Kondarios v A P and D Consolidated Pty Ltd
[2016] VCC 170
•29 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-03863
| JIM KONDARIOS | Plaintiff |
| v | |
| A P & D CONSOLIDATED PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2016 | |
DATE OF JUDGMENT: | 29 February 2016 | |
CASE MAY BE CITED AS: | Kondarios v A P & D Consolidated Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 170 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine in slipping incident – nature and extent of worker’s capacity for alternative employment duties – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013, s5
Cases Cited: Giankos v SPC Ardmona Operations Limited [2011] VSCA 121
Judgment: Application in relation to economic loss dismissed. Application in relation to pain and suffering granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC with Ms P Harris | Galbally & O’Brien |
| For the Defendant | Mr W R Middleton QC with Ms S Gold | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 Mr Kondarios suffered an injury to his lower spine when he slipped and fell in the course of his employment duties on 26 March 2011. He attempted to return to work on a number of occasions in light duties, but the injury eventually led to surgery, being a microdiscectomy and rhizolysis at the L4-L5 level.
2 Mr Kondarios has returned to some work, initially with a family member in a small business, and subsequently, in his own business buying and selling computers, working modest hours.
3 On behalf of the defendants, Mr Middleton conceded Mr Kondarios had no capacity to return to work in his previous duties as a steel fixer in the construction industry. Further, did he contest that given the pain and restriction Mr Kondarios has suffered since the injury, leading to the need for lower back surgery, that he meets the threshold for pain and suffering; that is, that the consequences reach the “very considerable” level. The real issue in this application is whether the injury suffered has led to a 40 per cent loss of earning capacity.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of employment on 27 March 2011. The body function said to be lost or impaired is the lower spine.
5 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act. Leave is sought in respect of both pain and suffering and loss of earning capacity.
6 Mr Kondarios was the only witness called to give evidence and be cross-examined. In addition, two affidavits sworn by him, various radiological and medical reports and vocational assessments were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
7 Mr Kondarios is now aged forty-one. He is divorced, without children. He completed secondary education and passed Year 12. He commenced a signwriting apprenticeship but did not complete it. He worked as a process worker for about six years, and for about eleven years before the subject accident, worked in the construction industry as a steel fixer and post tensioner. He worked on major commercial construction projects for various employers. He became a leading hand foreman, and the parties agree that around the time of the incident, he was earning $98,280.00 gross per year. The work was physically demanding and required bending, lifting, twisting and working in confined positions.
8 Mr Kondarios had a number of minor injuries in the years before 2011 but none were of significance.
9 Before injury, he enjoyed keeping fit and spent time in the gymnasium. He socialised with a group of friends. He travelled to overseas destinations most years. Prior to March 2011, he was fit and healthy and in particular, had no significant issues with his lower spine.
The injury and its consequences
10 On 26 March 2011, Mr Kondarios was working on an apartment block in Melbourne. He slipped on steps, landing heavily on his buttocks. He was able to get to his feet, but felt that his back had been “jarred”. He had pain into his right leg and foot.
11 Within a day or two, he went to see his usual general practitioner, Dr Peter Edwards. He has continued to see that practitioner through to the present time. Treatment in the initial stages was largely conservative, with the prescription of anti-inflammatory medication, physiotherapy, myotherapy, exercise and Pilates. On 7 November 2011, he had an epidural injection without lasting relief. In December 2011, Dr Edwards referred Mr Kondarios to Mr James King, neurosurgeon.
12 After the incident, Mr Kondarios kept working on full-time light duties until May 2011. He was put off work then as there were no suitable duties available. He remained off work until August 2011 and returned on lighter duties and restricted hours. He has not worked with his former employer since November 2011.
13 When he first consulted Mr King, Mr Kondarios complained of lower back pain and predominantly right-sided sciatic pain. An MRI scan of 17 October 2011[1] was said by Mr King to show degenerative disease, particularly at L4-5, with a disc prolapse at that level. Mr King suggested surgery as the injury had failed to respond to conservative treatment. On 27 January 2012, he performed a microdiscectomy with rhizolysis and removed the prolapsed disc.
[1]Plaintiff’s Court Book (“PCB”) 10
14 According to Mr King’s report of June 2012,[2] upon review in February 2012:
“… he stated he had minimal back pain and no sciatic pain. Sensory disturbance was improving. On examination at that time, his wound was well healed, his straight leg raising was negative and his power was 5/5 throughout all muscle groups. … .”
[2]PCB 7b
15 Mr King considered he had made a good recovery with resolution of his sciatica. He did not envisage further surgery nor medical treatment.
