Koulouris v VWA
[2011] VCC 1347
•30 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04551
| BILL KOULOURIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 and 20 September 2011 |
| DATE OF JUDGMENT: | 30 September 2011 |
| CASE MAY BE CITED AS: | Koulouris v VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1347 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Section 134AB Accident Compensation Act 1985 – serious injury – whether the plaintiff had established that the consequences of his injury were “more than considerable” – whether the plaintiff had established a loss of earning capacity of forty per cent or more.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC with | Ellis Palmos & Co |
| Mr M J Stiffe | ||
| For the Defendant | Mr B McKenzie | Herbert Geer |
| HIS HONOUR: |
1 On 10 August 2006, in the course of his employment, Bill Koulouris, the plaintiff, was attempting to retrieve a box of soft drinks from a truck when the box collapsed, causing him to fall backwards out of the truck approximately three metres to the ground. He alleges that he has suffered injuries to his thoracic and lumbar spine as a consequence of that fall.
2 Mr Koulouris seeks the leave of the Court to issue a proceeding to recover damages in respect of those injuries.
3 His right to do is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is a “serious injury”.[1]
[1] Section 134AB(19)(a)
4 The term “serious injury” is defined in sub-s.134AB(37), insofar as is relevant, as a “permanent serious impairment or loss of a body function”.[2]
[2] Section 134AB(37)
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[3]
[3] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33 at paragraphs [18] to [19]
6 The term “serious” is to be satisfied by reference to the consequences to Mr Koulouris of any impairment or loss of the function of his spine with respect to both pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of a body function.[4]
[4] Section 134AB(38)(b)
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses, [can be] fairly described as being more than significant or marked, and as being at least very considerable.[5]
[5] Section 134AB(38)(c)
8 Leave shall not be granted by the Court on the basis that Mr Koulouris has established the required loss of earning capacity unless he also establishes that, at the current time, he has a loss of earning capacity of 40 per cent or more, calculated in accordance with the provisions of ss.134AB(e), (f) and (g) of the Act.
9 The issues to be determined in this application are:
(a)
whether the consequences of the injury to Mr Koulouris’s spine can fairly be described as being more than significant or marked, and as being at least very considerable; and
(b)
whether Mr Koulouris’s impairment or loss of the function of his spine is productive of a loss of earning capacity of forty per cent or more, measured in accordance with ss.134AB(38) (e), (f) and (g).
Background
10 Mr Koulouris is currently aged thirty-eight years. He was born in Australia and completed his education to Year 12 level.
11 Between 1993 and 2005, he worked for Sunnicrust Bakeries (“Sunnicrust”) as a delivery driver.
12 In 1999, he suffered a lumbar disc prolapse at the L4-5 level in the course of his employment for Sunnicrust. He was absent from work for approximately two years, then returning to work on modified duties in the office of that company. In about 2004, he returned to truck driving for Sunnicrust. After about a year he was made redundant by that company. Thereafter, he worked as a night filler at Safeway for approximately three months.
13 In July 2005, he commenced employment with Lucian Pty Ltd (“Lucian”) driving a delivery truck. Lucian had a contract pursuant to which it delivered Coca Cola products to various retail sites around Melbourne. It was in the course of performing those delivery duties when Mr Koulouris fell, suffering injuries the subject of this application (“the accident”).
14 Considerable time was spent at the hearing of this proceeding in examining Mr Koulouris’ capacity for work prior to the accident. He was asked many questions concerning the state of his low-back during the period leading up to August 2006.
15 Mr Koulouris conceded that he had never fully recovered from the 1999 low- back injury. However, it is clear that from 2001 he had been sufficiently fit to work in the Sunnicrust office for approximately three years and that from 2004 he had been sufficiently fit to work full-time as a delivery driver for the twelve months prior to him being made redundant.
16 Further, his work at Safeway as a night filler required him to stack shelves which involved a certain amount of bending and lifting although he tended to avoid the heavier items.
17 From July 2005 until August 2006, he worked with Lucian as a delivery driver and had little difficulty performing the delivery duties required in that position.
18 The goods delivered by him were cartons of Coca Cola product. These were pallet loaded onto his truck. He was required to place the various cartons on a hand trolley and deliver them into the premises of clients. He was not required to drive for particularly long distances. On average, this would involve driving for no more than fifteen minutes at a time. He was in and out of the truck regularly and able to move around and stretch his back. He found that the more active he was, the fewer problems that his low-back gave him.
