Luhan, Richard v Tailored Workforce Pty Ltd
[2009] VCC 1458
•18 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-04244
| RICHARD LUHAN | Plaintiff |
| v | |
| TAILORED WORKFORCE PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 and 19 August 2009 |
| DATE OF JUDGMENT: | 18 September 2009 |
| CASE MAY BE CITED AS: | Luhan, Richard v Tailored Workforce Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1458 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – worker aged under 26 – loss of earning capacity – pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with | Holding Redlich |
| Mr A Ingram | ||
| For the Defendant | Mr P D Elliott QC with | Lander & Rodgers |
| Miss S Manova | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment from 19 August 2002 until 11 March 2003 (“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.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in Section 134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning permanent serious impairment or loss of a body function.
4 The impairment of body function relied upon is the lumbar spine.
Outline of s.134AB
(i) Apart from being a serous injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
(ii) The impairment of the body function must be permanent in the sense of likely to last for the foreseeable future.
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, sub-sections 19 and 38(e) impose specific burdens in relation to a claim for loss of earning capacity.
(iv) By subsection 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 cases in the range of possible impairments may be fairly described at the date of the hearing as at least “very considerable” and more than “significant” or “marked.”
(v) 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.
(vi) When a worker is aged under twenty six years at the date of injury, pursuant to Section 134AB(38)(e)(i) of the Act he must establish that at the date of the hearing he has a loss of earning capacity of forty per cent or more. Further he must establish pursuant to subsection (e)(ii) that he will after the date of the hearing continue to have a permanent loss of earning capacity which will be productive of a financial loss of forty per cent or more. Subsection (f) which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury does not apply.
(vii) Consideration must also be given pursuant to subsection (g) of the Act as to the reasonableness of the plaintiff’s attempts to rehabilitate or retrain.
(viii) Subsection 38(h) provides that consequences which are psychologically based are to be totally disregarded in paragraph (a) cases.
(ix) I have applied the principles identified by the Court of Appeal in Barwon Spinners v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross examined. The plaintiff also relied upon an affidavit sworn by his brother, Robert Luhan, on 10 August 2009. Robert Luhan was required to attend for cross examination. Dr Bronchinetti, the plaintiff’s general practitioner, was also required to attend for cross examination.
6 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
7 The plaintiff is presently aged twenty eight, having been born on 1 August 1981.
8 The plaintiff completed Year 10 and then undertook, but did not complete, an apprenticeship in cabinet making. The plaintiff later did security work for different entities, including Superior Detective Services and NJ Security.
9 The plaintiff moved to Ballan in approximately 2002 and he found, with reducing hours of shiftwork and increased travelling to work in Ivanhoe, it was not worth continuing in security work.
10 In cross examination, the plaintiff said that whilst he was working as a packer he saw that there was a bit of money in the security business and in the future he had a plan to get back into that field and run his own business. He held the necessary qualifications as a security guard. He “intended to learn a bit more about the business and then [he] had to do another two-week course basically to get a couple of guys under [him] and open up a firm”.
11 In mid 2002, the plaintiff commenced work with the defendant, a labour hire company. He was allocated to work at the premises of Westgate Transport Industries (“Westgate”) in Altona as a labourer.
12 In the 2001/02 financial year, the plaintiff earned $7,006. In 2002/3, he earned $22,287 gross.
13 Prior to commencing the work at Westgate, the plaintiff had had no back problems.
14 The plaintiff’s work at Westgate involved manual handling of various cartons of food and alcohol. In order to prepare an order, the plaintiff had to move around using a pallet jack or tugger with a pallet on it and gradually load up the order to deliver it to a particular customer.
15 The work was very physical and demanding and, as a result, the plaintiff developed a back condition which became severe on or about the said date, but he had pain before that time.
16 On the said date, the plaintiff was working at a fast pace trying to fill up his order and he was extensively handling heavier boxes. When picking up a box and turning to his right in order to put it on a pallet, he developed severe pain and he dropped the box to the ground (“the incident”).
17 The plaintiff reported the incident to his team leader, having previously complained about the pace at which he was required to work. No incident report was completed at the time as the plaintiff was he told he might lose his job.
