sleeps normally but many times he wakes up early in the morning. He cannot find the right position, and just has to get up.
•
He agreed he told Mr Han, neurosurgeon, that he could not sit or stand for long, and during the consultation he frequently changed his body position.
•
He agreed he had told his general practitioner that he was not capable of doing house maintenance, house painting and lawn mowing. At that time he would have been living in a unit in Northcote or in a house in Moonee Ponds where he was required to do that work. His current accommodation is a community house where he is not required to perform those activities. He said if he rents a unit or a house in the future he will have to do those activities himself, which he cannot do.
•
He agreed he was a smoker. He agreed he would have told Mr Han in 2007 that he smoked from one to fifteen cigarettes a day. He said he had breaks for three to four months without smoking. He is trying to limit himself in the number of cigarettes he smokes, but there are some times when he will smoke a box of twenty cigarettes a day, so he said what he told the doctors was probably what he was smoking at that time. He agreed he had been a smoker for thirty years.
•
He agreed that he had said that he avoided social contact with people, and that he felt embarrassed and frustrated by his current level of functioning. He said it is not as much of a problem now as it used to be, and he does go out to the local club, restaurants and cafes.
• He said he walked, as his doctors had advised him to do so. •
He agreed that he would go to the RSL a couple of times a month. Sometimes it would be two or three days in a row, and then sometimes he would not go at all. He said he was not a gambler.
•
He agreed he had had a car accident and had written off his Mitsubishi Mirage. He had run into another car, but he said he was fine. He thought the accident was in May of 2010.
Investigations
18 On 5 December 2006, a CT scan of the plaintiff’s lumbosacral spine was performed. The conclusion was left-sided posterior L5-S1 disc protrusion with likely impingement on the emerging left S1 nerve root.
19 On 7 March 2007, at the request of Mr Han, an MRI scan of the lumbar spine was performed. The findings were as follows:
“The conus is in normal position.
The L1/2, L2/3 and L3/4 discs are within normal limits.
At L4/5 subtle broad bulge is present. No focal prolapse. Neural foramina are patent.
At L5/S1 a left paracentral disc extrusion causes high-grade effacement of the left S1 nerve root in the lateral recess. The neural foramina are patent. Minimal facet-joint disease. No pars defect.
Conclusion
Left paracentral disc extrusion L5/S1 effacing the left S1 nerve root. No other disc prolapse.”
The Plaintiff’s Medical Evidence
20 In a report dated 18 February 2008, Dr Daniel Lipson, general practitioner, of the Dundas Street Medical Centre, said that the plaintiff had presented with complaints of back pain in July and December 2006. He attributed his pain to the demands of his employment. Dr Lipson said a subsequent CAT scan of the plaintiff’s lumbar spine revealed lumbar-disc degeneration, in particular the left S1 nerve root. The plaintiff was managed with anti-inflammatory agents and physiotherapy, and returned to work on light duties.
21 Dr Lipson said it was reasonable to conclude that the demands of the plaintiff’s job working as a tray builder had contributed to his condition. He had not seen the plaintiff since January 2007.
22 In a report dated 8 March 2007 requested by the defendant’s insurer, Mr John O’Brien, orthopaedic surgeon, said he examined the plaintiff in March 2007. At that time, the plaintiff had complained of intermittent back pain for two years. He said his current problem of low-back and left leg pain commenced without specific injury in the course of his employment, gradually increasing until the plaintiff reported the problem in December 2006. It was Mr O’Brien’s view that, based on the plaintiff’s history, his employment was a significant contributing factor. He said the clinical condition was far from stable. He was guarded in relation to prognosis, and accepted that the plaintiff was currently disabled and not capable of his employment.
23 The plaintiff received physiotherapy treatment from Mr Tony Flanagan in December 2006 and from Ms Juliet Hall in February 2007. Ms Hall, in a report dated 26 February 2007, said she would recommend a gradual return to work in two weeks. She suggested two to three hours only, three days per week.
