Kinder v BK Sales Australia Pty Ltd
[2010] VCC 1734
•27 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00161
| GARTH KINDER | Plaintiff |
| v | |
| BK SALES AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | His Honour Judge Misso |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1, 4, 5 October 2010 |
| DATE OF JUDGMENT: | 27 October 2010 |
| CASE MAY BE CITED AS: | Kinder v BK Sales Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1734 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the plaintiff suffered consequences of the compensable injury which were at least very considerable for pain and suffering and loss of earning capacity consequences: section 134AB (38)(c) and (g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy SC | Holding Redlich |
| with Mr A Ingram | ||
| For the Defendant | Mr R Meldrum QC | Hall & Wilcox |
| with Mr G Coldwell | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 19 January 2010 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr D Hore-Lacy SC appeared with Mr A Ingram of Counsel for the plaintiff and Mr R Meldrum QC appeared with Mr G Coldwell of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • The plaintiff tendered the following documents:
ƒ The plaintiff’s Court Book ("PCB"), pages 13-94: Exhibit A ƒ WorkCover Certificate of Capacity dated 4 December 2001: Exhibit B ƒ The termination of Allianz Workers’ Compensation (Victoria) Limited
dated 18 January 2002: Exhibit C
ƒ Letter of Mr Davies, physiotherapist, dated 11 March 2003: Exhibit D ƒ Report of Dr Howsam, general practitioner, dated 16 September 2010,
including a CT scan report dated 28 August 2009: Exhibit E.
• The defendant tendered the following documents: ƒ The clinical notes of the Southern Rehabilitation and Sports
Physiotherapy Clinic: Exhibit 1
ƒ The clinical notes of Dr Varney: Exhibit 2 ƒ The clinical notes of Mr Moran, orthopaedic surgeon: Exhibit 3 ƒ Film taken the plaintiff on 23 March 2010: Exhibit 4 ƒ Extracts from the clinical notes of Dr Howsam: Exhibit 5 ƒ Extracts of the clinical notes of the Marina Medical Clinic: Exhibit 6 ƒ Letter of Mr Broughton, orthopaedic surgeon, dated 3 October 2005:
Exhibit 7ƒ The defendant’s Court Book (“DCB”) pages 32-50: Exhibit 8.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born on 5 February 1947. He is now sixty-three years of age. He lives with his partner.
10 After completing his secondary schooling, the plaintiff commenced and completed an apprenticeship as a fitter and turner, after which he pursued employment using that trade qualification.
Prior History of Injury
11 Mr Meldrum cross-examined the plaintiff at length regarding an injury to his lower back which the plaintiff suffered when he was about sixteen years of age.
12 The earliest history given by the plaintiff of the onset of an injury to his lower back is contained in the clinical notes of the Southern Rehabilitation and Sports Physiotherapy Clinic. The first entry is dated 8 September 1988. The note records that the plaintiff told the examining physiotherapist that he had experienced problems with his lower back for twenty-five years, which takes the onset of his lower back pain back to when the plaintiff was about sixteen years of age.[5]
[5] Exhibit 1 and Transcript 17
13 Mr Meldrum took the plaintiff to other documents in which there are entries consistent with him having been troubled by his lower back over a very substantial period of time in the past, for example:
[6] Exhibit 2 and Transcript 26
[7] Exhibit 3
• On 29 July 1994, the plaintiff consulted Dr Varney. He recorded that the plaintiff told him that fifteen years beforehand he fell off a press onto his lower back, suffering injury to his lower back.[6] • On 25 January 1996, the plaintiff consulted Mr Moran. He recorded that the plaintiff told him that he had suffered thirty years of recurring lower back pain with bouts of lower back pain three or four times per year.[7] 14 At first, the plaintiff’s evidence regarding the length of time over which he had suffered problems with his lower back was poor. However, after he was exposed to the physiotherapy and medical records, he acknowledged that he had experienced long term problems with his lower back.
15 A considerable period of time was spent by Mr Meldrum exploring the extent of the plaintiff’s recollection of his problems with his lower back for the purpose of establishing that the plaintiff’s credit was very much an issue.