16 Mr King reviewed Mr Kondarios in June 2012 and finally in January 2013. In a letter to the general practitioner of January 2013,[3] Mr King noted that Mr Kondarios had been free from sciatic pain since surgery but did have some ongoing back pain and stiffness. On examination, he said there was a good range of movement of the lumbar spine and neurological examination was normal. He thought there would be some ongoing symptoms, but did not anticipate any major changes.
[3]Defendant’s Court Book (“DCB”)
17 Prior to surgery, Mr Kondarios had regular physiotherapy until funding was ceased by the WorkCover insurer. Because of ongoing complaints of pain, Dr Edwards referred him for a further CT scan in May 2014 which concluded:
“Change of degenerative disc and degenerative facet joint as described. Posterior disc bulge shown at L3/L4 and at L4/L5 levels. No more abnormalities seen.”[4]
[4]PCB 12
18 Mr Kondarios continues to see his general practitioner, Dr Edwards. According to his affidavit of April 2015,[5] he was seeing Dr Edwards about monthly. In evidence, he accepted that at the present time, he sees him only irregularly. He has not seen Mr King since January 2013. He has not been referred to any other specialists.
[5]PCB 46
19 In March 2014, Mr Kondarios was involved in a transport accident which stirred up his lower back problems for a short period, but the aggravation was short lived.
20 In September 2015, he was diagnosed with a skin condition, alopecia, and takes medication as a consequence. He was referred to a dermatologist.
21 Mr Kondarios takes little in the way of medication at the present time. He says he is reluctant to do so for fear of dependency, although he takes anti-inflammatory medication and over-the-counter pain-relieving medication occasionally.
22 In 2013, he entered business with his cousin under a business name, Megabyte Trading. The business involved buying and selling second-hand computers and like equipment.
23 In November 2014, that same cousin became involved in skin clinic business. Mr Kondarios invested some money which was lost, and there was a falling out between them as a result.
24 In the course of evidence and cross-examination, Mr Kondarios said that since 2014 and through to the present, he has been purchasing computers over the internet on eBay, doing them up and selling them. To the year ended June 2015, he earned a modest income from this, something under $5,000. From July 2015 to the present time, he estimated his earnings at about $8,000. The work involves purchasing computers, having them delivered to his premises or picking them up, effecting necessary repairs to the hardware and selling them. He says he knows little about software. The work principally involves fixing screens, loose cabling and the like. Over the last year or two, he may have repaired and done up around 100 computers. He said he might work up to two or so hours a day, sometimes five days a week sometimes less. He does not repair the computers on a desk or bench, but rather lies on his stomach on the floor as this does not aggravate his back pain as much. He hopes to continue to develop this business.
25 Mr Kondarios has bought and sold the odd car. Those activities aside, he has not resumed any form of employment.
26 Over the period from July 2012 until early 2013, Mr Kondarios was assisted in vocational rehabilitation by Nabenet. Details of the assistance and assessment are provided in various Nabenet reports.[6] According to those reports, Mr Kondarios attended various meetings, training dates for occupational health and safety and first aid courses were arranged and employment leads provided. On a number of occasions, Mr Kondarios failed to attend arranged meetings.[7] Despite the efforts of Nabenet, Mr Kondarios did not apply for nor attend any job interviews.
[6]DCB 33 – 58
[7]DCB 53, 58
27 At the present time, Mr Kondarios complains of constant ongoing pain in his lower back and referred pain down both legs. He has pain in the soles of his feet which he described as “like his feet were on fire”. He is generally restricted in movements of his spine. His sleep is affected. He has become depressed. He has been unable to resume any of his gym activities, his social life has become restricted and he misses the satisfaction and enjoyment which his employment provided. In cross-examination, he denied he was being negative about the prospects of employment although said he had not turned his mind to some jobs. He did not believe he could hold down any employment with his back in the state it is. He has not been able to resume his interest in travel to foreign countries.
28 According to his affidavit:
“In the longer term my goal would be to work for myself doing something where I could self pace myself in work of a type that did not aggravate my back condition. … .”[8]
[8]PCB 49
Medical opinion
29 Given the sensible concessions by Mr Middleton, it is not necessary to review all aspects of the opinions of the various treating and consultant practitioners. I will confine the summary to those parts of the reports which relate to work capacity.
