Korleski v Victorian WorkCover Authority
[2017] VCC 1718
•23 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00229
| KIRE KORLESKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2017 | |
DATE OF JUDGMENT: | 23 November 2017 | |
CASE MAY BE CITED AS: | Korleski v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1718 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the spine - pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti[1994] 1 VR 436; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Richter v Driscoll [2016] VSCA 142; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Mr L Allan | Arnold Thomas & Becker |
| For the Defendant | Mr R H Stanley | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with PSG (“the employer”) on 6 August 2012 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.
4 The body function relied upon in this application is the spine.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 In this application where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
14 The plaintiff relied upon two affidavits and was cross-examined. His wife, Klimentina, swore an affidavit on 24 May 2017 and was cross-examined. Both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
15 The plaintiff is aged forty-five, having been born in Macedonia in May 1972. He is married with two adult daughters.
16 The plaintiff was educated to Year 12. Thereafter, he trained for a year as an electrical fitter and did other various odd jobs. He also worked in hospitality roles in bars and restaurants whilst in Macedonia.[3]
[3]Transcript “T” 33
17 The plaintiff came to Australia with his family in May 2000 looking for a better life. When he arrived, he obtained a job in a factory for about two to three months. He then worked for Nilsen Electronics, a copper manufacturing business, for nine years.
18 Prior to starting work with the employer, the plaintiff did not recall having any serious issues with his back or any other major health problems.
19 In his second affidavit, sworn 1 June 2017, the plaintiff deposed he had now seen the records of Rochdale Medical Centre (“Rochdale”) that showed he in fact had some pain in his lower back and right leg in about 2006. He saw his general practitioner and was sent for some scans. He took painkilling medication, and these problems resolved fairly quickly.
20 Further, the records showed the plaintiff had some back pain in around October 2009, but he did not remember much about that. Soon thereafter, he started full time with the employer, so he assumed that pain also resolved.
21The plaintiff could recall attending Rochdale on 5 October 2006 with a one-month history of right hip pain, “but it was nothing.” The pain in his right calf with walking was “nothing like what happened later.”[4] However, he could recall those symptoms, as they were nasty and concerning to him, and they had been going on for a month.[5]
[4]T15
[5]T16
22The plaintiff agreed Dr Nassios from Rochdale sent him for an x‑ray of his hip and lumbar spine, and he could recall him doing so. The plaintiff agreed he came back to see this doctor a couple of weeks later, when he was told about the x‑ray results. The plaintiff agreed he would have been quite concerned about the results, but after what Dr Nassios told him, he was not that concerned.[6]
[6]T16
23The plaintiff could not now remember much back then. It was a long time ago. He probably was concerned.[7] He remembered the results being explained to him, and that a CT scan was suggested. He could remember having it. He could remember discussing the results of that scan with his doctor, but could not remember being told he had a disc prolapse. He could not remember having a discussion with Dr Nassios about WorkCover and being reluctant to make a claim, as the doctor noted. He could not remember pain continuing through to a second visit in 2006. He just knew his pains today are worse than what they used to be.[8]
[7]T16
[8]T17
24The plaintiff agreed he was prescribed an anti-inflammatory in 2006 for his back condition. However, Dr Nassios never told him to stop working, whereas after the more recent incident, the plaintiff was told not to work anymore.[9]
[9]T18
25The plaintiff thought he could remember attending Rochdale on 22 October 2009, three weeks before he started with the employer. He was then complaining of low back pain and was prescribed something like Voltaren, but he did not remember getting a medical certificate, because he would not have needed one as he did not have to stop work.[10]
[10]T19
26Any back problems prior to starting work with the employer were not serious. The plaintiff was doing heavy work in a lifting job at Nilsen. He never stopped work and continued with work that was hard. He was the “copper man” for a number of years.[11] He did not tell his solicitor about right hip and lower back pain in 2006 because it was not serious, nor did he tell them about any investigations.[12] He denied that he thought telling them would impact on his present claim. He accepted it was a mistake not to tell them, but it was not deliberate.[13]
[11]T21
[12]T21
[13]T22
27The plaintiff agreed he answered “No” in his Claim Form to the question: “Have you previously had another injury/ condition or personal injury claim that relates to this injury/condition?” because he had never made a claim before.[14]
[14]T22; Claim form dated 14 August 2012
28The plaintiff also answered “No” in his impairment Claim Form to the question: “Have you had a similar injury/condition before making this claim?” because he understood a similar injury was if he stopped working and could not do anything.[15]
[15]T23; Claim form dated 23 June 2014
29The plaintiff was asked about a number of histories to doctors where he denied having any prior back problems. He gave this answer because he was asked about whether something similar had happened before. He had never stopped working.[16] Had doctors asked him about previous symptoms, he would have told them and he probably would have said they were not the same as in 2012.[17]
[16]T24
[17]T26
30The plaintiff thought Mr Dohrmann, in March 2017, asked him whether he had had similar problems previously. He did not recall Mr Dohrmann asking him whether he had symptoms in the past. The plaintiff denied he told a lie in this regard[18] and denied he misled Mr Dohrmann to promote his compensation claim.[19]
[18]T29
[19]T30
31The plaintiff told his solicitors he did not remember the dates of these earlier attendances and started to remember them when discussing them with his solicitors earlier this year.[20]
[20]T31
32The plaintiff agreed he saw Professor Chambers in 2006 for migraines and that they were getting worse at that time. He still gets a migraine every two weeks. They did not affect him working in the past and would not prevent him working at the present time.[21]
[21]T62
Work with the employer
33 The plaintiff started work with the employer as an electrical fitter on 9 November 2009. He worked on a full-time basis and also did a lot of overtime. He was initially paid $35.53 gross per hour.
34 The plaintiff mostly worked with copper. He was a “big guy”, so most of the time he was put on heavy work involving a lot of manual handling of heavy copper bars.
35 On the said date, the plaintiff’s duties involved punching holes into copper bush bars using an hydraulic punch. Whilst lifting the bars, he felt pain in his low back. He thought he had just strained his back, so he kept working. While he was punching holes into the bush bar, the pain became really bad, and he felt like electric shocks going into his right leg, thigh and groin (“the incident”).
36 The plaintiff reported the incident to the OH&S representative. He kept working for another two days before the pain became too bad to continue.
Treatment
37 Following the incident, the plaintiff attended the work doctor, who told him to go to his regular general practitioner for advice. The plaintiff saw Dr Adba, who prescribed Panadeine Forte and Celebrex and put the plaintiff off work.
38 The plaintiff had a lumbar CT scan in August 2012, and was also prescribed Celebrex. That medication gave him a lot of stomach problems, so he started taking Nexium. He eventually gave up Celebrex and went on to Tramadol.
39 The plaintiff was referred for physiotherapy with Mr Ty Lam, whom he first saw in October 2012. He also had some acupuncture.
40 The plaintiff returned to light duties with the employer on 14 August 2012. His claim for compensation made that day was later accepted, and payments were made for medical and like expenses, and weekly payments. Light duties continued throughout 2012 and into 2013.
41 The plaintiff’s right thigh pain became better, but he still had pins and needles in his right calf, ankle, and into some of his toes. He continued with physiotherapy until funding was ceased in August 2013 and eventually started hydrotherapy upon Mr Lam’s recommendation, twice weekly.
42 Things were not really improving. The plaintiff was referred to Mr Cunningham, orthopaedic surgeon. The plaintiff first saw him on 8 November 2013. He sent the plaintiff for a lumbar MRI scan, which was carried out later that month. The plaintiff returned to Mr Cunningham on 16 December 2013, and was advised to continue with conservative treatment.
43 The plaintiff next saw Mr Cunningham in March 2014. He said the plaintiff could have surgery, but he would not give him any guarantees.
44 The plaintiff continued to work with the employer until it closed down in around June 2014 and went into receivership.
45 During that time, the plaintiff worked anywhere between 15 to 30 hours a week, with WorkCover payments topping up his wages. He was on light duties the whole time. Mostly this was cabling work. He thought he tried doing his full duties for around a week; however, doing so caused too much pain, so he had to return to light duties. Every now and then, he had to have time off due to back pain.
46 Since swearing his first affidavit, the plaintiff had had an opportunity to review documents that recorded the hours he actually worked after his injury.
47 From August 2012, when he returned to work, until the end of 2012, the plaintiff worked about 10 to 20 hours a week. He was able to do so with the help of plenty of Panadeine Forte, Voltaren, Tramadol, physiotherapy, and also some hydrotherapy. He was trying to lose weight to help his back pain, but it was hard, because he could not exercise.
48 During that period, the plaintiff was unable to complete the hours he was supposed to, according to the return to work plan, because of back pain, and sometimes he had to take full days off as a result thereof. He had two weeks off work over the holidays from 2012 to 2013, which gave his back a rest. He felt a bit better after the break.
