Lonsdale v VWA
[2014] VCC 1837
•11 November 2014
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No.
| RODNEY PETER LONSDALE | Plaintiff |
| v | |
| DUNLOP & PITSON EARTHMOVING LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 22 October 2014. | |
DATE OF JUDGMENT: | 11 November 2014 | |
CASE MAY BE CITED AS: | Lonsdale v VWA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1837 | |
REASONS FOR JUDGMENT
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Subject: Section 134AB(16)(b) Accident Compensation Act 1985 (Vic).
Catchwords: Pain and suffering and pecuniary loss – injury to lumbar spine.
Legislation Cited: Accident Compensation Act 1985 (Vic).
Cases Cited: Haden Engineering Pty Ltd v Mckinnon [2010] VSCA 69; Humphries v Poljak [1992] 2 VR 129.
Judgment: Leave granted to commence proceedings at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Mighell QC | Slater & Gordon |
| D Purcell | ||
| For the Defendant | WR Middleton QC R Kumar | Hall and Wilcox |
HER HONOUR:
Introduction
1 This is an application to bring proceedings for the recovery of damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1958 (Vic) (“the Act”) for injuries allegedly suffered by the plaintiff arising out of the course of his employment with the defendant on or about 5 March 2010.
2 The application is pursuant to s134AB(37)(a) for a permanent serious impairment or loss of a body function of the lumbar spine. Leave is sought to commence proceedings in respect to both pain and suffering and economic loss.
3 The plaintiff relied on two affidavits in support of his claim, sworn 7 August 2013 and 15 October 2014. The plaintiff was the only witness called. Otherwise, as is usual in these applications, the parties relied on the material in their respective Court Books.
Background History
4 The plaintiff was born on 17 December 1973 and is now forty-one years old. He has been in a de facto relationship for 15 years and has a six year old daughter.
5 The plaintiff left school aged sixteen, after completing Year 10. After leaving school he had a variety of jobs, all involving heavy physical work. This included working as an apprentice butcher and butcher for seven years, on prawn trawlers out of Cairns, for a cleaning company in Western Australia, as a weighbridge operator for a recycling firm in Queensland, as a plasterer in Bendigo for a few years and for Fosterville Gold Mine for about a year.
6 The defendant is an earthmoving company which digs trenches for sewerage lines, water pipes, electrical conduits and level subdivision land. The plaintiff commenced work with the company on 24 November 2009. While he was employed as a machine operator he spent most of his time labouring in the trenches.
7 When he started working for the defendant, the plaintiff had no issues with his back. He had suffered a neck injury in a motorcar accident in 2005/2006, but had recovered fully within a few months.
The Incident
8 On 5 March 2010, the plaintiff was digging trenches on a subdivision in Kangaroo Flat in order to lay pipes. He was working in a trench about 800 millimetres deep. It had been raining all day and the ground was very slippery, muddy and slushy.
9 As he was shovelling, the plaintiff lost his footing and did the splits. He felt immediate pain in his right buttock and right thigh. He kept working, but it was a struggle. He rested over the weekend and tried to work the following week, but it was too much of a struggle.
Treatment
10 On 5 March 2010, the plaintiff attended his general practitioner, Dr Hanna. As it was suspected that he had suffered a hamstring tear, Dr Hanna arranged for an ultrasound. The ultrasound of the plaintiffs right leg was carried out on 24 March 2010, and it revealed tendinopathy at the proximal hamstring attachment with a small tear four millimetres in size.[1]
[1] Plaintiff’s Court Book (“PCB”) 74
11 The plaintiff then had physiotherapy, but his pain continued. He had severe low back pain and leg pain, and was on strong painkillers. As a result of his pain, the plaintiff became frustrated and depressed and he was referred to Dr Mitchell, a psychologist.
12 The plaintiff was then referred to Mr Neelika Dayananda, orthopaedic surgeon, who arranged for an MRI scan of his lumbosacral spine and hip. The MRI of 2 June 2010 concluded that there was a:
“1.Large L5-S1 disc protrusion with superior migration of extruded disc material posterior to the L5 vertebrae causing severe central stenosis posterior to L5 vertebrae.