18 The plaintiff then rested at home for two or three days, anticipating his pain was muscular, however the pain did not go away.
19 The plaintiff then consulted Dr Vincent at the Bacchus Marsh Medical Centre (“the Medical Centre”) on 19 March 2003. Dr Vincent referred him for an x-ray of his lumbar spine which was performed on 20 March 2003, and he was subsequently referred for a CT scan on 22 April 2003.
20 The degree of pain and disability the plaintiff was suffering effectively precluded any return to his pre injury type work. He attempted to work in other lighter sections at Westgate but found the strain on his back even then was too great and he was forced to cease work altogether on about 17 March 2003.
21 Because of the continuing nature of his lower back symptoms, and the subsequent development of stabbing pains in his right and left legs, the plaintiff was referred to a number of specialists.
22 The plaintiff initially saw Mr Nelson in Ballarat on 7 May 2003. Mr Nelson recommended the plaintiff persist with conservative treatment in the form of physiotherapy and Panadeine Forte. He also referred the plaintiff for a bone scan performed on 9 May 2003. The plaintiff last saw Mr Nelson on 5 August 2003 for a further assessment but the only advice he received was to consider referral to a spinal surgeon in Melbourne.
23 By that time, Dr Bronchinetti at the Medical Centre, had taken over the plaintiff’s treatment and suggested he see orthopaedic surgeon, Mr Miller, who first examined the plaintiff on 23 November 2004. Mr Miller suggested further radiological examination. On 28 December 2004, an MRI scan was performed.
24 It was the plaintiff’s understanding that these investigations demonstrated his spine was out of alignment and there had been some slippage of the vertebrae in the lower level of his spine.
25 The plaintiff continued under specialist review, returning to Mr Miller on 7 March 2005 when conservative treatment was again advised. Further reviews followed in September and December 2005 and a referral was made to rehabilitation specialist, Dr Thomas.
26 The plaintiff was referred to a specialist spinal surgeon, Mr de la Harpe, on 10 September 2005. He discussed a spinal fusion with the plaintiff; a course of treatment which the plaintiff was unwilling to contemplate, save as a last resort, as he has always been concerned about the absence of any guarantee as to a positive outcome from surgery.
27 The plaintiff’s constant back pain and the presence of symptoms, particularly in his right leg but also from time to time his left, have caused him to become increasingly anxious and depressed.
28 Dr Bronchinetti initially prescribed the plaintiff Aropax. He subsequently referred the plaintiff to a psychiatrist, Dr Varma, who confirmed a diagnosis of depression secondary to back pain and he increased the dosage of Aropax. Subsequently, an alteration in the medication to Avanza was made. Dr Varma then changed the plaintiff’s medication to Zoloft of which he presently takes – 100 milligrams a day.
29 The plaintiff has continued to see Dr Bronchinetti, usually monthly, and he prescribes medication. The plaintiff initially took Tramal tablets most days; Panadeine Forte as required; anti-inflammatory Brufen three times a day; Ducene medication and anxiety (Kalma) medication when required. This medication provided limited but not lasting improvement or resolution. The plaintiff has tried to cut back on the amount of medication because he is worried about taking it. However, he finds it very difficult to cope without it.
30 The plaintiff continues to take painkilling medication, such as Panadeine Forte and Tramadol. The plaintiff’s use of these has been restricted because they have affected his stomach. He continues to take Brufen for partial relief of his symptoms. He also takes the anti-anxiety tablet, Xanax, as well as Zoloft. He does exercises at home and has massage and acupuncture.
31 Prior to suffering injury, the plaintiff was a fit young man capable of engaging in a wide variety of activities. He enjoyed jogging, playing soccer and basketball socially. He occasionally did weights in the gym and also occasionally played tennis. He used to enjoy walking his two dogs long distances and also rode a motorbike quite a lot.
32 The plaintiff’s sporting activities are now mainly limited to walking in an effort to try and retain some level of fitness. After the said date, he sold his motorbike because of the pain he suffered when he rode it. His ability to travel long distances in a car has been affected, as has his ability to sit or stand for an extended period of time. He is restricted in lifting heavy items and has to take care in virtually any physical activity, placing strain on his back.
