Lavery v Victorian WorkCover Authority
[2018] VCC 1083
•13 June 2018 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01163
| DAVID ROBERT LAVERY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30 May 2018 | |
DATE OF JUDGMENT: | 13 June 2018 (Revised) | |
CASE MAY BE CITED AS: | Lavery v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1083 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Richter v Driscoll [2016] VSCA 142; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J P Brett QC with Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Mr S A Smith | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Ease End Slabs Pty Ltd (“the employer”) on 26 December 2014 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 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.
4 The relevant body function in this application pursuant to s134AB(37)(a) is the lumbar spine.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, can fairly be described, at the date of the hearing, as being “more than significant or marked”, and as being “at least very considerable”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
14 The plaintiff relied upon two affidavits. He was cross examined. He also relied on affidavits sworn by his de-facto partner, Courtney Elyse Jones, on 4 May 2017, and his mother, Margaret Lavery, sworn on 11 May 2017. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
15 The plaintiff is presently aged twenty-nine, having been born in October 1988. He currently lives with his parents in Mornington.
16 The plaintiff initially completed his schooling to Year 9 when aged fourteen. After leaving school, he worked for Tidex Steel in Somerville as a labourer for about twelve months.
17 The plaintiff then worked for Rodos Commercial Kitchens in Moorabbin as a labourer and welder for about eight months.
18 The plaintiff decided to complete his schooling, and attended adult education at Mount Martha Adult Education Centre[3] when he was seventeen. He completed Year 10 and 11 in a year. By reason of the disruptions to his education, he has some problems with spelling and basic maths.
[3]Transcript (“T”) 5
19 The plaintiff then returned to the workforce as a welder with W G Ford, Hastings, for about two or three years. He thought he did two years of his apprenticeship as a fabrication engineer before he left WG Ford.[4] He left that job because he had a bad head injury which “knocked some sense out of [him]”.[5] He was in the wrong place at the wrong time, and walked into a domestic which he had tried to split up, and the male involved hit him on the back of the head with a small hatchet.[6]
[4]T9
[5]T22
[6]T76
20 After this incident, basically, the plaintiff “went from looking at a plan of something that [he] could build and be able to build … to not being able to decipher what it was …”.[7] He attended hospital and “they basically stitched [him] up and [he] walked straight out …”. He originally had a CT scan but never ended up following up. The headaches went, and he “kind of, just ignored it after that …”.[8]
[7]T76
[8]T77
21 The plaintiff next worked as a welder for Mark Webb Racing, a float construction business, for about eighteen months. That business basically went under and Mark Webb went back to training horses.[9]
[9]T23
22 The plaintiff next worked for Peninsula Camper Trailers as a welder for about five to six months.
23 At that time, the plaintiff decided to go into concreting, where the money was better. He initially obtained employment with Budget Concreting Pumping in about 2012, where he worked for six months. Whilst in that job, the plaintiff suffered injury when he was hit by concrete which shot out of a hose and stripped the skin off the right side of his body. He had some time off after that incident.
24 The plaintiff denied he simply stopped turning up for work at Budget. He “guessed” the boss came to his place after he had stopped work and picked up a truck which belonged to the employer. He denied this was typical of how his various jobs finished. It was not a matter of him not getting along with people or just stopping turning up for work.[10]
[10]T62
25 The plaintiff’s next job was with Bayline Concrete Pumping, where he worked for about three months. After that job, he did concreting with Jaycrete in Mornington for about eighteen months. He left that job because the company was having tax problems.[11]
[11]T23
26 The plaintiff agreed he had deposed to a picture of being in employment pretty well continuously from leaving school.[12] He agreed with the earnings and Centrelink payments set out in a summary provided to the Court.[13] He declared all the income he earned in every relevant financial year. He may not have put in a taxation return in 2011.[14]
[12]T6
[13]T6ff
[14]T11
Wage Data Years Actual earnings 1 2004–2005 $5,614 (Tidex Pty Ltd)
$2,746 (Centrelink)
2 2005–2006
$4,374 (Centrelink)
3 2006–2007 $4,132 (Centrelink)
$2,177 (Bradnams Windows and Doors Pty Ltd)
4 2007–2008 $1,920 (IPA Personnel)
$735 (Centrelink)
$11,152 (Rodos Commercial Kitchen Australia Pty Ltd)
5 2008–2009 $143 (Centrelink)
$18,388 (The Trustees for WG Ford Family Trust)
6 2009–2010 $2074 (Centrelink)
$4,563 (Trustee for the Aloi Family Trust & the Trustee for the Brabner Family Trust)
7 2010–2011
No return
8 2011–2012 $5,223 (Centrelink)
$1,386 (Classic Concrete Pumping)
$9,972 (The M Grant Family Trust)
9 2012–2013 $6,701 (Centrelink)
$7,311 (The M Grant Family Trust)
10 2013–2014 $8,894 (Centrelink)
$6,650 (The Juraschek Family Trust)
$10,270 (Bundameer Holdings)
11 2014–2015 $3,027 (Centrelink Newstart)
$12,378 (VWA weekly payments)
$21,398 (East End Slabs Pty Ltd)
$1,601 (Bundameer Holdings)
27 The plaintiff agreed that his taxation returns indicated from 1 July 2004 to 30 June 2014, he had never worked a full year.[15] He agreed he had extensive periods of unemployment throughout the period. He then said he had worked most of his life and always been a worker.[16]
[15]T14
[16]T15
28 The plaintiff was not sure why all his jobs had finished. He was chasing a good employer, he supposed. He denied he was dismissed from some of the jobs through poor performance.[17] He had been fired once in his life.[18]
[17]T18
[18]T19
29 The plaintiff earned $2,177 working for Bradmans in the 2006-2007 financial year. He was not fired from that job, but he could not remember why he left. It might have been because he had lost his driver’s licence. He agreed that for an extended period thereafter he was on unemployment.[19]
[19]T21
30 The plaintiff’s later time at school did not explain why he only earned a little in that period. It was so long ago he did not know the reason why.[20]
[20]T20
31 The plaintiff agreed good decent jobs in concreting are hard to find – “there’s so … [many] cowboys out there, it’s hard to find a good job, … with someone that looks after its employees”.[21]
[21]T23
32 The plaintiff explained that he had an extended period of time out of work in 2012-2013 as it was hard to find a job.[22]
[22]T24
33 In the last year before he worked with the employer, the plaintiff thought he worked for Bundammer Nursery, just driving a truck and helping out between jobs. He worked there after Jaycrete.[23]
[23]T24
34 The plaintiff had extensive periods of unemployment later in the period before the incident because it was hard to find work. A lot of concreting businesses he had worked for had gone under. He denied his taxation returns pretty fairly represented what he was capable of earning. It was hard to find a concrete company.[24]
[24]T25
35 At the time of the subject injury, the plaintiff was employed as a concreter and maintenance labourer by the employer, having started work in late September 2014.
36 The worker’s Claim Form indicated, at the time he ceased work, his usual pre-tax weekly earnings were $1,100 or$27.50 a hour.
37 The plaintiff denied he started with the employer on 18 November 2014 as Ms Valeska Noeske-Smith’s deposed. He started before his birthday in October. He disagreed that he worked for the employer for only twenty days, and that over that time there were issues with the quality of his work or that anyone expressed any concern to him in that regard. He was given a car to use after his review, and they were happy with him.[25] He had a trial period, starting with the employer in September. He was paid from the outset and was later put on full time.[26]
[25]T17
[26]T78
38 The plaintiff’s job with the employer involved a lot of heavy manual work.
39 On the said date, the plaintiff was working at a site in Malvern. When using a jackhammer, the metal chisel end became caught in concrete. He attempted to remove the jackhammer by pulsing the machine as he wiggled it from side to side. He then tried to release the jackhammer by hauling it out, but as he undertook that manoeuvre, he developed severe low back pain which a very short time thereafter extended into his right buttock and subsequently, down his right leg (“the incident”). With the passage of time, pain radiated down his left leg.
40 The plaintiff was put off work by Dr Tilly, the work doctor, who prescribed Endone and a muscle relaxant, and later Tramadol. Both medications caused significant side effects.
41 When the plaintiff attempted to return to work in February 2015, he worked 12 hours per week. He was supposed to be on light duties; however, he was actually performing duties involving grinding and hammering concrete. These activities placed strain on his back, and his spinal pain continued to cause problems.
42 The plaintiff deposed that the return to work ceased after he was working on a site in Carrum Downs pouring concrete slabs. As he was shovelling concrete at a height of about 5 feet, he had to jump down to the ground, and jarred his back. He was again put off work.
43 There was extensive cross-examination about the plaintiff’s duties on his return to work and his back condition during that time.
44 The plaintiff was asked about a number of the entries in Dr Tilly’s clinical notes, which it was put to him suggested there was an improvement in his condition after his return to work.