16 However, I am not convinced that it matters all that much whether the plaintiff’s recollection was poor or otherwise, because on the first occasion which Mr Moran examined the plaintiff, on 25 January 1996, he obtained a history from the plaintiff that he had suffered recurring lower back pain for thirty years, consistent with the clinical note made by Mr Moran on 25 January 1996.[8]
[8] PCB 38
17 In his report dated 22 October 2008, Mr Moran described the surgery which he undertook on the plaintiff’s lower spine:
“He was admitted to The Avenue Hospital on 1 May 1996, and underwent exploration of the lower two mobile segments of the lumbar spine, with surgery confined to the left side only.
Both the L5 and S1 nerve roots were exposed, and whilst there was evidence of significant L5 compression in a stenotic lateral root canal at [the] lumbo-sacral junction, compounded by a pronounced bulging of the disc in the foramen, I did not find a discrete prolapse or sequestrated fragment of disc as had been suggested by the CT scan.
Both nerve roots were decompressed over the length of their intra-spinal course.
Mr Kinder made an uncomplicated recovery, and returned to work in late
June 1996.”[9][9] PCB 38
18 What is abundantly clear from Mr Moran’s clinical notes and his report is that he was treating the plaintiff for a problem with his lower back which was both long term, and which had been aggravated by minor twisting stress to his lower back while seated which provoked acute and severe lower back pain and left-sided sciatica .[10]
[10] PCB 38
The Period between the Surgery and 3 December 2001
19 At the time when the plaintiff suffered the onset of the symptoms which brought him to surgery he was working with BK Machinery.
20 BK Machinery ceased trading in July 1999. The plaintiff subsequently obtained employment with the defendant. He worked with the defendant from that time until 19 August 2005, when he was laid off due to the defendant suffering a downturn in its work.
21 It would appear that the plaintiff was able to cope with his work with the defendant without incident until about September 2001, when he experienced an aching sensation in his lower back. Then, in October 2001, he suffered severe pain in his lower back whilst putting on his socks. He had physiotherapy treatment which helped him in relieving the pain. It would also appear that up until September 2001, the plaintiff was using painkilling medication, indicating that he had some ongoing symptoms in his lower back, producing pain of some significance.[11]
[11] PCB 21
22 The clinical notes of the Southern Rehabilitation and Sports Physiotherapy Clinic refer to treatment provided to the plaintiff on 21 April 1999 and 15 June 1999 for lower back problems. The next entry is 29 October 2001, in which the physiotherapist recorded that the plaintiff had experienced a few episodes of lower back pain since the surgery. The next entry is 31 October 2001, in which the physiotherapist recorded that the plaintiff had improved a little.[12]
[12] Exhibit 1
23 The plaintiff also attended Dr Farag, general practitioner, from about July 1997. According to her clinical notes, the plaintiff saw her on 6 and 8 March 2000 and 30 April 2000 for symptoms of pain in his lower back. The next occasion she saw the plaintiff for a similar problem was on 24 February 2004.[13]
[13] PCB 44 and Exhibit 6
24 The clinical notes of Dr Farag also reveal that the plaintiff consulted her on 29 October 2001 for a flare-up of lower back pain with right-sided sciatica. At that time the plaintiff had been suffering from a flare-up for a period of two days. She prescribed Anaprox and Panadeine Forte. The next occasion on which Dr Farag saw the plaintiff was on 4 December 2001.
25 The clinical notes of Dr Varney are not very edifying. The plaintiff saw him on six occasions post surgery, the last being 15 June 1999. Prior to the surgery, Dr Varney was prescribing the plaintiff Panadeine Forte. He also prescribed the plaintiff Panadeine Forte after the surgery. On the last occasion he saw the plaintiff, he gave him a prescription for Panadeine Forte and at the same time a repeat prescription.