49 From about January 2013 until May 2013, the plaintiff worked about 17 to 23 hours a week. Once again, he was relying on medication, Tramadol in particular. He continued to have hydrotherapy and physiotherapy. He was supposed to work 4 to 6 hours a day, but could not manage do so consistently because of back pain. Occasionally, he tried to increase his hours, but could not maintain them due to back pain, and had to take days off.
50 The plaintiff went on leave from the end of May to the end of July 2013 and went overseas, as his mother had passed away. That leave gave his back a break.
51 On his return to work on around 1 August 2013, the plaintiff was supposed to work six hours a day and slowly increase his hours to full time eventually. However, due to back pain, he could not manage this, and could not even do the six hours a day consistently, and usually managed to do between 20 and 30 hours a week. The plaintiff continued to have full days off work because of back pain once or twice a month. He took medication and attended hydrotherapy and physiotherapy so he could work. This situation continued until early 2014.
52 From 20 to 24 January 2014, the plaintiff had a full week off work because of blisters on his feet and an infection. The infection returned in February 2014, and he again was off work entirely in the fortnight from 10 February. Apart from those weeks off work, he was working slightly over 20 hours a week on average in the early part of 2014.
53 In around March 2014, the plaintiff saw Dr Miller at the request of QBE and the employer. He thought the plaintiff could go back to full-time work on light duties. A return to work plan was developed, under which the plaintiff was supposed to be back on full-time hours by late May 2014.
54In April 2014, Dr Adba, certified the plaintiff fit to work five to eight hours a day on light duties, depending on how he was coping. The plaintiff was not sure he could cope because of his pain, but agreed to give it a go.[22]
[22]T54
55 The plaintiff managed to work the designated hours in the week starting 14 April. He was on leave the next week and got a chance to rest his back. The following week, he was supposed to work 34 hours, but could not manage to do so due to back pain, and worked only 31 hours.
56 The plaintiff saw Dr Adba on 8 May 2014 to obtain more Tramadol. The plaintiff then advised him of his continued back pain at work, and was given a new certificate, lowering his hours to four to six hours a day of light duties.
57 To the best of the plaintiff’s belief, he worked around 25 hours a week in May 2014, as he could not manage the hours of work set out in the return to work plan due to back pain. The plaintiff last worked on 30 May 2014 when the employer went under.
58 After the plaintiff’s injury, he only ever worked light duties, and did not do any overtime. He was never able to return to full-time hours due to his back pain, despite his best efforts on light duties. His ability to work the hours he was supposed to do, according the return to work plans, was inconsistent. Very regularly he was unable to complete the required number of hours due to back pain, and went home early. Sometimes he had to have a full day off. He was not a reliable employee, and he took significant amounts of medication to help him through the day.
59 The light duties with the employer were not a real job; not one that the employer offered to normal employees. It was a job made up for the plaintiff. He did a lot of light cabling and labelling work, and other tasks that did not involve lifting or bending. He did a bit of paperwork but was not very good at it. A lot of the time at work he would just be sitting around waiting for the employer to find him something to do. He gained the impression they were finding it hard to accommodate him.
60If he was in pain, the plaintiff would take a letter to the office, sit on the computer doing small labels for wiring, print the labels, put them on plastic and cut some wires.[23]
[23]T55
61The plaintiff agreed that just before his employment was terminated, he was supposed to be working 34 hours and then stepping up to 38 hours.[24] He agreed that his hours were increasing and he was “trying”, but his hours were “always up and down.”[25]
[24]T54
[25]T56
62The plaintiff agreed that he had some improvement with physiotherapy with Mr Lam but then once funding ceased and treatment stopped, he stopped improving and he is still trying to obtain funding for physiotherapy even now.[26]
[26]T57
63The plaintiff could not remember complaining of minimal low back pain when he last saw Mr Cunningham in December 2014. At that stage, Mr Cunningham was not recommending any surgery and told the plaintiff to learn to live with his pain. The plaintiff did not remember if Mr Cunningham said his problems were more hip related but probably there were some further investigations arranged at that time.[27]
[27]T64
64The plaintiff received a redundancy payment of around $28,000 when the employer went under. He used the redundancy payment to live on as he was short of money.[28] He denied he used the funds to buy out his cousin in the restaurant as she was no longer in the business. It was not his intention to run the restaurant with his wife.[29]
[28]T63
[29]T64
65After he stopped work with the employer, the plaintiff went to Macedonia for a month or so, as his father was having surgery. The plaintiff went overseas a number of times in 2013 and 2014 to see his parents, who had health problems.[30]
[30]T63
66 The plaintiff’s claim for impairment benefits in relation to his lower back injury was accepted on 6 February 2015.
67 In January 2015, the plaintiff received a letter from the insurer, advising his payments would be terminated from 18 April 2015 as he would have then received 130 weeks of payments.
68 The insurer then agreed to fund a security guard course. However, the plaintiff was unable to start it, as he could not meet the physical requirements of the course due to his back injury.
69 Throughout 2015 and into 2016, the plaintiff’s situation remained largely unchanged. He continued to see his general practitioner when necessary. He took his medication and did home exercises.
70 As of September 2016 when he swore his first affidavit, the plaintiff was taking three tablets of Panadeine Forte about two or three times a week. He also rubbed Voltaren Gel onto his lower back every day. He wore a compression band on his right leg every night when he slept. He did home exercises pretty much every day, trying to walk as much as possible, and did stretches in the morning which he had learnt from his physiotherapist, and had done them since treatment was ceased.
71 The plaintiff was then seeing Dr Sudhan, Dr Abda’s partner, every second week or so for general health and prescriptions. The plaintiff had sought further funding for physiotherapy, as his leg pain seemed to get worse in early 2016.
72 The plaintiff was not then keen on surgery, although the possibility had been raised with him, since apparently it was not guaranteed to be successful, and he had a friend who had a bad experience with back surgery.
73 As of September 2016, the plaintiff had constant pain in the middle and right part of his lower back which felt like someone was scrunching up his muscles and grabbing them in a handful. He experienced flare-ups of back pain that came on randomly or if he did something he should not do. When these occurred, he had to lie down and rest completely until they went. He had pain and pins and needles in his right leg, worse in the morning, and the pain in his leg came back if he was active, especially at the end of a big day.
74 Changes in the weather seemed to make the plaintiff’s back pain and leg symptoms worse.
75 The plaintiff had problems getting to sleep, and woke during the night with pain on his right side. He felt tired and sore, and numb in his right leg. As he had not slept properly, he was very tired throughout the day, and had to take naps to catch up.
76 A lot of movements caused the plaintiff back pain, such as bending at the waist or twisting his torso. Prolonged postures also caused pain to build up in his back and leg.
77 In his first affidavit, the plaintiff described problems doing physical work and activities which he enjoyed. He also missed his friends from work.
78 The plaintiff was unable to finish building the family home in Lalor which he had been working on to save money.
79 Prior to the incident, fishing was the plaintiff’s main hobby, going about 2 or 3 times a month. It was his major hobby. He had tried to go a few times since his injury, however, it was painful to stand on the sloping river banks, and painful to walk on uneven ground.
80 Before the incident, the plaintiff helped his wife with all the housework, but now he avoided home duties almost entirely. Outside the home, he used to do most of the gardening and all of the lawn mowing, but now only mowed the grass occasionally, and had to take breaks over the long time he took to do it.
81 The plaintiff had difficulty carrying heavy weights with his right hand, such as carrying heavy bags of shopping.
82 The plaintiff found it difficult and painful to dress. Bending down to put on his shoes and socks was painful. He found it hard and painful to shower himself, and had to sit on a shower chair to wash his legs.
83 The plaintiff’s mental health was up and down, and his wife thought he should see a psychologist, but he was not one to talk about his feelings. He was frustrated over his situation and his injuries. His back injury caused problems in his intimate relationship with his wife.
84 The plaintiff had then been told by his doctors he should never do manual work again or he would aggravate his back pain. He had also been told he should try to only do short shifts at work.
85 The plaintiff had complied with the various occupational rehabilitation job-finding programs that the insurer had sent him to after his injury, but he had not got anywhere. He had spoken to a few employers on the phone, but never got further than that. No one seemed interested in hiring someone who could only do short shifts.
86 The plaintiff became very bored and depressed if he stayed at home, and he had been encouraged by his doctors to stay active, so from time to time he helped out at his wife’s restaurant. He worked in the bar doing a couple of hours of work, a couple of times a week. He was not paid. He was sore and tired from standing up at the end of even a short amount of work. That situation made him doubt how he would go performing a regular shift in a real job.
87 The plaintiff then believed he could perform part-time work in a job that allowed him to be very flexible with his posture, which did not require him to do any bending or lifting, and in which he could take frequent breaks. He thought he would need to take regular days off when he had flare-ups of back pain, and would need an understanding employer.