33 When he swore his first affidavit on 1 May 2008, the plaintiff was living with his parents who assisted him with many tasks around the house, although he tried to do most things. He tried to mow the lawn, however after doing so he would have a severe exacerbation of symptoms for a number of days.
34 At that time, his father was renovating a building in Footscray and the plaintiff went there when he felt up to it to give him something to do to get out of the house and keep his father company, helping him with lighter tasks. Whilst there, if the plaintiff’s back pain increased he had to use a bed upstairs to lie down.
35 Whilst lighter forms of work have been suggested, the plaintiff suffers grave difficulties when attempting any form of employment.
36 When trying to work as a security guard after the incident, the plaintiff found long periods of standing and sitting led to an increase in his level of pain. The plaintiff went to work with his uncle, who works as a security guard, to see if he could do security work because Centrelink and his doctors were asking and pushing him to find some light work. The plaintiff “just went along and basically hung around for probably an hour and that was it”.
37 The plaintiff would now have problems with this work because of the continuous sitting and standing involved. He would need to continuously alternate and need to lie down too so he could not do that at work. He has days when he cannot get out of bed.
38 The plaintiff believes that if he went back to even light work his hours would be significantly limited by reason of his injuries and he would suffer an ongoing loss of earnings.
39 The plaintiff believes he would find it difficult to return to gainful employment with his problems when standing or sitting, his lack of education and no vocational training.
40 The plaintiff obtained a licence to drive a truck in about early 2007, but he does not believe he could work as a truck driver because of the long periods of sitting involved and also the requirement to handle heavy weights.
41 In cross examination, the plaintiff explained he did a three day course two hours per day to obtain a heavy rigid licence. He thought he could possibly get behind the wheel and maybe do some driving but he “had trouble due to the corners and problem with suspension seats because he was constantly going up and down”.
42 Since obtaining this licence, the plaintiff has not applied for a job. When asked whether he could be a courier driver, the plaintiff said it depended on whether he felt well enough to turn up for work or not. He believed the only video footage shown of his driving was on a good day.
43 The plaintiff has continued to be troubled by constant but variable levels of pain in his lower back and legs, particularly the right. The pain has become chronic and entrenched and there has been no real improvement with his symptoms. He believes they will persist into the foreseeable future.
44 The plaintiff’s sleeping is significantly disrupted by reason of his pain, despite his medication, leaving him tired and lethargic. Travelling for prolonged distances in the car is difficult and he has to get out and stretch during longer trips.
45 The plaintiff now lives on his own, although his brother and sister come over to help him with tasks around the house. By and large, he has to do many things himself. He uses a self-propelled lawn mower to mow the lawns. He has done some light painting around the house and also undertakes light maintenance work but he has to be careful not to over exert himself.
46 In cross examination, the plaintiff denied he could drive around in his car, organise tradesman and visit them in order to develop the property he had purchased. Depending on whether he had a good or a bad day, some days he could sit in the car much longer or travel much longer “without pulling over”. It depended on how he felt as sometimes he was in bed for three or four days.
47 In May 2009, the plaintiff again saw Mr de la Harpe, who explained to him the only treatment he would be able to offer was a spinal fusion which the plaintiff remains reluctant to undertake unless absolutely necessary.
48 Three months ago, having been in receipt of Newstart benefits for some time, the plaintiff was granted a Disability Pension of $300 week.
49 The plaintiff tried on a number of occasions to work doing table service and bar service at his parents’ restaurant, Ratafia, in Footscray (“the restaurant”). The restaurant, run through the family company High Rising Pty Ltd (“the company”) is presently up for sale and the plaintiff does not believe even that sort of light work in the restaurant would be suitable for him.
50 The plaintiff has never been paid for this work. His attendance at the restaurant was pretty constant, pretty much every day. His family lived on the premises. He agreed his family members were all helping each other with various properties and developments but denied he went along to assist in the restaurant business. He only “carried a few plates out and stuff like that”.
51 The restaurant was open from about two or three o’clock in the afternoon till 1.00 am. On occasions the plaintiff would lock up and it was something he could do. He agreed he was not a complete cripple. He said he had arms and he had legs. He denied he had worked as a waiter but said he had just helped out. It was not his job as there were waiters there to do it. Sometimes he was behind the bar and sometimes he would take money. Usually, there were other people working there to do these duties but if they were out on the floor he would help out.
