Kynaston v Fink International Pty Ltd
[2015] VCC 1182
•9 September 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-03641
| MARCUS KYNASTON | Plaintiff |
| v | |
| FINK INTERNATIONAL PTY LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 25 June 2015 | |
DATE OF JUDGMENT: | 9 September 2015 | |
CASE MAY BE CITED AS: | Kynaston v Fink International Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1182 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Jurisdiction – payments made under Queensland scheme – notice of election – serious injury – impairment to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38); s80, s82, s84B, s129MA, s134AB; Workers’ Compensation and Rehabilitation Act 2003 (Qld), s10, s32, s36A, s48, s113, s116, s117, s131, s189, s233, s235, s237, s239, s322 and s324, Accident Compensation WorkCover Insurance Act 1993 (Vic)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hanns v Greyhound Pioneer Australia Ltd (2010) ACTCA 2001; John Pheiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Wadley v Ron Finemore Bulk Haulage Pty Ltd [2013] VSC 102
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Gorton QC with Mr D McWilliams | Somerville Laundry Lomax |
| For the Defendant | Mr S O’Meara QC with Ms R Kaye | Minter Ellison |
HER HONOUR:
1 This is an application for leave by Originating Motion dated 25 July 2012 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 the defendant at Cheltenham, Victoria (“the premises”) on 15 March 2006 (“the said date”).
2 On that date, the plaintiff suffered injury to his lumbar spine whilst lifting an aluminium block into a car boot with a co-worker (“the incident”).
3 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).
4 Before considering the merits of this serious injury application, it is necessary to first determine whether the plaintiff has an entitlement to bring proceedings pursuant to s134AB of the Act, as it was submitted on the defendant’s behalf that the plaintiff’s common law rights in relation to the incident injury have been extinguished, having elected to receive a lump sum pursuant to the Workers Compensation and Rehabilitation Act (Qld) 2003 (“the WCRA”).
The facts
5 The plaintiff suffered injury to his lumbar spine in a lifting incident at the premises whilst working for the defendant in Victoria on the said date.
6 The plaintiff and defendant later relocated to Queensland in August 2006 where the plaintiff continued in the defendant’s employ until he resigned by letter dated 16 February 2007. He then worked on a contract basis for the defendant for about 12 months.[1]
[1]Transcript “T” 20
7 Whilst working on contract, the plaintiff lodged a claim for compensation in Queensland by Notice dated 19 November 2007. In the Notice, the plaintiff described injury to his lower back in a lifting incident at the premises on 10 March 2006. The employer’s report set out the plaintiff suffered injury in April 2006 whilst lifting a piece of aluminium into a vehicle at the premises.
8 The medical certificate supporting the claim was completed by Dr Stedman following examination on 5 November 2007. In that certificate, whilst he noted the date of injury was 5 November 2007, he described the injury occurred when “lifting piece of aluminium into vehicle April 06.”
9 By letter dated 21 November 2007, the plaintiff’s claim was accepted (S07CD527395) with 5 November 2007 being the date of the accepted injury.[2]
[2]This was the date of Dr Stedman’s examination
10 The plaintiff was paid compensation under the WCRA totalling $46,498.22.
11 On 27 April 2008, the plaintiff was examined by Dr McCartney for the purposes of an impairment assessment.
12 Dr McCartney noted in his report that the plaintiff stated that he experienced sudden low back pain on 15 March 2006 when manipulating a very heavy block of aluminium at work with Fink Engineering.
13 Dr McCartney’s work related diagnosis was aggravation of pre-existing lumbar spondylosis /disc degeneration at L4-5 and L5-S1 with disc protrusion at L5-S1. Dr McCartney assessed a 5 per cent whole person impairment from the work related lumbar back injury.
14 Based on that assessment, WorkCover Queensland offered the plaintiff a lump sum of $11,378.25 by letter dated 26 May 2009.
15 The letter of offer attached amongst other things copies of ss 10 and 239 of the WCRA and a Form B which advised the plaintiff “you have to make a choice between accepting the offer and seeking damages for your injury.”
16 On 18 March 2010, the plaintiff accepted the offer by returning the signed Form B.
17 The plaintiff signed a WorkCover claim form on 4 August 2010, seeking medical and like expenses. The plaintiff set out he injured his back lifting a block of aluminium on the said date.
18 By letter dated 8 October 2010, XChanging advised the plaintiff that his claim for weekly payments and medical expenses had been accepted in relation to an injury on 15 March 2006.
Entitlement to compensation under the WCRA
19 Counsel for the defendant submitted that the plaintiff had an entitlement to compensation pursuant to the WCRA for injury suffered on the said date in the incident as his employment was connected with Queensland.
20 Reliance was placed on s113 of the WCRA, which provides:
“113 Employment must be connected with State
(1) Compensation under this Act is only payable in relation to employment that is connected with this State.
(2) The fact that a worker is outside this State when the injury is sustained does not prevent compensation being payable under this Act in relation to employment that is connected with this State.
(3) A worker's employment is connected with—
(a) the State in which the worker usually works in that employment; or
(b) if no State or no 1 State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or
(c) if no State or no 1 State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.
(4) In the case of a worker on a ship, if no State or no 1 State is identified by subsection (3), a worker's employment is, while on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than 1 State) the State in which the ship most recently became registered.
(5) If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if—
(a) the worker is in this State when the injury is sustained; and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(6)In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer and the intention of the worker and employer.
(7) However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
(8) Compensation under this Act does not apply in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cwlth) applies to the worker's employment.
(9) In this section—
State, in a geographical sense, includes a State's relevant adjacent area as described in schedule 4.”
21 Counsel for the defendant submitted an important feature when considering the issue of “connection” in this section was the use of the present tense (“is connected”) in relation to the three “cascading” sub-sections in ss(3).[3]
[3]T50, ss(2)
22 In the present case, it is unimportant that the incident and injury occurred in Victoria.[4] What is important is the connection between the employment and the State - the analysis of which is set out in ss(3).
[4]T50
23 It was submitted the plaintiff’s situation is caught by one of the “cascading” tests. At the time of making the claim, if not 3(a) – he usually worked in Queensland, then 3(b) he was usually based in Queensland for the purposes of that employment and if not 3(b), then 3(c) the employer’s principal place of business was Queensland.[5]
[5]T54
24 Further, ss(2) does not prevent compensation being payable under the Act in relation to employment connected with this State if the worker is outside the State when the injury is sustained.
25 It was submitted ss(6) made it absolutely clear that the evaluation of whether a worker usually works in a State, is made at the time the worker makes the claim; in this case – 19 November 2007.
26 In deciding where a worker usually works, regard must be had to a worker’s work history (no reference to work history prior to the injury). It was submitted such work history was at the time a decision was made to make a claim.[6]
[6]T50
27 Counsel for the defendant submitted the whole of the employment must be evaluated. At the time the claim was made, the plaintiff was living in Byron Bay, New South Wales but he was usually working in Warana in Queensland. If he was not, he certainly was usually based there because that is where the employer was located. If not, the employer’s principal place of business was certainly there.[7] Further, there was no evidence the plaintiff had been working in any other place.[8]
[7]T54
[8]T51
28 Whilst it was submitted the WCRA specifically embraced the plaintiff’s circumstances, counsel for the defendant also relied upon case law as to what is meant by where a worker usually works as opposed to is “usually based” as opposed to principal place of business.[9] The cases refer to the introduction of a national scheme to tether together compensation liabilities to employment and where it was based - covering situations such as claims involving interstate truck drivers.[10]
[9]T53; Tamboritha Consultants Pty Ltd v Knight (2008) WADC 78; Wadley v Ron Finemore Bulk Haulage Pty Ltd [2013] VSC 102; Hanns v Greyhound Pioneer Australia Ltd (2010) ACTCA 2001.