88 The plaintiff did not think he could do a full shift at work in his current state, due to the pain build-up when standing or sitting, so he thought four to six hours would be his limit, and not every day of the working week.
89 Had he not been injured, the plaintiff intended to work until he was at least sixty-seven. He believed that as a result of his injury, he had suffered a loss of wages and would continue to do so into the future.
90 The plaintiff’s pain levels improved once he had finished work, and he decided to try to get himself off Tramadol, because he was reliant on it to get through a day at work.
91The plaintiff agreed, as Mr Dohrmann noted, that he might still be working in his old job with the employer if his employment had not been terminated. The plaintiff never stopped doing anything and the employer was looking after him “in a good way that was helping [him]”.[31]
[31]T55
92The plaintiff liked to work. He is not the sort of person to sit at home. That is why he went to the restaurant, but he could not do long hours. He could work maybe for a day or two but may then have a flare up. Recovre were trying to find him a job but his reliability was the real problem. He could be at work maybe six or seven hours sometimes, but sometimes he could be in bed at home for two or three days.[32]
[32]T55
Wage rates
93 Prior to his injury, the plaintiff was employed to work an ordinary 38-hour week. He was paid time and a half for the first two hours of overtime, then double time. Work on Saturday was time and a half for the first two hours, then double time, and Sundays were always double time, with public holidays, triple time.
94 The plaintiff was employed by the employer under an EBA agreed by the employer and the Electrical Trades Union under which his wage increased by 2.5 per cent on 1 March and 1 October every year.
95 In March 2014, the plaintiff was being paid approximately $39.22 an hour and was being paid at that rate for ordinary hours when the employer closed down.
96 In 2011-2012, the last full financial year before the plaintiff was injured, his gross income with the employer was $76,266 with ordinary hours, and plenty of overtime.
97 If the plaintiff had not injured his back he would have kept working around the same hours as he had managed before his back injury, including overtime. He believed his earnings would have continued to increase by about 2.5 per cent each six months, at least until the time he was made redundant. If he had not hurt his back, he believed he would have been able to obtain work as an electrical fitter somewhere else after the employer closed, and would have been paid a similar amount.
Current situation
98 The plaintiff now sees Dr Sudhan as his regular general practitioner. He continues to take Panadeine Forte and also Tramadol SR 100 milligrams, which he does not like taking, because he had previous problems with addiction. He would say he takes Tramadol once or twice a month, on the terrible days when he just cannot cope without it. He still uses Voltaren Gel and does home exercises.
99 In mid-October 2016, Dr Sudhan referred the plaintiff to Mr Lincoln, physiotherapist. The plaintiff would like this treatment, but cannot afford to pay for it himself and is still seeking funding in relation thereto.
100 The plaintiff had lap-banding surgery on 22 September 2016 for haemorrhoids. Following this surgery, he made a good recovery.
101 The plaintiff continues to have the same pain and suffering and loss of enjoyment consequences earlier deposed to. He is not totally disabled, and certainly does what he can to get on with his life, but just about everything is now affected by his back pain.
102In cross-examination, the plaintiff confirmed his pain is currently in his back and also down his right leg and calf. He agreed Mr Cunningham told him that pain might have been coming from his right hip in late 2014. His pain is always there, of a varying degree, but most of the time, it is in the same place.[33] He agreed that he told Mr Dohrmann in March this year that his pain improved after ten to fifteen minutes’ walking and that if he rests, his back pain “is not that bad”.[34]
[33]T14
[34]T50
103 The plaintiff still goes to his wife’s restaurant to socialise, help out a little, and just get out of the house. He does so about three days a week, since often he is too sore to go. He usually spends between two and four hours at the restaurant during the evenings.
104 The plaintiff spends a lot of time there just sitting down, talking, and having coffee. Sometimes he gets up and does some light work behind the bar or sets tables. He tries not to do anything too heavy. He can lift a slab of beer in the bar, but only if it is from a height level with him, and he tries not to bend.
105 The more the plaintiff does during an evening at the restaurant, the worse his back feels. Sometimes it will be quite sore at the end of the night, even though he has not done much. He does not get paid for this work. It is very good for him mentally to go to the restaurant, because otherwise he would sit at home and be bored and miserable.
106In examination-in-chief, the plaintiff gave further details about the family restaurant, “Kaneo”, which was purchased in 2012. Prior to the purchase, the plaintiff was working with the employer, and his wife had not been working for some time. Half of the business was purchased from their joint account and the other half, by the plaintiff’s cousin’s wife, Susanna. The purchase price was $80 to $85,000 for the goodwill and the lease.[35]
[35]T10
107The plaintiff’s wife runs the restaurant. The plaintiff does not have any certificates in food handling or the serving of alcohol.[36]
[36]T11
108The restaurant is open for dinner between Thursday and Sunday, and on other occasions for functions. When the plaintiff was working with the employer, there was no chance for him to go to the restaurant. He maybe went there for lunch on the weekends.[37]
[37]T11
109Until recently both the plaintiff’s daughters worked in the restaurant. Recently the younger one started working in childcare.[38] The plaintiff’s wife is not the cook. She is like the manager, and does waitressing and helps in the kitchen. There are two chefs[39] and two waitresses, together with the plaintiff’s wife. There are also extras who come in on call. The plaintiff usually has dinner at the restaurant Thursday to Sunday.[40]
[38]T11
[39]Staff of the previous owner
[40] T12
110The plaintiff usually goes to the restaurant at night because he is home alone, and he does not like being by himself. It just depends on how he feels. He can sit there for up to four hours. When it is really necessary, he can help. He can go to the bar, pour drinks, make a coffee and fix up the bill if someone comes to the bar. Sometimes he can do even a little more. If his back feels sore, even after 15 minutes, then he just has to go home.[41]
[41]T13
111The plaintiff’s wife is running the business but the plaintiff is involved with the accounts because he contributed part of the purchase price. That is why, in May 2012, he described himself as an owner of the restaurant on his Facebook page. His telephone number was listed as he takes calls as his wife has difficulties with English. His name does not appear on the ABN documentation.[42] There is no corporate structure. His wife does the accounts with an accountant.[43]
[42]T34
[43]T35
112On the “life events” entry on his Facebook page when the plaintiff described having been working at the restaurant since 2012, he meant he had contributed to the purchase price; the business was in joint names but he was not working there.[44]
[44]T36
113The restaurant has a 50 to 55 capacity. The plaintiff agreed he paid some bills, took bookings, placed orders, arranged deliveries at times but they pretty much arranged themselves. His wife looked after the staff. He occasionally helped out at night because he did not like being home alone. He helped with drinks behind the bar, just when it was really necessary. The waitresses did these jobs. He denied he was effectively the barman and explained that the business could not afford to employ one.[45]
[45]T37
114The plaintiff agreed there was film of him working behind the bar on 24 March this year which appeared on his Facebook page.[46] This occasion was a birthday party for a cancer patient. The plaintiff and others were doing their best to make the party girl happy.
[46]T38; Exhibit 1
115The plaintiff agreed he was shown standing behind the bar in front of some large fridges. There was nowhere for him to sit whilst the party was on. He was standing behind the bar maybe to help out a little bit. Whilst he might have given people a drink, he was not the barman.[47]
[47]T40
116The plaintiff agreed he helped set up the restaurant for a christening on 19 March 2017, the week before this party. He denied he helped out as a barman. Whilst he might have helped set up some tables, he did not always do so. He has never said he is disabled. He does his best to help with whatever he can.[48]
[48]T41
117The plaintiff sometimes restocks the bar but not often. He can lift a slab of beer but tries to avoid doing so from the ground. He lifts if he must but sometimes if he does so, he feels sore for a day or two afterwards and has to lie down at home.[49] He can help set up tables but not do the full job, as he has problems bending due to his back pain.[50]
[49]T42
[50]T43
118The plaintiff does not work at the restaurant because he does not think he can work long hours. He goes there because he does not want to stay at home alone.[51]
[51]T43
119The plaintiff agreed Kaneo is a restaurant, not a takeaway store. He denied that he ever told examiners, such as Professor Buzzard, that it was a small takeaway shop or a café, as Mr Dohrmann and Mr Jones noted.[52]
[52]T45
120The plaintiff’s wife understands English but cannot speak it very well. Whilst she does work around the restaurant, he would not really call it physical work. She has a bad back and although she has pain, she can still do her work.[53] In any event, she avoids heavy lifting. She is very small woman. The delivery men often put things away.[54]
[53]T46
[54]T47
121The plaintiff was not really aware of the restaurant takings. This was a matter for his wife.[55] He agreed the wages would have been $46,000 in 2015. There is no one working full time in the business. It is actually his wife’s business. He denied it was a fairly skeletal staffing arrangement and it required him to step up for the business to operate functionally. It is a family business and that is why his daughter was involved and he sometimes helped out.[56]
[55]T47
[56]T48
122 Recently, the plaintiff had seen someone filming him when he was having coffee in Epping. He thought that person was from WorkCover but he was not worried about it, because he did not feel he had anything to hide.