2.Narrowing of the left L5-S1 neural exit foramin, compressing the existing left L5 nerve root.”[2]
[2] PCB75-76
13 Mr Dayananda arranged for the plaintiff to have an epidural injection which unfortunately did not assist him and in fact seemed to make the pain worse.[3] The plaintiff lodged a WorkCover claim, which was accepted on 20 July 2010.
[3] PCB9
14 On 20 July 2010, the plaintiff attended Mr Daryl Nye, neurosurgeon, who advised him that he needed an operation. Mr Nye referred him to Mr Brendan O’Brien, neurosurgeon, who arranged for surgery to be carried out .
15 Prior to the surgery a further MRI scan of the lumbar spine dated 21 July 2010 had revealed:
“Multi-level degenerative spondylitic changes as described. Mild canal narrowing at L3-4. Mild to moderate canal narrowing and effacement of the emerging left L5 nerve root at L4-5 complicating moderate superior pointing right paracentral disc extrusion at L5-S1 with deformity of the emerging right S1 nerve root and the exiting left L5 nerve root.”[4]
[4] PCB77-78
16 On 23 July 2010, Mr O’Brien carried out a right L5-S1 microdiscectomy which led to a minor improvement in the plaintiff’s low back pain, but no lasting improvement in his leg pain.
17 The MRI of the lumbosacral spine on 9 September 2010 concluded:
“Left L5-S1 disc protrusion has been completely resected. There is a minor post-surgical fibrosis at the right L5-S1 lateral recess associated with epidural enhancement consistent with recent surgery to a small broad-based posterior disc bulge at the L4-L5 level that mildly encroaches upon the descending L5 nerve root within the lateral recess bilaterally.” [5]
[5] PCB79
18 After surgery, the plaintiff was referred to Dr Debbie Kesper, a rehabilitation physician. He then spent two weeks at St John of God Hospital where he had intensive physiotherapy and hydrotherapy. In addition he required strong painkillers, including Endone and OxyContin.
19 Another MRI of the Lumbar spine was carried out in April 2011. The conclusion was :
(1) Small posterior L3-4 disc protrusion not causing neural impingement;
(2) Small posterior L4-5 disc protrusion causing mild compression of the descending L5 roots;
(3) Mild foraminal compression of both exiting L5 roots due to disc bulge and osteophytes from the facet joint and endplates.[6]
[6] PCB81
20 The conclusion of the final MRI scan of the lumbar spine dated 16 June 2014 conclusion was
“Satisfactory post-operative appearance. There is no evidence of definite neural impingement.” [7]
[7] PCB82
21 The plaintiff said he continues to attend Dr Hanna, who provides him with WorkCover certificates for part-time modified duties with ongoing lifting and bending restrictions Dr Hanna also prescribes medication which includes Oxycontin,Lyrica and Norflex.
Medical Opinion
22 Dealing firstly with the diagnosis/prognosis regarding the plaintiff’s injury, the medical opinion can be summarised as follows:
Treating Practitioners
23 Dr Safwat Hanna, the plaintiff’s general practitioner reported that the plaintiff [8]:
[8] PCB27-37
· Suffered from chronic back pain as a result of a WorkCover injury he sustained on 5 March 2010, which resulted in a large L5/S1 disc extrusion resulting in severe central canal stenosis, posterior to L5 root level, with compression of the left L5 nerve root;
· Also sustained a small tear (4 millimetres) of his right hamstring muscle;
· Had improved after the spinal surgery (the right L5/S1 microdiscectomy and spinal rhiz olysis performed by Mr O’Brien, but did not have a 100 per cent recovery;
· Had stabilised to a certain degree but it was not expected that he would improve much after nearly four years since he sustained the injury. In fact his symptoms had been getting worse lately;[9]
[9] DCB 23.
· Had an MRI scan on 16 June 2014 which showed “satisfactory post-operative appearance”;
· Had informed her that his appointment with Mr O’Brien had been cancelled as Mr O’Brien felt the plaintiff would not benefit from any further surgical procedure.