52 The plaintiff denied he was helping his parents with selling the restaurant business. He had been there at the premises when it was open for inspection but he did not help. The agent showed people through but the plaintiff may have opened the doors.
53 In examination in chief, the plaintiff confirmed he had recently applied for a Bankwest loan of approximately $500,000 (“the loan application”) - a matter not mentioned in his affidavits. He previously had a Westpac loan of $270,000 which he had refinanced. Bankwest took over that loan and advanced the other monies against a block of land owned by him in Caesia Way, Caroline Springs (“Caesia Way”).
54 The plaintiff had owned that land for a few years and his plan is to develop it and sell it off, having built a home on it. The plaintiff confirmed he had put down on the loan application that he was employed by the company as he “had to have a job to get a loan”.
55 The plaintiff was cross examined in relation to the loan application, confirming that he told Bankwest he was working for the company, despite the fact he had applied for a disability support pension some weeks before. The plaintiff agreed the amount of the loan was $532,000.
56 Further, the plaintiff told Bankwest that he was the recipient of PAYG personal income of $142,000. He was described on the application form as a “specialist manager” of the company.
57 The plaintiff denied he was earning any money from the company but said he was doing so in order to obtain the loan and he did not want to lose the land he had. He agreed he made the loan application knowing it to be false and in order to obtain financial advantage of getting the money for his land.
58 In support of the loan application, the plaintiff had produced a letter from his father, a director of the company, confirming this level of income.
59 The plaintiff agreed that the idea is to develop the land at Caesia Way and sell it off at a profit. He agreed it was a business venture. The plaintiff said he probably bought this property three or four years ago and agreed he could possibly have purchased it on 29 June 2007.
60 Before the incident, the plaintiff took out a Westpac loan and purchased a property at 160 Inglis Street, Ballan. There is $50,000 presently owing on that loan. The plaintiff lived at that property until the house burnt down. He received about $200,000 in a claim relating thereto.
61 The plaintiff initially denied he became the registered proprietor of another property on 30 April 2003. The plaintiff said there were just two properties, there was Inglis Street, Ballan, and Caesia Way.
62 The plaintiff explained that the Ballan block was a large one because his mother owned some of the land there and he thought there were about three titles. There were no houses “just a few sheds and stuff” on those blocks.
63 There was no approval for the land at Ballan to be subdivided into units, nor did he know whether there were plans about developing the other family blocks of land.
64 The plaintiff planned to pay off the $500,000 loan with help from his brother, who owned half the land, and his father and family.
65 The plaintiff did not know the monthly repayment amount as the loan had just been approved. He thought he would have to pay just over $1,000 on the $270,000 and about $300 a month on the $50,000, thus making a total of $1,500 a month.
66 The plaintiff’s family was helping him out generally but not paying him a wage to work at the restaurant.
67 Later in cross examination, the plaintiff recalled he was the registered proprietor of another block of land on the family’s Ballan block. It was a strip of land on the back of the family block which was bought at the same time as the other family land.
68 In the application to Bankwest, the plaintiff set out his assets as follows: National Australia Bank $90,000; property at Caroline Springs $350,000; and home contents $79,000 relating to jewellery, but he said obviously that was not right because he did not have $79,000 worth of jewellery.
69 The plaintiff said he did not put that detail there intentionally and that “the guy at the bank was filling out the forms”. The plaintiff then agreed that the bank employee did not suggest putting in the jewellery amount. The bank valuation for Ballan was $600,000. The plaintiff said that he was selling it for a lot more than that and had it on the market as part of the three blocks for over $1,000,000. He said that was a “trial figure” as a hospital had been built next door, so if his family put all the blocks together, they thought a developer might want them as a lot. The plaintiff’s Ford Falcon was listed as being worth $25,000 but the plaintiff thought it was only worth $8,000.
70 The plaintiff could not remember the name of the broker who arranged the loan. The plaintiff “could not remember what happened yesterday because of his medication”.
71 The plaintiff did not have a clue what he would do when the case was finished. Whether or not he won the case, he was intending to develop the land. He was “just planning on hopefully getting better or, God forbid, to get a spinal fusion that had been recommended”.