[10]T53
29 Counsel for the defendant further submitted that as compensation was payable and paid under the Queensland workers compensation scheme, the substantive law of Queensland governed the determination of any claim for damages in relation to the injury.
30 In this regard, s324 of the WCRA provides:
“324 The applicable substantive law for work injury claims
(1) If compensation is payable (whether or not it has been paid) under the statutory workers' compensation scheme of a State in relation to an injury to a worker, the substantive law of that State is the substantive law that governs—
(a) whether or not a claim for damages in relation to the injury can be made; and
(b) if it can be made, the determination of the claim.
(2) For the purposes of this section, compensation is considered to be payable under a statutory workers' compensation scheme of a State in relation to an injury if compensation in relation to it—
(a) would have been payable apart from a provision of the scheme that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or
(b) would have been payable if a claim for that compensation had been properly made, and (if applicable) an election to claim that compensation (instead of damages) had been properly made.”
31 Section 239 of the WCRA applies if a worker is assessed as having a permanent impairment of less than 20 per cent.
32 Sub- section (2) thereof provides
(2) If, in the notice of assessment, the worker is offered a payment of lump sum compensation under chapter 3, part 10, division 3 for the injury, the worker is not entitled to both—
(a) payment of lump sum compensation for the injury; and
(b) damages for the injury.”
33 Further, s237 of the WRAC deals with general limitation on persons entitled to seek damages.
34 Subsection (3) thereof provides:
“If a worker—
(a) is required under section 239 to make an election to seek damages for an injury; and
(b) has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;
the worker is not entitled to seek damages.”
35 By accepting the offer in March 2010, it was submitted the plaintiff irrevocably elected to take the lump sum assessed and disentitled himself to claim damages for his injury.
36 The plaintiff chose to run his case in Queensland. He chose to take the sum offered and his entitlement to damages was therefore extinguished pursuant to s237 of the WRAC as if he had obtained a verdict in Queensland. In those circumstances, it was submitted he could not bring further proceedings for damages in Victoria.[11]
[11]T56
37 It was submitted therefore the plaintiff may now not seek leave under s134AB to commence proceedings for damages in Victoria, because his entitlement to damages was allocated to the law of Queensland and dealt with in that state by his election. Accordingly, the plaintiff’s cause of action for damages is now extinguished.[12]
[12]T56
The Plaintiff’s response
38 Counsel for the plaintiff submitted any payment that had been under the WCRA was in relation to an injury in November 2007,[13] not an injury on the said date. As such, there was no extinguishment of the plaintiff’s entitlement to damages in relation to the incident injury. It was submitted, what was paid in Queensland had no bearing on the injury, the subject of this application.
[13]T75
39 It was submitted that it could not simply be said there was a mistake in naming the date of injury as 5 November 2007. There was no explanation from WorkCover Queensland that there had been a mistake and it had approached the application as if it was a 2007 injury.[14]
[14]T81
40 It was submitted the date of injury must be 5 November 2007 because any payment made in relation to the incident injury was unenforceable and invalid as it was made out of time pursuant to s131 of the WCRA.[15]
[15]T82
“Time for applying
(1) An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.
(2) If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer's liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.
(3) Subsection (2) does not apply if death is, or results from, the injury.
(4) An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.
(5) An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to—
(a) mistake; or
(b) the claimant's absence from the State; or
(c) a reasonable cause.”
41 Further, counsel for the plaintiff relied on provisions of the WCRA which fixed upon the date of a doctor’s diagnosis as being the date an entitlement to compensation arose.
42 Section 36A of the WCRA provides:
“36A Date of injury
(1) This section applies if a person—
(a) is diagnosed by a doctor after the commencement of this section as having a latent onset injury; and
(b) applies for compensation for the latent onset injury.
(2) The following questions are to be decided under the relevant compensation Act as in force when the injury was sustained—
(a) whether the person was a worker under the Act when the injury was sustained;
(b) whether the injury was an injury under the Act when it was sustained.
(3) Section 131 applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor's diagnosis.
(4)Subject to subsections (2) and (3), this Act applies in relation to the person's claim as if the date on which the injury was sustained is the date of the doctor's diagnosis.
(5) To remove any doubt, it is declared that nothing in subsection (4) limits section 236.
(6) Subsections (2) to (4) have effect despite section 603.
(7) In this section—
relevant compensation Act means this Act or a former Act.”
43 Further, the plaintiff relied on s235A of the WCRA which provides:
“235A Date of relevant health practitioner consultation taken to be date of injury
(1) For the application of this chapter in relation to an injury sustained by a worker that happens over a period, the date on which the worker first consulted a relevant health practitioner about the injury is taken to be the date of the worker's injury.
(2) This section does not apply to a latent onset injury.
(3) This section does not limit section 236.
(4) In this section—
relevant health practitioner means a doctor, nurse practitioner or dentist authorised under section 132 to issue a certificate under the section.”
44 Thus, in the chapter dealing with entitlements relating to injuries occurring over time, the date of the first consultant with the medical practitioner was deemed to be the date of injury. Payment could have been made for the November 2007 injury if the plaintiff was diagnosed by a doctor as having a latent onset injury and applied for compensation in that regard or in circumstances where injury was sustained over a period of time.[16]
[16]T83
45 Latent onset injury is defined in Schedule 6 of the WCRA as meaning “an insidious disease”- a definition it was submitted was wide enough to encompass an insidious progressive degenerative disease of the type suffered by the plaintiff.
46 Reliance was placed on Dr McCartney’s report in which he described lumbar disease as being the basis on which he assessed a 5 per cent impairment – diagnosing aggravation of pre-existing lumbar spondylosis disc degeneration at L4-5, L5-S1 with disc protrusion at L5-S1
47 It was submitted in the present case, s131 of the WCRA applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor’s diagnosis.[17]
[17]T83
48 Accordingly, all that the plaintiff would only be precluded from recovering damages in respect of an injury suffered in November 2007.[18]
[18]T84
49 The claim for lump sum compensation was for injury on 5 November 2007 and if it were relevant to this case, an election bringing s237 and s239 of the WCRA into operation could only apply to injuries suffered on that date.