24 Mr Han, treating neurosurgeon, provided reports dated February 2008 and February 2009. Mr Han said the plaintiff had been referred to him by his general practitioner, Dr Gabe Hammond of Doctors of Northcote, in February 2007. In 2008, it was Mr Han’s view that the plaintiff’s back pain was due to a prolapse at the L5-S1 disc, with impingement onto the S1 nerve root. The overwhelming cause was lower back/left buttock pain. Given the lack of any significant leg pain, he said surgery was not warranted. He thought the plaintiff could return to work on modified duties. However, he noted that a NabEnet report revealed that the plaintiff failed to complete the modified duties and was deemed unfit for any duties. His prognosis was guarded. He considered the plaintiff’s condition had stabilised.
25 In 2009, Mr Han considered the plaintiff’s symptoms had improved. He last saw the plaintiff in April 2008. He said he suffered minor back pain and left- buttock pain, but it had improved significantly compared to the previous year. Mr Han considered the plaintiff’s prognosis was poor and that he would be unable to return to his pre-injury employment. He said that disc degeneration tends to deteriorate with the passage of time, particularly where patients subject their back to ongoing repetitive bending and twisting. He said if the plaintiff ceased employment altogether, the likelihood of further deterioration was minimal.
26 The plaintiff’s general practitioner, Dr Gabriel Hammond, reported in February 2008 and February 2009. In February 2009, Dr Hammond said the plaintiff had suffered an L5-S1 disc bulge with a left-sided S1 nerve root impingement in his spine which caused low-back pain and left-sided sciatica. He accepted that the injury was work-related.
27 In 2008, Dr Hammond said the plaintiff had some capacity for current employment but he could not perform duties that involved bending forwards or lifting anything greater than 3 kilograms. He said the plaintiff still gets back pain and needs to be able to rest if it becomes sore.
28 In February 2009, Dr Hammond said the plaintiff was improving from a recent flare-up of his back pain. He had recently been unfit to work, although it was Dr Hammond’s view that he was now fit for alternative duties with no lifting greater than 5 kilograms, no repetitive bending, a maximum of 20 hours per week and a need to be able to change his position if he has back pain. He said it was likely that he would always suffer from some form of back pain. If he continues his current treatment of physiotherapy and exercise, then it will remain stable. He considered the plaintiff was as stable as he can be, and he noted the plaintiff had been compliant with his treatment options. He noted the plaintiff was vigilant with his treatment regime.
29 The plaintiff’s current general practitioner, Dr Charles Ouna, on 7 June 2010, said the plaintiff had been diagnosed with a focal disc bulge at L5-S1 on the left side, impinging on the S1 nerve root. He said his injury incapacitates him for his pre-injury employment, and on 1 March 2011, he reported that the plaintiff’s back condition means he is and will be totally incapacitated for any physical work for the foreseeable future.
30 Associate Professor Bittar, neurosurgeon, saw the plaintiff at the request of his solicitors. In October 2010, the plaintiff complained of left-sided lower back pain which was intermittent and was up to seven out of ten in severity. It was exacerbated by sitting for more than one hour, standing for more than one hour, bending forwards and backwards and lifting objects weighing more than 5 kilograms. He noted that the back pain occasionally radiated into his left leg. Associate Professor Bittar said the plaintiff walked with a slow gait, there was marked restriction of lumbar flexion, no tenderness on palpation, straight leg raising was normal bilaterally, his left ankle jerk was reduced and there was normal power and sensation. It was his view that the plaintiff suffered from discogenic lower back pain. He said there was clinical evidence of left S1 radiculopathy, consistent with compression of the left S1 nerve root on MRI scan. He accepted that the plaintiff’s employment was a contributing factor to his lumbar spine condition. It was his view that the plaintiff was permanently incapacitated for his pre-injury duties. He said he had physical capacity to engage in sedentary activities, but taking into account his age, education, training and skills, it is unlikely that he would be able to find suitable employment.