Lay Evidence
72 The plaintiff’s brother, Robert, swore an affidavit on 10 August 2009.
73 Mr Luhan worked as a labourer at Westgate at the same time as the plaintiff and, up until mid 2008, was living with him in Ballan.
74 Since the incident, he has observed the plaintiff taking medication on regular occasions and that the plaintiff was limited in his activities. In his view, the plaintiff appeared to suffer constant but variable levels of pain and also complained particularly of right leg pain.
75 Mr Luhan was the manager of the restaurant until it was recently closed. On a number of occasions for short periods, the plaintiff attempted to undertake work there to see how he would go, but he appeared to be in pain at the end of even a short period of very light work waiting or in the bar. He was unsure, given that experience, what level of work the plaintiff would be able to do in the future.
76 The plaintiff’s social activities have been restricted since the incident. They used to be fairly active, going out socially together, riding motorbikes or taking the dogs out for a bit of a run. The plaintiff is no longer able to engage in those activities and other activities cause him to suffer increased back pain. It is hard to even get the plaintiff out of the house most of the time. It is hard to get him motivated to do anything.
77 In cross examination, Mr Luhan said he was not working at the moment, as the restaurant and building had been put up for sale about a month and a half ago. When the restaurant was operating, he was the floor manager and he was pretty sure the business was registered in his and his mother’s name.
78 The business stopped trading because they had had a lot of people coming in wanting to lease the restaurant, and also there were a lot of people interested in purchasing the freehold.
79 The restaurant operated for about seven or eight months from 5 pm to 1 am. During that time, the plaintiff would come past perhaps every day. The plaintiff “would grab a plate every now and again”, but that was about it, or he would serve a drink behind the bar.
80 Mr Luhan denied that the plaintiff would act as a waiter when the restaurant got busy because there were other floor staff. Once or twice, the plaintiff would deal with payment of the bill.
81 Mr Luhan has not gone shooting with the plaintiff recently. They used to shoot a while back, perhaps years, before the incident. Mr Luhan explained the plaintiff’s “back had been taken away by the incident, and why would you want to take shooting away as well”. The plaintiff still goes out target shooting every now and then, as it is a hobby he enjoys. Sometimes he goes and does a bit of shooting with the plaintiff. From time to time, the plaintiff goes to Ballan to look after the dogs.
82 Mr Luhan confirmed that the plaintiff can drive but really not for long. It does get painful for him. He notices the plaintiff having difficulty getting in and out of the car.
83 Mr Luhan was asked about what was shown on video on 17 July this year. He confirmed he was shown on the video with the plaintiff and their father. He could not recall any man coming to make a delivery or leaving an envelope. The man shown in the fluoro jacket had come to the restaurant two nights before with his wife, enquiring about leasing the premises. Mr Luhan did not know what the conversation shown on the video was about or what was actually happening.
84 Mr Luhan confirmed that he and the plaintiff bought a property in Caroline Springs which they want to develop and build a house. He confirmed the property is in the plaintiff’s name, not his, because he already had another property with which the plaintiff was not involved.
85 Mr Luhan said he had not discussed the development of the Ballan property with the plaintiff. The development is still a while away, and the money is there if they need it.
86 Mr Luhan confirmed that the plaintiff took out the loan, even though Mr Luhan was working.
87 Mr Luhan said he had obviously had a discussion with the plaintiff about the plaintiff’s future. He stated that “obviously he would like to move on, but it is not as easy as said. His back is ‘severely damaged’”.
The Plaintiff’s Medical Evidence
88 The plaintiff was first seen by Dr Vincent at the Medical Centre on 19 March 2003 when the plaintiff gave a two week history of back pain.
89 Dr Vincent provided a WorkCover Certificate of Capacity on that date setting out that the plaintiff was unfit for any work duties from 17 March 2003 to 31 March because of back strain, musculoskeletal pain, which was caused by bending and lifting heavy boxes.
90 The plaintiff has seen Dr Bronchinetti regularly at the Medical Centre since January 2004.
91 Dr Bronchinetti has provided a number of reports from January 2006 until his most recent report of 11 August 2009. He diagnosed the plaintiff’s condition as spondylolisthesis with a two to three millimetre slip of L5/S1 together with secondary depression.