19 Doctors treating him in the years after the 1999 injury had advised him to be careful in respect of his low-back and, for that reason, Mr Koulouris was cautious.
20 In the years leading up to August 2006, he did not take any time off work as a consequence of back pain. For a number of years before he had not taken any medication in respect of his back condition. He had not seen any doctor in respect of his back for many years prior to the accident.
21 He played indoor soccer with friends and intended to continue playing.
22 I accept that prior to August 2006, Mr Koulouris suffered from minor symptoms from his low-back such as would not prevent him from holding down full-time employment as a truck driver and from leading a normal family, recreational and social life.
23 There was no suggestion that Mr Koulouris had suffered any injury to his thoracic spine prior to the accident.
Post-Accident
24 Following the accident, Mr Koulouris was taken to the Alfred Hospital where he remained as an inpatient for five days. He then remained at home for a further two weeks before returning to work on light duties. He experienced constant pain in his low-back. Lucian made allowances for him by providing him with a manual assistant to help with unloading duties (a jockey) and in allowing him additional time to complete jobs.
25 In November 2007, in the course of making a delivery to a client, he was pushed, and stumbled, resulting in an exacerbation of his low-back pain. At that time, he was absent from work for two weeks and then returned to work again as a delivery driver. He was given a second jockey and did no unloading work at all. He merely drove the truck from client to client. He was retrenched from his employment with Lucian in mid-January 2008.
26 Mr Koulouris has not worked since that retrenchment.
27 The defendant does not allege that the November 2007 incident amounts to a new or unrelated injury. It accepts that the symptoms suffered by Mr Koulouris up until the present time were caused directly or indirectly by the August 2006 accident.[6]
[6] T 29
28 He has continued to experience pain in his low-back on a daily basis, often radiating into his right thigh and calf, associated with some numbness of the right leg.
29 Mr Koulouris and his wife have three children aged approximately sixteen, nine and nearly six. The youngest, Connor, is autistic and has special needs. Mr Koulouris has not been in employment whilst he has been caring for Connor since being retrenched from work. This occupied much of his time, at least until this year when Connor commenced at school. Over the last two years, Mr Koulouris has been in receipt of a carer’s allowance from Centrelink.[7]
[7] PCB 15
Injuries and Treatment
30 Radiology of Mr Koulouris’ thoracic spine is confusing and not fully explained. Shortly after the accident, an MRI scan of 17 August 2006 was reported as showing compression fractures of T1, T2 and T3, the three uppermost vertebrae of his thoracic spine.[8] A further CT scan of 12 September 2006 was reported as showing slight concavity of the superior end plates of T1, T2, T3 and T4, and fractured superior endplates of T9 and T10.[9]
[8] PCB 35
[9] PCB 35b
31 A plain x-ray of Mr Koulouris’ thoracic spine in November 2007 was reported as showing a loss of vertebral body height at the T9 level greater than 20 per cent. This was said to be compatible with a compression fracture.[10] Dr Elder, who examined Mr Koulouris and the relevant radiology at the request of the defendant, is of the view that the reduction in height at the site of the T9 wedge fracture was 26 per cent.[11]
[10] PCB 37
[11] DCB 69
32 An MRI scan of 4 November 2009 was reported as showing wedging at D9 and 10 (which I interpret as denoting dorsal or thoracic vertebrae and the same as T9 and T10).[12]
[12] PCB 39.
33 Dr Megally reported that Mr Koulouris had suffered vertebral fractures at T5, T9 and T10.[13] The assessing clinician at the Victorian Rehabilitation Clinic accepted that he had suffered fractures to T1, T2 and T3.[14] The report of the Alfred Hospital refers to x-rays demonstrating wedge fractures of T5, T9 and 10.[15] Mr Schofield refers to fractures at T5, T9 and T10.[16] Mr Hooper refers to “damaged mid dorsal vertebral at T8-9.”[17] Dr Elder refers to a wedge fracture at T9.[18] Mr Williams refers to fractures of T5, T9 and T10.[19]
[13] PCB 45
[14] PCB 60
[15] PCB 63
[16] PCB 69
[17] PCB 76
[18] PCB 67, 69
[19] PCB 93
34 It is difficult to tell if these are truly differing diagnoses or whether the various radiologists are describing the vertebral levels differently. In any event, I consider that, in the accident, Mr Koulouris suffered wedge fractures to at least one and probably three levels of his thoracic spine.