50 In reply, counsel for the defendant noted ss(5) of the WCRA provides an insurer may waive the time limits in certain circumstances, including the claimant’s absence from the State.[19]
[19]T91
51 In terms of the issue of diagnosis and the application of s36A, it was submitted nowhere in Dr Stedman’s certificate was there a diagnosis of a latent onset injury, nor did the plaintiff make a claim in relation thereto. In his claim form, there was reference to the specific lifting incident only.[20]
[20]T92
52 Further, s235A of the WCRA relates to course of employment type injuries, not a single incident injury as in the present case.[21]
[21]T13
53 I am satisfied the claim was properly made in Queensland and relates to the incident injury.
54 In my view, as counsel for the defendant submitted all the events point to the 2006 incident as being the subject of the accepted claim - the Claim Form, the employer’s report, Dr Stedman’s certificate and the description of the injury circumstances in Dr McCartney’s report.[22]
[22]T89
55 The plaintiff’s own evidence is clear in this regard - he was injured in one incident on the said date at the premises in Victoria.[23]
[23]Affidavit sworn 3 June 2015 and T32
56 Clearly, there was a mistake as to the injury date although the Queensland insurer is not on record to this effect.
57 In these circumstances, the substantive law of Queensland applies pursuant to s324 of the WCRA. The plaintiff has made an election and his rights are extinguished pursuant to s237(3) and s239(2) of that Act.
58 Counsel for the plaintiff further submitted that the plaintiff’s entitlement to damages in Victoria had not been extinguished because s10 of the WCRA excludes from the meaning of “damages” a liability for which the employer is required to provide under another Act or by the law of another State.
59 Section 10 provides-
“Meaning of damages
(1) Damages is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker's employer to pay damages to—
(a) the worker; or
(b) if the injury results in the worker's death—a dependant of the deceased worker.
(2) A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under—
(a) another Act; or
(b) a law of another State, the Commonwealth or of another country.”
60 Section 7 of the Accident Compensation WorkCover Insurance Act 1993 (Vic) requires the defendant to have an insurance policy covering its liability for compensation and damages at common law to the plaintiff.[24]
[24]T76
61 It was submitted where this obligation to insure for damages in Victoria existed:
“the effect is that anything recoverable as damages is not damages within the meaning of s10. Therefore, the plaintiff is not barred from recovering any damages from the employer in respect of which it is obliged to be insured in Victoria”.[25]
[25]T81
62 In reply, counsel for the defendant submitted that the ss(1) relates to the law of negligence. There is no question of liability for negligence arising out of another Act. The law of negligence applies throughout the whole country – it is the common law.[26]
[26]T58, Pfeiffer v Rogerson (2000) HCA 36
63 It was submitted the substantive law of Queensland was allocated to the determination of any claim for damages. That was the common law of negligence. Any liability of the employer to pay damages did not arise under “another Act” or “a law of another State, the Commonwealth or of another country.”
64 Further, the wording of ss(2) excluded a liability against which an employer is required to provide. At the time the lump sum was accepted, the plaintiff was in Queensland, his employer was in Queensland, he made his claim in Queensland, it was accepted in Queensland and as a consequence of all those factors, section 324 of the WCRA Act applies.[27]
[27]T92
65 In my view, the submission by counsel for the defendant is sound and I do not accept ss(2) can have the meaning suggested by counsel for the plaintiff.
66 If this was the case, the plaintiff would have been able to accept a lump sum or recover damages in Queensland and also bring damages proceedings in Victoria for the same injury on the basis the defendant was obliged to have a policy of insurance in Victoria as well as Queensland.
Relevance of entitlement to compensation in Victoria
67 Having made an election in Queensland, thus extinguishing any rights at common law in Victoria, any entitlements under the WorkCover Act are irrelevant to the present application.[28]
[28]T57
68 There is no dispute had there been no election or the plaintiff had not sought damages in Queensland, he fell within s134AB of the Act which provides-
“134AB Actions for damages
(1) A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 but before 1 July 2014—
(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except—
(i) in accordance with the Transport Accident Act 1986 and subsections (25)(b), (26) and (36)(b) of this section; or
(ii) in proceedings of a kind referred to in section 134AA(b) and in accordance with subsections (25)(b), (26) and (36)(b) of this section; or
(iii) if subparagraphs (i) and (ii) do not apply, as permitted by and in accordance with this section; and
(b) shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except—
(i) in proceedings of a kind referred to in a paragraph of section 134AA and in accordance with subsections (25)(a), (26) and (36)(a) of this section; or
(ii) if subparagraph (i) does not apply, as permitted by and in accordance with this section.”
69 Section 82(1) of the Act also provides:
“Entitlement to compensation
(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”
70 Had he not made an election, the plaintiff has an entitlement to compensation under the Victorian legislation pursuant to s80(1) of the Act as his employment is connected with this State.
71 Section 80(3) provides:
“(3) A worker's employment is connected with—
(a)the State in which the worker usually works in that employment; or
(b)if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or
(c)if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.”
72 At the time the plaintiff suffered injury on the said date:
(a) he usually (only) worked in Victoria;
(b) he was usually based for the purposes of his employment in Victoria;
(c) the defendant’s principal place of business was located in Victoria.
73 Further, if there is an entitlement to compensation, the substantive law of Victoria governs this application pursuant to s129MA of the Act.
74 Section 129MA of the Act provides:
“The applicable substantive law for work injury claims
(1)If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs—
(a) whether or not a claim for damages in respect of the injury can be made; and
(b) if it can be made, the determination of the claim.
(2) This Division does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.
(3) For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it—
(a) would have been payable but for a provision of the scheme that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or
(b) would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.
(4)A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.
(5) In this Division—
‘State’ includes Territory.”
75 Counsel for the plaintiff submitted the existence of entitlement to compensation under the Act is established by the acceptance of the plaintiff’s claim made on 4 August 2010 accepted by the agent of the Victorian WorkCover Authority on 8 October 2010.
76 By letter dated 8 October 2010, XChanging advised the plaintiff that his claim for weekly payments and medical and like expenses had been accepted in relation to an injury on 15 March 2006.
77 However, clearly that acceptance was in relation to statutory benefits, not damages.[29] It was silent on whether a cause of action for damages in Victoria could still exist and was irrelevant to the question of damages.[30]
[29]T57
[30]T58
78 Nothing that happens in Victoria can affect the earlier extinguishment of the plaintiff’s entitlement to seek damages at his own election.
79 Finally, counsel for the plaintiff submitted s84B of the Act assisted the plaintiff in the present application.
80 That section provides:
“84B Person not to be compensated twice
(1) Compensation under this Act is not payable in respect of an injury to the extent that compensation has been received in respect of the same injury under the laws of a place other than this State (whether within or outside Australia).
(2) If a person receives compensation under this Act in respect of an injury and, in respect of the same injury, subsequently receives compensation under the laws of a place other than this State (whether within or outside Australia), the person from whom compensation under this Act is received may, in a court of competent jurisdiction, sue and recover from the person the amount described in subsection (3).
(3) The amount that is recoverable under subsection (2) is—
(a) the amount of compensation paid under this Act; or
(b) the amount of compensation received under the laws of the place other than this State—
whichever is less.”
81 Counsel for the plaintiff submitted that section does not prevent an entitlement to compensation for injury in Victoria being claimed and established. Its purpose is to prevent double recovery by an injured worker.
82 It was submitted that section should be read and understood in light of the provisions of the WCRA, particularly s116 and s117 which stop entitlements to compensation in Queensland if compensation is paid in accordance with the law of another State and permit recovery of the compensation paid.
83 It was submitted s84B was not offended by giving leave for damages as it envisages compensation payable in separate States for the same injury, accordingly, there is no double dipping.[31]
[31]T77
84 Subsection (1) however refers to compensation, not damages. A worker cannot get compensation in Victoria in respect of the same injury for which compensation has been paid another state.