31 Dr Charles Castle, occupational health, rehabilitation and counselling specialist, reviewed the plaintiff at the request of his solicitors in April 2009 and again in September 2010. In 2009, he said the plaintiff continued to have low-back pain although this has significantly improved since its onset. He said physical examination showed tenderness of the L5-S1, restricted movement of his lumbosacral spine, a positive sciatica stretch test on the left and no neurological signs of the radiculopathy. He noted that the plaintiff thought he would be able to work as a driver, although Dr Castle doubted his ability to do that because of the prolonged sitting involved. Dr Castle said the physical injury of the L5-S1 intervertebral disc lesion and its consequences does cause the plaintiff to be incapacitated for his pre-injury employment. He considered he would remain so permanently. Dr Castle said he had an incapacity of an intervertebral disc lesion which restricts his suitability for employment. He is not suited for any work involving repeated bending, lifting more than 5 kilograms or any work where he has to remain in one position for more than thirty minutes.
32 Dr Castle said the level of accounting that the plaintiff had acquired in Bosnia would not be sufficient to allow him to work as an accounts clerk at the present. He said the plaintiff’s skills are in the manual accounting field, which is no longer done in Australia. He noted that the plaintiff’s work experience in Australia was in manual jobs. Considering all these factors, he said the plaintiff would need further training and a sympathetic employer who will permit him to sit or stand as he needs to and undertake rest breaks as required. He thought he was only suited for part-time employment and that he could only work for four hours a day, three days a week. After a period of three months, he may be able to increase his hours to 20 to 24 hours a week. He considered the incapacity will continue for the foreseeable future.
33 In 2010, Dr Castle found clear evidence of radiculopathy with muscle wasting in the left leg. He did not believe the plaintiff had any capacity for employment. He noted that since the last report, the plaintiff had attempted to work as a pizza delivery driver but he was unable to do that. That was consistent with Dr Castle’s previous view.
34 Dr Castle considered the report from CoWork Pty Ltd (“CoWork”) which had been obtained by the defendant. He said there was a difference between the plaintiff’s written and spoken English. He said the plaintiff’s previous experience was manual accounting work, recording entries into a journal by hand. No business would keep written books but would use computers. The plaintiff enrolled for a basic accounting course on arrival in Australia. He found the work too difficult. Dr Castle thought he would not be suitable for re- training. He considered a number of jobs identified by CoWork as unsuitable for the plaintiff.
35 Dr Castle did not believe the plaintiff had any capacity to perform the work of a debt controller. He said the plaintiff had never done that work before and he considered it required particular types of skills for which the plaintiff had no experience or capacity. He said the plaintiff had no experience for a payroll clerk. He thought it was unlikely the plaintiff would be given a job in that area and his back problems would prevent him from sitting for extended periods of time. He said the job requires someone who can work under pressure for brief periods, which the plaintiff could not do. Dr Castle said the report from CoWork assumed that because the plaintiff had worked as a bookkeeper in the past, he would have used many similar accounting book systems necessary for the role of a pay clerk. Dr Castle said the plaintiff has not done that type of work at all. He did not believe the plaintiff could undertake work as a stock clerk or despatch clerk; he has no experience and no capacity for that type of work. He said the plaintiff was unable to work as a delivery or forklift driver. The plaintiff had attempted to deliver pizzas for a period which resulted in increased pain, and he thought a car park attendant would not be suitable as it requires significant periods of standing or sitting.
The Defendant’s Medical Evidence
36 The plaintiff was medically examined by Mr Peter Battlay, surgeon, at the request of the defendant’s insurer in March 2008. It was Mr Battlay’s view that the plaintiff was much improved, he still had discomfort in the lower back to the left of the midline of the L5-S1, occasionally spreading to the buttock, but not the thigh. He noted that the plaintiff occasionally took Mobic tablets. He noted that there was no current radiculopathy on the MRI scan. He accepted that the plaintiff had an L5-S1 disc derangement without radiculopathy which was work-related.