24 Mr O’Brien, the plaintiff’s treating surgeon, reported that:[10]
[10] PCB27-28
· The plaintiff had an extremely large disc protrusion passing behind the body of the L5 vertebrae;
· The operation he carried out at St Vincent’s Hospital on 23 July 2010 to address this problem was a right L5/S1 miscrodiscectomy and spinal rhizolysis;
· When he saw the plaintiff on 31 August 2010 he had described “marked improvement in his symptoms, although he had intermittent ongoing sensory disturbance down the posterior aspect of his right leg.”
· A repeat MRI scan of the lumbar spine on 9 September 2010 “demonstrated a complete resection of the extremely large disc protrusion”;
· While the plaintiff had undergone surgical correction of the L5 /S1 disc protrusion, he had ongoing symptomology in the right L5/S1 region due to damage to the nerve, occurring as a consequence of this large disc protrusion.
· It was likely that he would have some ongoing symptoms in this regard and this would require him to have further multimodality conservative care in the form of intermittent analgesia, anti-inflammatory medication, regular physiotherapy and hydrotherapy;
· The prognosis was that he may suffer from further degenerative change in the lower lumbar region. He also had some disc-related changes occurring at L3/4 and L4/5.
Medico Legal
Mr Peter Scott - Senior Consultant Surgeon
25 Diagnosed the plaintiff as suffering from
§ “Chronic pain syndrome, work-initiated discogenic disease of the lumbosacral spine with intermittent lumbosacral nerve root irritation, together with anxiety, frustration and depression as a result of the injury sustained when the plaintiff was employed by the defendant.”
§ The plaintiff’s condition had not stabilised and that it required investigation with an MRI study to determine whether any further treatment could be recommended for his ongoing problems of L4/L5 disc pathology and bilateral L5 nerve root compromise, most likely secondary to post-surgical scarring or fibrosis.[11]
Professor Peter Disler
Professor Disler’s diagnosis was that the plaintiff had lumbosacral dysfunction following surgical treatment of a localised disc prolapse, relevant to the claimed injury sustained during the course of his employment. It was likely that he also developed aggravation of lumbar disc degeneration at the same time as the initial L5/S1 disc injury occurred.[12]
[11] PCB47-55
[12] PCB70
Dr Amanda Sillcock - Occupational Physician
26 Dr Sillcock’s diagnosis[13] was that the plaintiff had a disc lesion at L5/S1 that has been surgically treated but clinically there was also a suggestion of disc lesions at other levels as he had what appeared to be signs of L2 and L4 nerve root impingement, as well as L5.
[13] See report dated 10 May 2012, DCB 15-19
Mr Domenic Yong - Specialist Occupational Physician
27 Mr Young diagnosed the plaintiff as having had surgery for a neuro compressive lumbar disc condition in 2010 after a reported fall at work which required decompressive surgery. His history and clinical features were suggestive of a neuro compressive disc bulge at another level or a reoccurrence of his original condition.[14]
[14] 141-152
Mr Clive Jones - Orthopaedic Surgeon
28 Diagnosed post laminectomy back pain and associated degenerative change. The prognosis was reserved and no further surgical treatment was recommended.
Dr Sillcock - Occupational Physician
29 Was of the opinion that the plaintiff had a disc lesion at L5-S1 that had been surgically treated but that clinically there was also a suggestion of disc lesions at other levels as he appeared to have signs of L2-L4 nerve root impingement as well as L5.[15]
[15] DCB15-19B
Causation and Nature of the Injury
30 Causation is not really an issue in this case and I have no difficulty in finding that the plaintiff suffered an injury to his back in the course of his employment with the defendant on 5 March 2010.
31 Further, the injury had included the development of a large right paracentral disc protrusion at L5/S1 requiring surgery in the form microdisectomy and that the plaintiff has been left with post-surgical pain and degenerative changes both at the L5/S1 level and at the L3/L4 and L4/L5 level.
32 This finding is supported by the medical opinion as follows:
· Mr O’Brien[16] - Large lumbar L5/S1 disc protrusion surgically treated. May well suffer from further degenerative change. Disc-related changes occurring at L3/L4 and L4/L5.
· Mr Scott[17] - Chronic unresolved low back pain with recurring right-sided sciatica radiating to right foot on occasions.
· Professor Disler – Lumbar sacral dysfunction following surgical treatment.