85 Subsection (2) refers to a situation where a worker is paid compensation in Victoria and is subsequently paid compensation in another state in respect of the same injury. Clearly this is not the situation in this case where compensation was initially paid in Queensland.[32]
[32]T93-4
86 Thus s84B does not assist the plaintiff in the present application.
The serious injury application
87 Clearly, having found the plaintiff’s common law rights in Victoria have been extinguished by his election, I am not required to determine the serious injury application.
88 However, if the plaintiff’s rights had not been extinguished, the relevant law, the evidence and my findings are as follows.
89 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”
90 The relevant body function in this application is the lumbar spine.
91 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
92 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
93 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
94 By ss(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”.
95 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.
96 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.
97 The plaintiff relied on five affidavits and was cross examined. Both parties relied on medical reports and other evidence which was tendered. I have read all the tendered material.
The Plaintiff’s evidence
98 The plaintiff is presently aged forty-one, having been born in August 1974. He is single and lives in Cairns. He is presently in receipt of a disability support pension.
99 From 2004 to 2005, the plaintiff worked casually 40 hours a week for Everything Glows in Cheltenham. Amanda Fink was also employed by that company.
100 The plaintiff worked at Everything Glows as the warehouse manager for about the first year. The company then decided to go online so it developed a website and it became part of the plaintiff’s role to manage it but he was still doing predominantly warehouse work.[33]
[33]T20
101 Whilst employed by the defendant, Ms Fink gave the plaintiff a reference setting out that he worked from 2003 to 2005 at Everything Glows as the website and advertising manager. That reference made no mention of his warehouse duties.
102 Whilst the plaintiff explained that he did manage the website from time to time, his main employment was working in the warehouse and office duties. His title was website and advertising manager and also warehouse manager.[34]
[34]T18
103 Ms Fink’s letter was a reference. It was a bit of a “fluff up of things to make him look good.” The plaintiff had never relied on it for a job[35] but agreed that he later used it when applying for an exemption from a course subject.[36]
[35]T21
[36]T22
104 The plaintiff did not put the Everything Glows website design together completely; he worked on the design. It was his role to maintain and update the site on a regular daily basis but he did not do it every day, although that is what was said in the reference. It was part of his job but not all through the day.[37]
[37]T20
105 The plaintiff was involved “briefly” in training other staff how to use the administration side of the site but he agreed he was in charge of it.[38] He probably would not say then that he was completely confident as he was learning at that stage.
[38]T21
106 On 21 February 2005, the plaintiff commenced employment with the defendant in Cheltenham, where its head office was located and the defendant was based. He was employed as a technical assistant, earning about $650 net per week.
107 The plaintiff denied that a major part of his duties with the defendant was maintaining the company website.[39] He agreed he was required to assist in product assembly and issue purchase orders and monitoring supplies for sponsors.[40]
[39]T23
[40]T24
108 The defendant was a family business run by Marilyn and Eric Fink. Their daughter, Amanda, was a friend of the plaintiff’s and for a time he resided with her, whilst working with the defendant and also when working at Everything Glows. The plaintiff greatly enjoyed his work with the Fink family and felt they were supportive of him.[41]
[41]T20 – See resignation letter
109 On the said date, the plaintiff was asked to move a large solid block of aluminium at the premises. When putting the block weighing about 60 kilograms into a car boot with a co-worker, the plaintiff twisted his body and felt a sharp pain in his back (“the incident”).
110 The plaintiff reported his back pain and attended an osteopath at Ms Fink’s suggestion. He was given anti inflammatories.
111 The plaintiff denied he said his back was a bit sore after the incident. He told Ms Fink he thought he had put his back out and she gave him her osteopath’s number. The plaintiff saw the osteopath twice which helped as did pain medication.[42] However, he was still in a lot of pain.
[42]T27
112 The plaintiff agreed he really had no time off after the incident and he had minimal treatment
113 Shortly after the incident, the plaintiff went to Turkey on a pre-planned holiday. Not only did he drive around but he also attended a music festival while he was there.[43]
[43]T27
114 After the incident, the plaintiff did some physical work with hyperbaric chambers. He was then not doing much of the website at all. There was also clerical and administrative office work organising parts.[44]
[44]T28
115 In about August 2006, the defendant moved to Queensland. The plaintiff also moved to continue his employment. There, his work duties changed with less work assembling hyperbaric chambers and more office and inventory duties. However, the plaintiff had ongoing back problems with pain, restrictions and flare ups, in particular in August 2006 and later when doing contract work. During that time he took Nurofen.
116 After the incident, the plaintiff was advised by Ms Fink the defendant did not want to get WorkCover involved. In about late 2006, she told him it was too late to make a claim.
117 The plaintiff resigned in February 2007. In his letter of resignation, he advised he had been offered a place in an audio engineering course at Byron Bay SAE. That letter made no reference to any back problems.[45]
[45]T29
118 The plaintiff decided on a career change because of his bad back and his problems with physical work. He knew his job he was not sustainable with his back injury.[46]
[46]T29
119 Throughout the period following injury, the plaintiff required painkilling medication. He struggled to complete the first year of the course. He deferred the second year in the hope he would recover.
120 In about August 2007, the plaintiff had problems attending lectures and had to spend time in bed. He was not able to do a study assessment so he attended Dr Stedman on 5 November 2007. He advised him of the incident and requested a medical certificate for school. Dr Stedman advised him he should be entitled to receive worker’s compensation and that he should make a claim.
121 Dr Stedman’s system would not permit the plaintiff to backdate the date of injury on the New South Wales medical certificate form. That is why the certificate listed the date as 5 November 2007. This medical certificate formed the basis of a claim for compensation, which the plaintiff provided to Ms Fink.
122 When plaintiff spoke to Ms Fink, she advised that she would look into a claim for him. She then sent him a Queensland claim form which he completed on 19 November 2007. The plaintiff confirmed the contents of the claim form which set out an injury on 10 March 2006.[47]
[47]T31
123 The plaintiff relied on Ms Fink to provide him with the correct worker’s compensation claim form and he did not receive any legal advice at that time.
124 On 24 February 2010, the plaintiff received a letter from Ms Fink confirming he had reported suffering an injury on the said date when lifting a heavy block of aluminium into the boot of his car with a sub contract electrician to take for ultrasonic testing.
125 The claim was accepted but for an injury on 5 November 2007. That was not the incident date.[48] A range of benefits were paid to the plaintiff including gym and physiotherapy.[49] The plaintiff agreed he had received a fair bit in weekly payments.[50]
[48]T32
[49]T33
[50]T33-34
126 The plaintiff received a letter from WorkCover Queensland dated 26 May 2009 advising of an impairment assessment and an offer of a lump sum of $11,378. The plaintiff was seeking legal advice at that time from his solicitors in Ballina.[51]
[51]T34
127 Whilst there was a delay in accepting the offer, the plaintiff accepted it, having made a choice between the offer and seeking damages. He took the money.[52]
[52]T35
128 In November 2007, the plaintiff wrote a letter to SAE seeking credit for one of its courses based on his work experience with Everything Glows. He advised he was website manager at that company and he had played a major part in the setup of the entire site and initial design. By taking the particular course, he felt he was re-learning the skills with which he was already confident with and he thought the particular subject was not befitting him.