37 In January 2009, the plaintiff was medically examined by Dr Ralf Poppenbeek, occupational physician, at the request of the defendant’s insurer. At the time of examination, the plaintiff described predominantly central lower back pain, which was intermittent. He could not recall specific aggravating factors. When the pain was severe it radiated into his right leg as far as the knee. The plaintiff was attending a gymnasium program once per week and was taking Mobic and Panadeine Forte medication when required. It was Dr Poppenbeek’s view that the symptoms, examination findings and radiology reports correlated well with a lumbosacral disc protrusion. Dr Poppenbeek commented on the reference to right-sided back and right leg pain in the history the patient gave him and also in the report of Mr Neeft, physiotherapist, but noted the pain described by Mr O’Brien in 2007 was left- sided. Dr Poppenbeek suspected that the initial pain was left-sided as this correlates with the MRI report. He said the left S1 sciatica has probably now passed and the current right-sided back pain is probably coming from muscle or facet joints and therefore not discogenic in nature. He believed that the diagnosis is left-sided lumbosacral disc protrusion, initially affecting the left S1 nerve root. He believed the plaintiff’s persisting pain was emanating from muscle or facet joint irritation and was not discogenic in origin.
38 He thought the plaintiff had a current work capacity and would be fit for full- time restricted duties, but said he should avoid strenuous manual work and avoid remaining in one position for extended periods of time. He suggested an overall lifting limit of 5 kilograms continuously or 10 kilograms intermittently. He said he should avoid unsupported, repetitive or prolonged forward bending and should vary work postures as much as practicable. He thought he should commence a graduated return to work program commencing on four hours per day, three days per week, and gradually increasing up to full-time work over an estimated six to eight-week period. He commented that the plaintiff wanted to resume work.
39 The plaintiff was medically examined by Mr Michael Dooley, orthopaedic surgeon, in May 2010 at the request of the defendant’s solicitor. It was his view that the plaintiff was suffering from a degenerative disc disease of the lumbar spine affecting the lumbosacral level. He accepted that the plaintiff had aggravated an underlying degenerative disc disease and did sustain a left-sided lumbosacral disc prolapse at work. He considered the plaintiff was capable of carrying out light physical work and clerical duties. He thought he would be capable of working as a bookkeeper. He thought he would be capable of working as a bus driver. He said the plaintiff will continue to have intermittent low-back pain and occasional left lower limb pain.
40 In November 2010, Mr Dooley was provided with a report of CoWork dated September 2010. He said from the orthopaedic viewpoint alone, the plaintiff would be capable of carrying out work as a bookkeeper, payroll clerk or debt collector. He thought he would be able to work as a delivery driver, provided he could avoid carrying any heavy loads.
Vocational Assessments
41 A report of CoWork of July 2010 concluded that, based on medical opinion, the plaintiff has a capacity for sedentary-type work and because of his previous experience in bookkeeping positions, and with the benefit of further basic training, he could be suitable for clerical-type work where there is ample opportunity to stand and walk around the office to liaise with others, go to the printer and facsimile machine, file documents and the like. The report identified potential types of employment for somebody that could return to work on a full-time basis. The types of employment identified were as follows: bookkeeping, debt collector, payroll clerk, stock clerk, despatch clerk, car park attendant, delivery driver and forklift driver; however, this was not put to the plaintiff and the typical duties performed by a bookkeeper are not within the current or potential qualifications of the plaintiff. The duties typically performed by a bookkeeper include keeping financial records, maintaining and balancing accounts using manual and computerised systems; monitoring cash flow and lines of credit; preparing and producing financial statements, budget and expenditure reports; and analysis using account books, ledgers and accounting software packages; reconciling accounts against monthly bank statements; verifying recorded transactions and reporting irregularities to management. The typical duties performed by a bookkeeper are not within the current or potential qualifications of the plaintiff. He would require training in MYOB or Quick Books.