· Mr Jones[18] - Development of a large and sequested lumbosacral disc requiring surgery.
· Dr Sillcock[19] - Disc lesion L4/5 surgically treated but disc lesions also at other levels with signs of L2 and L4 as well as L5 nerve root impingement.
· Dr Yong[20] - Neurocompressive lumbar disc condition with decompressive surgery. History and clinical features suggestive of a neurocompressive disc bulge at another level or reoccurrence of his original condition.
· The MRI scan of 5 April 2011 shows disc protrusions at L3-4,L4-5 and L5‑S1 the later causing some neural impingement of the L5 and S1 nerve roots.
[16] PCB 28
[17] PCB 49
[18] PCB 138
[19] DCB 11, incorrectly labelled as 10 May 2014, should be 10 May 2012.
[20] DCB 27
Pain and Suffering Consequences
33 The plaintiff and his partner live on a 22 acre property and the plaintiff’s evidence was that he used to cut the firewood, do the fencing and other physical work around the property. They had horses on the property and dogs for hunting pigs. Shooting was his main hobby and he had permits to cull kangaroos and to shoot in national parks to control pests such as goats and foxes.[21]
[21] PCB7
34 After the injury, however, the plaintiff could only do really light home maintenance jobs around the property such as fencing. He had to get rid of the horses because he could no longer ride them. He also had to get rid of his pig dogs because he could not go hunting any more.[22]
[22] PCB11
35 It was apparent from his evidence that before he suffered his injury the plaintiff was a keen hunter and that being unable to go hunting has affected him. In his affidavit of 7 August 2013 he said “Being unable to go hunting has been a huge loss. If fit and able, I could have been a professional roo harvester and it had always been an option for me to make a living out of it but I will never be able to do that”. [23]
[23] PCB12
36 Further pain and suffering consequences of the plaintiff’s injury were claimed to be as follows:
·He has never been free of back pain since the injury;[24]
[24] T10
·The pain varies and at its worst, sometimes five or six night a week or days, it is excruciating ;[25]
[25] T10
·He continues to take OxyContin (10 ml morning 30 at night), Lyrica (150 mil in the morning and 300 at night), Norflex (100 ml in the morning and 100 mill at night, Panadol Osteo (three times a day) and antidepressant medication;[26]
[26] T9-10
·He has flare-ups of back pain that are pretty much unpredictable and that when they occur can be excruciating. At these times he needs to extra-medicate himself, lie down or sit down or stand up; [27]
[27] PCB10
· He is limited in the walking he can do. He is no longer able to run or jog and is limited in bending , lifting, crouching and squatting; [28]
[28] PCB10
· He can manage some of these activities to a degree, but he is slow and hesitant and pays afterwards with increased pain;[29]
[29] PCB10
· He cannot sit or stand for long comfortably; [30]
[30] PCB11
· He can only drive short distances without suffering pain[31];
[31] PCB11
· His sleep is poor and irregular because of pain; [32]
[32] PCB13
· He no longer has a sexual life;[33]
[33] PCB12
· He is limited in the way he can play with his daughter;[34]
· He is reliant on his partner to a large degree. She does most of the physical work around the house.[35]
[34] PCB12
[35] PCB11
37 When he was cross-examined the plaintiff admitted to doing the cooking at home and a bit of housework at his own pace. He had been able to do a little repair work on the tractor and cut the grass with a push mower with no catcher on it so there was no weight.[36]
[36] T15-16
Finding Regarding Pain and Suffering
38 It is necessary to determine whether or not the plaintiff has established that the pain and suffering consequences of his injury when judged by comparison with other cases in the range of possible impairments or losses of body function, may fairly be described as being more than “significant” or “marked,” and as being at least “very considerable”. [37]
[37]Humphries v Poljak [1992] 2 VR 129.
39 The evidence establishes that the plaintiff suffered a very large disc prolapse with compression of the L5 nerve root while required spinal surgery. In addition that while there was some improvement in his condition after surgery he still suffers from constant back pain for which he takes a cocktail of prescribed medication.
40 I found the plaintiff to be an honest, frank and straight forward witness. In doing so, I accept that the evidence referred to above establishes that his life style has been significantly affected by his injury. In addition that he is no longer able to do his pre-injury work.