129 At that time, the plaintiff thought he was suffering a lot of pain and he was just trying to get out of the extra workload.[53]
[53]T23
130 From April 2007 to March 2008, the plaintiff did contracting work for the defendant – less physically onerous and different to the tasks he had performed as an employee.[54] During that time, he commuted three hours from the New South Wales coast and at that time he stayed overnight in Queensland.[55]
[54]T18
[55]T30
131 The plaintiff obtained an ABN for this contracting work. He generally worked every Friday, Saturday and Sunday every two or three weeks, when he carried out duties including oxygen cleaning, sorting parts into the chamber and placing items weighing less than 5 kilograms into boxes. He invoiced the defendant for this work between July 2007 and March 2008.
132 In about November 2007 the plaintiff attended Dr Stedman in Byron Bay.
133 In mid June 2008, the plaintiff attended Dr Veltre who referred him to Dr Gurgo, a neurosurgeon in Queensland. An MRI scan was undertaken in September 2008 after which the plaintiff was advised he had disc damage.
134 The plaintiff agreed he responded well to physio in 2008 and he was advised to have conservative treatment.[56]
[56]T37
135 In September 2008, the plaintiff had injections in his back which gave him temporary relief. He had an MRI scan in July 2009 which he was advised showed bulges in his lower back. He had further injections in July and September 2009 which only gave him temporary relief. In September 2010, Dr Gurgo suggested back surgery.
136 The plaintiff felt depressed because of his inability to function property and began seeing a private counsellor from about 2009.
137 In May 2011, the plaintiff commenced a Bachelor of Commerce Degree at Bond which involved four hours of lectures and tutorials about four days a week. He had problems sitting and had to get up and walk around during lectures.
138 The plaintiff also had difficulty sleeping and often had to get out of bed due to pain. He needed a hot bath in the morning to get him going and he took regular walks to reduce back stiffness.
139 As at February 2012 when he swore his first affidavit, the plaintiff had a constant ache in his lower and upper back, the lower more intense. About once a week, he had a dull ache in his neck, up to the base of his skull. Every couple of weeks, he felt a shooting pain down his left buttock which normally lasted a day. He believed this was sciatica.
140 Back and neck problems were triggered by sitting for extended periods, sleeping in the wrong position or walking for extended periods.
141 The plaintiff had problems with bending, reaching, twisting and lifting items weighing more than 5 kilograms. Accordingly, he had difficulties with household and domestic duties as well as home maintenance tasks.
142 Before he injured his back, the plaintiff used to kick a soccer ball with his young son. In early 2012, the plaintiff lived with his mother and her housemate and was not much help around the house.
143 In his October 2013 affidavit, the plaintiff described constant lower back pain and pain on a regular basis in the middle and upper region of his spine. He spent the day avoiding activities that aggravated his pain, previously having been an outgoing person.
144 The dull ache in the plaintiff’s neck was monthly rather than weekly. He had tried to jog a few times but after 100 metres he could barely walk. He rarely did household tasks. He was uncomfortable at the pictures after sitting for about half an hour.
145 The plaintiff saw a psychologist in Burleigh Heads in 2011 and had seen a counsellor at Bond. In October 2013, he was seeing his general practitioner in Miami about every few weeks for prescriptions and medical certificates he needed for his study. He was then not seeing anyone for his depression.
146 The plaintiff’s medication regime then included Tramadol, Endone, Mobic and Nexium and if he was not too bad, he took Nurofen or paracetamol.
147 The plaintiff was undertaking his university course with special consideration. In July 2013 he could not attend for about three weeks due to his back pain and was unable to sit two exams in the middle of that year. He had failed five or six subjects and had to pay for them on his HECS debt. He deferred that semester because he could not afford to continue to attend.
148 The plaintiff was limited in his activities with his fourteen year old son, not being able to surf with him.
149 The plaintiff had been in a relationship with his girlfriend for about two years. She was often frustrated with his restrictions and there were problems with intercourse as the plaintiff had difficulty maintaining an erection.
150 In February 2009, the plaintiff worked for three weeks as a waiter, earning about $330 gross per week. He could not continue that job because of his constant low back pain.
151 From July to December 2009, the plaintiff worked casually as a pizza delivery man in Byron Bay on a casual basis. He worked a three hour shift but he had constant back pain at the end of each shift. In the 2009/2010 financial year he earned $3,618 gross working for Earth and Sea Pizza. He has not worked since.
152 The plaintiff at that stage had received advice that surgery may not improve his condition and he did not want to risk the possibility of further deterioration.
153 In early 2014, the plaintiff had significant increase in lower back pain and now had additional pain at the base of his coccyx radiating to his bottom.
154 The plaintiff was then studying externally part time. He had withdrawn from one of his three subjects.
155 As of March 2014, the plaintiff had been recently taking Tramadol more recently. In March he had been prescribed Lyrica. Later that month, the plaintiff had an MRI scan which he had been advised showed damage to his discs at L5-S1.
156 In early 2014, the plaintiff was quite depressed about his back pain and restrictions and had suicidal thoughts. He had been seeing two counsellors and taking antidepressant medication which did not seem to make that much difference.
157 In March 2014, the plaintiff withdrew from the Bachelor of Commerce course. He had failed about six of 20 subjects in that course. He then commenced studying a Bachelor of Information Technology at the University of Southern Queensland part time on line. In the first year, he completed two of four units. As of May 2015, he was then enrolled in one unit per semester and had fourteen units outstanding.
158 The plaintiff found it very difficult to study due to his constant back pain. It made it difficult to concentrate and made him feel quite depressed. He needed to stand from a seated position every 20 minutes and lie on the ground. He believed no one would want him to work in a clerical role because of this. He was unsure whether he would be able to complete the course. He now lies down on the ground to use his iPad when studying.[57]
[57]T25
159 The plaintiff could sit for two hours to do an exam but he was allowed to get up when he wanted during the exam and move around.[58]
[58]T44
160 The plaintiff separated from his girlfriend in about February 2014. They both had planned to start a family after they had finished studying. However, it became apparent by early 2014 the plaintiff was not able to complete his studies and he was irritable and moody. His girlfriend had finished her degree and they went their separate ways. The plaintiff did not suggest that this relationship finished because of his injury.[59]
[59]T41
161 The plaintiff had noticed a worsening in his lower back pain since moving to Cairns in about May 2014 after he had broken up with his girlfriend. He suffered excruciating stabbing pain whenever he got out of bed and stood up. He noticed his back was aggravated more quickly than previously while sitting down. He had had a flare up in December 2014 which affected his fingers and toes. Thereafter, he had taken steroid medication and he increased his consumption of Tramadol and Lyrica.
162 The plaintiff still likes music but does not do mixing anymore because of pain and it is too hard to concentrate.[60] He does yoga at home and has recently stopped going to the gym.
[60]T42
163 The plaintiff agreed he no longer has any problems with his left shoulder. He agreed he had had some treatment for depression and that had affected his ability to study.