35 Further, in relation to the lumbar spine, in October 2006, an MRI scan was reported as showing mild right foraminal stenosis at the L4-5 level, secondary to facet joint degenerative changes, with no evidence of recent injury.[20] An MRI scan of the lumbar spine in March 2010 showed a disc protrusion at L4-5 contacting the L4 nerve root.
[20] PCB 36
36 Mr Koulouris has been under the care of his general practitioner, Dr Megally, from November 2007 to the present time. He was referred to Mr Peter Wilde, orthopaedic surgeon, in November 2007 and to Dr Hilary Hunt, neurologist, in August 2008. He was recommended for assessment for a pain management program and in due course was referred to Dr Clayton Thomas. He embarked upon a rehabilitation program at the Victorian Rehabilitation Centre in late 2008. The program was for six weeks.
37 He attended a natural therapist who treated his back for a short period of time by way of acupuncture. He ceased this treatment as it did not appear to be assisting him.
38 Mr Koulouris has not been offered any other specific treatment over the last few years. Surgery has not been proposed.
39 In 2010, on a date he could not recall, Mr Koulouris trialled working as a taxi driver between 8.30 am and 1.00 pm, in a cab, spending most of the time in the passenger’s seat. He drove for about fifteen minutes when it was unoccupied. He did not continue.
40 In January 2011, Mr Koulouris attempted work as a tip truck driver. He drove a tip truck for approximately three months but again could not continue as a consequence of back pain.
41 Dr Megally considered that Mr Koulouris had sustained compression fractures of the thoracic spine as a consequence of the accident.[21] He accepted that Mr Koulouris continued to suffer from thoraco-lumbar back pain which he described as chronic.
[21] PCB 49 and 51
42 Mr Peter Wilde, orthopaedic surgeon, noted Mr Koulouris’s complaints of neck and thoracic pain with slight pins and needles and altered sensation down the right arm and wondered about the development of a cervical disc prolapse at C6-7.[22] He recommended an MRI scan in late 2007 but does not appear to have ever been shown the radiological reports of such scans. In his report of 20 May 2008, Mr Wilde, noted the healed T9 compression fracture. He did not consider that Mr Koulouris was dealing with a sinister or dangerous clinical problem. He advised Mr Koulouris to seek out Pilates exercises as the best way to manage his symptoms in the medium to longer term.
[22] PCB 55
43 Dr Hilary Hunt, neurologist, saw the plaintiff in August 2008. She considered that the MRI scan of his cervical spine did not reveal any neurocompressive lesion. She made no mention of the reported thoracic compression fractures. She noted that he seemed well motivated to return to work and considered that there was no structural reason for him not being able to do so. However, she did consider that he needed his pain managed in a more practical fashion and recommended a pain management clinic.
44 Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, saw Mr Koulouris in September 2008. At that time, Mr Koulouris was taking no medication. Despite some tenderness in the cervical and thoracic spine, his cervico-thoracic movements were well preserved. Neurologically he was considered to be intact. Dr Thomas considered that he had a musculoligamentous type of pain problem with an element of central sensitisation. He considered that the condition could be improved significantly with a functional restoration type approach, with a graduated activity exercise program. Again, Dr Thomas thought that he seemed well motivated to improve.
45 Mr Stanley Schofield, orthopaedic surgeon, saw Mr Koulouris on a medico- legal basis in February 2010 and May 2011. He noted that the MRI scan of April 2008 confirmed anterior wedging of T9 due to a compression fracture. Although there were some changes in the vertebral end plates at T7-8, T8-9 and T9-10, the only fracture reported was at T9. The MRI scan of November 2009 reported minor wedging at T9 and T10, but no compression of central or exit canals and no evidence of a protrusion elsewhere. Mr Schofield noted 2 centimetres of wasting of the right calf and a reduced right knee jerk. He considered that Mr Koulouris had suffered a compression fracture at T9, which would cause permanent flexion deformity in the thoracic spine. He thought it likely that there was a soft tissue injury to one of the discs of the lumbar spine and that the clinical signs pointed to a lower lumbar disc problem. He thought that it was likely in the future that Mr Koulouris would continue to have intermittent pains in the thoracic region but that the more important long-term prognosis arose from damage to the lumbar spine.