92 In examination in chief, he confirmed the plaintiff’s medication at present was Brufen, Ducene, Kalma, Panadeine Forte, Panadol and Zoloft. He confirmed the plaintiff developed secondary depression a couple of years after the back injury which was related to his pain.
93 The basis of Dr Bronchinetti’s view that the plaintiff could not do his pre-injury duties was that the plaintiff was in constant pain; he was able to sit or stand reasonably for only twenty minutes at a time and had limited back movement. Dr Bronchinetti did not believe there would be any improvement. He was not concerned that the plaintiff was shown bending in the video as the plaintiff could do that on occasion and he would not be expected to be able to do it repetitively day after day.
94 Dr Bronchinetti was cross examined about comments made by him in response to a letter dated 27 April 2009 from the plaintiff’s solicitors. He confirmed his view that separately, on both a physical and psychiatric basis, the plaintiff was totally incapacitated for employment.
95 Dr Bronchinetti thought the psychiatric reasons for incapacity were the plaintiff’s problems with insomnia, very poor concentration, and very poor motivation to do anything which would preclude him concentrating on a job.
96 Dr Bronchinetti completed a disability support pension questionnaire in July 2009 in which he set out that the plaintiff could only sit and stand for 20 minutes. Dr Bronchinetti agreed that was a “pretty big limitation”, and it was one of the “big reasons” for supporting the plaintiff receiving a pension.
97 Dr Bronchinetti agreed the plaintiff would also have a problem driving if he could not sit or stand for longer than twenty minutes. He agreed if the plaintiff could stand or sit for longer his incapacity for work would be less.
98 He also included on the questionnaire that the plaintiff suffered panic attacks. He had not really gone into with the plaintiff what was meant by panic attacks, or what happened to the plaintiff, to any great extent. He was not certain that the plaintiff could not go out into crowds because he got panic attacks, but the plaintiff told him he was having them and that he was feeling more depressed.
99 Dr Bronchinetti confirmed he sent the plaintiff to a psychiatrist, Dr Varma, in June 2007. He was not sure how many times the plaintiff had seen him. The plaintiff saw Dr Bronchinetti on 12 August this year complaining of worsening depression. Following this examination, the plaintiff was given a current referral to see a psychiatrist, but he has not attended yet.
100 Dr Bronchinetti confirmed he had received correspondence from Dr Varma, detailing examinations until mid 2007; on 2 February and 7 November 2006, and 24 May, 30 May, 8 June, 18 June and 25 June 2007. Dr Bronchinetti confirmed that Dr Varma had set out in those letters his view that the plaintiff only came to see him because of the court case and he had been very irregular with treatment and follow up.
101 Dr Varma had also noted the plaintiff had asked for him to provide some documentation in support of an application for a firearms licence and he had advised the plaintiff to see a forensic psychiatrist, Dr Senner, in that regard. Dr Bronchinetti noted the plaintiff had asked him to assist in that matter on 23 January 2006, but Dr Bronchinetti thought it was a matter appropriate for a specialist.
102 Dr Bronchinetti disagreed with Mr Miller’s view that the plaintiff could do light work in mid 2006. He also disagreed with the finding of the Medical Panel that the plaintiff had a part time work capacity.
103 Dr Bronchinetti confirmed the plaintiff had not attended Dr Thomas at the Dorset Rehabilitation Centre. He confirmed there was a note of 25 July 2003 that the plaintiff was “not keen to see pain management people, and liked to see Mr Nelson”.
104 Dr Bronchinetti confirmed he had received correspondence from Mr Nelson dated 7 May 2003 and 5 August 2003 in which Mr Nelson advised him that x- rays and CT scan confirmed a Grade 1 spondylolisthesis of an isthmic type. Mr Nelson noted it was very hard to tell from this whether the changes had been developmental or related to a stress fracture. For completeness, he had arranged a bone scan, but at that stage thought conservative treatment only was warranted. Further, it would only be if this situation became untenable that the plaintiff may need referral to a spinal surgeon to consider spinal fusion after the MRI.