42 Another job identified was a debt collector. This was not put to the plaintiff as a potential job. A further job was a payroll clerk. Again, this was not put to the plaintiff and the typical duties performed are not within the current or potential qualification of the plaintiff.
43 The only employment that the plaintiff has undertaken in Australia is factory work.
Video Surveillance
44 I was shown video surveillance of the plaintiff taken over a number of hours. The surveillance showed the plaintiff outside the RSL smoking cigarettes on a number of occasions on a particular day, walking in a brisk manner, inside the RSL playing the poker machines and at the library for an extended period of time. Whilst the plaintiff remained seated, his legs were moving and he was changing position.
45 I accept that the viewed surveillance confirmed the evidence of the plaintiff. There was no evidence on the video that was inconsistent with the plaintiff’s evidence. It showed the plaintiff doing no more than attending the RSL and the library where he sat for a maximum of 34 minutes. I do not accept that the video surveillance assisted the defendant’s case.
Credit of the Plaintiff
46 The plaintiff impressed me as a witness of truth.
47 The plaintiff was consistent in reporting the injury and its causes to the doctors whom he saw.
48 The plaintiff answered all questions put to him in a direct and frank manner and made appropriate concessions. He gave evidence which did not necessarily assist his case.
49 In addition, no medical practitioner suggested that the plaintiff was exaggerating his symptoms or exhibiting signs of functional overlay, with the exception of Dr Poppenbeek and the first general practitioner the plaintiff consulted in 2006. Mr Dooley noted that the plaintiff was sensible and genuine. Dr Poppenbeek noted that the plaintiff had obtained further driving licences which he said indicates a good motivation to resume work.
50 Overall, the plaintiff impressed me as a credible witness. The plaintiff gave me the impression that he really wanted the Court to understand the story and he became frustrated with the process.
Analysis of the Evidence
51 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course, of his employment with the defendant. All of the medical witnesses accepted the injury was work-related.
52 Under s.134AB(38)(h) of the Act, the Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.[9] While there were reports from psychiatrists, Dr Entwisle and Dr Stern, in the defendant’s Court Book, I have not taken that evidence into account in assessing the plaintiff.
[9] S.134AB(38)(h)
53 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically-based: see Barwon Spinners Pty Ltd & Ors v Podolak.[10]
[10] (supra) at paragraph [70]
54 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and (b) loss of earning capacity. 55 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[11] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[12] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[13]
[11] S.134AB(38)(b) and (c)
[12] S.134AB(38)(e), (f) and (g)
[13] Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at [63]
56 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
The Narrative Test
57 I shall consider the narrative test first. Section 134AB(38)(b) of the Act requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-
…
(ii) loss of earning capacity- when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
58 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless … the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
59 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[14] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the court must be satisfied that the consequences are “more than significant or marked”.
[14] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187 ([41]
60 The plaintiff has sustained an injury to his lumbar spine. The most up-to-date reports of Associate Professor Bittar and Dr Castle accept the plaintiff has suffered discogenic low-back pain with left-sided S1 radiculopathy consistent with compression of the S1 nerve root. All doctors accepted the plaintiff suffered injury to his lumbar spine in the form of a left-sided L5-S1 disc extrusion affecting the left S1 nerve root. All doctors accepted he could not return to his pre-injury employment.
61 The plaintiff’s general practitioner, Dr Ouna, in March 2011, said the plaintiff was not fit for any employment of a physical nature. In June 2010, he said he was not able to work and was totally incapacitated for any physical work. Associate Professor Bittar, in October 2010, identified a number of restrictions on employment, including prolonged sitting, standing, driving, stooping, bending, twisting and lifting. He said taking into account the plaintiff’s age, education, training and skills, it is unlikely that he would find suitable employment. In 2010, Dr Castle, an occupational physician, found clear evidence of radiculopathy and said the plaintiff did not have any capacity for employment.