164 The plaintiff continues to be unable to surf or run. He has ongoing difficulty with the domestic duties. He lives by himself in a flat and does not have any assistance with household duties. He has do them all himself, which takes a long time. He is capable of looking after himself domestically.[61]
[61]T44
165 The plaintiff now sees Dr Yeang.
166 The plaintiff has a problem with arthritis in his feet and hands for which he takes prednisolone, methotrexate and occasional Lyrica.[62] He takes Tramadol, three to four tablets a day, 50 milligrams; Lyrica a few times a week, varying dosages from 25 to 75 milligrams. The Tramadol is for the back pain, the Lyrica is for nerve pain; so it sort of helps with the arthritis.[63]
[62]T40
[63]T45
The Plaintiff’s treaters
167 The plaintiff had treatment in 2006 on two occasions from an osteopath, Joe Morden.
168 The plaintiff was certified unfit for work from 29 September 2008 to 5 March 2009 by Dr Han in Byron Bay. Dr Gurgo certified him totally unfit from 10 April to July 2009.
169 The plaintiff was referred to Dr Gurgo in June 2008 by Dr Veltre in Byron Bay. Dr Gurgo reported in late 2008 and early 2009 November that the plaintiff was responding well to physiotherapy and he would like him to continue core strengthening. At that stage, the plaintiff had some improvement in his low back pain but still mentioned persisting symptomatology.
170 As of July 2010, Dr Gurgo recommended modification of work duties so that they did not involve a significant manual component. He noted in theory there were some spinal operations, namely, fusion, that would potentially be available for the plaintiff although he would not recommend surgery and would like to see how the plaintiff went with conservative management.
171 Dr Gurgo last reported in September 2010. He then thought the plaintiff’s condition was degeneration and desiccation of the lower lumbar discs which may have been exacerbated by the work injury. He considered the plaintiff would be an appropriate candidate for an L4-5 disc replacement and L5-S1 fusion.
172 The plaintiff was last seen at Bay Centre Medical Clinical in Byron Bay in January 2009.
173 An application for a disability support pension was completed by a general practitioner in Byron Bay on 3 March 2010.
174 The first diagnosis set out on that application was multilevel discogenic back pain, L3-4 and L4-5 disc prolapse and L5-S1 congenital fusion dating from 15 March 2006 in a work incident lifting a block of metal. There was a second diagnosis of depression.
175 Dr Yeang of Mulgrave Road Medical Centre in Cairns saw the plaintiff with specific reference to his chronic low back pain on 23 September, 10 October, 17 October and 26 November 2014.
176 Dr Yeang noted the physical diagnosis was significant disc desiccation and degenerative retrolisthesis at L4-5 and L5-S1. Psychological diagnosis was moderate stress, moderate anxiety and extremely severe depression. The plaintiff had been referred to a psychologist and a neurosurgeon and was taking Tramadol and Meloxicam.
177 Dr Yeang thought, based on the plaintiff’s chronic symptoms, the MRI and discogram findings and the recent report from Dr Gurgo, that he was likely to require surgery without which his condition was likely to deteriorate. He thought, at present, the plaintiff was not presently capable of any meaningful employment.
178 Dr Williams at the same practice reported in May 2015 that he thought the plaintiff’s prognosis was guarded. He noted major depression in patients with chronic pain associated with decreased function, poor treatment response and increased healthcare cost. He thought the plaintiff was likely to need at least twenty, sixty minute sessions of cognitive behavioural therapy for depression and about ten sessions of cognitive behavioural therapy for pain followed by monthly booster sessions for about six months.
Medico-legal evidence
179 Mr Kossmann, orthopaedic surgeon, first examined the plaintiff in July 2001.
180 The plaintiff then complained of a constant ache in his lower and upper back, with the lower more severe. From time to time, he also had shooting pain down to his left buttock and this pain sensation lasted for about a day.
181 Mr Kossmann diagnosed discogenic back pain on the basis of L4-5 and L5-S1 disc bulging with small disc protrusion at the L5-S1 level impinging on the S1 nerve roots.
182 Mr Kossmann thought the plaintiff would suffer back pain for the rest of his life. He considered the injury stable and he did not expect any significant improvement.
183 In Mr Kossmann’s view, the plaintiff would never return to pre injury employment which required the lifting of heavy items. Furthermore, he would not be able to twist and bend his body and he would not be able to lift heavy items weighing more than five to ten kilograms.
184 Mr Kossmann thought the plaintiff would be able to perform employment where he was able to change his posture between sitting and standing to ease his back pain and he should have enough time to undergo yoga exercises and gym workouts. The plaintiff would have problems carrying out office duties where he had to sit for extended periods.
185 Mr Kossmann thought treatment should remain conservative.
186 Mr Kossmann re-examined the plaintiff in March 2013. The plaintiff then told him he still felt a constant ache in his lower and upper back of the same severity and also leg pain as when previously examined.
187 Mr Kossmann noted whole spine movements had slightly improved since the previous examination. He confirmed his earlier diagnosis noting the plaintiff was suffering from discogenic back pain, it having been documented that he had disc bulges at those levels which compromised the S1 nerve roots.
188 Mr Kossmann confirmed his previous views as to the plaintiff’s work capacity. He thought treatment should remain conservative and he was not convinced the surgery proposed by Dr Gurgo would have the desired effect.
189 Mr Kossmann saw the plaintiff again in May 2015.
190 The plaintiff then told him that since last seen, he had had an increase in back pain and he underwent another MRI in March 2014. The plaintiff confirmed complaints of a similar nature to those on previous examinations.
191 The plaintiff told Mr Kossmann he also suffered from psoriasis and psoriatic arthritis. He took Tramadol every day and took the occasional Lyrica and was taking Prednisolone for his arthritis.
192 Mr Kossmann confirmed his earlier diagnosis. He thought the plaintiff would continue to suffer from back pain most likely for the rest of his life. There had been no major changes since last seen besides the plaintiff complaining of an increase in back pain. He noted the plaintiff no longer wished to proceed with surgery.
193 Mr Kossmann thought that Mr Dooley’s report only scratched the surface of the plaintiff’s lumbar spine condition. He disagreed with his diagnosis of naturally occurring degenerative disc disease, saying that Mr Dooley did not take into account the significant injury in the incident which then, over time, had developed into so called degenerative changes diagnosed in subsequent investigations.
194 Mr Kossmann agreed with Mr Dooley that the plaintiff had a physical capacity to carry out light physical work and clerical duties and he should avoid heavy lifting, repetitive bending and regular twisting.
195 Mr Kossmann noted that the plaintiff wrote, in his email of 17 April 2015, that he can only sit for twenty minutes, having to lie down either horizontal or at forty five degrees with pillows. The plaintiff said walking or standing after sitting does not relieve the pain as he is still getting downwards compression of his spine. The plaintiff thought he could not see any employer wanting to hire him for clerical duties as he has to lie on the floor after twenty minutes at work.
196 Mr Kossmann respected the plaintiff’s complaints regarding his pain issue whilst doing clerical work in the limited timeframe. He could not comment about the possible reaction of an employer to the plaintiff’s requirement for changing his posture for pain and relief.
197 Mr Kossmann also found the plaintiff may have some psychological issues but recommended they be dealt with by a specialist in that area.
198 Dr Helen Sutcliffe, occupational physician, examined the plaintiff in May 2013 and again in April 2015.
199 On recent examination, the plaintiff told Dr Sutcliffe that he currently experiences constant pain present in the low back to the right and left and in the left buttock and in the lateral aspect of the left leg to the ankle and the foot. He has persisting pain in the small joints of his hand in the metatarsophalangeal joints in both feet related to psoriatic arthritis.