41 In making my findings I took into account that there was no attack upon the plaintiff’s credit by the use of film or other means. In addition that there was no suggestion in the medical material that he had attempted to exaggerate or embellish his symptoms.
42 I accept that the prognosis for his spine is that the plaintiff will probably suffer further degeneration in the lower lumbar region and that the restrictions and pain he faces will be for the foreseeable future.
43 In evaluating the pain and suffering consequences of the injury to the plaintiff’s lumbar spine I have taken into account all the matters referred to in Haden Engineering Pty Ltd v Mckinnon [2010] VSCA 69. Having considered all the relevant evidence I am satisfied that the pain and suffering consequences meet the definition of “serious” injury contained in the Act.
Economic Loss Consequences
44 The plaintiff must establish a permanent loss of earning capacity of 40 per cent or more. The test is a comparison between the income that the worker was earning or was capable of earning during the part of the period or within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.[38]
[38]Section 134AB(38)(e)
45 There is no loss of earning capacity if the plaintiff has or would have, after retraining or rehabilitation, and taking into account the worker’s capacity for suitable employment after the injury and the reasonableness of the worker’s attempts to participate in any retraining or rehabilitation, a capacity for any employment, including alternative employment, which, if exercised, would result in him earning more than 60 per cent of his gross income had the injury not occurred.[39]
[39]Section 134AB(g)
46 Suitable employment in relation to a worker, means employment and work for which the work is currently suited. It is necessary for the court to determine whether suitable employment exists, to analyse the employment requirements from a physical and, if necessary, psychological aspect, and to apply the relevant matters as set out in the definition of suitable employment in section 5 of the Act.
Medical Evidence Regarding Work Capacity
47 The medical evidence with respect to the plaintiff’s work capacity may be summarised as follows:
Treating Practitioners
48 Dr Hanna was of the opinion that while the plaintiff could not perform his pre-injury duties he could perform modified duties starting with five to six hours per day and up to three to four days a week. [40]
[40] PCB certificate of capacity November 2014
49 Mr O’Brien considered that plaintiff would need to alter his employment to involve significant lumbar protection and the avoidance of recurrent bending, twisting, lifting and staining. He would need to avoid lifting objects heavier than 12–15 kilograms by himself which would preclude him from working as a labourer.[41]
[41] PCB28
Medico-Legal
50 Mr Scott was of the opinion that the plaintiff has no capacity for his pre-accident employment. He was unfit for any work which required him to perform prolonged standing of more than half an hour, prolonged sitting of more than half an hour, repetitive bending, lifting more than 5 kilograms in weight or any job which required twisting or stooping. The most work he could do was very light work in a part-time capacity with the above restrictions.[42]
[42] PCB53
51 Professor Disler considered that if the plaintiff was to return to work he would need to start with limited hours (about 3) three times per week, building up to three hours five days per week. Based on his assessment of the plaintiff, Professor Disler did not believe that the plaintiff could cope with more than 15 hours per week work for the foreseeable future.[43]
[43] PCB73
52 With respect to the evidence regarding the plaintiff retraining in the testing of portable electrical equipment, Professor Disler understood that this often demanded walking over rough territory on building sites and, in his opinion, this was not ideal with a person with his physical condition.[44]
[44] PCB73
53 Mr Clive Jones was of the opinion that suitable employment was an option but that clearly the plaintiff was incapacitated for his pre-injury employment and his education skills were and experience were limited.[45]
[45] PCB139
54 Dr Sillcock considered that the plaintiff needed work that did not require lifting in excess of 5 kg, no bending or twisting and no prolonged standing or sitting. Sedentary or semi sedentary work would be appropriate.[46]
[46] DCB19
55 Dr Dominic Yong, was of the opinion that the plaintiff had a current capacity for work with the following restrictions:
·Vary posture regularly between sitting, standing and walking;
·Avoid repeated firm pushing and pulling;
·Avoid lifting more than 6 kilograms on a repeated basis;
·Avoid repeated bending and twisting of back;
·Reduction in working hours.[47]
[47] DCB29
56 In his most recent report of 22 October 2014, Dr Yong suggested that a graduated return to work would be reasonable the period and pace being dependent on whether further medical intervention was required. In the absence of a neuro compromise lumbar condition the program with a graduated increase in working hours back to pre-injury hours would be over a 4-5 month period.[48]
[48] DCB 31 (a)-(e)
57 In contrast to Professor Disler, Dr Yong was of the opinion that working as a Test and Tag technician was likely to comply with the restrictions and would be considered reasonable.