45 The plaintiff questioned a lot of what Dr Tilly did because he had seen a neurosurgeon and a pain specialist who told him that if Dr Tilly had acted the right way in the first place, he would not be so bad now.[27]
[27]T51
46 The plaintiff denied that there was an improvement in his condition. He was in that much pain there is no way he could have said his condition had improved when he saw Dr Tilly on 12 December 2014.[28] He could remember the amount of pain he was in when he was first injured. His pain had not resolved as Dr Tilly recorded, it had not gone away.[29]
[28]T26
[29]T28
47 Whilst a clinical note of 28 January 2015 set out back pain came on two days ago, the plaintiff explained he did not re injure his back, it always hurt from December and did not come good.[30]
[30]T29
48 The plaintiff denied examination findings were normal when seen on 10 February 2015.[31]
[31]T30
49 The plaintiff thought there was some confusion when he told doctors his back was feeling better and when his back was better. It may have improved at the time, every day is different. Some days he is good, some days he is bad, some days he cannot even get out of bed.[32]
[32]T30
50 On his return to work, the plaintiff was just going around picking up waffle pods, polystyrene foam pads on which they now build houses.[33] Over time, his hours built up a little bit.[34] He could not recall whether they had increased to forty hours per week by the time he ceased work. When he left, he was not working even close to a full week. He could not remember. He remembered he was doing something like four hours a day.[35]
[33]T31
[34]T30
[35]T37
51 The plaintiff did not actually do a range of heavier jobs set out in the return to work plan which commenced on 17 March 2015.[36] His driving was limited. He was not meant to be doing anything other than picking up waffle pods.[37]
[36]T32
[37]T34
52 The plaintiff denied his pain was controlled, as Dr Tilly reported on 23 May 2015. His pain was not under control.[38] He was coping, but only because he was on painkillers, that was the only thing that kept him going.[39]
[38]T39
[39]T42
53 The plaintiff could remember that before 23 May 2015, he told Dr Tilly about being pressured into performing tasks outside the return to work program. He had told Valeska and the employer’s managers, but nothing was really done about it.[40] The problem with the “big boss” was later. He did work after the incident at Carrum Downs.[41]
[40]T39
[41]T40
54 In re-examination, the plaintiff confirmed Dr Tilly’s note of 28 May 2015 which set out that he was pulled aside at work and told in effect there was no place for him in his current position and that he was not productive and of benefit to the firm and they preferred he left.[42] The plaintiff thought his job was of value to his employer but he was told the employer did want him there anymore as he was not making any money so there was no point in him staying.[43]
[42]T78
[43]T79
55 While his affidavit gave a different impression, it was towards the end that the plaintiff was under pressure and being given duties beyond the return to work plan, and he was made to do things he should not be doing: grinding of concrete, jackhammering and carrying steel. By the end of it, they were making him pick up stuff he should not have been picking up.[44]
[44]T41
56 In the last week he worked for the employer, the plaintiff went out with the “big boss” who chucked him straight into base concreting, and that is when he hurt his back further. He was not meant to be doing anything like that.[45] That happened in the last week he worked, not soon after he went back to work. He stopped working after this incident.[46]
[45]T34
[46]T35
57 The situation at Carrum Downs was before the incident with the “big boss,” but the plaintiff could not really remember when. He agreed, the pressure to work outside the return to work program was getting worse week on week.[47]
[47]T44
58 Of course, the plaintiff was taking less painkillers on his return to work than now. Since he had stopped work, he was careful about his back, trying not to aggravate it. He does not do things that cause him pain. He needs to take more painkillers now “because your back deteriorates”.[48] He agreed that his pain was worse, much worse than it was three years ago.[49]
[48]T42
[49]T43
59 The plaintiff agreed his back was getting worse and worse from May 2015. The employer did not have him doing heavy work all the time though. He would do the waffle pods and then be asked to do other things. He agreed, the pressure to do those extra tasks was increasing.[50] He denied he was doing such tasks for forty hours a week, and he could not remember what his hours got up to.[51]
[50]T46
[51]T46. As of 18 May 2015, it was planned the plaintiff would be working 40 hours per week, the return to work plan commencing on 11 May 2015.
60 The plaintiff was doing the heavier tasks very rarely and he could not remember the hours he was working. He was doing waffle pods, picking up something that weighs about 2 kilograms 95 per cent of the time.[52] He needed to stand up a lot.[53]
[52]T60
[53]T61
61 The plaintiff was barely coping with the duties under the return to work plan which commenced on 11 May 2015. He was washing trucks, sweeping floors, lifting light plastic parts, sorting and counting pods and picking up recycling material in a truck with a co-worker travelling for less than 20 minutes consecutively. By the end, he was also doing some shovelling which he was not meant to be doing. He was coping, but nowhere in Dr Tilly’s notes did it say he was coping well. He was on painkillers and he did everything he was supposed to.[54] There was no way he would have told Dr Tilly on 15 June 2015 that he was improving.[55]
[54]T52
[55]T53
62 The plaintiff agreed, as Dr Tilly recorded on 29 June 2015, that he was working, had lasted a week and his back pain was worse. It would have been around that time that he did not go back to work.[56]
[56]T51
63 The plaintiff explained deterioration just happens when you get injured. It started from the time of the incident and there is nothing he can do about it.[57] He has done everything the doctors have asked him and his back is still deteriorating. He agreed it had got worse ever since the said date.[58]
[57]T63
[58]T64
64 In re-examination, the plaintiff confirmed he had never recovered from the initial injury when he was trying to free the jackhammer. Flare ups would not have caused him any problem had he not been injured.[59]
[59]T79
65 The plaintiff could vaguely recall seeing Mr Aliashkevich, neurosurgeon, in the middle of 2015. He denied that there were no problems with his right leg on that examination.[60] He was not sure what the doctor said about his return to work; it was a long time ago. He could recall Mr Aliashkevich said to him to just keep going with light duties for six months and that he thought, with rest and everything, the plaintiff would come good. The plaintiff is not a doctor, so he could not comment on Mr Aliashkevich’s view given his worsening symptoms.[61] He knew how he felt, and Mr Aliashkevich was entitled to his opinion.[62] The plaintiff was then in a lot of pain but every day was different.[63]
[60]T60
[61]T66
[62]T67
[63]T68
66 The plaintiff was shown a short video taken on 26 November 2015. He agreed the film showed no restriction whatsoever in any of his activities. He was shown walking, and he “just flopped” into the car. He had sold that car and bought a jeep because of problems using it.[64] The film showed how he was feeling that day. Every day is different. Some days he cannot walk and some days he hardly has a limp.[65]
[64]T68
[65]T69
67 The plaintiff agreed he would love to work, but then asked “What work would he go to?” He did not know; he is not academically smart. He had a trade that he was good at and he had knowledge in the field. Otherwise, he had not given it a thought. He had no idea; he was lost.[66]
[66]T56
68 The plaintiff could not remember off the top of his head what Dr Poppenbeek told him on examination in September 2015. While he may have said the plaintiff could work full time on a restricted basis, there were two other occupational therapists saying the opposite.[67]
[67]T72
Treatment
69 The plaintiff had physiotherapy treatment from Bryce Hayes from about 20 February 2015. He also did strengthening exercises
70 The plaintiff was referred to neurosurgeon, Mr Xenos, though the plaintiff was ultimately seen by another neurosurgeon, Mr Aliashkevich, on 23 June 2015, who suggested conservative treatment, attending a pain specialist, and an epidural injection at L5‑S1
71 The plaintiff saw pain specialist, Dr Gassin, on 11 August 2015. He prescribed ongoing Tramadol and Endone and gave the plaintiff an epidural injection on 8 October 2015 for worsening pain.
72 Dr Gassin suggested the plaintiff was unable to return to physical work or pre-injury duties in the foreseeable future and should consider retraining to less physically demanding work. He advised the plaintiff not to return to work as a concreter and that he remained unfit for those duties. At that time, Dr Tilly was continuing to certify the plaintiff unfit for work.
73 Dr Gassin suggested referral to an occupational physician, Dr Eaton, and a physiotherapist, Mr Moar, to assess the plaintiff’s long-term work capacity. He also increased the dosage of Tramal from 50 to 100 milligrams.
74 The plaintiff was examined by Dr Eaton on 7 January 2016, at which time he was continuing to suffer from restricted and painful back movement as well as persisting intermittent right leg pain. He advised Dr Eaton he was restricted in his ability to walk distances, sit for extended periods, bend, lift, and carry, and also when driving distances.
75 The plaintiff understood Dr Eaton thought that his condition remained unstable, and that he supported Dr Gassin’s suggestion that the plaintiff undergo a functional restoration and pain-management program. Unfortunately, the insurer did not fund the envisaged program, and the plaintiff did not undergo retraining or rehabilitation.
76 The plaintiff initially attended Mr Moar on 3 February 2016, and, although he found some benefit from that physiotherapy treatment over the next two or three months, funding was ceased, and treatment stopped.
77 As of 24 November 2016,[68] the plaintiff continued to suffer constant but variable pain in his lower back. He was never free of pain. He suffered aching in his left leg which he believed placed additional strain on that leg. He had to favour his right because of the shooting pains in his left leg. He found the pain level varied in accordance with the strain he placed on his right leg.
[68]First affidavit
78 These pains continued despite ongoing medical treatment under Dr Tilly until February 2016, when the plaintiff moved to Hastings. Since that time, he has been seeing Dr McCandless. The plaintiff was prescribed Tramal, 100 milligrams, but found it was not sufficient to counteract the rapid onset of pain on a slow release basis. He had subsequently been using instant release 50 milligrams, which he found to be far more effective.
79 The plaintiff used this instant release medication or Panadeine Forte when the pain was not so severe. He then took Tramadol three to four days a week, depending on his pain levels, and he also was taking an anti-depressant, Endep, at night to help him sleep.
80 When last seen by Dr Tilly, the plaintiff was continuing to receive certificates for total incapacity. Since seeing Dr McCandless, the plaintiff had been certified fit to work two days a week, eight hours a day. He attempted to work with a friend who operated alternative power systems in Braeside. He tried cleaning and doing light assisting work at the factory on those hours. He did the job for about three weeks and he could not do it anymore.[69] This was all the work the plaintiff had done since leaving the employer.[70]
[69]T54
[70]T55
81 As even these limited tasks proved to be far too much for his back, Dr McCandless reassessed the plaintiff’s work capacity and provided him with appropriate certification, having regard to his ongoing symptoms when at work.