123 The plaintiff still thinks his maximum sustainable work capacity is four to six hours a day, depending on how he feels. His problem with doing more is that his back pain worsens throughout the day, no matter what he does, unless he is lying completely flat on his back. It does not matter whether he is standing or sitting down, or regularly rotating between the two positions. If he is active, his back pain will still regularly worsen throughout the day until he cannot cope and has to lie down for the rest of the day and night. That is why he thinks four hours is a realistic shift, with six hours being his absolute maximum.
124 The plaintiff thought he could probably manage three days at most, ideally non-consecutive, so he could have a day off in between to rest and recover.
125 This would be a bit less work than the plaintiff was doing whilst working with the employer, because he is not taking the same amount of medication he took then to help him get through the day, and in particular, he now takes much less Tramadol.
126The plaintiff agreed, as Mr Dohrmann noted, that he was taking Panadeine Forte, five to six times per month, and a box of twenty sometimes lasted for a month.[57] The quantity he took would depend on how he felt. He has not had Tramadol for a long time as he was worried about becoming addicted and sometimes he uses his wife’s tablets. He did not want to discuss her health problems.[58]
[57]T48
[58]T49
127 The other big issue the plaintiff has with full-time work are the flare-ups of back pain, which happen every couple of weeks or so. These can come on from activity or at random.
128 When the flare-ups occur, the plaintiff experiences terrible back pain and has to spend all his time lying down. They last for one to two days at a time, and he is useless during that time. This situation would make it very difficult for him to be a consistent or reliable employee. Once again, whilst working with the employer on light duties, it was accommodating of his flare-ups, and let him take days off when he needed them. He did not think another employer, who did not owe him any WorkCover obligations, would be so understanding.
129 Also, the plaintiff experiences flare-ups regularly now, even when he is not working. He is concerned they would come on much more frequently if he was working.
130 Last year, the plaintiff sat in with his friend in his courier business for a day. The plaintiff did not do any work himself, just watched his friend deliver parcels. Even sitting for hours in traffic caused the plaintiff a lot of back pain, and he did not think he could do that sort of work. It would be very hard with his history to find some work.[59]
[59]T52
131The plaintiff has asked friends about work. The plaintiff had asked his uncle, who is in a similar field to which he had worked with the employer, but all that work involves heavy lifting which is the only thing the plaintiff knows how to do.[60] There are no light electrical fitter roles available on the open market that the plaintiff knows of.
[60]T51
132The plaintiff can use Facebook, browse the internet, and write emails. He can play computer games. He has never had a job that involves computers, and he cannot use advanced programs.[61] He would be happy to try to further learn computers but thought he would have trouble concentrating doing a computer course because of his back pain when seated.
[61]T53
133 The plaintiff is okay with reading English, but not very good with writing at all, and makes a lot of spelling mistakes, and is very slow.
134 Recovre applied for a lot of jobs on the plaintiff’s behalf. He believed that they would have to disclose to potential employers that he had a back injury and was looking for part-time work only. The plaintiff believed Recovre did not have any success at all finding suitable work that would accommodate his restrictions.
135Recovre had tried to get the plaintiff back to work and sent his résumé. They then suggested a security course which he did not actually commence because he could not cope with it physically.[62]
[62]T50
136 The plaintiff stopped applying for work, having probably last looked seriously about a year ago. He would really like to return to work if he could find a job that was suitable, but after years of looking for work himself, and having Recovre look for him with no success, he had to admit he had pretty much given up hope. It seems there are no jobs out there for people with back injuries who can only work part-time hours and who cannot use computers well.
137 The plaintiff has always been a working man, and has taken pride in being a hard worker and providing for his family. The only reason he is now not working is because of his back injury. If he could find a suitable job that would take him on with his physical limitations, he would be happy to give it a go.
138The plaintiff confirmed he does not say he is disabled. He has spoken to Dr Sudhan about going back to work if he finds a suitable job. He has told the plaintiff not to lift anything more than 4 to 6 kilograms or stay standing for too long. Maybe the plaintiff can help in the restaurant but his wife cannot afford him and he cannot do so for any longer than he does at present because of pain.[63]
[63]T59
139The plaintiff denied he had just given up and that was why he was not doing work in the restaurant.[64] He is just trying to help there because he feels so bad. He cannot do so for long and he cannot promise that tomorrow he is going to be there again. That is the only issue at the moment and he does not know how it will be in the future.[65]
[64]T59
[65]T60
140The plaintiff agreed he had a discussion with Dr Baynes about the three suggested jobs. He agreed he had told Dr Baynes he would try and see if he had the physical capacity to do the jobs but he did not say or think he could do any of the jobs full time.[66]
[66]T61
141 There was no re-examination.
Lay evidence
142 The plaintiff’s wife, Klimentina Korleski, swore an affidavit on 24 May 2017.
143 Mrs Korleski confirmed the plaintiff’s evidence as to his experience of pain, use of medication, problems with sleep, lack of involvement with housework, and the fact that he spends a lot of time just lying down at home.
144 Mrs Korleski confirmed the plaintiff’s evidence as to his involvement at Kaneo.
145 In terms of the plaintiff’s work capacity, she deposed he had always been a big strong working man while they had been married, and that it seemed to her that not being to work had affected his self-esteem. He told her he missed work and would like to get back to it if he could.
146 From her point of view, the plaintiff is definitely not a total invalid, but she could not see him being a consistent and reliable employee for anyone.
147 Mrs Korleski confirmed the plaintiff is not very good with computers. He is not that good at English, and his internet skills are limited.
148Mrs Korleski was required for cross-examination. She confirmed the purchase of “Kaneo” from a joint account and that that business started at the suggestion of the plaintiff’s cousin’s wife. The plaintiff never works in the restaurant. He just sits and drinks coffee. They have dinner together and sometimes he helps. He is not a barman or a waiter.[67]
[67]T67
149Mrs Korleski agreed the restaurant takings were $200,000 to $250,000 and confirmed the plaintiff’s evidence as to the staff arrangements.[68]
[68]T67
150The other staff do the work and she helps as much as she can. The plaintiff can sometimes help restock the bar and he orders some things and takes bookings but their older daughter operates the Facebook. There is no barman employed. Sometimes the plaintiff helps and sometimes he talks to the guests.[69] Whilst he sometimes helps she cannot always be sure to rely on him because of his health problems.
[69]T69
151Mrs Korleski has a problem with her back and shoulders. She has not taken Tramadol for very long and was last prescribed it in the last few years.[70]
[70]T68
152The plaintiff was not working at “Kaneo” when he injured his back. He was working in a factory.[71]
[71]T69
153On re-examination, Ms Korleski explained “Kaneo” would be usually full on a Saturday night. Sometimes there are only five or six people there at lunchtime. She does not need to be there all the time. The plaintiff normally comes to the restaurant during the day when he is hungry. He is not paid and there is not enough work to justify him being paid.[72]
[72]T70
The Plaintiff’s medical evidence
154 There was no dispute as to the present diagnosis of the plaintiff’s back condition. The consensus of medical opinion is that the plaintiff suffers from an aggravation of degenerative disease/soft tissue injury at L4-5 with referred pain to the right leg. This condition is organically based and continues to be work related.
155 In those circumstances, I propose to deal with the medical evidence only insofar as it relates to the issue of the plaintiff’s work capacity and prognosis.
Treaters
156 Mr Cunningham first saw the plaintiff on 8 November 2013.
157 Mr Cunningham diagnosed lumbar disc disruption, probably at L4-5 and advised conservative treatment.
158 As of August 2014, Mr Cunningham thought the plaintiff could gain employment as an electrician in a lighter aspect of that industry, but he did not see he would be capable of household installations because of the difficulty of moving and being required to work in confined spaces. He would be more suitable to a bench type of occupation.
159 Mr Cunningham thought it would not surprise him to find that, in the very long term, the plaintiff may progress to a surgical need if he is to go on to develop a root canal or spinal canal stenosis.
160 In his report of 7 November 2014, Mr Cunningham advised the plaintiff’s prognosis must be guarded.
161 Mr Cunningham then thought the plaintiff might be suitable for the three jobs suggested by the vocational assessor but suspected he would prefer to carry out light electrical work at a bench. He considered the plaintiff would not be capable of repeated heavy lifting and repeated bending and rotational movements.
162 When he last saw the plaintiff in December 2014, Mr Cunningham noted he seemed to have been getting along quite well recently as far as his low back was concerned, but over the last week or so, had developed pain in the right groin. He then noted the plaintiff had minimal low back pain.
163 Following the last examination, Mr Cunningham arranged for x-rays of the hips and advised he had reviewed them when they were at hand.