58 Dr Yong accepted that the following jobs complied with the restrictions and that they were therefore suitable employment for the plaintiff:
·Product quality controller;
·Quality assurance officer;
·Weighbridge operator;
·Enviromental health officer;
·Safety inspector and Logistics /transport manager.
Defendants vocational assessments
59 In support of their case that the plaintiff had a capacity for work and that there were suitable jobs for him the defendant relied on the CRS Vocational Assessment report of 4 July 2014 (the CRS report), the Recovre Group NES Job Seeker Plans of 18 January 2011, 28 September 2011,15 November 2011 and the NES Vocational Assessment Reports of 31 August 2011 and 13 March 2012. (the Recovre reports)
60 The Recovre reports identified a number of jobs as being potentially suitable including product quality controller, quality assurance officer, environmental health officer, safety inspector, sales assistant (spare parts interpreter), warehouse store person, logistics /transport officer and waste and recycling attendant/weighbridge operator.
61 The CRS report reviewed the above jobs and selected the following jobs as being viable for the plaintiff :
(1) Sales assistant;
(2) Logistics/transport manager;
(3) Waste and recycling attendant/weigh bridge officer.[49]
[49] DCB99
Plaintiff’s Vocational Assessments
62 The plaintiff relied on the Vocational Assessment reports of Mr Bill Radley and Ms Mary Oliver. Drawing together the results of his assessment, Mr Radley concluded that the plaintiff had no employment prospects now or in the future in either full-time or part-time employment.
63 In his opinion a number of factors were significant barriers to the plaintiff returning to work as a result of his injury including:
· His low level of a general education and low-average general intelligence;
· His location in Fosterville 20 kilometres from Bendigo;
· His limited general work skills;
· Nature and extent of physical limitations of back injury;
· Poor adaptation to injury and chronic pain;
· Inability to participate in any form of higher education, occupational retraining;
· Inability to provide a consistent and regular physical work capacity;
· Poor medical prognosis;
· Inability for rehabilitation assistance to improve prospects for returning to work.[50]
[50] PCB102
64 Ms Mary Oliver, from Flexi Personnel, provided the current hourly rate for a 40 year old male performing light bench work, being $17.35 gross per hour. The figure would need to be multiplied by the number of hours Mr Lonsdale could safely perform, as ascertained by his doctors.[51]
[51] PCB111(A)
Plaintiff’s Efforts to Obtain Suitable Employment
65 In the Job Seeker plan of 28 September 2011 the plaintiff was described as appearing “genuinely motivated to commence job seeking open to applying for a varying array of positions which fit within his current work capacity”.[52]
[52] DCB 57
66 The Job Seeker plan of 15 November 2011 reported that the plaintiff had actively participated in the NES program and attended all meetings arranged. He had also completed his forklift licence on 4 November 2011.
67 In cross-examination the plaintiff agreed that towards the end of 2011 he helped his brother-in- law a couple of times “mixing a bit of plaster and that for him”.[53]
[53] T20
68 In August 2012 the Recovre Group negotiated a part-time role for the plaintiff with a fence welder in Bendigo. He was working up to 12 hours a day and the lifting requirements were up to 40 kilograms. He was unable to stay in the role as the job required him to work long hours and lift weights beyond his capacity.[54]
[54] T23-24
69 In 2013 the plaintiff obtained a test and tag certificate and attempted to commence a test and a tag business but this was not successful as there was not enough work in the area to ensure he would have an income to cover costs, let alone earn a wage.
70 The Vocational Assessment report of 4 July 2014 reported that on week 16 the plaintiff had reported difficulty with looking for work on line due to slow internet connections. The plaintiff had also stated that he had “a low motivation to look for work” as he found it very hard to concentrate due to the side effects of his current medication.[55]
[55] DCB73
Submissions Regarding Work Capacity / Suitable Employment
71 The primary case for the plaintiff is that there is no employment for which he is suited when regard is had to the definition of suitable employment in s5 of the Act. If I found that there was employment for which the plaintiff was suited, the secondary position is that his capacity is limited to part time work only about 15 hours a week.