46 In May 2011, Mr Schofield noticed evidence of lumbar spasm and restricted straight leg raising. The history given to him was of continued pain in the thoracolumbar and low lumbar region, referred numbness down the outer aspect of the right leg to the toes and some referred left leg pain to the knee and occasionally to the calf and ankle. By that time, there appeared to be no wasting of either leg. Again, he noted reduced right knee jerk.
47 Mr Schofield considered that, in view of the previous (1999) L4-5 injury and prolapse, that although the disc had healed, Mr Koulouris was more likely than not to be at risk of further injury occurring. By that, I understand Mr Schofield was saying that prior to August 2006, Mr Koulouris’ lumbar spine was more vulnerable to injury than it would have been without the earlier injury.
48 Mr Schofield considered that in the August 2006 accident there had been a fracture of three thoracic vertebral bodies with major ongoing sequelae from those fractures at T9. This had placed extra stress on the lumbar spine and it was likely that he had suffered a further injury to the L4-5 disc. That disc had previously healed and been rendered non-symptomatic. The injury had probably targeted that slightly weakened disc and caused a prolapse of it.
49 Mr Hooper, general surgeon, saw Mr Koulouris in August 2010 at the request of the defendant. He opined that Mr Koulouris had sustained a significant injury when he fell three metres, sustaining crush fracture injuries to the dorsal spine. In addition, he considered that he had injured his lumbar spine. He thought that he would have a permanent impairment as a consequence.[23]
[23] PCB 76-7
50 Dr Elder saw Mr Koulouris at the request of the defendant in September 2009. He noted the thoracic spine wedge fracture at T9.
51 Dr Michael Bowles saw Mr Koulouris at the request of the defendant in December 2009. He considered that Mr Koulouris did not have a musculoskeletal medical condition at that time, but that he may have sustained a slight strain to his neck or upper back as a consequence of the injury in November 2007. He appears to have only been asked his opinion concerning what injuries Mr Koulouris had suffered in the pushing incident of November 2007, but not what injuries had been suffered as a consequence of the August 2006 accident. Accordingly, I consider that Dr Bowles’ report is of little assistance.
52 Mr Robin Williams, orthopaedic surgeon, saw Mr Koulouris on behalf of the defendant in January 2010 and July 2011. On the earlier occasion he was only asked to assess the injury suffered by Mr Koulouris in the November 2007 pushing incident. On the more recent occasion he was asked to report in relation to injuries arising from the August 2006 accident. Mr Williams described Mr Koulouris as suffering from chronic pain in the thoracic region arising out of that injury. He considered that moderate doses of Panadeine Forte were appropriate and that he did have disability resulting from that chronic pain.[24]
[24] DCB 102-3
53 On the balance of probabilities I find that in the accident Mr Koulouris suffered compression fractures to his thoracic spine. There seems little dispute that this included a loss of height of between 20 per cent and 26 per cent at the T9 level and probably to a lesser extent at the T5 and T10 levels. I accept the analysis of Mr Schofield that the compression fractures placed additional stress upon Mr Koulouris’ lumbar spine causing additional injury to the L4-5 disc that had been rendered vulnerable as a consequence of his 1999 workplace injury.
Loss of Earning Capacity
54 The defendant submitted that the average of Mr Koulouris’s earnings for the years ending 30 June 2004, 2005 and 2006 was $59,666 and that this figure represented Mr Koulouris’ “without injury earnings” for the purposes of establishing what he was capable of earning from personal exertion had the injury not occurred.[25] Sixty per cent of this sum is $35,800 per annum, or $688 per week.
[25] Section 134AB(38)(f)(ii)
55 Counsel for Mr Koulouris relied on evidence that prior to the accident Mr Koulouris was earning $1,200 per week, or $62,400 per year. Sixty per cent of this figure is $37,440, or $720 per week. The evidence of his pre-accident earnings was not challenged and I accept the figure submitted on behalf of Mr Koulouris.