82 Outside the work environment, the plaintiff’s ability to sit and stand for extended periods was significantly restricted. The longer he was seated in order to drive, the more severe his back pain. He had to get up and walk around when seated because of pain. The pain was present in spite of Endep and painkillers which he took at night.
83 The plaintiff’s intimate relations with his partner were significantly restricted by his pain, as was his ability to engage in social activities.
84 Pre-incident, the plaintiff played golf virtually every weekend, but had not been able to play since the injury. He also used to be very keen on maintaining his fitness through home gym training, and did so most days of the week. He had that equipment at home, but under Mr Moar’s guidance had been limited to light core exercise for limited periods as his only exercise using that equipment now. He had been a keen boxer and trained regularly, but was not able to engage in that activity, and there had been a very significant disruption in his daily lifestyle activities by reason of his injury.
85 The plaintiff swore a second affidavit on 4 May 2017. Little had changed with respect to his circumstances.
86 The plaintiff then continued to be troubled by constant but variable levels of low back pain. Particularly when he had higher levels of low back pain, he tended to suffer from aching in his left leg, and also had numbness and shooting pains in his right. The degree of symptoms in his lower limbs depended on the strain he put on those parts of his body. Given the time the symptoms had persisted, he believed they were likely to continue on an ongoing basis into the future.
87 Dr McCandless maintained Dr Tilly’s treatment regime. The plaintiff continued to be certified unfit for all forms of work. His payments had been ceased by the insurer, but he was then contesting that decision.
88 The plaintiff then continued to be prescribed Tramadol, 50 milligrams and Targin, 10 to 15 milligrams twice daily. He felt he derived some benefit from those medications, as they took the edge off his symptoms, but they were really a Band-Aid approach and did not lead to any lasting improvement or resolution.
89 The plaintiff was having physiotherapy about weekly in Hastings pursuant to a Medicare-funded plan. He got some benefit from this treatment.
90 The plaintiff believed, because of his persisting severe symptoms of spinal and referred pain, he would have difficulty returning to work in the future, or to remunerative work which would generate 60 per cent or more of previous earnings.
91 Dr McCandless had told the plaintiff he was now detecting some wastage in his leg, and that may have longer term implications for his knees, because the supporting musculature is not there.
92 The plaintiff had a great deal of difficulty and restriction with activities with his two-year-old son. He had him two days one week, and three the next. He found if he lifted or carried his son, he had to be very careful or his pain increased sharply. His ability to play with his son and engage with him had been significantly impaired by spinal pain, and he was concerned that as his son got bigger, the plaintiff’s back strain would become greater in terms of his ability to engage with him fully.
93 The plaintiff continued to be restricted by pain in terms of his ability to sit or stand for extended periods. If driving, the longer he was in the car the more painful his back became. He continued to be restricted in activities of a personal nature, including getting up from the toilet.
94 The plaintiff’s sleep continued to be chronically adversely impaired, and he continued to wake on numerous occasions throughout the night, and to be up and down during the night. This situation left him feeling tired and lethargic.
95 The plaintiff’s intimate relations with his partner had been adversely affected by his pain. His social activities continued to be restricted. His sporting activities continued to be limited. Overall, his lifestyle continued to be very considerably impaired and constrained by reason of his injuries.
96 The long-term effect of the plaintiff’s injuries had worn him down a bit, and there had been some feelings of depression. He had ceased taking anti-depressants on the advice of a psychiatrist whom he had recently seen.
97 The plaintiff swore a third affidavit on 21 May this year. He currently resides in Mornington with his parents, as his relationship failed. He continues to care for his son five days a fortnight.
98 The plaintiff continues to experience significant pain and low back restrictions, significant referred pain and numbness into the right leg, and mild referred pain into the left leg.
99 The plaintiff explained he had been sitting down, standing up, leaning on the front of the witness box, standing at the back of the chair and leaning forward because his right leg was “real” weak. He then relied on his left leg and after a while it gets sore and starts to ache a bit so he has to sit down. Then, “of course,” if he sits down for too long, then he starts to ache as well, so he is “trying to switch between the two”.[71]
[71]T38
100 The plaintiff currently takes 40 milligrams of Tramadol and 10 to 15 milligrams of Targin twice a day. He takes 50 milligrams of Endep daily, constantly experiencing nausea as a result.
101 The plaintiff continues to attend Dr McCandless’s practice, although that doctor has gone back to England.[72]
[72]T4
102 The plaintiff no longer attends physiotherapy because he did not experience any lasting result from that treatment. He is on a public waiting list for pain management. However, he believes there is nothing further that can be done for him, and he will have to live with the pain.
103 When first injured, the plaintiff attempted to self-medicate by using amphetamines and marijuana. He stopped doing so a long time ago when he was prescribed strong medication, and because he was determined to care for his son.
104 The plaintiff has been told his back condition will deteriorate and he may require significant surgery in the future. He constantly worries about the future and how he will tolerate any more pain, and is terrified of even the suggestion of surgery.
105 The plaintiff has been unable to return to any form of work, and now relies on Centrelink. He worries about the future, and is unsure what type of work he will be able to do, having been told he cannot return to any type of physical work.
106 The plaintiff has attempted to complete secondary school twice, without success, and his reading and writing skills are limited. He is a poor speller, and struggles with basic maths. His computer skills are limited to using basic programs on an iPhone, and he has not used a computer in any work sense.
107 When asked whether he was capable of being educated further, having completed Year 10 and 11, the plaintiff explained that “that was before I had an axe put through the back of my head”. He has not been spoken to about further education. There are things he would love to do but he just cannot do. He wanted to be a builder and he would like to study further in the building trade.[73]
[73]T55
108 The plaintiff has seen IPAR twice. He told them that he can use a computer and also that in 2014, he attended Kangan TAFE to attempt a Certificate III in Building and Construction, which he did not complete.[74] He did not finish the course because he was pretty sure it just got too overwhelming and he is not good with study. It was a one-year course and he did a couple of months.[75]
[74]T56
[75]T57
109 The plaintiff’s pain prevents him from being able to concentrate and learn new tasks. He has noticed that it has become increasingly difficult for him to find new places that he has not been to before. He is constantly tired and fatigued because he struggles to sleep. He finds it difficult to sit for long periods and drive for more than 30 minutes. He has had to change the type of his car to a higher 4‑wheel drive because of the pain of getting into his previous car, which was a Mini Cooper.[76]
[76]The car he was driving in the November 2015 video
110 The plaintiff’s inability to work has had a catastrophic impact on his life. Prior to injuring his spine, he had been saving for a house deposit and was in a relationship. The financial pressure contributed to the failure of the relationship with his partner, and he had to move in with his parents. His life has completely stopped, and it is humiliating having to live with his parents at his age.
111 The plaintiff has not been really able to look for work and he has been told that he should not be working by a number of doctors.[77]
[77]T53
112 The plaintiff has never worked predominantly in an office and his history has been as a welder and concreter.
113 The plaintiff was asked about the tasks in the suggested clerk role. He supposed he could do those tasks that were listed.[78] In terms of preparing reports, he said he could barely spell, and explained that adult education is a lot easier than normal schoolwork. It was like Grade 3 work,[79] but that was just an expression. He would not be able to do Year 12.[80]
[78]T57
[79]T58
[80]T59
114 The plaintiff had seen a receptionist sitting at a desk, but had no idea what they did behind the scenes. He could not cope with sitting and occasionally standing and walking around the office because he needed to stand a lot, sit a lot and also lie down a lot.[81]
[81]T60
115 The plaintiff did not know anything about the administration assistant job and would not know how to do it when told of the duties involved.[82] He would have problems with “spelling and stuff like that … [he was] hopeless at”. He is not “academically very smart” and would not know how to do a job like that.[83]
[82]T72
[83]T73
116 In re-examination, the plaintiff explained he could not constantly sit for very long. If he was able to occasionally stand and walk around the office, that would not enable him to otherwise constantly sit. He does not have organisational or recording skills.[84]
[84]T74
117 The plaintiff confirmed his medication makes him very groggy and tired. He does not have the memory to utilise the skills that were required for the suggested jobs. He was very forgetful and he was “off … [his] face half the time”.[85]
[85]T75
118 The plaintiff’s continuing pain in the spine prevents him from being able to sleep. He finds it difficult to fall asleep, and is often woken by the pain, and is tired and irritable the next day, and struggles to concentrate.
119 The plaintiff is unable to complete any type of heavy or repetitive household tasks, and needs help with simple things like hanging out the washing because of his problems with prolonged standing. He now relies on his parents. He feels guilty, especially when his father does the gardening. He should be looking after them, not the other way around. He has pain when going to the toilet due to the twisting motion required to clean himself.
120 The plaintiff’s inability to complete basic household tasks was a significant contributing factor to the recent failure of his relationship, as his partner had to do the majority of the housework, and got sick of taking care of him, and she ended the relationship.
121 The spinal injury prevents the plaintiff from being able to establish a new relationship, as he is no longer interested in intimacy due to pain. He has lost confidence because he cannot work, and is ashamed that he cannot financially contribute to a relationship. This has had a significant impact on his confidence.
122 The plaintiff’s spinal injuries have impacted on his ability to independently care for his son. He tries to care for him as much as possible, as this relationship is extremely important to him, especially as he went to great lengths to negotiate custody arrangements. The plaintiff experiences a significant increase in pain when he lifts his son, and he avoids doing it as much as possible. He has to constantly ask his parents for help, and would not be able to cope without them. It is becoming more difficult for him to keep up with his son, due to the referred pain and his right leg difficulties.