72 With respect to the primary case, that there is no employment for which he is suited the plaintiff relies on Mr Radley’s opinion that there are a number of significant barriers to the plaintiff returning to work as a result of his injury and in particular that:
·He has only ever performed manual-type work, including as a butcher, working on prawn trawlers, cleaning, working as a weighbridge operator, plasterer and working in a gold mine.
·He has a limited education and neither trade or training (save for the tag and tests which is unsuitable for him).
·He lives in Fosterville, 22.5 kilometres out of Bendigo with a population of about 20 persons.[56]
·He has received assistance from rehabilitation providers that have been unsuccessful in allowing the plaintiff to re-enter the workforce.
[56]T9
73 As to the secondary position that any capacity for suitable employment is limited to part-time work only, the plaintiff relies in particular on the following evidence:
·The current medical certificate from his general practitioner, Dr Hanna.
·Mr Scott’s opinion as to limited capacity for part-time work
·Professor Disler’s opinion that the plaintiff is fit for part-time work with modifications, but that he could not cope with more than 15 hours per week.
·Mr Jones bleak picture of the plaintiff’s ability to return to work-he said suitable employment is a possibility but so far nothing has been found.[57]
·He is clearly incapacitated for pre-injury employment and education, skills and experience are limited.
·He lives in some isolation in Fosterville in Victoria. No medical certificates were seen and there was no return to work plan.
·Dr Young was of the view that the plaintiff was fit only for part-time work with restrictions and that the period and pace of the return to work program was dependent upon future medical intervention.
·Dr Young ignored one of the difficulties for the plaintiff to participate in return to work programs or work at all, pain levels and flare-ups of pain.
[57]PCB 139
74 While the defendant accepts that presently there is a restriction on the number of hours that the plaintiff is able to work their case is that the plaintiff has retained a capacity to do light work on a full time basis and that there are a range of alternative employment options open to him as identified in the Recovre and CRS reports.
75 With respect to the plaintiff’s work capacity the defendant relies primarily on Dr Yong’s opinion that at the moment it was reasonable for the plaintiff to return to work four hours a day for four days a week and that he should undergo a graduated return to work program, with a return to pre-injury work over a 4-5 month period.[58]
[58] DCB152A
76 In addition, on Dr Hanna’s certification, that the plaintiff could work (with a lifting restriction of 12 kilograms and bending restrictions), five to six hours per day for three to four days per week, which read in conjunction with his reports, was submitted to support their case that these restricted hours were a starting point.[59]
[59]PCB 23
77 While Professor Disler was of the opinion that the plaintiff could not cope with more than 15 hours a week, it was submitted that I should prefer the opinion of Dr Hanna on the basis that Dr Hanna had :
· Been the plaintiff’s general practitioner for a long time;
· Had been managing his work injury and had provided certificates on which reliance had been placed by the plaintiff;
· Not only managed the plaintiff’s condition but prescribed his medication so he was aware of the plaintiff’s ongoing situation, including any side effects of the medication he was taking;
· The work capacity certificates had been provided for some time and their appropriateness had not been queried by the plaintiff with Dr Hanna. [60]
[60] T31-333
78 The defendant also relied on the plaintiff’s own self-assessment, that he still had a capacity for some work.[61] This was said to be consistent with the fact that he was still able to do tractor repairs,[62] shooting activities one to three times a week,[63] and the cooking at home.[64] In addition that in the past in he had been able to manage the chores, including mowing the lawn. [65]
[61] T28
[62]T15-16
[63] T15
[64]T16
[65] T15
79 In addition on the plaintiff’s evidence of assisting his brother-in-law, with plastering and the welding job in mid to late 2012. Although he had not been able to continue in the later job as the medical restrictions had not been complied, the defendant relied on it being indicative of the plaintiff retaining a light work capacity.