30 According to Dr Edwards:
“He has no capacity to perform his pre injury employment. He does have capacity for work providing he had restrictions on bending, lifting and carrying heavy objects.”[9]
[9]PCB 6
31 In a report of 13 June 2012, Mr King, the treating neurosurgeon, said:
“As a consequence of the physical injury and impairment, I do believe that Jim will have some difficulty performing his pre-injury duties, especially if these involve twisting, bending and heavy lifting. As a consequence of the physical injury and impairment, I do believe that he has the capacity to perform suitable employment, in particular, of the type that does not require heavy lifting, twisting and bending, or prolonged sitting. As a consequence of the injury, he is likely to be restricted in his social, domestic and recreational activities in that I would not advocate contact sport-type activities and recreations that involve twisting, lifting and bending.
Given Jim’s good recovery and resolution of his sciatica, I think [h]is overall prognosis is good. I would imagine that he will be able to return to a near full level of activity within 6 to 12 months. A patient with a lumbar disc prolapse is likely to be at risk of further disc prolapse in approximately 5% of cases. I do believe Jim is at some risk of developing delayed problems in his lumbar spine including arthritis.”[10]
[10]PCB 7b
32 In a another report of 14 March 2012 to an insurer, Mr King said that after the review of February 2012, Mr Kondarios could return to work on light duties, working half days for a six-week period. The work would need to have functional restrictions, including avoiding twisting, bending and lifting of more than 5 kilograms. He said:
“… With regards to overall return to work, I think he could potentially return to a full level of activity at work from three months following surgery, but this will be dependent on his symptoms at the time.”[11]
[11]DCB 119
33 In his final report of 18 January 2013,[12] Mr King noted Mr Kondarios was undertaking refresher courses and considering changing his vocation.
[12]DCB 122
34 Dr Helen Sutcliffe, occupational practitioner, provided a report of 12 September 2014. She noted Mr Kondarios complained of constant pain in his low-back and pain into his right thigh which interrupted his sleep. She noted at the time he was taking no medication. She concluded that Mr Kondarios satisfied the definition of “Total and Permanent Disability as described”. It is not clear what that definition was. She said he had no capacity to work as a maintenance coordinator, equipment/vehicle hire coordinator, production team leader or warehouse administrator as a result of the injury sustained. She said each of those occupations required prolonged walking, sitting, standing and lifting, bending and twisting. She said he would not be reliable nor productive in any work.
35 Mr David Brownbill, neurosurgeon, examined Mr Kondarios in July 2015. He noted complaints of low-back pain and leg pain on both sides. There was numbness in the sole of each foot. He said there was no objective neurological abnormality nor any signs of radiculopathy. He said radiology showed multilevel degenerative change, most pronounced at L4-5. He said:
“He should in the future avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. From a physical neurosurgical point of view he would be capable of attempting a graded return to work plan that avoids those actions however with the described ongoing activity exacerbated pain he may not be able to continue such employment in an ongoing or reliable fashion.”[13]
[13]PCB 29
36 Mr Brownbill said further:
“Excluding psychological or psychiatric consequences of the physical injury I consider the injury affects his capacity to undertake his pre injury employment to a marked extent and any other form of employment in a moderate to marked extent.”[14]
[14]PCB 30
37 Mr Kondarios was examined by Mr John O’Brien, orthopaedic surgeon, on 18 November 2015. He received a history of constant back and right leg pain for twelve months before the examination. He said there were no signs of nerve root compromise on physical examination or on the CT scan. He said:
“Given the current clinical findings, it is difficult to define the precise underlying pathology causing the pain generation. I would therefore consider that this patient now presents with chronic postoperative back and bilateral leg pain, most likely associated with the extensive degenerative change which has been defined on investigation.”[15]
[15]PCB 38
38 Mr O’Brien thought a multidisciplinary pain management program would be of benefit. As to work capacity, he said:
“The patient certainly describes moderate disability associated with chronic back and leg pain. From the physical perspective there is no possibility of this patient returning to his pre-injury occupation which obviously did involve quite heavy manual duties. Indeed, this patient could not undertake any form of manual duties. In fact, given the current presentation, I would suggest that from the physical perspective the patient would not cope with suitable duties and thus I would consider it highly likely that this patient will not be able to sustain gainful employment. I think the long history of chronic pain would indicate that the patient is totally incapacitated and this is likely to continue. … .”[16]
[16]PCB 39
39 Mr Kondarios was examined by Associate Professor Brazenor, neurosurgeon, on 26 June 2015. He received a range of documents, including reports of other practitioners and radiology. Having examined the CT scan of May 2014, he said that it was quite possible there were degenerative changes at L4-5 which had progressed since the original injury, although Associate Professor Brazenor said:
“… I found his allegations of symptoms not to be blatantly contrived. By the same token, I think it is highly unlikely that an intelligent, fitness- oriented person would simply passively accept ongoing low back pain and disability (at least at the levels that Mr Kondarios alleges) and yet not seek at least diagnosis, if not further treatment. In my view that feature of Mr Kondarios’ history is highly suspicious.”