56 It follows that Mr Koulouris does not establish the loss of earning capacity required for him to claim pecuniary loss damages if he has a capacity for suitable employment which would result in him earning more than $720 per week from personal exertion.[26] I am required to take into account his earning capacity after any relevant rehabilitation and retraining.
[26] Section 134AB(38)(f) and (g)
57 Most of the medical witnesses were asked to consider Mr Koulouris’ earning capacity.
58 Dr Megally considered that Mr Koulouris was not fit for part-time or full-time pre-injury duties – that is, truck driving. He considered that incapacity was permanent. He was not fit for duties requiring prolonged sitting, standing, working or driving; prolonged squatting; repetitive lifting in excess of 5 kilograms; or prolonged or repetitive bending.
59 The defendant pointed to a medical certificate apparently signed by Dr Megally on 20 December 2010.[27] This document appears to be a certificate prepared by the doctor to assist with Mr Koulouris’ application for employment with Tanner Ridge Transport, a business associated somehow with Boral and for whom Mr Koulouris worked in the first three months of 2011 as a tip truck driver. I infer that before that company employed Mr Koulouris, it required his doctor to provide a certificate concerning his fitness for that position. In that certificate, Dr Megally recorded that the position is as a truck driver. He notes that the job involves shovelling and/or digging, sitting for long periods, working an average of 45 hours per week and the operation of and driving of the truck.[28] Dr Megally refers to Mr Koulouris’ dorso-lumbar spine as normal[29] and states that he is fit for the position.[30]
[27] DCB 100A - 100D
[28] DCB 100D
[29] DCB 100B
[30] DCB 100C
60 On any view, the contents of that document are inconsistent with Dr Megally’s report of 23 June 2011.[31]
[31] PCB 49
61 I was advised by counsel for the parties that the certificate in question had been produced along with Dr Megally’s clinical notes pursuant to an early return subpoena some months before the hearing. Notwithstanding, no attempt was made by the solicitors acting for Mr Koulouris to obtain any further report from Dr Megally clarifying the apparent inconsistency. I note that in his report of 23 June 2011, Dr Megally makes no mention of the certificate signed by him in December 2010 nor of any history provided by Mr Koulouris concerning his attempt to return to work as a tip truck driver or of any problems encountered by him in that attempt. This absence of evidence relating to these matters is of concern.
62 Dr Hilary Hunt opined in August 2008[32] that there did not appear to be any medical reason why Mr Koulouris could not enrol in a pain management course with a view to a gradual return to work program, improving his level of fitness. She considered that in the long-term, if he was able to return to work full-time, this was likely to have a lasting benefit for him. She stated in the last sentence of her report:
“I will forward a copy of this letter to the relevant WorkCover Authority in the hope that Bill may be offered some hope of rehabilitation and a plan to return to full time work as a truck driver in the future.”
[32] PCB 57
63 Plainly, as at August 2008, Dr Hunt was hopeful that Mr Koulouris would be able to return to full-time work.
64 Dr Thomas, as at October 2008, opined that Mr Koulouris did have a work capacity. He thought that, at the very least, he would be able to work as a truck driver – fork on/fork off – without any manual loading or unloading.[33] I understand that the expression “fork on/fork off” refers to the loading and unloading of loads by forklift and that no manual loading would be involved.
[33] PCB 59
65 Mr Schofield, as at May 2011, was of the view that Mr Koulouris did not have the capacity to work as a delivery truck driver and that that incapacity was likely to be permanent. He considered that, taking into account his age, education, employment, experience and physical injuries, he did not have a capacity for suitable duties. He did not define what he meant by “suitable duties”, nor opine as to what duties, if any, Mr Koulouris might have been retrained for.
66 As at August 2010, Mr Hooper considered that Mr Koulouris would not be able to get back to pre-injury employment as a driver, but that he should be able to get himself retrained and get back to light work. Of particular note, Mr Hooper took a history from Mr Koulouris that he was hoping to get retrained and go back to some form of light work when his son went to school in 2011.[34] Mr Koulouris made no mention of that reported history in his affidavit material nor in his oral evidence. He did not dispute that that is what he told Mr Hooper. Mr Hooper’s report was tendered by Counsel for Mr Koulouris.