200 The plaintiff judged his left leg pain, which was intermittent, to a level of nine to ten and the back pain at six out of ten. Joint pains were of varying intensity between one to nine out of ten.
201 On examination, there was swelling and tenderness of the plaintiff’s hands and pain in both wrists. There was normal straight leg raising associated with some pain. Power was equal. There was no sensory changes and there was some limitation of lumbar movement.
202 Dr Sutcliffe noted the investigations previously undertaken. She was also provided with Mr Kossmann’s report.
203 Dr Sutcliffe concluded that the plaintiff sustained onset of disc derangement at L4-5 and L5-S1 as a result of heavy lifting at work. He had increasing pain and eventually investigations revealed disc derangement with confirmation by discogram.
204 Dr Sutcliffe noted the plaintiff continued with persisting back pain, limitation of movement, restriction in capacity for sitting, walking and standing. In particular, sitting was limited by low back pain, as was walking and standing.
205 Dr Sutcliffe noted that the plaintiff had undertaken studies towards a Bachelor of Commerce. He could not complete it and had now transferred to an IT course as he believed he may be able to undertake contract type work with this course.
206 Because of his limitation of functions, in particular, sitting, Dr Sutcliffe thought the plaintiff would either require a sympathetic employer or need to work in self-employment on a part time basis as a result of the persisting low back pain.
207 Dr Sutcliffe also believed the plaintiff had sustained onset of adjustment disorder with depression and anxiety related to the persisting pain as a result of his back injury and the resulting difficulties in his study.
Investigations
208 There was a CT-guided injection of the facet joints at L4-5 and L5-S1 on 2 September 2008.
209 There was also an MRI of the thoracic and lumbar spine on that date. It was reported there was chronic disc degeneration at L4-5. At L5-S1 there was disc degeneration with small to moderate central, left paracentral, left foraminal and far left lateral disc protrusion. There was some posterior displacement and compression on the left S1 nerve root as well as some left neuroforaminal narrowing with compression on the exiting left L5 nerve root.
210 There was an MRI of the thoracolumbar spine organised by Dr Gurgo in July 2009.
211 It was reported there was disc degeneration at L4-5 and L5-S1 with disc bulging/ small disc protrusion at L5-S1. There was no canal or significant foraminal stenosis.
212 Dr Lucas organised an L3-4, L4-5 and L5-S1 discogram and CT scan in August 2009. Injection of the L4-5 disc produced severe pain, and injection of the L5-S1 disc produced moderately severe pain. The pain at both levels was concordant with the plaintiff’s usual pain.
213 There was an MRI of the lumbar spine organised by Dr Canning, general practitioner, in Queensland in March 2014.
214 It was reported there was degenerative disc disease with a likely congenital pseudoarthrosis on the right at L5-S1 adjacent to the facet and both demonstrating mild to moderate degenerative changes.
The Defendant’s medical evidence
215 Dr Gurgo reported in June 2012, having seen the plaintiff initially in August 2008 and most recently on 8 September 2010.
216 The plaintiff presented to Dr Gurgo with quite pronounced low back pain but no lower limb radicular symptoms. He gave a history of the incident and having various treatments over the years without much benefit. The prospect of surgery was considered but not performed.
217 Dr Gurgo thought that, given the degree of degeneration, the plaintiff probably was not capable of performing heavy manual duties but should be capable of administrative type duties. He believed he had given the plaintiff several certificates saying he was fit for work for short periods of time but not for an indefinite period of time.
218 Dr Gurgo noted in a WorkCover report dated 4 December 2008 that he indicated the plaintiff was responding well to physiotherapy and he was expecting him to return to a suitable duties program probably at the start of 2009.
219 Dr Gurgo noted the plaintiff seemed to indicate a significant degree of anxiety regarding his spinal condition. He had explained to the plaintiff that with a suitable lifestyle and employment modification, a return to work would probably be appropriate.
Medico-legal evidence
220 Dr McCartney reported in April 2009, having assessed the plaintiff’s permanent impairment.
221 The date of injury was noted as 5 November 2007 but, in the background to the claim, Dr McCartney noted the plaintiff stated he experienced sudden low back pain on the said date when manipulating a very heavy block of aluminium at work with Fink Engineering, where he was employed from June 2004 to February 2007.
222 On clinical examination, the plaintiff had a significantly diminished range of lumbar spine movement and neurologically the lower limbs were intact.
223 Dr McCartney’s work related diagnosis was aggravation of pre-existing lumbar spondylosis – disc degeneration at L4-5 and L5-S1 with disc protrusion at L5-S1. He thought there was moderately severe pre-existing underlying degenerative disc changes that would account for the plaintiff’s ongoing symptomatology and disability. He assessed a five per cent whole person impairment from the work related lumbar back injury.
224 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in October 2013.
225 The plaintiff then advised that he noted ongoing low back pain with occasional lower limb pain.
226 Mr Dooley noted lumbar discography showed some irregularity of the L4-5 and L5-S1 discs. Injection of the L4-5 disc produced severe pain, and injection of the lumbosacral disc produced moderate to severe pain. MRI scanning of the lumbar spine showed evidence of degeneration at L4-5 and L5-S1.
227 Mr Dooley thought the plaintiff had naturally occurring degenerative disc disease of the low lumbar spine aggravated in the incident.
228 Mr Dooley believed the appropriate ongoing treatment involved general exercise, fitness and sensible modification of activity.
229 Mr Dooley noted that understandably the plaintiff was frustrated by his inability to be as active as he was in the past in terms of sport and leisure pursuits. For his overall wellbeing, Mr Dooley thought it important the plaintiff completed his commerce degree and return to suitable employment.
230 From an orthopaedic point of view, Mr Dooley thought the plaintiff would not be able to carry out regular heavy physical work or work that involved a lot of bending, lifting and twisting. He considered the plaintiff had the physical capacity to carry out light physical and clerical duties. He thought the plaintiff’s condition had stabilised.
231 Mr Dooley concluded that the plaintiff was frustrated by his pain and relative inactivity. Overall, however, he did not believe the plaintiff had had an excessive psychological reaction to his situation.
Other documents
232 By letter dated 16 February 2007, the plaintiff advised the defendant of his formal resignation one month from that date. He advised he had been contacted by SAE Byron Bay Campus and offered a place in the current intake for a renowned audio engineering course.
233 The plaintiff advised that it was not an easy decision. It took a lot of consideration to move but he believed he was doing so for good reasons and was sorry to leave and thanked the company for having him as part of the team.
234 In a reference from Everything Glows written by Amanda Fink in November 2007, she noted the plaintiff worked with that company for two years from 2003 to 2005 as the website and advertising manager. He was instrumental in setting up the website. The initial design was put together by him. His role was to maintain and update the site on a regular daily basis. The plaintiff managed the site and kept it fresh but consistent. He was in charge of teaching Adobe Photoshop and training other employees to use the administration side of the site.
235 The plaintiff wrote to SAE in November 2007 advising that he worked for Everything Glows for two years as the website manager and played a major part in the initial design and setup of the entire site. He felt as though he was already at an industry level with the use of Dreamweaver, Flash and Photoshop.
236 By taking the subject 1S3, the plaintiff advised that he was relearning skills with which he was already confident. He attended the first couple of lectures and already felt as though the subject was not befitting him.