40 Associate Professor Brazenor said that Mr Kondarios was fit for full-time employment until normal retiring age providing the job did not include repeated bending at the waist, lifting of objects to or from levels significantly below the waist or vigorously pushing and pulling. He said he could work as a heavy truck driver where he did not have to handle the freight, could drive earthmoving equipment, sell real estate or could be trained to be a site supervisor or similar.[17]
[17]DCB 29
41 When provided with a vocational assessment of Co-Work Pty Ltd, Associate Professor Brazenor said the jobs as a recruitment consultant and safety inspector, with the duties outlined in that report, would be entirely suitable. There were various other jobs suggested, including as a non-destructive testing technician, workplace trainer and hardware technician, which he said would probably be inappropriate.
Vocational reports
42 In an extensive report of August 2015, CoWork Pty Ltd, through an occupational therapist, Ms Joanne Bryant, identified a number of employment options and detailed some of the tasks involved. Those areas of employment included those reviewed by Associate Professor Brazenor as a recruitment consultant, and safety inspector.[18] A position description was given in relation to each occupation and the annual income was said to be, respectively, $73,372.00 and $102,969.00.
[18]DCB 79, 81
43 In relation to the recruitment consultant, the education required was said to be an advanced diploma or diploma. It was said that Mr Kondarios had experience in training and supervising construction workers, good personal skills and a knowledge of IT. In relation to work as a safety inspector, a certificate in workplace health and safety was required in combination with industry experience. There was a six-month course which could be undertaken.
44 In cross-examination and re-examination, some of the tasks involved in each of these occupations were put to Mr Kondarios. There are aspects of the work about which he had little knowledge nor understanding. He generally said he did not think he had the capacity to work in these fields.
45 In a report dated 6 October 2015, Evidex, through Mr Glen Dwyer, occupational therapist, undertook a vocational assessment. The assessment looked at a wide range of areas of employment, including those of recruitment consultant and safety inspector. All of the areas of employment examined were said to be unsuitable for Mr Kondarios.
Conclusions from the expert evidence
46 I reject the opinion of Dr Sutcliffe, the occupational physician. I prefer the opinions of orthopaedic or neurosurgeons as to an appropriate assessment of the nature and extent of the injury to Mr Kondarios’ spine and whether that injury permits the performance of various work duties. That is more within their province than hers.[19] Her assessment of various areas of potential employment I found cursory and of little assistance. She concluded Mr Kondarios was totally and permanently disabled, although within some unspecified definition. She assessed that various of the occupations required prolonged walking, sitting, standing and lifting, bending and twisting and that as a result, Mr Kondarios would be unable to work in those areas. She was apparently not provided with the CoWork report, and did not have the opportunity to assess the safety inspector and recruitment consultant jobs and the tasks involved.
[19]See the discussion in Giankos v SPC Ardmona Operations Limited [2011] VSCA 121 at paragraphs [96] – [97]
47 Likewise, I do not find the opinion of Mr O’Brien of great assistance. He was not provided with the CoWork report and despite his opinion that Mr Kondarios described moderate disability with chronic back and leg pain, he said he would not be able to cope with any suitable duties and was totally incapacitated. Again, that opinion was cursory.
48 I prefer the opinions of the treating general practitioner and surgeon, each of whom expressed the view that Mr Kondarios had a capacity for employment within certain restrictions. They have each seen the plaintiff on more occasions that the consultants. Although his last opinion was 2013, Mr King could be expected to have the greatest knowledge of the state of Mr Kondarios’ spine. His assessment is the most acute, and given the good result from surgery, said Mr Kondarios had the capacity for suitable full-time employment, within certain restrictions.
49 Although Mr Brownbill was not provided with details of possible areas of employment, he said that Mr Kondarios was not precluded from some form of suitable employment, but rather his capacity was affected to a “moderate to marked extent”.
50 I found the assessment of Associate Professor Brazenor helpful. This is partly because he assessed the CoWork report, concluded some of the areas of employment were suitable, and some not. He had the opportunity to assess the position descriptions and tasks involved, in particular of a recruitment consultant and safety inspector, and determine that Mr Kondarios was suitable for both.
Conclusions
51 An assessment of Mr Kondarios’ work capacity involves an assessment of all of the evidence, not only the medical specialists, the vocational assessors, but also the evidence of Mr Kondarios himself. Regard must be had to the definition of “suitable employment” contained in s5 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRC Act).