164 Physiotherapist, Mr Tan, first saw the plaintiff in October 2012 with the last visit on 9 August 2013.
165 In his 2014 report, Mr Tan noted he considered the plaintiff’s condition to have stabilised. He noted the plaintiff’s symptoms had improved over the course of his treatment. His peripheral symptoms reduced; however, he continued to experience fluctuant lumbar pain. His work status essentially remained unchanged, despite several attempts at increasing his hours over the course of his physiotherapy treatment, funding having ceased in August 2013.
166 When general practitioner Dr Adba last reported in November 2014, he thought the plaintiff’s work capacity had not changed. He was still fit to continue his duties for four to six hours a day, lifting no more than 8 kilograms, and avoiding prolonged sitting or standing for more than an hour.
167 In his April 2017 report, general practitioner Dr Sudhan advised that the plaintiff should avoid pushing or pulling activities, and frequent bending. He limited the plaintiff’s lifting to a maximum of 5 kilograms. He certified him fit to work for four to six hours a day (the restriction in the last certificate of capacity of 2 June 2015). He thought the plaintiff could possibly do more graded lifting if required, but not frequent.
168 Dr Sudhan noted the plaintiff continued to suffer chronic back pains and was unlikely to be completely cured, noting he would experience occasional flare-ups of back pain following any strenuous activities.
169 Dr Sudhan reported in June 2017, having received the plaintiff’s 2006 medical records. He noted the CT lumbar spine report from 23 October 2006 showed an L4-5 disc herniation with right L5 root irritation. That meant that the plaintiff’s injury was actually a pre-existing condition, and he had only had a flare-up of pain in 2012. Also, Dr Sudhan did not feel the plaintiff was totally and permanently disabled to make a claim from the super fund.
Medico-legal evidence
170 Dr David Kennedy, sports physician, examined the plaintiff in May 2017.
171 Dr Kennedy noted the plaintiff had no previous history of back injuries or problems prior to the incident.
172 On examination, the plaintiff complained of constant low back pain and stiffness, worse in the morning, with a pain level of 8 to 9 out of 10, and during the day 6 out of 10, worse in the colder weather.
173 Dr Kennedy thought the plaintiff sustained an injury to his lumbar spine in the incident, damaging specifically the L4-5 intervertebral disc with involvement of the L5 nerve roots bilaterally but worse on the right.
174 Dr Kennedy then thought the plaintiff’s capacity for employment was currently quite restricted, as he had significant and ongoing problems with his lumbar spine and right lower extremity which would prevent him returning to pre-injury occupational duties or any employment for which he had the appropriate education, skills, training, work experience and transferable skills, such is the nature and extent of the ongoing problems involving the lumbar spine and right lower extremity.
175 Dr Kennedy provided a supplementary report, having been forwarded Dr Baynes’ report in which he stated he believed that the plaintiff could negotiate flexibility with a potential employer to allow him regular days off for back pain.
176 Dr Kennedy did not believe such a negotiation with a potential employer or employers a realistic possibility for the plaintiff in the open labour market, as it is extremely difficult to obtain suitable work when someone is fully fit and healthy, without any ongoing and pre-existing problems as the plaintiff would have when presenting for an interview for future employment, as the plaintiff has significant and continuing low back and right lower extremity problems, with an average pain level on a good day of 6 out of 10, which is on its own quite significant, and the plaintiff requires intermittent, but in fact quite regular, use of Panadeine Forte when he has flare-ups of pain, which can increase his pain level of up to 9 out of 10.
177 Dr Kennedy also noted the plaintiff required medication including Panadeine Forte for the pain, and the use of strong analgesic medication made it very difficult for him to engage in any of the occupational duties, even on a part-time basis, with the jobs represented as suitable employment, taking into account the meaning of the relevant legislation.
178 Dr Manolopoulos, orthopaedic surgeon, examined the plaintiff in May 2017.
179 Dr Manolopoulos noted the plaintiff told her he had never had any back symptoms in the past, and prior to the incident, had not had any exacerbation of any back symptoms or any treatment.
180 Dr Manolopoulos thought the plaintiff was suffering from axial back pain with a right radicular component, with evidence of disc bulge at two levels caused by the work incident (noting the plaintiff had never had any back symptoms in the past). She thought his prognosis was that his symptoms would generally persist and that if he developed any further degeneration around his lumbar spine, he may develop further symptoms, such as radicular pain and advancing neurology.
181 Dr Manolopoulos noted the plaintiff’s functional limitations with standing or sitting, and that he needs restriction from certain activities, such as lifting, twisting or bending.
182 Given the plaintiff’s limitations in terms of sitting and standing, and the fact that he only managed light duties before his workplace closed down, Dr Manolopoulos suggested initially starting working hours at four hours, three times a week, increasing to daily over two weeks. If that was well tolerated, she would increase the hours to six hours daily over two weeks, then eight hours (normal working hours) in the occupations she identified as suitable in her previous report (Recovre report of 20 March 2017).
183 In theory, Dr Manolopoulos thought the plaintiff could probably attend to most of the suggested jobs if he was not required to drive excessively to get to the location and if he could maintain the restrictions with lifting, twisting and bending.
184 Mr Peter Dohrmann, neurosurgeon, examined the plaintiff in March 2017.
185 Mr Dohrmann noted the plaintiff said he had never previously suffered an injury of the lower back.
186 The plaintiff said he suffered from constant right-sided low back pain which fluctuated in intensity and was generally worse in the morning and in colder weather. He reported the pain was made worse by physical activities such as long walks or by sitting or standing for a long period. He said symptoms were reduced somewhat by shorter walks for ten to fifteen minutes, and if he rested, he said the back pain “is not that bad”.
187 The plaintiff said his wife worked full-time in a cafe, and he sometimes helped her for one hour when he was feeling better.
188 When asked about his long-term future prospects, the plaintiff said he hoped he would find some sort of work for himself, and said working in his wife’s café was too fast paced.
189 Mr Dohrmann thought the plaintiff had a capacity for part-time light work. He should not be expected to engage in work which involved repetitive bending or lifting or required him to lift more than 5 kilograms. He thought the plaintiff had a capacity to work four hours a day, five days a week, if suitable duties could be found.
190 Mr Dohrmann was then provided with the plaintiff’s pre-incident clinical records from 2006 and 2009.
191 Mr Dohrmann noted his handwritten records obtained on examination in March 2017 recorded not only the fact that there was no history of any previous injury, but also the plaintiff claimed not to have ever previously suffered from any lower back symptoms.
192 Mr Dohrmann described his routine practice, when asking about pre-existing symptoms, to specifically differentiate between previous injuries and previous symptoms. He also routinely enquired as to whether any previous symptoms were accompanied by any time off work, the need for medication or any modification of duties, or any investigation such as x‑rays or scans.
193 Mr Dohrmann could not explain the discrepancy between what the plaintiff had reported to him and what was contained within his medical records. He commented his previous report may remain correct in recording the absence of any previous injury, but it now appeared there were lower back symptoms prior to the time of the claimed back injury.
194 In a subsequent report, Mr Dohrmann said the fact that the plaintiff may have experienced previous episodes of back pain which he has since forgotten does not of itself cause him to change the opinions he had already formed. It remained his view that the plaintiff is suffering from an unresolved soft tissue injury of the lumbar spine which occurred in the setting of lumbar disc degeneration and disc bulge at L4-5 and L5-S1. He thought the incident injury was therefore best regarded as an aggravation of pre-existing and only intermittently symptomatic lumbar spondylosis.
195 Associate Professor Bruce Love, consultant orthopaedic surgeon, re‑examined the plaintiff in October 2017, having first seen him in 2014, on behalf of the insurer.
196 Professor Love then concluded the plaintiff was totally and permanently disabled, and that he was absolutely unable to follow his usual occupation due to his back condition. He also was of the view that the plaintiff was unlikely ever to be able to engage in any regular remuneration work for which he is reasonably fitted by way of education, training, or experience.
The Defendant’s medical evidence
197 On 5 October 2006, the plaintiff was seen by Dr Nassios at Rochdale. The note of that attendance of nine minutes duration was as follows:
“One month right greater trochanter pain and right calf pain, worse with walking. Work is as an electrician. On examination, tenderness over right greater trochanter. Able to touch toes. The diagnosis was right greater trochanter bursitis? Referred pain for calf. A lower back x-ray and right hip x-ray were requested, and a medical certificate created.”
198 On 19 October 2006, the plaintiff was seen again by Dr Nassios. It was then noted:
“Lower back x-ray ?, disc path for CT scan.
Actions: diagnostic imaging requested. Lower back CT scan requested.”
199 There plaintiff attended Dr Nassios on 13 November 2006. Following that visit of eleven minutes, it was noted:
“CT scan, L4-5 disc prolapse. Patient is reluctant to go through Work Care.” Reason for visit L4-5 prolapse.”