123 The plaintiff has become significantly depressed, with the constant pain having changed his personality. He is preoccupied by his pain, and constantly talks about it. He is at home all day with little to keep him occupied. He has become isolated from his friends, because he has got nothing to talk to them about. He is ashamed he is not working, and now avoids seeing people as much as possible.
124 The plaintiff has experienced suicidal thoughts at times, which have been frightening. He attempted suicide at the end of 2015 because he was unable to cope with the pain, the breakdown of his relationship and financial problems.
125 The plaintiff continues to be unable to keep fit by boxing and working out in a home gym. The pain and restrictions he now experiences prevent him from doing these activities, and his body has changed, having gained weight and lost muscle. This change in his appearance is significantly upsetting, and has reduced his confidence.
126 The plaintiff’s ability to play golf most weekends with his father and best friend has now been lost. This has been a significant loss. The injuries to his spine continue to have a significant impact on his life.
Lay evidence
127 The plaintiff’s mother, Margaret, swore an affidavit on 11 May 2017.
128 Mrs Lavery has continued to have regular contact with the plaintiff, seeing him perhaps twice a week. She has noticed he has difficulty with spinal movements, and it is obvious that he is in pain. He tells her not only his back is painful, but he has referred symptoms in both legs.
129 Mrs Lavery is aware the plaintiff has used a variety of medications and continues to use morphine medications such as Tramadol and Targin. From her observation, there has been no lasting relief from these medications, though they perhaps provide some short-term relief. Similarly, she is aware the plaintiff receives regular physiotherapy, which seems to assist with his spinal mobility but not give any lasting cure.
130 Prior to the plaintiff’s injuries, he was fully active in terms of work, social and recreational activities. He was a strong boy who could participate fully in intensive physical work. From what she had seen, he would not be able to undertake activities of that type now because of pain and his restrictions and inability to lift, bend and twist.
131 Additionally, the plaintiff was a keen boxer but had to give up that activity. He also used to enjoy playing golf regularly, but likewise, had to give that up. He exercised, undertaking gym work for his overall fitness. He continues to do some light gym work to the present, but his activities have been considerably restricted compared to what he could do previously.
132 The plaintiff’s son is now two, and she has noticed that the plaintiff is very hesitant about lifting and carrying him, and also about engaging in boisterous play with him as a father normally would with a young child.
133 Prior to the incident, she did not believe the plaintiff was restricted in any of these activities, and considered the accident-related injury has had a very significant impact on his lifestyle.
134 Courtney Johnson was the plaintiff’s de facto partner as at 4 May 2017 when she swore her affidavit. They had then been living together for the past eighteen months. She then had constant daily contact with the plaintiff. She met him shortly after the incident.
135 During the whole time they had been together, she had known the plaintiff to suffer chronic lower back pain with referred symptoms into both legs. He frequently complained of his pain and its severity. She could see he was in pain.
136 This pain persisted despite the use of narcotic medications, including Tramadol and Targin. From what she had seen, they provided limited assistance in taking the edge off the pain, but the plaintiff was always in pain.
137 The plaintiff’s sleep was interrupted on a nightly basis, and she could hear him getting up and moving around during the night. His disturbed sleep patterns left him somewhat worn out during the day. Their intimate relations had adversely been affected by reason of his pain.
138 She had to undertake most of the housework, despite working full time, and the plaintiff was not working, being certified totally unfit. If he attempted tasks such as cleaning, sweeping, or vacuuming, he seemed to pay for it with increased pain thereafter.
139 The plaintiff’s social life had been significantly restricted by pain. His ability to sit and enjoy a meal socially was adversely affected. His standing capacity was limited. His ability to drive a car any great distance was limited by pain. They did not go out as much as she would like, because of the plaintiff’s pain. He had been unable to pursue a variety of recreational activities which he enjoyed, including boxing and maintaining fitness. He had a home gym and did some light gym work to try and maintain a degree of fitness, but was unable to pursue other activities such as golf, which he also used to enjoy.
140 During the period they had been together, there had been no improvement in the plaintiff’s level of symptoms. She had observed his degree of pain was such that he would struggle to maintain any regular form of work, given his restrictions and his inability to sit, stand, lift, twist, bend, and light movements.
The Plaintiff’s medical evidence – treaters
141 Dr Tilly reported in February 2016. He then noted the plaintiff had been diagnosed with a right-sided far lateral/foraminal intervertebral disc herniation in L5‑S1 with possible L5 nerve root compression.
142 Dr Tilly noted the plaintiff developed low back pain radiating into his legs following the incident. He was able to perform alternative duties until about July 2015, when his symptoms deteriorated. This coincided with his employer not being able to offer previously arranged alternative duties. The plaintiff then had no capacity to perform pre-injury duties, nor the previously mentioned alternative duties.
143 At that stage, the plaintiff was awaiting an epidural injection and continued with physiotherapy. Dr Tilly thought the prognosis was unclear. Recently there had been no further deterioration in the plaintiff’s condition, which was managed by regular analgesia which at times did not provide sufficient relief.
144 Dr Tilly referred the plaintiff to Bryce Hayes, physiotherapist, and also Mr Xenos, neurosurgeon, whom he asked to comment on the MRI of 14 May 2015. He also referred the plaintiff to neurosurgeon, Mr Aliashkevich.
145 Mr Aliashkevich examined the plaintiff on 23 June 2015. He diagnosed the plaintiff’s injury as right-sided far lateral-foraminal intervertebral disc herniation from segment L5‑S1, a history of work-related injury, and bilateral sciatic leg pain. He thought the injury had occurred during the course of the plaintiff’s employment.
146 When seen by Mr Aliashkevich in June 2015, the plaintiff was able to work 38 hours a week on light duties on a restriction of heavy lifting, bending, twisting, pushing and pulling.
147 Mr Aliashkevich thought the plaintiff’s prognosis was guarded. Given he did not achieve any response to injections, he was likely to require further investigations and treatment of his lower back and bilateral leg pain. He noted the plaintiff’s history of smoking and work-related injury with legal litigation, with a negative outcome predicted.
148 Mr Aliashkevich thought the plaintiff’s condition had not yet stabilised, and stabilisation of back injuries could usually be achieved after eighteen to twenty-four months.
149 In Mr Aliashkevich’s view, the plaintiff’s condition may deteriorate in the future, the likelihood thereof depending on several factors, including his physical activities, work, smoking, response to treatment, and other unpredictable factors.
150 Given the plaintiff’s symptoms had gradually improved on conservative management, Mr Aliashkevich suggested he continue with restricted duties, and avoid lifting in excess of 5 kilograms, at least for the next six months, until his complete functional recovery.
151 In case of aggravation of his pain, Mr Aliashkevich referred the plaintiff to Dr Gassin, pain specialist, for possible injection. Mr Aliashkevich thought it was not entirely clear why the plaintiff’s symptoms had been dominant on the left, but it was certainly a substantial injury to his lumbar disc that could cause diffuse back and leg pain.
152 Mr Aliashkevich was advised by Dr Gassin that he had performed the injection on 8 October 2015. This was unhelpful, suggesting the plaintiff’s pain was not arising from irritation from the low lumbar nerve root. Mr Aliashkevich also noted that Dr Gassin had organised a sitting MRI scan to help better elucidate the source of the plaintiff’s ongoing symptoms.
153 Dr Gassin saw the plaintiff on 11 August and 29 October 2015, and gave him a caudal epidural injection on 8 October 2015.
154 On initial examination, the plaintiff reported constant pain across his low back, associated with an aching all the way down the left leg, and pins and needles and numbness down the right. Neurological examination of the lower limbs was normal, and there was some slight wasting of the right calf.
155 Dr Gassin advised the plaintiff it was unlikely he would be able to return to work in his pre-injury duties as a concreter in the foreseeable future, and he would be best served by being retrained for less physically demanding work.
156 On review two weeks after the October injection, the plaintiff reported it had been unhelpful, suggesting that his pain was not arising from irritation of the lumbar nerve roots. Dr Gassin thought the pain pattern was more suggestive of discogenic pain, with the L5‑S1 disc being the most likely cause.
157 Dr Gassin referred the plaintiff to Dr Eaton, occupational physician, and prescribed 100 milligrams of Tramal twice a day. He also referred the plaintiff to Mr Moar, physiotherapist, and suggested he avoid activities likely to aggravate his symptoms, such as those below waist height and those requiring repetitive bending and twisting and lifting over 5 kilograms. He also advised the plaintiff to avoid prolonged static postures. He suggested a review in two months, but noted the plaintiff had failed to arrange an appointment.
158 Dr Gassin concluded the plaintiff initially presented with discogenic low back pain with symptoms down his legs, suggestive of bilateral L5 nerve root irritation. When seen most recently, his symptoms were mostly those of discogenic low back pain, most likely arising from the L5‑S1 disc.
159 Dr Gassin thought the plaintiff’s employment was a significant contributing factor to his injury.
160 Dr Gassin did not believe the plaintiff had the capacity to return to his former work; however, he had referred him to Dr Eaton, occupational physician, for an opinion regarding his medium to long-term work capacity. He thought the plaintiff’s pain had stabilised, and he expected him to suffer ongoing low back pain and intermittent bilateral leg pain of moderate severity for the foreseeable future.
161 Dr Gassin explained once the disc is injured, the radiological signs of disc degeneration are likely to keep worsening. However, this is not always related to ongoing deterioration and pain and disability.
162 Dr Eaton saw the plaintiff on 7 January 2016.
163 On examination, Dr Eaton found the plaintiff’s back movements were moderately reduced, and flexion in particular was painful. Lower limb neurology was normal except for some sensory loss over the anterolateral side of the right thigh, and there were no signs of nerve root impingement or radiculopathy.