26 It does not appear from Mr Moran’s clinical notes or his report that he reviewed the plaintiff post surgery.
27 The plaintiff’s evidence and the evidence contained in the early clinical notes and medical reports which I have just reviewed appear to me to demonstrate that the plaintiff was probably troubled by some symptoms of lower back pain post surgery which required the use of medication, such as Panadeine Forte, but overall it would appear that the plaintiff did not obtain a great deal of medical attention.
The Claimed Injury
28 On 3 December 2001, the plaintiff was sitting at a drawing board. A director of the defendant entered the room where the plaintiff was seated. The plaintiff twisted around on the chair on which he was sitting to speak to the director. He was met with sudden and severe pain in his lower back which went down into his right leg.
29 The plaintiff suffered flare-ups on three occasions:
•
On 6 May 2002, he was on his knees with his arms extended performing service work on the machine when he experienced severe left-sided leg pain.
•
On 23 October 2003, he was working on a machine in an awkward position when he experienced worsening pain in his lower back and left leg.
•
On 4 April 2005, he was servicing a machine at a customer’s premises when he experienced worsening pain in his lower back and both legs.[14]
[14] PCB 21-23
30 Mr Meldrum informed me that the defendant conceded that the plaintiff had suffered a compensable injury on 3 December 2001. Therefore, the issue that fell for determination by me was whether the plaintiff could successfully meet the statutory test for both pain and suffering and loss of earning capacity.
The Plaintiff’s Medical Treatment
31 Following the incident which occurred on 3 December 2001, the plaintiff experienced increasing pain in his right leg overnight, which he says became excruciating. He also experienced severe pain in his right groin, and by the next day felt as though he had lost all power in his right leg.
32 The plaintiff saw Dr Farag on 4 December 2001. She recorded that the plaintiff had suffered a flare-up of lower back pain the previous day, which, of course, was 3 December 2001 when the plaintiff suffered the primary incident upon which this application is based.
33 Dr Farag’s clinical notes that day also reveal that the plaintiff complained of pain in his right leg with a reduction in general movements. She referred the plaintiff to have a CT scan which demonstrated disc abnormality at L3-4 and some compromise of the L4 nerve root.[15]
[15] Exhibit 6
34 The plaintiff was referred back to Mr Moran, who next saw him on 12 February 2002. The plaintiff gave Mr Moran a history that he was able to continue with his work without significant concern for his lower back until 3 December 2001. He described the incident at the drawing board.
35 Furthermore, he gave Mr Moran a history that since December 2001 he had continued to experience pain in his lower back and right leg, with pain extending down to the mid-shin, with the leg pain being more intense than the lower back pain. He also described numbness from the knee down and reduced power in his leg.
36 Mr Moran viewed the CT scan which he considered showed some shrinkage of the previously noted disc prolapse at L3-4 and distal sequestration at that level on the right side. He referred the plaintiff to have an MRI scan and an epidural injection of cortico-steroid, which was administered on 6 March 2002. The plaintiff reported to Mr Moran that he gained no benefit from the epidural.
37 Mr Moran referred the plaintiff to have a further MRI scan, which he considered showed shrinkage of the previously noted prolapse at L3-4 and a para-central disc protrusion at L4-5.
38 Mr Moran no doubt considered the plaintiff’s prior significant lower back problems and the incident of 3 December 2001 when he expressed the following opinion:
“In summary, Mr Kinder presented with discogenic pathology at two levels of the lumbar spine, resulting in lower back pain and left and subsequently right-sided sciatica. These injuries occurred as a result of a rotational movement whilst seated, or when standing from a sitting position.
There is no doubt these incidents have accelerated degenerative change in the lower back.”[16]
[16] PCB 38-40
The Plaintiff’s Subsequent Employment
39 After the plaintiff was made redundant he obtained employment with three employers.
40 The first was with Field Machine Tools, which he commenced on 10 October 2005. He was again made redundant because of a lack of work. The redundancy took effect from 5 December 2005.
41 The second was with Mitchell Laminates somewhere in between ceasing work with Field Machine Tools and commencing work with Mono Pumps. The plaintiff probably worked with Mitchell Laminates in about September 2005.