[34] PCB 75
67 Mr Peter Wilde, as at May 2008,[35] had suggested to Mr Koulouris that he upgrade his truck driver’s licence to include semi-trailers and that he look for truck driving work that did not involve loading or unloading. This, as I understand it, would be the same description as fork on/fork off duties.
[35] DCB 33B
68 Dr Michael Bowles, as at December 2009, considered that Mr Koulouris could return to pre-accident duties and hours.[36] He considered that there were other factors relevant to his not returning to work by that time, being psychosocial issues involving family and domestic situations.[37]
[36] DCB 75
[37] DCB 76
69 Mr Robin Williams, as at July 2011, considered that Mr Koulouris was unlikely to return to work which involved handling goods of significant weight. He considered that Mr Koulouris should avoid repeated bending and heavy lifting but that jobs identified in a vocational assessment provided to him appeared to be appropriate and within his capacity.[38] In February 2010, Mr Williams was of the view that Mr Koulouris did have a current work capacity and in particular, had a capacity to return to suitable employment as outlined in vocational assessments with which he had been provided. Those assessments were the NES vocational assessment reports of 12 August 2008 and 8 May 2009, and the Ayres Management Services vocational assessment report of 5 November 2009. These had been forwarded to Mr Williams in July 2011.[39] Those three reports are in the Defendant’s Court Book at pages 158, 176 and 198 respectively. The reports identified apparently suitable occupations as a customer service officer, receiving and despatching clerk, sales representative, delivery driver (light), communications officer/radio dispatcher, taxi driver, truck driver, bus driver, commercial cleaner, sales representative (motor vehicle parts and accessories), sales assistant, general clerk and heavy truck driver.
[38] DCB 105
[39] DCB 91H
70 I consider that Mr Williams’ opinion that Mr Koulouris is suitable for each of these jobs is at odds with his opinion that he is unlikely to return to his pre- injury employment duties or to work that involves handling goods of a significant weight. His pre-injury duties consisted of work as a delivery driver handling relatively light goods. Counsel for the defendant conceded that on the evidence before the Court, I should not find that Mr Koulouris is fit to be a delivery driver.[40]
[40] T 174
71 In addition to the various medical opinions, the oral evidence of Mr Koulouris was also relevant to the issue of earning capacity.
72 Mr Koulouris was asked a number of questions about jobs that he might be able to do. When asked about the position of a sales representative for motor vehicle parts and accessories, he replied:
[41] T 79
“A: If I received the proper training I reckon I could do anything. Q: Of a clerical nature. Is that what you say, or semi-clerical?--- A: Anything.”[41]
73 Further, when asked about visiting clients and retail outlets to establish selling opportunities and whether he would be able to do that, he replied that that sounded like something that could be manageable.[42]
[42] T 80
74 When Mr Bowles saw Mr Koulouris on 2 December 2009 he recorded that Mr Koulouris told him that he felt he could work but was not going back to do “any crappy job”.[43] This was not disputed by Mr Koulouris in his affidavits or in oral evidence.
[43] DCB 73
75 Mr Koulouris was asked what type of work he was contemplating in the future.[44] He indicated that he was interested in working with children. Further, he and his wife had recently considered taking on foster children.
[44] T 99
76 Mr Koulouris has recently been referred for the first time to a psychologist in respect of what he describes as depression. He has not attended that psychologist yet, but aims to do so soon. He is hopeful of discussing work options with her.[45]
[45] T
77 In the course of his dealings with the vocational consultants, Ayres Management Services, Mr Koulouris agreed to enrol in a security course with a view to obtaining work as a security officer. WorkCover agreed to fund that course. He was to do the course with a company known as Secure Corp. However, the time of the course was brought forward from 6.30 pm in the evening to 5.30 pm. As a consequence of this change in time, Mr Koulouris indicated that this would not be convenient, in that it would clash with his childcare commitments.[46] The security course was never undertaken. There was no evidence that the course or the duties of a security officer would involve Mr Koulouris remaining continuously seated for lengthy periods.
[46] DCB 202
78 In September 2008, Mr Koulouris told Dr Elder that looking after his kids was a full-time job.[47] He described himself as a “full-time house husband” when he saw Dr Bowles in December 2009.[48]
[47] DCB 68; T 87-88
[48] DCB 73; T 88
79 The onus of proving the required loss of earning capacity rests with Mr Koulouris. I do not consider that he has discharged that onus.