164 Dr Eaton noted the results of the 2015 lumbar MRI scan.
165 Dr Eaton considered the plaintiff’s employment, despite the short duration, was a significant contributing factor towards the development of an L5‑S1 disc prolapse.
166 The plaintiff then complained of constant and severe lower back pain and intermittent pain in his right leg. He described a walking tolerance to 60 minutes, sitting of 10 minutes, alternating standing and sitting and walking up to four hours before needing to lie down, bending below waist height, lifting and carrying with arms extended or below waist up to 3 kilograms, and driving up to 30 minutes.
167 Dr Eaton considered the plaintiff’s reported symptoms and functions consistent with the diagnosis. He thought the plaintiff could not presently perform even light work on a part-time basis but this may change, after he did a pain-management and functional restoration program of the type Dr Gassin had proposed.
168 Irrespective of any improvement in his symptoms and functions, Dr Eaton thought the plaintiff should not return to work that involved heavy and awkward manual handling or sustained bending, because the significant likelihood was that those activities would aggravate his lower back.
169 Dr Eaton thought the plaintiff should permanently avoid significant bending, lifting more than 5 kilograms with the load more than 30 centimetres from the torso, lifting more than 10 kilograms with the load close to the torso, pushing or pulling for example a trolley up to 10 kilograms’ force, driving up to 60 minutes per session or up to three hours a day, and permanently avoid significant whole body vibration.
170 Dr Eaton noted the plaintiff had completed a Certificate in Civil Construction and Certificate III in Concreting. He thought the plaintiff had sound English-language spoken and written skills, sound numeric skills, and basic computer skills, self-taught, noting his work experience was as a welder and concrete pump operator.
171 The plaintiff told Dr Eaton he was interested in working full time in the construction industry, possibly as a site surveyor. Whilst that was a viable employment option, it could not be determined at present because the outcome of the rehabilitation treatment could not be predicted. Dr Eaton thought the plaintiff would certainly need to make some significant gains in his ability to tolerate sitting, standing, walking and driving, before he could perform any of that type work, or similar work.
172 In Dr Eaton’s view, the plaintiff’s medical condition had not yet stabilised, and it was possible the proposed rehabilitation treatment could significantly improve his function. He thought the plaintiff should get the benefit of functional restoration and pain management after three to six months, and, provided no other active medical treatment had been identified for him at that stage, his condition would have stabilised.
173 Dr Eaton arranged to see the plaintiff again in about three months after he had completed the rehabilitation program, and intended to make recommendations then about his long-term suitable employment options.
174 Justin Moar, physiotherapist, wrote to Dr Gassin in April 2016.
175 The plaintiff advised at that stage, he had constant but variable pain in his lower back, and intermittent pain in his posterior thigh.
176 On examination, the plaintiff now had signs of right L5 radiculopathy, including diminished knee jerk reflex and sensory loss.
177 Mr Moar diagnosed discogenic low back pain, most likely to be arising from the L4‑5 level. That condition was consistent with the incident injury and subsequent aggravation through a return to heavy physical work.
178 When he last saw the plaintiff on 8 March 2016, Mr Moar thought he was unfit for his pre-injury duties. He regarded the plaintiff as having negligible capacity for alternative duties, as his symptoms remained highly irritable, resulting in a pattern of activity flare-ups and pain lasting a few days to a week or more, which would make him unfit for seeking employment on the open market.
179 Mr Moar thought the plaintiff’s prognosis was then guarded. He presented with an irritable discogenic low back complaint, which at best was likely to have a partial yet very slow recovery. Mr Moar thought it difficult to foresee the plaintiff returning to his pre-injury duties as a concreter. In addition, the plaintiff had a number of psychosocial flags which increased his likelihood of a poor prognosis, that being limited recovery and long-term disability with reliance on strong medication. In that setting, he would recommend the plaintiff remain actively engaged in a multidiscipline model of rehabilitation.
180 Based on the plaintiff’s psychosocial profile, Mr Moar thought he had a moderate to high risk of deterioration in his pain levels, mood, sleep quality, medication reliance and level of disability.
181 The plaintiff’s general practitioner, Dr McCandless, last reported in December 2017.
182 Dr McCandless thought the plaintiff suffered from chronic lumbar back pain with radicular sciatica-like pain down his right leg. In his view, this injury could be directly correlated to his work duties.
183 Dr McCandless considered the plaintiff has no capacity for current employment. He thought if the plaintiff’s condition had been treated earlier through surgery, his outcome would have been greatly improved, and he felt the plaintiff had been let down by the system.
184 Dr McCandless would hope that eventually the plaintiff would recover to pre-injury levels of mobility and pain. However, it was possible he would not recover to this degree. He could confidently state the plaintiff should never work with any heavy machinery or in any occupation with heavy lifting or labouring.
185 Dr McCandless did not believe the plaintiff’s condition had been stabilised and he was awaiting an appointment with a pain clinic. He confirmed the plaintiff was on Targin, 30/15 milligrams, for his chronic pain, and he had been advised to restart Amitriptyline.
186 The plaintiff attended Emergency at Monash Health on 22 June 2017 with a presenting problem of back pain. He then described ongoing symptoms of weakness in his right leg. It was noted the precipitating factor for the admission seemed to be two to three months of increasing back pain and associated urinary symptoms. He was referred to Emergency for assessment, where a diagnosis of sciatica was made. He was given some oral pain relief and referred to the Neurology Department.
187 The plaintiff was referred to orthopaedic surgeon, Mr Edis, by his general practitioner in December 2017.
188 At that time, the plaintiff rated his back pain at 7 out of 10, and leg pain at 5 out of 10.
189 On examination, the plaintiff was standing with a slight list in the lumbar spine. There was no muscle wasting evident.
190 Mr Edis compared the 2015 MRI with that from 2017. The most significant changes were at L5‑S1, where the plaintiff had a right posterolateral disc protrusion into the foraminal zone. There had been no progression of the L4‑5 changes.
191 Mr Edis thought the plaintiff was a very genuine and honest historian. He suspected the initial injury was in fact a foraminal disc protrusion at L5‑S1, albeit this was based on an MRI scan performed about five months later. That had been a consistent finding in the two MRI scans. He thought the right-sided foraminal narrowing at L5‑S1 accounted for the radicular symptoms with a typical S1 distribution. He thought the plaintiff should have had a nerve-root sheath injection early on in his treatment to test this was the pain generator. Unfortunately, once neuropathic pain symptoms had been allowed to persist for beyond three months, central changes take place in the nervous system, and sensitisation can occur in the central pathways to pain, and can persist even after resolution of the primary inciting incident.
192 Mr Edis was not sure that the primary pathology had resolved, as there was persistent stenosis on the MRI scan. Therefore, it may still be worthwhile giving the plaintiff a trial of a nerve-root injection at L5‑S1.
193 In terms of ongoing treatment, Mr Edis thought the plaintiff had deteriorated significantly physically, and that there were depressive symptoms that had resurfaced which could be treated through cognitive behaviour therapy.
194 Mr Edis considered the plaintiff should be given every encouragement to return to the workplace where possible, although he expected that returning to a physical role would not be expected with his symptoms at the current level.
195 Mr Edis thought a low dose of Endep was a good starting point for the plaintiff’s neuropathic symptoms, and he may still benefit from an injection.
196 In Mr Edis’ view, it was a little difficult to predict how that may work this far down the track, but it would still be worth trying. Although he was not ruling out surgery in the long run, Mr Edis thought, in the present situation, it is not recommended due to the plaintiff’s significant cognitive issues, ongoing psychosocial stressors, and the long history of pain.
197 Mr Edis encouraged the plaintiff to seek settlement through WorkCover, as it appeared the insurer was also looking towards that end. Once the stress of third-party involvement was settled, Mr Edis thought patients could get on with their lives under their own steam.
198 In a subsequent report dated 2 March 2018, Mr Edis noted, unfortunately, the plaintiff had developed a depressive illness related to his ongoing symptoms and the resultant psychosocial upheaval. He thought there were some psychiatric health issues that needed to be addressed before a return to work would be considered. From a physical point of view, the plaintiff had deconditioned physically, as there had been a year since his previous physiotherapy, and payments had been ceased.
199 Mr Edis thought the plaintiff was in no way fit to return to his previous manual labouring position. He considered that, in the plaintiff’s current state, his prognosis is poor, now that he had developed a chronic pain condition.
Investigations
200 There was an MRI scan of the lumbar spine organised by Dr Tilly in May 2015. It was reported there was mild L4-5 and mild L5-S1 intervertebral degenerative changes, with possible compression of the left L5 nerve root in the subarticular recess at L4-5 and the right L5 nerve root in the L5-S1 neural foramen.
201 A CT scan of the plaintiff’s lumbar spine was carried out in November 2016 when he attended Monash Emergency. It was concluded there was L5‑S1 paracentral disc bulge with likely impingement of the right L5 nerve root.
202 Following an MRI scan of the lumbar spine in July 2017, it was reported there were lower lumbar degenerative changes, with no significant spinal canal stenosis and no cauda equina compression. There was a likely partial impingement of the right exiting L5 nerve root at the L5‑S1 neural exit foramen.
The Plaintiff’s medico-legal evidence
203 Dr Gorai, consultant neurologist, examined the plaintiff in September 2016.
204 Dr Gorai thought it appeared the plaintiff had symptoms suggestive of lumbosacral radiculopathy secondary to the incident. She noted neurological examination did reveal the possibility of L5‑S1 nerve root dysfunction.
205 Dr Gorai diagnosed a work-related back injury with right-sided intervertebral disc herniation at the L5‑S1 segment, and also pain in the left lower limb of a radicular pattern.