42 The plaintiff did not recall working for Mitchell Laminates until he was cross- examined by Mr Meldrum.[17] The plaintiff estimated that he probably worked for Mitchell Laminates for about four days. It would appear that his employment came to an end as a result of the onset of bilateral shoulder problems.[18] However, the plaintiff denied that he suffered injury to his shoulders while working for Mitchell Laminates.[19]
[17] Transcript 14 and 46
[18] Transcript 46
[19] Transcript 66-67
43 Mr Meldrum produced a courtesy letter of Mr Broughton, orthopaedic surgeon, directed to Dr Farag, dated 3 October 2005, in which he recorded a history, presumably obtained from the plaintiff, that the plaintiff developed problems with his right shoulder and left elbow unloading heavy boards from a truck. Mr Broughton recommended operative repair of a tear in the plaintiff’s right rotator cuff which was demonstrated in an ultrasound.[20]
[20] Exhibit 7
44 The plaintiff has not had surgery on either shoulder. He said that the problems he was having with his shoulders disappeared over time.[21] Mr Meldrum referred the plaintiff to clinical records which suggested that he was prescribed Panadeine Forte and OxyContin to treat shoulder pain,[22] and Dr Guirguis, general practitioner, who referred to the plaintiff’s shoulders as a contributor to his state of health in support of his application for a Disability Pension.[23] The plaintiff did not deny that he was prescribed medication for his shoulder pain, although it was my impression that his memory on that issue was not overly good. It was also my impression that his memory regarding the medical conditions which were submitted as the basis for the ground of a Disability Pension was not overly good either.
[21] Transcript 98
[22] Transcript 62
[23] Transcript 100
45 The plaintiff’s third employment was with Mono Pumps, which he commenced on 15 December 2005. He suffered a flare-up of lower back pain and right leg pain in about February 2007. It caused him to stop working altogether. He subsequently applied for and was granted a Disability Support Pension in February 2007.
The Medical Evidence
46 The preponderance of the medical evidence discloses that the plaintiff suffered further injury as a result of the incident which occurred on 3 December 2001.
47 Although much was made of the plaintiff’s evidence and the medical evidence during the hearing, I think it is fair to say that the real issue in this proceeding is whether the consequences to the plaintiff meet the statutory tests for pain and suffering and loss of earning capacity, and whether any of the other medical conditions referred to by Mr Meldrum are of any real consequence.
48 A summary of the medical evidence discloses the following:
•
Dr Farag was of the opinion that the incident caused an organic injury which I have summarised in paragraphs 32 and 33 above.
•
Dr Sleigh, occupational physician, examined the plaintiff for the defendant on 8 January 2002. He was of the opinion that the plaintiff had suffered two injuries. The first occurring in 1995 and the second occurring on 3 December 2001, which he described as a disc herniation at L3-4, and right-sided L4 sciatica.[24]
•
Mr Moran examined the plaintiff on 12 February 2002. He was of the opinion that the incident caused an organic injury which is summarised in paragraphs 34 to 38 above.