80 I note in particular the histories given respectively to Mr Hooper and Mr Bowles concerning:
(a) Mr Koulouris’ intention to get back to work when his son went to school; and (b) His statement that he felt he could go back to work but that he was not going back to any “crappy job”. 81 It was submitted on behalf of Mr Koulouris that in fact he had attempted to return to work in 2011 but that he had not been able to continue because of his injury. However, his attempted return to work was in a full-time tip truck driving position involving him being seated for lengthy periods. Similarly, work as a taxi driver would have involved him being seated for long periods. I consider that there are numerous other jobs of a more sedentary nature which would be more suitable for a person with a back injury as suffered by him.
82 I consider that his failure to attempt to retrain as a security officer is of significance. I am required by Section 134AB (38)(g) of the Act to take into account the reasonableness of Mr Koulouris’ attempts to participate in rehabilitation or retraining. I consider that his failure to attend the course to train as a security officer was not related to his injury or an impairment of body function, but merely related to the childcare and household duties he was performing at home.
83 I am not satisfied that Mr Koulouris has discharged the onus of proving there is no employment suitable for him in which he could earn $720 per week or more.
Pain and Suffering Consequences
84 I accept that Mr Koulouris has suffered ongoing pain and discomfort in his mid and low-back since and as a consequence of the accident. I accept that the likely cause of his back pain is the compression fractures to his thoracic spine which, as explained by Mr Schofield, have placed additional strain on his previously weakened lumbar spine resulting in additional injury to the L4-5 disc.
85 I accept that he has a permanently weakened spine and that there are significant pain and suffering consequences of that injury to his spine:
(a) He will always be restricted in physical activities, especially in lifting, bending and twisting activities. (b) The range of employment options open to him has been significantly reduced. He is now restricted to a range of light duties jobs and is unfit to return to his previous employment. Repetitive bending, lifting or twisting are always likely to cause pain. (c) He is required to take regular strong analgesic medication (Panadeine Forte). (c) His sleep is severely impeded by back pain. (d) He has been unable to continue playing social indoor soccer. (e) He is restricted in the activities he can participate in with his children. (f) His ability to sit for lengthy periods is curtailed. 86 I am satisfied these consequences are permanent, in the sense that they are likely to continue in the foreseeable future. They are unlikely to improve.
87 I am satisfied that Mr Koulouris has established that his injury does amount to a “serious injury”, as defined. I accept that the pain and suffering consequence of his spinal injury is, when judged by comparison with other cases in the range of possible impairments of a body function, fairly described as being more than significant or marked and as being at least very considerable.
88 It might be considered that my finding that Mr Koulouris has not established the required loss of earning capacity as a consequence of his injury should result in a finding that he has not satisfied the “very considerable” test laid down in section 134AB (38)(c) of the Act in relation to pain and suffering consequences. I am conscious of the remarks of Chernov J A in Sumbul v Melbourne All Toya Wreckers Pty Ltd:[49]
[49] [2006] VSCA 292 at paragraph [24]
89 However, in Stijepic v One Force Group Australia Pty Ltd & Anor[50] it was said:
“… it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”
[50] [2009] VSCA 181 at paragraph [47] per Ashley JA and Beach AJA
90 Whether one looks at Mr Koulouris’ ability to act as a full-time “house husband” or his potential to perform or be retrained to perform alternative light duties in childcare, security, sales or the like, I do not consider that such capacity is determinative against him on the issue of pain and suffering consequences. I accept the evidence of Mr Schofield as to the nature of the injury to his thoracic spine and its repercussions with respect to his lumber spine.
Conclusion
91 For the reasons expressed, I am satisfied that Mr Koulouris has established that the injury to his spine is a “serious injury” as defined and that the pain and suffering consequences of that injury satisfy the “very considerable“ test set out in Section 134AB (38)(c) of the Act.
92 I am not satisfied that Mr Koulouris has established that he has suffered the loss of earning capacity required pursuant to Section 134AB (38)(e) and (f) of the Act.
93 Accordingly, there will be leave to Mr Koulouris to bring proceedings to recover pain and suffering damages in respect of injuries suffered by him in the course of employment on or about 10 August 2006.
94 I shall hear the parties in respect of costs.
- - -
0
3
0