200 The plaintiff saw Dr Nassios again on 22 October 2009 for about four minutes. It was then noted the plaintiff was complaining of lower back pain, needs some Voltaren and a medical certificate was added.
201Associate Professor Brian Chambers, neurologist, wrote to Dr Nassios in March 2006, thanking him for referring the plaintiff, who had a history of migraines which started about twelve years ago.
202Professor Chambers noted that over the last two years, the migraines have been progressively more frequent, to the stage the plaintiff was now getting them about every ten days. He started the plaintiff on Inderal.
The Defendant’s medico-legal evidence
203The plaintiff was seen by Dr Yong, specialist occupational physician, in November 2012.
204Dr Yong noted the plaintiff denied the presence of any previous back problems.
205In Dr Yong’s view, the plaintiff had a discal injury to his lumbar spine, leading to some radicular symptoms, and there were then no features of a radiculopathy.
206At that stage, Dr Yong thought the plaintiff had a current capacity for work within a number of restrictions and he was due to perform a workplace assessment to comment further on the plaintiff’s work capacity.
207Dr Yong considered the plaintiff had a current capacity to perform tasks involving avoiding repeated bending and twisting his back, avoiding firm pushing or pulling, varying his posture regularly between sitting, standing and walking and avoiding lifting more than 4 kilograms repeatedly.
208Dr Yong carried out a worksite assessment in late November 2012, following which it was proposed the following duties be added to the plaintiff’s return to work program: checking in received material, quality control office duties, wiring and assembly.
209Once the plaintiff returned to pre-injury hours doing restricted duties, Dr Yong thought he should be able to start to phase in some of his other pre-injury duties, assuming that the weights were below 10 kilograms. That could occur over a further four to six-week period.
210The plaintiff was examined by Dr Andrew Miller, occupational physician, on 6 March 2014 to review his medical and other health services entitlements and to comment on a return to work plan and an offer of suitable employment.
211Dr Miller noted the plaintiff had no relevant personal medical history and denied any previous injury to his back.
212Dr Miller thought the plaintiff had sustained a chronic partially incapacitating injury to his lower back as a result of his work duties. He noted at that stage, the plaintiff had had a somewhat disappointing response to conservative treatment and been unable to resume his normal duties or hours.
213Based on the plaintiff’s description of his pre-injury duties, Dr Miller thought it appeared some of the tasks contravened the recommended restrictions and therefore the plaintiff would not be capable of undertaking the full range of pre-injury duties.
214Dr Miller thought the plaintiff could work full time with the following restrictions:
§avoid lifting in excess of 8 kilograms
§avoid movements of his back beyond a comfortable range
§avoid prolonged static postures, such as sitting or standing in the same position for more than an hour at a time; and
§avoid forceful pushing or pulling activities.
215In a supplementary report, Dr Miller advised if the plaintiff were to return to his pre-injury duties, there was a possibility he could sustain further aggravations, particularly if he did not observe the appropriate manual handling protocols.
216Associate Professor Bruce Love, consultant orthopaedic surgeon, first examined the plaintiff in September 2014.
217 There was no comment by Professor Love as to whether he obtained a history from the plaintiff of any previous back complaint.
218Professor Love thought the plaintiff had lumbar disc pathology and that the symptoms had been induced by the nature of his work. He suggested ongoing conservative treatment, noting the plaintiff had at least two-level lumbar disc pathology at L4-5 and L5-S1.
219Professor Love thought the plaintiff did not have a current work capacity because of his symptoms.
220Professor Love commented on an NES vocational assessment report provided by Recovre in July 2014.
221Professor Love noted the plaintiff had a combination of two factors preventing him from working. The first was that the firm he formerly worked for was in liquidation and, secondly, from a physical perspective, he had a condition which prevented him from working in any physically demanding task.
222Professor Love noted, however, it was appropriate the plaintiff be encouraged to return to the workforce by seeking suitable occupations for which he might be reasonably trained, in view of his education and social background. If he were to be re-introduced to the workforce, any work that the plaintiff engaged in must not require or involve any repeated lifting, lifting of objects of more than 5 kilograms or any repeated bending or stooping.
223Professor Love did not expect the plaintiff’s condition to cease and thought he would permanently suffer some back symptoms, but that did not mean that there may not be a capacity for him to be employed in a suitable vocational role.
224Associate Professor Anthony Buzzard examined the plaintiff on 28 January 2015.
225In terms of the plaintiff’s social and domestic history, Professor Buzzard noted the plaintiff’s wife ran a small takeaway shop in which he helped from time to time.
226Professor Buzzard thought the plaintiff had disc pathology at L4-5 evidenced on the MRI scan of November 2013 and also the CT scan of August 2012.
227So far as the plaintiff’s employment capacity was concerned, Professor Buzzard thought his back condition was such as to preclude him from work involving heavy lifting, bending and stooping. This in turn would preclude him from carrying out pre-injury work but would not preclude him from suitable employment such as he appeared to have been doing up to the time of liquidation. He thought the plaintiff was physically capable of working in his wife’s takeaway.
228Mr Ian Jones, orthopaedic surgeon, examined the plaintiff in November 2016.
229The plaintiff then denied any previous history of back injury or symptoms.
230The plaintiff reported symptoms of constant back pain, particularly in the mornings, associated with back stiffness which reportedly improved with some stretching exercises. He also had pain in his right buttock with numbness symptoms.
231Mr Jones noted the plaintiff had apparently made efforts to return to alternative employment without success.
232Mr Jones thought the plaintiff presented with symptoms and signs consistent with an L4-5 disc disruption, manifesting as back pain, stiffness and some mild right sciatic symptoms.
233In terms of work, Mr Jones simply commented that as a consequence of the lumbar back injury, the plaintiff’s ability to bend, and particularly to lift, had been compromised. He thought there were no functional symptoms or signs in the plaintiff’s presentation.
234Mr Jones provided a supplementary report, having been provided with the plaintiff’s pre-incident treatment records, the lumbar CT scan of August 2012 and the November 2013 MRI scan.
235In light of this additional information, Mr Jones noted it was clear, in spite of the plaintiff’s provided history when he was seen, he experienced previous significant lumbar disc problems in the past.
236Mr Jones thought notes of treatment in 2006 and 2009 would suggest the plaintiff suffered a significant L4-5 disc injury in the past, in spite of his denial.
237Being unable to compare the actual x‑rays, Mr Jones was not able to confirm any difference between the size of the disc protrusions at L4-5 in 2006 and 2012 but the plaintiff’s complaints on both occasions appeared to relate to some right-sided sciatic symptoms.
238Mr Jones noted the plaintiff’s symptoms and x‑rays in 2006 were consistent with the prolapsed L4-5 disc, the effects of which are permanent. He could not exclude the work undertaken by the plaintiff or his deemed date of back injury being an aggravating factor for a previously injured L4-5 disc.
239In Mr Jones’ view, the progress of a patient suffering an L4-5 disc prolapse, as apparently occurred in 2006, was likely to be one of varying degrees of back and leg pain, the latter possibly improving with conservative treatment over two to three months. Beyond that, varying degrees of back and leg pain are experienced by the patient with, on occasions, spontaneous episodes of further severe sciatica, particularly in the face of additional stresses and strains on the lower back.
240Dr Michael Baynes, occupational physician, examined the plaintiff on 29 November 2016.
241Dr Baynes noted the plaintiff was looking for work and would go to his wife’s takeaway food shop and have a coffee there and do a few odds and ends but did not formally work there.
242 Dr Baynes thought the plaintiff was suffering from chronic lower back pain with referred pain into the right lateral leg in association with disc degeneration at L4-5, with MRI scanning from 2013 revealing mild nerve root impingement. He found no objective clinical evidence of radiculopathy.
243Dr Baynes thought the plaintiff was not fit for pre-injury heavy manual duties. He was fit for work where there is no lifting more than 10 kilograms and where there was no repetitive lifting from below knee height or above shoulder height. He thought the plaintiff should not work with constrained postures and should be able to vary his posture. He considered the plaintiff was fit for full-time work.
244Dr Baynes believed the plaintiff had a capacity to work in security and would be able to undertake light courier work, where he could drive short distances rather than long ones. He would be fit to work in light assembly or packaging-type work, and would be fit to work as an electrical fitter, again working in the lighter roles.
245With some on-the-job training, Dr Baynes believed the plaintiff would be fit to work as a warehouse clerk and as a gatehouse operator. He considered the plaintiff would be fit to work in production plants, factories and in warehousing.
246The plaintiff was re-examined in March 2017 when he discussed with Dr Baynes the three jobs suggested in the Recovre report of 20 March 2017: namely, logistics clerk with a distribution warehouse in Campbellfield; product assembler with a manufacturer in Laverton North, and security concierge with a security firm in Melbourne CBD.
247Dr Baynes considered the plaintiff was fit to undertake all these roles, and noted the plaintiff expressed he thought he would be unreliable and have difficulty in doing them, although he had the physical capacity to do so.