•
Mr Davie, orthopaedic surgeon, examined the plaintiff for the defendant on 17 August 2004. He was of the opinion that the first injury which occurred in 1995[25] had largely resolved and that the plaintiff had suffered a new injury which was mainly a disc problem at L3-4 with right-sided sciatica.[26]
•
Dr Wilk, musculoskeletal physician, examined the plaintiff for the defendant on 6 June 2005. He referred to the diagnosis of a disc prolapse at L3-4 which occurred as a result of the incident of 3 December 2001. However, the plaintiff gave him a history that in April 2005, he felt he had suffered a recurrence of the 1996 incident. It would appear that Dr Wilk proceeded on that basis and considered that the plaintiff had suffered an aggravation of the previous L4-5 disc prolapse, and the residual effects of the L3-4 disc prolapse which occurred on 3 December 2001.[27]
•
Mr Brownbill, neurosurgeon, examined the plaintiff on 23 June 2009. He thought that what occurred in 1995 resulted in the derangement of the L4-5 intervertebral disc only, and the incident of 3 December 2001 resulted in a derangement of the L3-4 intervertebral disc.[28]
•
Mr Simm, orthopaedic surgeon, examined the plaintiff for the defendant on 25 November 2009. He was of the opinion that the incident of 3 December 2001 either aggravated or caused the right L3-4 disc prolapse to which he believed the plaintiff was predisposed. He was also of the opinion that the disc prolapse had caused L4 nerve irritation with associated right-sided sciatica and depression of the right knee reflex.[29]
•
Mr Doig, orthopaedic surgeon, examined the plaintiff on 26 July 2010. He expressed the same opinion as Mr Brownbill. He added that he considered the incident of 3 December 2001 may have aggravated the previous L4-5 injury.[30]
•
Dr Horsley, occupational physician, examined the plaintiff on 28 July 2010. He expressed the same opinion as Mr Doig and Mr Brownbill.[31]
[24] PCB 35
[25] Mr Davie mistakenly referred to it as 1996
[26] PCB 96
[27] PCB 36-37
[28] PCB 50
[29] PCB 42
[30] PCB 64-65
[31] PCB 62
49 On the occasions when each of the foregoing medical practitioners examined the plaintiff they were given a reasonable history of the plaintiff’s previous lower back injury, and the incident which occurred on 3 December 2001. I accept that the opinions expressed by them are reliable and soundly based.
50 Dr Howsam commenced treating the plaintiff in 2007. He referred the plaintiff to have a CT scan which was taken on 28 August 2009 as a result of the plaintiff suffering a severe exacerbation of lower back pain in August 2009 with a radiation of pain into his right leg. The radiologist reported that the CT scan demonstrated multi-level disc disease.[32]
[32] Exhibit E
51 Mr Meldrum submitted that the CT scan was significant and ran counter to the other radiological investigations upon which most of the medical practitioners had relied in expressing opinions relevant to what injury the plaintiff suffered on 3 December 2001.
52 I do not accept that submission. Dr Howsam did not comment on the CT scan, saying whether it was of significance or otherwise. Furthermore, I am not in a position to make any assessment of a CT scan and whether it is of significance or otherwise. If the defendant considered that it is of significance then it could have put it to Mr Simm and asked for his comment. I am not prepared to treat the CT scan as being of any significance in the absence of comment by a medical practitioner on what should or can be made of it .
Serious Injury
53 I propose to deal with the plaintiff’s claim for loss of earning capacity first, because it is my strong impression that the combination of the plaintiff’s evidence and the medical evidence is consistent with the plaintiff having no capacity for suitable employment.
54 It is very clear to me that since 3 December 2001, the plaintiff has encountered significant problems with his lower back, to the extent that by February 2007, he was in a parlous physical state.
55 The plaintiff says that he has constant lower back pain with pain radiating into both of his legs. The pain in his right leg is severe and disabling. My impression is that his right leg pain is intermittent.
56 The plaintiff says that he suffers interference with his capacity to walk, sit, sleep, and otherwise engage in general physical activity.
57 I am not satisfied that the plaintiff suffers the degree of interference with sexual activity that he at first represented. It would appear that he suffered some level of interference previously, not associated with his lower back injury, for which he obtained prescriptions for Viagra.
58 I am also not satisfied that the other medical conditions which Mr Meldrum cross-examined the plaintiff about are of any particular significance. I accept the plaintiff’s evidence that he experienced ups and downs in his health over the years, but none of those aspects of ill-health have consequences which are the same as or similar to the consequences produced by the injury to his lower back.
59 The point was made abundantly clear in Dressing v Porter[33] that the trial judge is to focus in on the following:
“… What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test. [34]
[33] [2006] VSCA 215
[34] Paragraph 47
60 It is only when the other medical conditions contribute to the same consequences as the compensable injury that the next step needs to be taken by the trial judge to determine what consequences were caused by the compensable injury, and whether those consequences meet the relevant statutory tests balanced against what the non-compensable medical conditions have produced by way of the consequences.