52 Of the medical practitioners, I prefer the opinions of the treating general practitioner, Dr Edwards, and the treating neurosurgeon, Mr King, that Mr Kondarios does have a work capacity for employment which does not include the heavy work he enjoyed in the construction industry. Any employment would require restrictions in bending, lifting and forceful movements.
53 Mr Kondarios, himself, says that in his present state, he does not have the capacity for any form of employment on a full-time basis, save for the restricted work he does with computers. I do not accept his work capacity is as restricted as he says. I accept the submission of Mr Middleton that he has taken a very negative view of the prospects of alternative employment. I was unimpressed by much of his evidence about his incapacity to undertake various of the tasks that were described to him in the areas of employment as a recruitment consultant or safety inspector.
54 I further accept that if Mr Kondarios’ pain and restriction in his lower spine is such that he is unable to undertake any employment except very basic activities over an hour or two a day, that he would have sought further opinion or treatment. It is difficult to understand why he has not returned to his general practitioner and sought referral to another specialist or some other form of treatment. It is understandable that he would not want to undergo further surgery, and none has been suggested, but at the age of only forty-one, he has taken no steps to seek referral to, for example a pain management specialist or program, or other areas of rehabilitation. As Associate Professor Brazenor commented, it is difficult to understand how a relatively intelligent man for whom fitness was important, accepts his pain and restriction without seeking any medical intervention or advice.
55 The Act, by s134AB(38)(g) places an onus upon a worker to take reasonable steps in terms of rehabilitation and retraining in order to establish a work capacity. Mr Kondarios has done little, if anything, in that regard. His interaction with Nabenet has been less than impressive.
56 Although not cross-examined on the point, neither of his affidavits disclose any significant detail as to his current activities with the computer business. There was no detail, for example as to the number of computers that he handles, nor the profit made in the current financial year. It was not until examination-in-chief that that information arose. Further, I was unimpressed with his evidence when he was asked why he would not undertake any further surgery.[20] Although it is not completely clear, he gave me the impression the reason, at least in part, was that he had spent some time unable to walk following surgery. This turned out not to be the case and it was not until I posed further questions to him,[21] that the matter was clarified.
[20]Transcript 65, Lines 7 – 20
[21]Transcript 67
57 Overall, I was not particularly impressed with Mr Kondarios as a witness giving an accurate account of his circumstances. In my view, he has taken the stand that he wants to operate his computer business and develop it, and has not given any real or proper consideration to obtaining employment in one of the various alternative areas set out in the Co-Work and Nabenet reports.
58 Any assessment of work capacity must take into account the various matters referred to in s5 of the WIRC Act as to the definition of “suitable employment”. In particular, his age, education, skills and work experience are important matters. He is relatively young and has only ever worked in the construction or process areas, largely involving manual work. On the other hand, however, he presents as a reasonably intelligent person, having completed Year 12, and having risen to the rank of leading hand/foreman, commanding a substantial wage. There would no doubt be a range of aspects of alternative employment which would be difficult for him, in particular the need to obtain further qualifications and certificates. In my assessment, those are well within his capacity. He would no doubt need some time to establish himself in a new industry, but in particular, given the opinions of the general practitioner and Mr King, he has the capacity to work on a full-time basis within the restrictions they set out.
59 I was assisted by the various vocational reports, and the reports of Nabenet, but only to the extent that those reports identify areas of employment, and the tasks involved. In my view, it is beyond the expertise of the authors of those various reports to make an accurate assessment of work capacity arising from Mr Kondarios’ injury. That lies in the realm of the medical experts.
60 It was put by Ms Hartley that even given Mr King’s view, he is influenced by the fact that he is the surgeon and would be reluctant to be critical of the outcome of his work, and in any event, he has not seen Mr Kondarios for several years and has not seen the CT scan of May 2014. However, I was impressed by the opinion of Associate Professor Brazenor and accept his assessment that Mr Kondarios has had a reasonably good outcome from surgery, and although left with some pain and limitation in his lower spine, it is not sufficient to prevent him working on a full-time basis in alternative employment. He was provided with the CT scan of 2014. I particularly accept Associate Professor Brazenor’s assessment that Mr Kondarios has the capacity to work as a recruitment consultant or safety inspector. From the material provided, the amount of money to be earned in those areas of employment is such that there is not a 40 per cent loss of earning capacity when assessed in accordance with the provisions of the Act.
61 For these reasons, Mr Kondarios’ application in relation to economic loss fails. His application in relation to pain and suffering succeeds.
62 I shall make the appropriate orders.
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