206 Dr Gorai thought the plaintiff was moderately to severely restricted in his day-to-day household and work activities, and was restricted with his hobbies that he was ardently following.
207 As a result of the injury and his lumbosacral radiculopathy symptoms and pain, Dr Gorai thought the plaintiff was unable to work, as any form of bending and random movement stirs up the pain. Dr Gorai considered the plaintiff now does not have the capacity for employment in his usual job as a concreter.
208 There was a possibility the degenerative disc which was causing compression at the L5‑S1 nerve root was likely to degenerate and progress into the future.
209 Dr Gorai thought, depending on the plaintiff’s symptoms and disability, he would be prevented from engaging in his current employment, as it is now more than a year and a half, and he has not gone back to work at all because of the pain. Dr Gorai imagined if the pain management and adequate treatment was not available to the plaintiff, it would be difficult for him to engage and get back into the workforce.
210 Dr Middleton, occupational physician, examined the plaintiff in July 2017.
211 The plaintiff then said his main pain was in his lower back across the lumbosacral region, extending into the right buttock and down the right thigh and back of the calf to the lateral aspect of the right foot and toes, in accordance with a right S1 dermatome.
212 The plaintiff attended using a single-point walking stick in the right hand, causing a significant limp and antalgic gait. Dr Middleton found the plaintiff a vague and poor historian who had clearly little or no understanding as to the nature of his condition.
213 On examination, there was a mild to moderate restricted movement in the lumbar spine.
214 Dr Middleton thought, as a result of forceful pulling and rotating from a stooped position, the plaintiff had suffered an acute injury to his lumbar spine, resulting in the derangement of L4‑5 and L5‑S1 intervertebral discs, resulting in the onset of right L5 and subsequently, bilateral L5 nerve-root irritation, in the presence of minimal age-related degenerative lumbar spine disease.
215 Dr Middleton thought the plaintiff no longer had a safe or reliable physical capacity to perform his pre-injury duties, or any work that he had performed in the past, all reliant upon an excellent and reliable physical capacity which he no longer had. He considered the plaintiff is now restricted to sedentary non‑manual duties such as duties to be performed in a self-paced manner, with provision of work breaks and changes in posture as required.
216 Dr Middleton concluded the plaintiff was permanently incapacitated for any type of employment which had a significant physical manual component. Activities involving his lower back and lower limbs needed to avoid repetitive, prolonged, or forceful activities, in particular bending and twisting.
217 A maximum effective weight or force to be applied needed to be restricted to 5 kilograms of force on an occasional basis, 3 kilograms of force on an intermittent basis, avoiding any repetitive, prolonged or forceful activities. Noting the plaintiff has significantly restricted physical endurances, after which he needs to rest and lie down, Dr Middleton thought that he was limited to, at best, part-time work.
218 Further, with the strong medication the plaintiff was presently taking, Dr Middleton thought he should avoid operating machinery or work at any significant height above floor level.
219 Having been out of the workforce for some two years, any consideration for the plaintiff to return to work would need the provision of a graduated return to work plan, commencing two or three hours in any one day, two or three non-consecutive days in any one week.
220 In theory, Dr Middleton thought the plaintiff has the capacity to perform sedentary work. However, this capacity to procure and maintain such employment is purely theoretical, taking into account the plaintiff’s incapacity, age, education, place of residence, skills and work experience, and lack of occupational rehabilitation services. As such, Dr Middleton concluded the plaintiff has no current work capacity as defined under the Act.
221 Dr Weissman, psychiatrist, examined the plaintiff in August 2017.
222 Dr Weissman diagnosed a mild to moderate Chronic Adjustment Disorder with Depressed and Anxious Mood. On purely psychiatric grounds alone, despite the plaintiff suffering from a mild to moderate mixed work-related depressive and anxiety syndrome, Dr Weissman thought there is no actual psychiatric incapacity for work.
223 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff initially in August 2017, and more recently in January 2018.
224 On re‑examination, Mr Miller noted the plaintiff was cooperative, and a straightforward and clear historian. He walked with an obvious limp of the right leg. There was diffuse tenderness of the lumbar spine, and neurological examination revealed slightly diminished sensation on the lateral aspect of the right leg and dorsum of the foot.
225 Mr Miller thought the plaintiff suffered a musculoligamentous strain to the lumbar spine and aggravation of degenerative disease in the lumbar spine, and probable disc injury at the L5‑S1 level. There was radiation into the right upper extremity. The plaintiff had some mild sensory loss, but no other neurological deficit. Mr Miller remained of the view that the prognosis for the plaintiff’s lumbar spine was only poor.
226 Mr Miller noted the plaintiff had also suffered an adverse mental reaction, with problems with anxiety and depression, and probable development of a Chronic Pain Syndrome. He considered it likely that this influenced the plaintiff’s current clinical presentation in terms of his lumbar spine problem, and that required additional assessment by a psychiatrist.
227 In relation to the lumbar spine, Mr Miller thought the plaintiff’s work restrictions would include no repetitive bending or repetitive lifting or lifting of weights of more than 5 kilograms, and he will have a requirement to shift his posture on a regular basis.
228 Mr Miller considered it likely that the plaintiff’s development of a Chronic Pain Syndrome will further impact on his capacity to return to work. Therefore, he regarded the plaintiff as being permanently unsuitable to return to pre-injury duties on any significant full or part-time basis.
229 Dr Slesenger, occupational physician, examined the plaintiff in March 2018.
230 The plaintiff then advised of ongoing severe pain in the lower back, 7 to 10 out of 10, radiating into the right leg. The pain was dull, as well as sharp in character, and he advised his symptoms could deteriorate spontaneously.
231 The plaintiff told Dr Slesenger he was able to return to work about three months after the incident, and remained in work performing light duties on a graduated return to work plan. He ceased work three weeks after commencing that plan, and had not returned to work since.
232 Dr Slesenger noted the plaintiff was awaiting further intervention, in particular a rehabilitation pain-management program.
233 Dr Slesenger diagnosed a soft tissue injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine, chronic lower back pain with radiating features but no evidence of radiculopathy. The plaintiff also had psychological impairment which was outside his area of expertise.
234 Dr Slesenger recommended the following restrictions: avoid push, pull, carry, or lift over 5 kilograms, avoid exposure to whole body vibration, avoid repetitive bending or twisting, and avoid prolonged static postures.
235 Dr Slesenger thought the plaintiff could not return to previous occupational duties. With regard to alternative duties, he retained capacity for work with restrictions. However, when taking into consideration the plaintiff’s past employment history, qualifications, computer skills, and variable and at times unpredictable symptoms, Dr Slesenger thought at this stage, he is unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.
236 Dr Slesenger considered the plaintiff’s prognosis must be guarded, given the length of his impairment and disability. However, he also noted limited treatment to date, and considered the plaintiff would benefit from a pain-management program, as detailed in his treating clinicians’ reports
237 With that treatment in place, Dr Slesenger anticipated there was an opportunity for improvement in the plaintiff’s pain control, and he was likely to see some improvement in his functional capacity. Nevertheless, Dr Slesenger remained cautious as to the plaintiff’s capacity to return to work, given the limits of his past occupational experience in manual handling, and postural demands associated with this role.
238 Dr Slesenger did not anticipate a significant deterioration in the foreseeable future.
Medical Panel
239 On 21 May 2016, the Medical Panel found the plaintiff had a zero per cent whole person impairment resulting from the accepted back injury.
240 On examination on 18 May 2016, the plaintiff told the Panel he considered his low back symptoms with referred pain to both legs had stabilised over the last several months, and he had good and bad days. He described constant pain across the lower back with radiation into both buttocks, more on the right.
241 On physical examination, the Panel noted the plaintiff walked with a stooped back and a variable limp. There was no obvious muscle bulk asymmetry of the lower limb and no paraspinal muscle spasm. There was a good symmetrical range of lateral flexion and rotation.
242 On sensory examination of the lower limbs, the plaintiff described a variable and patchy alteration in sensitivity to pinprick involving the right leg, which was not consistent with a dermatomal pattern.
243 The Panel viewed the November 2015 surveillance video.
244 Notwithstanding the plaintiff’s description of intermittent low back symptoms, the Panel concluded that there was no longer any evidence of spinal muscle spasm or dysmetric movement of his spine. It concluded the plaintiff was suffering from persistent symptoms of low back relevant to the accepted physical injury.
245 Following a referral from Magistrate Wright, on 28 May 2017, the Panel concluded the plaintiff was suffering from persisting symptoms of the lower back following a soft tissue injury which had substantially but not completely recovered.
246 In the Panel’s opinion, the plaintiff was not fit for his pre-injury work as a concrete labourer. Further, the provision of general practitioner attendances was appropriate for his persisting symptoms of lower back, but the Panel did not consider physiotherapy, radiological investigation, or a weight-bearing MRI scan or treatment by a pain specialist to be appropriate.
247 The plaintiff told the Panel on 2 May 2017 that he experienced constant dull and burning pain across the lower back, worse on the right. It varied on the day from being manageable to being agony.
248 On examination, the plaintiff’s gait was normal, and he was able to stand on his heels and toes. There was no muscle spasm. There was a collapsing weakness on testing the power of most muscle groups of the lower limb.
249 The Panel again viewed the November 2015 surveillance.
250 The Panel considered the plaintiff’s current conditions to be mild in severity, and that his reported current functional limitations were not a true and accurate representation of his actual functional status, but it did think returning to concreting work was a significant risk of exacerbation of the plaintiff’s persisting symptoms of low back and exacerbation of the soft tissue injury of the lower back.