248 In a letter to Mr Dohrmann in July 2017, the plaintiff’s solicitors advised, with respect to the previous consultation with the plaintiff on 10 March 2017 and the history taken that day, they were instructed the plaintiff had no recollection of the 2006 and 2009 attendances at Rochdale for back pain until he was shown the relevant records by them in May 2017.
Vocational evidence
249There was an initial assessment report by Recovre in February 2013 in which suitable duties were identified within the current plaintiff’s medical restrictions.
250There was a return to work plan to commence on 29 April 2013 for four weeks, during which the plaintiff was to increase from 34 to 40 hours a week.
251There was a return to work plan dated 14 April 2014 proposing an increase in hours from 28 to 40 a week over six weeks. Alternative modified duties were identified.
252Jannette Ash from Recovre completed a Suitable Employment Report on 20 March 2017. The plaintiff was not personally interviewed for the purposes of completing the report and the details and opinions were based on documents provided, including referral instructions and Dr Baynes’ report.
253 It was also noted there was a report from Dr Michael Bloom,[73] occupational physician, of 29 November 2016, in which he opined as follows:
“The worker is not fit for pre injury heavy manual duties. He is fit for work where there is no lifting more than 10 kilograms and where there is no repetitive lifting from below knee height or above shoulder height. Should not work with constrained postures and should be able to vary his posture.”
[73]This was Dr Baynes examination
254It was noted Dr Bloom (Baynes) thought the plaintiff was suited to the following occupations:
§security
§light courier
§light assembly
§electrical fitter; and
§warehouse clerk.
255There following positions were identified as suitable:
§logistics general clerk in Campbellfield in a natural products distribution business with a salary of $52,000 per annum
§product assembler in Laverton with a salary of $25.57 per hour
§security officer in the Melbourne CBD with $803 gross per week as a starting rate.
256Ms Ash provided a supplementary Suitable Employment Report in November 2017, in which she provided additional labour market information relating to the specific occupational category of café and restaurant manager.
257The average gross weekly wage was $1,023 (Jobmarkets Australia) and $900 (Joboutlook Australia)
258There were some entries on the plaintiff’s Facebook page and also the Kaneo’s Facebook page in which the plaintiff described owning and working in the restaurant.
259There was a short video of a couple of minutes on the Kaneo Facebook page in March 2017 of a function at the restaurant where the plaintiff was shown standing, dancing and clapping behind the bar and patrons were shown dancing in the restaurant at a customer’s birthday party.
Overview
260There is no dispute the plaintiff suffered a compensable injury to his lumbar spine in the incident. He was paid weekly payments for 130 weeks and his claim pursuant to s98 for a permanent impairment was accepted.
261Whilst there was some cross-examination as to the plaintiff’s pre-incident back condition, it was not suggested that this is an aggravation case.
262There were three very brief consultations at Rochdale in 2006 primarily concerned with the plaintiff’s right hip, although a lumbar x-ray was also arranged at that time.
263 The plaintiff next attended once in 2009 complaining of low back pain. He was prescribed painkillers but was fit to start heavy work with the employer three weeks later, continuing in this role until the incident date. He was the “big guy” at work and liked being so and had the capacity for heavy work during that period.[74]
[74]T93
264In these circumstances, counsel for the defendant conceded it was not a Petkovski[75] case and submitted the issue of the plaintiff’s pre-incident back condition was primarily put as a credit point.[76] Further, there was no suggestion the plaintiff’s present spinal condition lacks a substantial organic basis.[77]
[75]Petkovski v Galletti [1994] 1 VR 436
[76]T6
[77]Meadows v Lichmore [2013] VSCA 201
265The consensus of medical opinion is that the plaintiff continues to suffer from a work-related aggravation of a degenerative condition at L4-5 with referred pain to the right leg.
Credit
266 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[78]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[78](2010) 31 VR 1 at paragraph [12]
267 Counsel for the defendant submitted the plaintiff presented as “not entirely a witness of truth, doing his best to promote his case with the deficiencies in his evidence relating to his prior back condition and his evidence as to his true motivation for work”.[79]
[79]T73
268 It was submitted it should be accepted that the plaintiff has a full-time capacity for alternate light work which he is not exercising of his own choice, which was “quite telling against him”. In those circumstances, there should be real concern about the plaintiff saying he was doing his best.[80]
[80]T74
269 It was also submitted there was difficulty accepting the plaintiff’s “unreliability” argument. It was simply not available on the evidence of a man “who quite frankly had a capacity, yet elected not to exercise it”.[81] He had made no attempt, either in his own perfectly good business or elsewhere to resume work.[82]
[81]T74
[82]T75
270 As to his pre-incident back condition, it was submitted it was not just a matter of the plaintiff saying, as he deposed, his condition was not serious and that is why he had not mentioned any of his previous problems. He did in fact have a memory as was apparent in his evidence about the initial attendances at Rochdale in 2006 and was concerned about a back problem as a young man.[83]
[83]T75
271 Further, on examination in 2017, Mr Dohrmann actually discussed previous symptoms with the plaintiff, and the plaintiff’s denial in relation thereto could not be explained simply on the basis of not having been asked “have you had a similar problem before” or any thoughts on the plaintiff’s part as to whether the condition was serious.
272 It was submitted that what the plaintiff was doing was evading the truth and the Court should therefore be troubled as to his credibility.[84]
[84]T77
273 Whilst it was conceded in isolation the plaintiff’s affidavit evidence could not be criticised, the issue of credit was compounded by the plaintiff’s other inaccurate histories, which were submitted were a deliberate attempt to deny back symptoms.[85] Further, the plaintiff saying he was not asked about previous symptoms was inconsistent with the version given by his solicitors to Mr Dohrmann that he could not remember these earlier attendances.[86]
[85]T77
[86]T78
274Counsel for the defendant stressed the plaintiff could remember previous problems before being shown the clinical notes given his earlier answers as to his concern with a back injury as a young working man.[87] Whilst the notes in 2006 did not refer to back pain, the plaintiff’s evidence itself did.[88]
[87]T32
[88]T28
275 Counsel for the plaintiff submitted there was no credit issue. Any pre-incident lower back complaints were very minor. The first complaint was substantially hip pain, and all the complaints were transient. There was no surveillance film shown, although the index to the Defendant’s Court Book indicated surveillance had been undertaken.[89]
[89]T94
276 It was submitted the plaintiff ought to be accepted, and his explanation was credible and “within the bounds of normal human experience”, given the concessions he made such as being able to lift things such as a slab of beer off the floor, although he did not want to lift it.[90]
[90]T94
277As I indicated during the hearing, I did not consider the plaintiff’s credit to be of any particular concern in this case.[91]
[91]T32
278The plaintiff deposed that he had not had any “serious” back problem prior to the incident which, in my view, is an accurate description, given the limited treatment to predominantly a right hip complaint in 2006. There was then an isolated visit in 2009, with the plaintiff starting a full time heavy job three weeks thereafter.[92]
[92]T6
279Further having been provided with the 2006 and 2009 notes, no medical practitioner changed their views as to the nature and extent of the plaintiff’s current back condition.
280I accept both pre and post incident, the plaintiff was a hardworking man with a strong work ethic. His earnings were significant at the time of the incident and he continued working thereafter for three years before his employment was terminated.
281In my view, the plaintiff would have kept working with the employer or elsewhere if he had the physical capacity to do so. Further, I accept the duties he was doing at the time his employment was terminated were very light and a job made up for him by a sympathetic employer whom the plaintiff said did its best to keep him on.
Pain
282 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[93]
“The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain, both in court and to doctors.”
[93](Supra) at paragraph [11]
283I accept that since the incident, the plaintiff has had ongoing low back pain, with referred right leg pain. As a result of his pain, he is significantly restricted in his ability to lift, bend and maintain sustained postures.
284Clearly, the plaintiff was never able to resume full-time unrestricted duties after the incident. The consensus of medical opinion is that he does not have the capacity to do so.
285The plaintiff battled on, on his return to work, gradually increasing to around 30 hours a week. Whilst the physiotherapist noted there was some improvement and Mr Cunningham, at the end of 2014, thought the plaintiff’s symptoms were minimal, the plaintiff continued to have ongoing problems on his return to work, on very light duties, working varying hours and at times requiring days off, as he deposed, and the records confirmed.
286I accept, as is confirmed by the medical evidence, due to his lumbar condition, the plaintiff, who has always worked as an electrical fitter, no longer has the capacity to engage in this job or other unrestricted physical work.
287I consider this to be a serious consequence.
288The issue then is whether the plaintiff has suffered the requisite loss of 40 per cent.
Loss of earning capacity
289 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
290 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.
291 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
292 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
293 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
294 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. [94]
[94]See Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
295I am therefore required to determine a “without injury” figure.