237 The plaintiff provided SAE with a detailed summary of the duties and procedures of his position at Everything Glows consisting of uploading product images and details, advertising, flash videos and animated gifs, updating the site and Dreamweaver.
Overview
238 It is not disputed the plaintiff suffered an injury to his lumbar spine in the incident. The consensus of medical opinion is there has been an aggravation of pre-existing degenerative changes at L4-5 and L5-S1.
239 There is no suggestion of non-organic features in the plaintiff’s presentation or that there was a history of any back injury prior to the incident.
240 The issue is essentially one of range, with counsel for the defendant conceding there was no need to go to the medical evidence. [64]
[64]T59
241 Counsel for the plaintiff made very brief submissions in relation to pain and suffering relying on the various consequences deposed to by the plaintiff. It was submitted those consequences easily satisfied the serious definition.[65]
[65]T86-87
242 Not much was said by counsel for the defendant in this regard, leaving it as a matter of impression to the Court. It was suggested, however, the plaintiff had retained a lot [66] and that there were not consequences that met the statutory test of seriousness.
[66]Dwyer v Calco TimbersPty Ltd (No 2) 2008] VSCA 260
243 It was submitted the plaintiff had retained the ability to study, move house, look after himself, socialise and have a girlfriend. He says he has pain and has to take medication but that does not meet the threshold.[67]
[67]T59
Credit
244 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[68]
“… 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.”
[68](2010) 31 VR 1 at paragraph [12]
245 It was submitted the plaintiff was an honest witness presenting as well as he could.[69]
[69]T87
246 I found the plaintiff generally to be a credible witness, although at times there may have been an element of overstatement, as counsel for the defendant submitted.[70] One such example was his description of his work duties at Everything Glows for the purposes of an exemption from a university subject.
[70]T17
247 Further, there is no medical evidence that the plaintiff’s present symptoms are of the magnitude he describes.
248 However, there was no surveillance film and no medical practitioner considered the plaintiff was exaggerating or embellishing his symptoms on examination.
Consequences
249 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[71] the evidentiary basis of the pain assessment will ordinarily comprise the following, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[71](supra) at paragraph [11]
250 Since the incident, the plaintiff has described constant back pain and at times left leg pain, with his lower back pain worsening since his move to Cairns last year. Of recent times, he has experienced an excruciating stabbing pain on standing and worsening pain when sitting.
251 The plaintiff has undergone essentially conservative treatment with physiotherapy and facet joint injections in 2008 and 2009. Dr Gurgo, neuro surgeon recommended spinal surgery but that course has not been undertaken because the plaintiff is concerned of a risk of further deterioration.
252 The plaintiff continues to take significant medication; Tramadol, for his back pain and Lyrica for both his back and arthritic condition.
253 In Kelso v Tatiara Meat Company Pty Ltd,[72] Dodds-Streeton JA noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[72][2007] VSCA 267 at paragraph [199]
254 The plaintiff is restricted in his ability to lift and bend and he has problems with prolonged sitting and standing. Household tasks are difficult for him
255 The plaintiff does not have the capacity for unrestricted physical work.
256 Counsel for the defendant conceded that Mr Dooley’s view ultimately was that the plaintiff has a light work back – a view shared by the plaintiff’s treating neurosurgeon, Dr Gurgo, Mr Kossmann and also Dr Sutcliffe.
257 The plaintiff is unable to run and surf and he cannot play freely with his 15 year old son.
258 The plaintiff has difficulty sleeping due to back pain. That pain also impacts on his ability to engage in sexual intercourse.
259 Because of problems with prolonged sitting, the plaintiff has had difficulty attending university and completing course requirements. His present course is undertaken on line. He has to lie down at home on the floor when using the iPad studying.
260 Given the plaintiff’s ongoing back pain, the requirement for significant medication, his sleep problems, the interference with his ability to do engage in manual work and his inability to participate in surfing and other sporting pastimes, I am satisfied his impairment is serious. I am also satisfied that it is permanent given the lack of improvement in the plaintiff’s condition over the last 7 years.
261 As counsel for the defendant suggested, the “real battleground” in this case is the application for loss of earning capacity.[73]
[73]T60
Loss of earning capacity
262 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).
263 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.
264 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
265 “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.
266 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.
267 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.[74] I am therefore required to determine a “without injury” earnings figure.
[74]See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
268 There was a dispute as to without injury earnings figures with the plaintiff relying on a figure in excess of $900 and the defendant, a lower figure of $600.
269 Counsel for the defendant submitted that the earnings relied upon by the plaintiff related only to 2007 and not the three years before, which were significantly lower figures.
270 Even on the plaintiff’s own case and the histories he has given to Dr Sutcliffe, it was submitted he had a very patchy work history before working with the defendant, so the figure suggested was vastly inflated. At the time of injury, the plaintiff was earning $602.33 gross per week. Sixty per cent thereof is $361.40.
271 Further, it was submitted there is no evidence at all about what might be earned in the kind of employment that is envisaged with the IT and commerce courses the plaintiff has undertaken.[75]
[75]T15; the plaintiff failed to discharge its onus on this basis in Doolan v Rayner Sawmills Pty Ltd & Anor (2008) VSCA 219 at 107
272 Whatever the appropriate without injury earnings figure, counsel for the plaintiff conceded the application would not succeed unless there was found to be a total incapacity for work.[76]
[76]T85
273 It was submitted the strength of the plaintiff’s loss of earning capacity application was the opinion of his general practitioner, Dr Yeang who, as of January 2015, thought he was not capable of any meaningful employment. It was conceded however, Dr Yeang did not go perhaps quite as far as the plaintiff would like him to go in saying the incapacity is absolutely permanent.[77]
[77]T85
274 However, when that view was combined with the plaintiff’s description of his inability to perform regular study, maintain any concentration and have to lie down, it was submitted the Court could well be and should be satisfied that realistically there is not any employment that was open to him.[78]
[78]T85
275 Taking into account all the evidence, I am not satisfied the plaintiff has no capacity for suitable employment and tend to agree with counsel for the defendant that this is a very bold suggestion.[79]
[79]T61
276 The plaintiff’s evidence is not to this effect in either his affidavits or viva voce evidence. In fact, he continues to study in an IT vocational course and advised Dr Sutcliffe he intended to seek contract work in that field.
277 Save for his general practitioner, no medico legal examiners consider the plaintiff does not have a capacity for suitable employment concluding he has a light work back.[80] Their view is shared by Dr Gurgo, albeit last seeing the plaintiff five years ago.
[80]T61
278 Dr Sutcliffe though the plaintiff could probably work part time in IT running his own business.[81]
[81]T16
279 Mr Kossmann agreed with Mr Dooley that the plaintiff has a physical capacity to carry out light physical work and clerical duties and he should avoid heavy lifting and repetitive bending and regular twisting.
280 The plaintiff is an intelligent educated man with skills in IT as evidenced by his work experience and subsequent study, passing the majority of subjects in a partly completed commerce degree.
281 This is not a case of a manual worker who relies on his physical strength for his livelihood.
282 I am not satisfied that, with the vocational training the plaintiff is presently undertaking, he would not have some capacity for suitable employment.
283 Accordingly, given the concession by counsel for the plaintiff,[82] I am not satisfied the plaintiff suffers the requisite loss of 40 per cent on a permanent basis.
[82]T85
- - -
0
9
0