Vocational evidence
251 Flexi Personnel provided a report which set out the ANZSCO classifications of general clerk and information officer, which, it was submitted, properly detailed duties involved in these roles, rather than those detailed in the report relied on by the defendant.[86]
[86]T80
The Defendant’s medico-legal evidence
252 Dr Louise Barberis, occupational physician, assessed the plaintiff in April 2015.
253 Dr Barberis then thought the plaintiff had mechanical lower back pain with some suggestion of radicular involvement. She suggested further investigations, as the plaintiff’s symptoms were only mildly improved and that he required a graduated return to alternative duties. In her view, the duties in the plan of 7 April 2015 were appropriate, namely, light sweeping in the warehouse, washing and detailing trucks with restriction, sorting light accessories, sorting polystyrene waffle pods, greasing and surfacing equipment and travelling in a recycling truck for less than twenty minutes.
254 Dr Barberis noted the plaintiff had progressed to six hours a day and in the next month he could probably progress to full hours. She thought he did not have the capacity for modified pre-injury duties as he must continue to avoid squatting, kneeling, repetitive bending and lifting greater than 5 kilograms, until his symptoms settle. A worksite assessment was undertaken at the premises.
255 Dr Poppenbeek, occupational physician, examined the plaintiff in September 2015.
256 In terms of his return to work, Dr Poppenbeek noted the plaintiff resumed restricted duties after about three weeks, but by February 2015, he had gone on to doing some concreting and his back pain returned quite severely. He had a further two weeks off work, but his pain returned again. By mid-March 2015, he returned to alternate duties in a graduated fashion, doing cleaning and light sweeping, but still continued to have back and leg pain.
257 The plaintiff was able to continue at work and progressively increase activities to the point where he resumed fairly heavy work by about June 2015. This was concreting, using a trowel, shovelling, and all his usual things. About a week after he started this however, he again developed severe lower back pain radiating into his legs, which was as severe as the initial problem.
258 On examination, the plaintiff described constant lower back pain aggravated by sitting or extended postures. He had pain into the back of both legs, the left more than the right.
259 Dr Poppenbeek concluded the plaintiff presented with a history of recurring acute lumbar spine strains, each of which had produced bilateral sciatic pain. That was broadly consistent with the MRI findings and epidural that was planned. Examination at that stage however, revealed quite a well-functioning lumbar spine and no neurological deficit. Dr Poppenbeek was, therefore, concerned that the plaintiff had not resumed work, presumably because of the requirement not to do so until he was fit for full duties.
260 Dr Poppenbeek thought the diagnosis was multilevel disc degeneration with minor disc protrusion to both the left and right sides, which would explain the lower back and alternating leg pain. He tended to favour the concept of aggravation of a pre-existing degenerative condition.
261 However, in Dr Poppenbeek’s view, this is not a temporary aggravation, as he thought the aggravation had resulted in structural change in the lumbar spine, the effects of which had not ceased. He considered the plaintiff’s current capacities were materially contributed to by the claimed injury.
262 Dr Poppenbeek then thought the major issue with regards to a return to work was the lack of provision of suitable restricted duties. If they were available, the plaintiff would be able to resume work now.
263 Dr Poppenbeek thought the plaintiff had quite advanced changes at the lower two levels of his lumbar spine, and tended to agree with Dr Gassin that return to heavy work in the future was likely to result in relapses of the same symptoms the plaintiff had already experienced. He, therefore, preferred the plaintiff not to return to heavy manual work, but he could certainly achieve a full return to pre-injury duties.
264 These duties should involve alternating between sitting and standing as much as practical and avoiding long periods of either of those postures. Unsupported repetitive or prolonged forward bending should be avoided. Lifting, initially, should be limited to 5 kilograms, but that could rise as the plaintiff continued to work. Pushing and pulling anything heavy with significant resistance should be avoided. Pushing non-resistant items is satisfactory. Dr Poppenbeek thought that the major issue was that the plaintiff should vary his work posture.
265 Dr Poppenbeek considered referral to the New Employer’s Program and vocational rehabilitation would be wise, and suggested the plaintiff’s work capacity be reviewed after the epidural injection.
[124]T123
333 Funding for medical treatment has been in issue until the Medical Panel in 2017 refused to allow treatment other than from a general practitioner, an opinion with which Dr Wilkins disagreed.[125]
[125]T123
334 When asked to give an explanation for the plaintiff’s altered gait and presentation in early 2016, counsel for the plaintiff submitted a lack of treatment “would go a long way”. It was submitted it was actually a gradual change, explained to some degree by Mr Edis, who thought there can be permanent nerve damage – neuropathic pain – if the condition is not dealt with at an early stage.[126] Further, some practitioners considered the plaintiff had become deconditioned.[127]
[126]T126
[127]T128
335 Taking into account all the evidence, whilst there may be some psychological features, I am satisfied the plaintiff’s present lumbar condition has a substantial organic basis.
336 As counsel for the defendant conceded, there is radiological evidence supporting the plaintiff’s complaints. Dr Poppenbeek, in 2015, thought the work injury had resulted in a structural change in the plaintiff’s spine. Dr Wilkins thought the MRI scan appearances in 2015 and 2017 might give rise to lower back pain and radicular symptoms in the plaintiff’s right leg, and that it was possible the plaintiff’s pain resulted from a physical abnormality in the plaintiff’s spine. Mr Aliashkevich thought there was certainly a substantial injury to the lumbar disc.
Credit
337 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[128]
“… 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.”
[128](2010) 31 VR 1 at paragraph [12]
338 Counsel for the defendant submitted the plaintiff’s presentation in the witness box was a fairly theatrical display for the Court’s benefit and did not seem to have been reproduced later in the hearing. I did point out however that the plaintiff appeared to be in some discomfort standing behind the defendant’s counsel after he left the witness box.[129]
[129]T95
339 It was submitted the plaintiff was an entirely unimpressive witness who had selective memory and a great deal of disingenuity in terms of his evidence.[130]
[130]T96
340 Further, it was suggested there was an evasiveness about the plaintiff in his evidence and he was too often prepared to resort to memory difficulties when it suited him. There was an unwholesome prevarication in his evidence that was suggested would cause the Court some concern, married up with the surveillance film, and his evidence of a progressive deterioration over twelve months.[131]
[131]T108
341 Counsel for the defendant submitted the Medical Panel’s comments as to the plaintiff’s presentation cannot be read as anything other than a criticism of his credit.[132]
[132]T95
342 In response, counsel for the plaintiff submitted the plaintiff was never challenged directly that he was not a witness of credit, although it was conceded there was a strong hint in cross-examination that the plaintiff is deliberately feigning. It was submitted the plaintiff has an absolutely genuine problem. He was a witness doing his best under skilful cross-examination and he had somehow been forced by counsel for the defendant into accepting a general situation of worsening pain in 2015.[133]
[133]T122
343 Counsel for the plaintiff submitted the plaintiff cannot be criticised for not remembering specific examination findings or conversations on examination.[134]
[134]T122
344 It was submitted there was a lot more film that had not been shown and that the Court should find the plaintiff is a genuine witness who gave every appearance of being in genuine pain. Further, there was no particular inconsistency in terms of what the plaintiff could remember and what was noted by doctors.[135]
[135]T129
345 In response, counsel for the defendant advised the film was available to the plaintiff and could have been shown.[136]
[136]T146
346 In my view, the plaintiff was an unsophisticated witness who tried to give a good account of his situation. His evidence of variable pain and flare ups may explain his freedom of movement on the video which showed him for a brief period normally carrying out daily activities which were not particularly strenuous.
347 The plaintiff did attempt to continue at work after the initial injury until he suffered a significant exacerbation in mid-2015, confirmed by his treaters and medico-legal examiners, whilst doing heavier work under the instruction of the “big boss”.
348 Whilst the plaintiff was cross-examined as to his work capacity, there was no real attack on his other evidence as to the restrictions and difficulties he experiences in his social, recreational and personal activities.
349 Although there are some issues as to the plaintiff’s credit, the case must be decided on the whole of the evidence, involving the objective evidence of diagnostic tests which are unaffected by his credit.[137]
[137]Cakir v Arnott's Biscuits Pty Ltd [2007] VSCA 104; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167
Pain and suffering
350 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[138]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”[139]
[138]Supra
[139]at paragraph [11]
351 There was no challenge at all to any of the plaintiff’s affidavit evidence of pain and suffering consequences which it was submitted clearly met the test. His former partner and his mother who corroborated his evidence were not cross-examined.[140]
[140]T135
352 Counsel for the defendant conceded the plaintiff should not be going back to concreting work with the presence of radiological changes in his spine[141] and that he would have difficulty with very heavy physical work. However, it was submitted a necessary aspect of a pain and suffering certificate in these circumstances was the presence of an enjoyment or passion for the work – not the situation in this case where there were intermittent periods of work and significant periods of unemployment.[142]
[141]A view shared by the Medical Panel
[142]T105
353 Given the plaintiff’s ongoing pain and physical restrictions, resulting in an incapacity for heavy work – the only type of work the plaintiff had done – and significantly interfering with a range of sporting activities he previously enjoyed, I am satisfied his lumbar impairment is serious.
354 The plaintiff is now only twenty-nine, having suffered injury when he was twenty-six.
355 In Stijepic v One Force Group Aust Pty Ltd,[143] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[143][2009] VSCA 181 at paragraph [43]
356 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
357 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).
358 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.
359 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
360 “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.
361 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.