62 The plaintiff has sustained an injury to his lumbar spine. The consequence of that impairment is that he can no longer return to his pre-injury employment which is permanent, nor can he engage in work involving physical activity, in particular, prolonged sitting, standing, driving, stooping, bending, twisting and lifting. No doctor suggested that this would change with time.
63 The plaintiff no longer has the capacity to work in other occupations for which he has work experience.
64 Before the injury, the plaintiff had worked in Bosnia and London, as well as in Australia.
65 The plaintiff attempted to resume employment with the defendant on light duties unsuccessfully. He attempted work as a driver for a pizza business, unsuccessfully. He has been registered with an employment agency where he attended weekly for eight months and no suitable employment could be found.
66 The seriousness of the loss of earning capacity requires a comparison with other cases in the range of possible impairments.
67 I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being more than significant or marked and properly regarded as serious when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
68 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test – Loss of Earning Capacity
69 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 70 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”. 71 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
72 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff 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.
73 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 plaintiff’s earning capacity.
74 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) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[15]
[15] (supra) at paragraph [70]
75 The plaintiff’s current earnings from personal exertion are nil.
76 I am therefore required to determine a “without injury” earnings figure based on a six-year period specified in s.134AB(38)(f).
77 The plaintiff’s earnings for the relevant period are as follows:
Year Ending 30th June Gross Income from personal exertion 2003 $2,602.00
2004 $35,405.00
2005 $39,710.00
2006 $45,449.00
2007 $25,044.60
2008 NIL
2009 NIL
78 The evidence is that the plaintiff has not returned to work. All doctors expressed the view that he could not return to his pre-injury employment.
79 Counsel for the defendant relied upon the Co-Work report and submitted that the plaintiff had transferrable skills and could work in an administration-type occupation. The nominated occupations were bookkeeper, debt collector and payroll clerk. Additional jobs were identified such as a stock clerk, despatch clerk, car park attendant, delivery driver and forklift driver.
80 In 2010, Dr Castle considered the report of CoWork and commented on the various jobs identified by CoWork as to the suitability for the plaintiff. He considered the requirements of each job and then said why those jobs were not suitable for the plaintiff. I place great emphasis on Dr Castle’s report.
81 Mr Dooley, in October 2010, said the plaintiff was capable of carrying out light physical work and clerical duties. Mr Dooley thought he was capable of working as a bookkeeper and wondered about the option of bus driving. After reading the report from CoWork, he said the plaintiff was capable of work as a bookkeeper, payroll clerk or debt collector. However, it was not evident to me that Mr Dooley understood that the plaintiff’s work as a bookkeeper in Bosnia and London was extremely basic. When one considers the Task Analysis of a bookkeeper set out in the CoWork Report, it is apparent that the plaintiff’s work experience would not qualify him for the position.
82 However, considering the nature of the work that is identified in the CoWork report, and after having heard from the plaintiff as to the nature of the work he did in Bosnia and in London, I accept that he does not have the qualifications nor the aptitude, even with further training, to be able to perform these jobs. The plaintiff gave evidence that he had attempted to do further study when he arrived in Australia but found it too difficult and had to cease studying. My evaluation of the plaintiff’s English was that his spoken English was reasonable; however, the plaintiff said his written English is poor and he attempted study in the past but was unable to understand what he was being taught. I have no confidence that he would be able to undertake the type of study that would be necessary to enable him to perform those jobs.
83 Based on the submissions of both parties, the plaintiff satisfies the arithmetical formula established by the Act.
84 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g) of the Act. The submission of the plaintiff was that the plaintiff had done everything that had been asked of him and he was self- motivated. I accept that he has done so and, accordingly, has complied with the statutory requirement.
85 I accept that the consequences of the injury are permanent within the relevant section; that is, for the foreseeable future. There is no medical opinion that any treatment will alter the current course.
86 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
87 Accordingly, I am satisfied that the plaintiff has established that he has met the requirements of paragraph (f).
88 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
Findings
89 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the defendant seeking damages for pain and suffering and loss of earning capacity as a result of his employment with the defendant.
90 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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