296There was no dispute that the starting figure when assessing “without injury” earnings was the plaintiff’s gross income from the 2011-2012 financial year of $76,266.[95] However, there was an issue as to whether increases of 2 or 2.5 per cent should be allowed on these figures.
[95]T8
297 Counsel for the plaintiff submitted the plaintiff should be entitled to a 2.5 per cent increase, twice yearly, as the plaintiff deposed was the usual increase. On this basis, the appropriate figure was $967.[96]
[96]T88
298 Counsel for the defendant submitted a 2 per cent increase was appropriate rather than a 2.5 per cent increase, about which there was no evidence. On that basis, the appropriate figure was $934 per week.[97]
[97]T85 $80,934. 60 per cent of which is $48,560 or $934 per week
299In the absence of any evidence in support of a 2 per cent increase, I accept the plaintiff’s evidence that a 2.5 per cent increase applies, and the appropriate “without injury” earnings figure is therefore $967 per week.
300 Counsel for the defendant submitted the plaintiff’s evidence as to his limited work capacity should not accepted, as he chose not to exercise his capacity and his “unreliability argument” should also not be accepted when he “just has not tried”.
301 It was submitted it was not the plaintiff’s evidence at all that he tried at the restaurant and could not cope, nor was it the evidence of his wife. It was submitted the plaintiff could not be trusted in terms of discharging the requisite onus.[98]
[98]T86
302 It was submitted on any level the plaintiff had a demonstrated work capacity. He had some experience with hospitality. He was able to attend the restaurant. It was submitted when he was there, he did not really do anything, because he was lazy, not because he was physically incapable of doing so.[99]
[99]T84
303 Dr Baynes took the plaintiff through three jobs and the plaintiff agreed there was nothing physically inherent about the roles he could not do. The situation is, as the plaintiff deposed, he believes he could do part-time work, allowing him flexibility with his posture and not requiring bending or lifting and the ability to take frequent breaks. If that be the case, it was submitted he should be exercising his capacity, at least in part, at the restaurant.[100]
[100]T86
304 Further, it was submitted the plaintiff’s post-incident work was not a made up job and that he had the capacity to work significant hours in what were legitimate tasks.[101]
[101]T82
305 It was submitted the plaintiff’s condition was improving throughout the two years prior to the termination of his employment, with reliance placed on the return to work documents in this regard,[102] together with the comments of Professor Cunningham and also the physiotherapist as to such improvement.[103]
[102]T83
[103]T83
306 Whilst there is some variation in the medical opinions as to the plaintiff’s work capacity, counsel for the defendant submitted the Court should be quite comfortable the “overarching” medical evidence is to the effect the plaintiff has a capacity for full-time duties based on the views of Dr Miller in late 2014 and more recently, Professor Buzzard and Dr Baynes. It was submitted Dr Sudhan was of a similar view.[104]
[104]T78
307 Further, it was submitted Professor Cunningham had no difficulty in 2014 with the plaintiff exercising a work capacity.[105] Also, Dr Manolopoulos thought the plaintiff would ultimately have a full-time work capacity.[106]
[105]T79
[106]T80
308 It was submitted that Professor Love went completely against the evidence, finding the plaintiff had no capacity for suitable employment. Even Dr Kennedy identified some capacity and, in any event, he thought the problems were due to the plaintiff’s medication intake which was no longer a relevant consideration.[107]
[107]T81
309 It was submitted, leaving aside Dr Kennedy and Professor Love, the “overwhelming opinion should be the plaintiff has a full-time work capacity”.[108]
[108]T81
310 It was submitted the evidence spoke of a plaintiff who, in respect of his previous back injury, “was willing to gild the lily and he just does not want to work”.[109]
[109]T82
311 However, counsel for the defendant conceded it was “a troubling contrast” when one considered the plaintiff’s work ethic and high level of earnings before the incident compared to his present situation. It was submitted the plaintiff must be assessed now, today, on the evidence as presented.[110] Overall, he can work full time and has therefore not suffered the requisite loss.[111]
[110]T82
[111]T85
312Given the plaintiff was a high income earner pre incident, counsel for the defendant conceded he would need to be able to work full time not to suffer the requisite loss.[112]
[112]T9
313The following table was provided by counsel for the defendant:
Suitable employment option
at $934 per week
at $967 per week
Suitable employment option is logistics, general clerk ($26.32 per hour)
35.5 hours per week
37 hours per week
Product assembler ($25.57 per hour)
36.5 hours per week
38 hours per week
Security officer ($21.15 per hour)
Require over full time
Require over full time
Café and restaurant manager (average $25.30 per hour)
37 hours per week
Require overtime
314 It was submitted on the basis of the figure being either $967 or $934 per week, the plaintiff would not suffer the requisite loss working full time as a logistics clerk and a product assembler. The job of café manager would “be in on the defendant’s figures but not the plaintiff’s figures”.[113]
[113]T85
315 Further, it was submitted the pain and suffering consequences were not serious. A lot of the plaintiff’s complaints relied entirely on credit and it was impossible to really challenge a plaintiff on those matters, such as sleep and other activities. Whilst there had been a reduction in the plaintiff’s work capacity, it was submitted the pain and suffering consequences were not serious[114]
[114]T87
316 Firstly, counsel for the plaintiff submitted on the plaintiff’s behalf that post incident, he had a tailor-made job, and that he was actually was not doing anything when his employment was terminated at a time when he was working 30 hours a week.[115]
[115]T8
317 It was submitted “the proof is in the pudding” in terms of the plaintiff’s capacity with his attempt to return to work; never getting back to full-time normal duties; only getting to 30 hours light work, and having difficulty in what was a job made up to accommodate him.[116]
[116]T90
318I accept this submission and am satisfied the plaintiff was working to his full capacity at the time his employment was terminated and at that time, was doing only very light jobs, having significant difficulty even with those duties.
319In those circumstances, I accept the plaintiff’s evidence that he would have difficulty working other than on a limited part-time basis at present because of his pain and the unreliable nature thereof and the occurrence of flare ups during which his pain is quite disabling as he described.
320Further, the plaintiff has difficulty with prolonged sitting which was apparent when he asked to stand up and change his posture in the witness box.
321 I accept that the plaintiff has tried to help out in the restaurant when he is physically capable of doing so. However, in this family business, the plaintiff is not able to do very much, being limited in his ability to lift and bend forward to do tasks such as setting up tables.[117] He admits he can do things like lift a slab but has difficulty when doing so. Whilst he does various tasks at different times at the restaurant, he could not guarantee his attendance there on a reliable and regular basis.
[117]T90
322 I accept the plaintiff is doing his best at the restaurant and does what he can, at times in pain. He could not work as a restaurant manager as suggested by Recovre as it is at times a heavy job, often having to work in a fast paced environment under pressure.[118]
[118]T89
323 I accept that other suggested jobs are also unsuitable. Work as a logistics clerk sitting at a desk is an unrealistic job for a man who had worked in heavy engineering work and has difficulty with prolonged sitting.[119]
[119]See Richter v Driscoll [2016] VSCA 142
324 Further, given the unpredictable nature of his pain, the plaintiff could not reliably attend the workplace on a full time regular basis to perform this role or that of a product assembler.
325 The plaintiff has little in the way of computer skills and whilst there are a number of tasks within his physical capacity as he discussed with Dr Baynes, he would not be able to work 38 hours a week.[120]
[120]T89
326 I accept Dr Kennedy’s comments that Dr Baynes’ discussion about negotiating flexibility as being totally unrealistic.[121]
[121]T91
327 In light of his physical restrictions and resultant unreliability, I accept the plaintiff cannot be criticised for failing to seek work. He relied on Recovre in that regard and it was unable to find him suitable employment.[122] As counsel for the plaintiff submitted, the plaintiff has done heavy work all his life, has no computer skills and has a “crook” back. It is not surprising Recovre could not find him work.[123]
[122]T92
[123]T92
328 I accept the evidence of the plaintiff’s general practitioner, Dr Sudhan, who considers the plaintiff is fit to work on light duties, four to six hours a day, based on the last certificate of June 2015.[124]
[124]T78
329In my view, clearly, the plaintiff does not have the capacity to work close to full-time hours in the roles of restaurant manager, logistics clerk or product assembler which are the only jobs suggested in which he could possibly earn in excess of $967 on a full-time basis.
330Working the hours supported by Dr Sudhan in any of the suggested roles, the plaintiff falls far short of this figure.
331Taking into account all of the evidence, I am satisfied the plaintiff has suffered the requisite loss of earning capacity. As there has been no improvement in his condition, with ongoing pain for over five years, this situation is permanent.
332 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
333If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, for example both for pain and suffering and loss of earning capacity.[125]
[125]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
334Taking into account all the evidence, I am satisfied the plaintiff has a serious injury, having suffered the requisite loss of earning capacity and, accordingly, grant leave to bring proceedings for both pain and suffering and loss of earning capacity.
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