362 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. See Barwon Spinners Pty Ltd & Ors v Podolak.[144]
[144](Supra) at paragraph [70]
363 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
364 Counsel for the defendant submitted the figure was no more than $16,920,[145] being the highest figure the plaintiff had earned pre incident, with his average earnings in the preceding six years only $12,000.[146]
[145]2014 taxation return
[146]T100
365 Counsel for the defendant submitted it is a question of determining what the plaintiff’s exercise of capacity would have yielded, not just taking the highest figure.[147] There is a great deal of insecurity in the concreting industry because operators are closing down all the time, as the plaintiff confirmed.[148] $16,920, as evidenced in the 2014 taxation return, most fairly reflects the plaintiff’s ‘but for’ injury earnings.[149]
[147]T100; The Herald & Weekly Times & Anor v Jessop [2014] VSCA 292; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [77]
[148]T100
[149]T101
366 In those circumstances, for the plaintiff to succeed in this application, he would have to establish that he has no earning capacity whatsoever, as sixty per cent of that figure is about $10,000.[150]
[150]T101
367 Counsel for the plaintiff submitted the starting point was $1,100 a week, the plaintiff’s weekly wage with the employer, and that the test in s134AB(38) (f) is plainly a test of capacity. The plaintiff did try and improve himself by doing Year 10 and Year 11.[151] It was submitted the fact he did not go ahead and do Year 12 was a pretty clear sign that he probably could not progress further.[152]
[151]T135
[152]T136
368 In my view, the appropriate figure is not simply $1,100 per week, the amount the plaintiff was earning with employer. On the plaintiff’s evidence, he was in this role for only eight weeks prior to the incident. Although denied by the plaintiff, the somewhat precarious future of that job was deposed to by the employer’s manager, whose evidence was not challenged.
369 In the years leading up to the incident, the most the plaintiff earned was nearly $17,000 in 2014.
370 In those circumstances, an appropriate figure that most fairly reflect the plaintiff’s “without injury” earnings, in my view, would be in the range of about $30,000 per annum.
371 I accept that for the plaintiff to establish the requisite loss he must satisfy the Court he effectively does not have any capacity for suitable employment – the position taken by his counsel.
Evidence as to capacity
372 Counsel for the plaintiff submitted the plaintiff has no capacity for suitable employment when one considered the relevant factors such as his education, skills and work experience and the nature of his pre-injury employment.[153]
[153]Richter v Driscoll [2016] VSCA 142
373 It was submitted Dr Middleton and Dr Slesenger certainly provided a prima facie case in these terms. Once that was established, it was submitted the onus was on the defendant to show a job the plaintiff could do.[154]
[154]T 138; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at paragraph [115]
374 It was submitted one would think if the defendant hired a firm such as IPAR to assess the plaintiff and find the most suitable jobs for him and it is accepted the jobs identified are in fact unsuitable, the plaintiff then establishes he has no capacity for suitable employment.[155]
[155]T140
375 Counsel for the plaintiff was also critical of the two clerical roles jobs suggested by IPAR. It was submitted there were no such jobs in the concrete and building industry in existence, as the ANZSCO definition provided by Flexi Personnel confirmed.[156]
[156]T140
376 It was submitted the suggested jobs were really those of a general clerk and an enquiry clerk and that these were not suitable employment for the plaintiff under the Act. He has no experience in office work, only basic literacy and computer skills, and is unable, due to his lumbar condition, to sit at a work station and carry out the duties required. [157]
[157]T141
377 Counsel for the defendant however criticised the views of both Dr Middleton and Dr Slesenger.
378 It was submitted Dr Middleton did a wholly unsatisfactory analysis of the various relevant propositions involved in suitable employment, without any process of reasoning being exhibited, and then simply drew a conclusion the plaintiff only had theoretical capacity.[158]
[158]T103
379 Counsel for the defendant pointed out the plaintiff is twenty-nine, with education almost to the end of secondary level, with some vocational training. He lives in Hastings and has worked in the labour force in physical labour for ten years. It was submitted that is “a broad sort of fair picture of where he sits”. Counsel posed the question, “How could it be said that he could not do any work on the basis of Dr Middleton’s opinion?”[159]
[159]T104
380 It was conceded that in old parlance, the plaintiff has a light work back. Further, it was submitted Dr Middleton’s analysis was even more parlous because he seemed to rely upon stated incapacities which cannot be said to stem from a physical cause.[160]
[160]T104
381 Based on an inaccurate history, it was submitted Dr Slesenger’s report was simplistic and does not support the bald statement of his conclusion. At its highest, it was read as being a statement of the current position without any consideration of retraining. Further, it was submitted Dr Slesenger had not found a sufficient degree of permanence to satisfy the Court.[161]
[161]T107
382 It was submitted the plaintiff was doing a real job on his return to work and he did have transferable skills. He did, at various times, report improvement in his pain to Dr Tilly.[162]
[162]T109
383 The plaintiff had clearly demonstrated the capacity to engage in suitable employment until an incident in the middle of 2015. His work history “then goes silent,” there is nothing other than the very short-lived attempt to return to work. There has been no consideration by the plaintiff of vocational training or what he intends to do in the future.
384 It was submitted Dr Wilkins’ views as to the plaintiff’s suitability for the sales role should be accepted because he was prepared to say the other suggested roles were not realistic.[163]
[163]T112
385 As I indicated during the hearing, I thought the plaintiff would struggle significantly with office work as he was not an intellectual man by any means.[164]
[164]T97
386 Counsel for the defendant responded that there were fairly rudimentary tasks involved in the suggested administrative jobs, although it was conceded that criticism could certainly squarely be applied to some of the other roles suggested in the vocational report.[165]
[165]T98
387 Counsel for the defendant submitted office work was not the “glittering prize everyone would aspire to if they could” and the plaintiff would, at $1,000 or $1,200 a week, be earning less than he could have in a trade.[166]
[166]T99
388 The plaintiff is twenty nine, with a degree of education and reasonable computer skills and a condition which simply limits him from the heaviest form of manual labouring. In those circumstances, it was submitted it is impossible to say he would suffer the requisite 40 per cent loss on a permanent basis.[167]
[167]T120
389 Whilst there is certainly evidence that the Court could adopt, in making a finding, there is some organic pathology in the spine which causes some limitation and he cannot go back to heavy work, counsel for the defendant submitted it did not render the plaintiff unemployable. There was still a wide range of employment that was suitable employment under the Act.[168]
[168]T120
390 Counsel for the defendant submitted that Giankos vSPC Ardmona Operations Limited (No 2)[169] had a particular and unusual aspect to it because the plaintiff did a particular type of work which, in the area in which he lived, was really only available with one employer. That employer had retired the plaintiff out of the job so that employment was no longer available to him. In those circumstances, that employer had to identify another job for the plaintiff, which it was submitted was not the case here.[170]
[169][2009] VCC 1461
[170]T142
391 Secondly, the onus is always on the plaintiff to establish he is not capable of engaging in suitable employment, having regard to all the factors, including retaining and rehabilitation – a somewhat stringent test.[171]
[171]T143
392 Counsel for the defendant also submitted if the Court accepted the plaintiff’s current lumbar presentation had a substantial organic basis, it cannot take into account every part of the plaintiff’s presentation – such as collapsing weakness in his legs – when considering his capacity for employment.[172]
[172]T144
393 I accept that the two jobs suggested for the plaintiff are totally unsuitable for him for the reasons advanced by his counsel. The plaintiff continues to experience variable and, at times, unpredictable symptoms and in those circumstances, would not be a reliable employee. He has difficulty with prolonged postures. Further, he continues to require significant painkilling medication which affects his concentration, as does his lack of sleep due to ongoing back pain.
394 There has been no job suggested in which the plaintiff would have the capacity to earn about $500 per week. He does not have the skills, experience or physical capacity to engage in sedentary non-manual work.
395 If IPAR cannot suggest suitable employment for the plaintiff, it is hard to see how the plaintiff could obtain employment where he would not suffer a loss of 40 per cent.
396 Although this seems a pessimistic situation for the foreseeable future for such a young worker, the plaintiff is a man who has had difficulty obtaining work in the past. His employment future is now compromised further by an inability to do heavy physical work – the only work he has done, albeit on a limited basis in the past.
397 As the plaintiff’s treating general practitioner, Dr Candless, and medico-legal examiners, Dr Slesenger and Dr Middleton opine, the plaintiff does not have a capacity for suitable employment.
398 Whilst Dr Wilkins was of a contrary view, supporting two of the suggested jobs, he did not consider the plaintiff currently has the capacity to work full time and thought a return to work should be on a graduated basis, working four hours per day on three alternate days.
399 The plaintiff made an attempt to continue working with some difficulty during 2015 until a significant exacerbation in the middle of the year, confirmed by Dr Tilly and Dr Poppenbeek, following which he was unable to return to work. In those circumstances, I do not accept, as counsel for the defendant submitted, that there was a significant improvement in the plaintiff’s condition in early 2015.
400 Termination of the plaintiff’s entitlement to medical treatment did not assist this situation where Dr Gassin and other practitioners have recommended he undergo a pain management program.
401 As the plaintiff’s lumbar pain and restrictions have persisted for nearly three years with no significant improvement despite treatment, I am satisfied his lumbar impairment is permanent
402 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
403 Counsel for the defendant submitted the absence of attempts at retraining or rehabilitation had left the Court in an invidious position where it cannot be satisfied that the position after a reasonable attempt at doing so would result in the necessary loss.[173]
[173]T110
404 In response, counsel for the plaintiff submitted that the plaintiff is anxious to have pain management and functional restoration, and payments were ceased. There is no present reason on the evidence to think that the plaintiff has a capacity for useful retraining[174] – “his brain has been a bit scrambled by the axe incident”.[175]
[174]T137
[175]T138
405 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, he has satisfied the requirements of s134AB(38)(g).
406 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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