80 The defendant also relied on the plaintiff’s most recent job, the test and tag business as not only demonstrating a capacity for light work but also of an ability to complete retraining. While the plaintiff gave evidence that there were problems in going out to factories and crawling to get access to machines, it was submitted that the documents included in the plaintiff’s court book focussed on not the physical problems but the business side of things. In particular that there was no money to pay for public liability insurance.[66]
[66] PCB 17 see para 5 Plaintiffs affidavit
81 With respect to suitable employment the defendant relied on the reports Recovre and CRS reports. It was submitted that Mr Radley’s report was of no benefit as his main background was as a psychologist and that his report went beyond his expertise. With respect to his conclusion that the plaintiff was incapable of undergoing any type of retraining, this was submitted to be contrary to the fact that he had been able to obtain a forklift license and the certificate necessary for the test and tag business.
Finding
82 There is no dispute that the plaintiff can no longer do his pre-injury work and I am satisfied that this is due to the injury he suffered to his lumber spine on 5 October 2010.
83 I accept the plaintiff’s evidence concerning his pain levels, the unpredictable nature of the flare-ups of pain and the significant doses of pain relieving medication required. I am satisfied that although he has retained a capacity for light work it is only for part time work.
84 This finding is supported by Dr Hanna’s current work capacity certificate, Mr Scott, Professor Disler and even Dr Yong at least to the extent that he considers the plaintiff’s current work capacity is for 4 hour shifts for 4 days a week.
85 Given the nature of the plaintiff’s injury and its effect on him, I reject Dr Yong’s opinion that in the absence of a neurocompressive lumbar condition the plaintiff could gradually increase to his pre-injury hours.
86 I accept that Dr Hanna’s work cover certificate of capacity for modified duties part time of 5-6 hours per day up to 3 to 4 days a week appears from his report of 16 May 2014 to be a starting point for the plaintiff’s return to work. However, Dr Hanna also reported that the plaintiff’s symptoms were getting worse recently and that as a result of his chronic back pain and limitation of his everyday activities he had developed depression and anxiety.[67]
[67] DCB 23.
87 Given the plaintiff’s chronic back pain I accept Professor Disler’s estimate as to the hours he could work as being is the most realistic estimate. In making this finding, I have taken into account that this estimate is the closest to the plaintiff’s own evidence as to his capacity.
88 While I accept the defendant’s submission that the work the plaintiff did for his brother in law, as well as the welding and test and tag business demonstrate that he has retained a work capacity, I do not accept that these activities illustrate that he has a capacity to work full time.
89 The plaintiffs evidence was that he had the capacity for some work. His evidence was that he would like to be working and he “tried to be motivated as possible but that it was hard when you were in pain every day”.[68] He said he would like to work and he did not like being stuck at home.
[68] T35
90 With the restrictions certified by Dr Hanna, he thought that he “would try to do two to three hours a day if he could . Some days were very unpredictable”.[69] I accept that in helping his brother-in-law with some plastering, doing the welding job in late 2012 and the test and tag job in 2013, the plaintiff would have gained considerable insight into how many hours he was capable of working for.
[69] T19
91 Although it has been difficult for them to find work, the plaintiff appears to be keen on doing work if it was available. He had applied for various jobs and it had been the disclosure of the existence of his back injury which had been an impediment to nearly all of the jobs.[70]
[70] T21
92 The plaintiff is still a relatively young man and I accept that in obtaining his fork lift licence and in completing the training for the testing and tagging job he has showed that he is capable of being retrained. While his previous work has been largely in manual fields I accept that he is capable of obtaining new skills.
93 In making this finding I accept the CRS Assessment that a Sales assistant role (gun shop, hardware or plaster shop) logistics/transport manager and waste and recycling attendant/weighbridge operator are suitable employment for the plaintiff on a part time basis.
94 Accepting that the plaintiff has a capacity for suitable employment for 15 hours per week, at the time of his injury his average weekly earnings were $773 gross per week. The 60 per cent threshold is therefore $463.80 per week. In all four jobs I considered to be suitable employment for the plaintiff working 15 hours per week the plaintiff is well under the threshold. Even if he worked 20 hours the plaintiff would be under the threshold.
95 Accordingly I am satisfied that the plaintiff’s impairment has resulted in a loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and at least very considerable.
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