61 On my analysis of the evidence and the submissions of Mr Meldrum, I am not satisfied that the other medical conditions are as significant as contended. None, in my opinion, contribute to the same consequences as the injury to the plaintiff’s lower back and it is for that reason that I consider the submission has little foundation.
62 I accept the plaintiff’s evidence that the compensable injury is now preventing him from working and exploiting his experience and training in his chosen trade field.
63 The question which now arises for consideration is whether he is fit for suitable employment consistent with the test in section 134AB (38), and in particular, paragraph (g).
64 I am in no doubt whatsoever that after suffering the compensable injuries, the plaintiff endeavoured to maintain his employment as best he was able to. He not only continued working with the defendant, but when that employment was no longer available to him he obtained alternative and suitable employment which he maintained until he reached a stage where his lower back injury overtook him and rendered him incapacitated for work.
65 Essentially, the medical evidence all seems to be one way, and that is, that the plaintiff is not fit for employment.[35] The current medical evidence is based upon an assessment of the plaintiff as he presently stands, and in circumstances where he is no longer working. The earlier medical evidence was based upon assessments of the plaintiff at a time when he was still working, and obviously any medical practitioner who examined him at that time would have assumed that if he was working it was because he was physically able to.
[35] Mr Doig did not express any opinion about the plaintiff’s capacity for work
66 Mr Brownbill[36]and Dr Horsley[37] are essentially of the opinion that the plaintiff is unemployable. Mr Brownbill considered that the plaintiff needed to avoid heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting, which led him to conclude that the plaintiff would be unable to return to his trade or labouring occupations. Dr Horsley’s opinion is consistent with that of Mr Brownbill.
[36] PCB 50
[37] PCB 61-62
67 Mr Simm considered that the plaintiff would be fit for light assembly work or work as a factory manager or purchasing officer, but he added that it must be accepted that the plaintiff’s age, together with his physical incapacity to undertake only light work meant that his prospects of obtaining suitable light employment were small.[38] His opinion is not inconsistent with Mr Brownbill and Dr Horsley.
[38] DCB 43
68 I do not intend to rehearse all the other medical evidence, but it is apparent that after the plaintiff suffered the injury to his lower back, all of the medical examiners considered that it was appropriate to impose restrictions on his capacity to work.
69 The plaintiff was shown film taken of him on 23 March 2010. The film ran from about 11.43 am to about 12.27 pm, during which time the plaintiff was observed working on the driver’s side door of a car.[39]
[39] The plaintiff was cross-examined on the content of the film: see Transcript 73-81
70 The critical parts of the film relied upon by Mr Meldrum were occasions when the plaintiff bent at the knees down to his haunches; bent at the back; on one occasion slowly bent at the back to pick something up from the ground, and when he knelt on the ground in front of the open driver’s side door.
71 Mr Meldrum cross-examined the plaintiff from the history taken by a number of medical practitioners relevant to whether he undertook any work on his car. It was clear that the plaintiff had said that he was unable to do any work on his car. The plaintiff said that he did not consider repairing a lock on the inside of the driver-side door amounted to working on his car.
72 I do not consider whether the plaintiff was working on his car while repairing the driver-side door or whether it should be described in a different way, really matters all that much. What I need to determine is whether what I observed the plaintiff undertaking on the film is contrary to the extent to which the plaintiff says he has suffered consequences of the impairment of the function of his lower back.
73 The plaintiff’s movements on the film appeared to me to be relatively slow and unexceptionable. I do not accept the fact that the plaintiff can go down onto his haunches, can kneel, and can bend at the back are inconsistent with the way he presented to the medical practitioners who have examined him more recently.
74 Therefore, I find that the plaintiff suffered a compensable injury to his lower back which has impaired the function of his lower back. I find that the impairment is permanent. I find that his loss of earning capacity consequences are at least very considerable and amount to the plaintiff essentially being totally incapacitated for suitable employment, and I make the foregoing findings after having made the relevant comparison I am required to make.
75 In the circumstances of the finding I have made in relation to loss of earning capacity, it is unnecessary for me to separately deal with the plaintiff’s application for leave for pain and suffering consequences.
Conclusion
76 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
77 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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