105 Following re examination, Mr Nelson advised Dr Vincent that he had very little else to offer to the plaintiff’s current situation. In the absence of any positive finding on the bone scan, he thought the only further thing to do would be to get the plaintiff assessed by one of the spinal surgeons in Melbourne. He noted they preferred their own MRI investigation, so there was no point getting one done in Ballarat.
106 Dr Bronchinetti confirmed there was nothing in correspondence from Mr de la Harpe to him suggesting the plaintiff undergo a fusion. Mr de la Harpe “was sort of contemplating that as a possibility, not a recommendation”.
107 Dr Bronchinetti thought it seemed as if the plaintiff was able to do very little over the years. He assumed the plaintiff spent a lot of time in his house not doing a lot. The plaintiff was “emphasising what he could not do, rather than what he could do”. The discussions with him went along the lines of how long the plaintiff could sit or stand, and when he attended he was in obvious pain. The plaintiff was limping, grimacing, and telling Dr Bronchinetti he had pain.
108 Dr Bronchinetti confirmed there was no neurological involvement in the plaintiff’s condition, and the plaintiff’s limping came from muscle spasm.
109 Dr Bronchinetti was cross examined about an entry of 31 March 2008 where he noted the plaintiff wanted to try some light duties with his father, doing renovations, and that Dr Bronchinetti advised him to talk to WorkCover about that.
110 Dr Bronchinetti then thought the plaintiff was still on WorkCover, and his thoughts about the entry were at that time that it was good that the plaintiff was trying to do something, but he did not think it was actually going to work out.
111 Dr Bronchinetti had no knowledge of the plaintiff undertaking any property development nor of his application for a loan. He did not know about the plaintiff’s work plans before the incident.
112 Dr Bronchinetti confirmed that one of the key features of the plaintiff’s description of pain was that it was constant, rather than coming and going and taking a Panadeine Forte “here and there”.
113 Dr Bronchinetti would have expected the plaintiff to have had some difficulty getting in and out of the car with his complaint. When asked about the video, he thought the plaintiff could stand for 40 minutes with difficulty, as opposed to being able to stand in comfort.
114 Dr Bronchinetti confirmed that his view as to the plaintiff’s condition and incapacity was based on six years of treatment, and he denied he was acting as an advocate for him. He was uncertain whether the plaintiff could do light bench work where he had an ability to get up, move around, and not engage in heavy or repetitive lifting. He did not think the plaintiff could work as a static security guard because of his constant pain.
115 When re examined, Dr Bronchinetti said that the plaintiff’s physical condition had really stayed much the same since March 2006 when the Panel was involved.
116 Dr Bronchinetti said the good day/ bad day scenario was a common finding. “People have patches where they are better off, and they have good and bad days.” Dr Bronchinetti did not think there would be any change in the foreseeable future as to the plaintiff’s work capacity.
117 Mr Miller, orthopaedic surgeon, first examined the plaintiff on 23 November 2004. Mr Miller had available to him x-rays which revealed a probable spondylitic spondylolisthesis at L5-S1.
118 Mr Miller thought the lower lumbar pathology in the form of an L5-S1 spondylitic spondylolisthesis with disc degeneration accounted for the plaintiff’s symptoms and would preclude a significant return to work. He organised an MRI scan which revealed a subtle anterolisthesis at L5 on S1 and bilateral L5 spondylolisthesis with no nerve root compromise.
119 On initial examination, there was no spinal deformity but there was lower lumbar tenderness and a restricted range of motion, being two thirds of normal. There was no neurological deficit.
120 The plaintiff was reviewed on 7 March 2005 when his symptoms remained largely unchanged and Mr Miller suggested continuing conservative management.
121 On review on 8 December 2005, Mr Miller thought the plaintiff would not be a good candidate for surgery but that he might benefit from a rehabilitation program and he suggested he be reviewed by Dr Thomas.
122 Mr Miller diagnosed lumbar spine disease and a symptomatic spondylitic spondylolisthesis at L5-S1 with pars defect. At that stage, he thought the plaintiff’s symptoms were significant and his long term prognosis was only poor. He thought the plaintiff would have a reduced work capacity and was not able to do work involving repetitive bending, lifting of weights more than ten kilograms and he would have to shift his posture regularly.
123 The plaintiff was referred to Mr de la Harpe on 22 June 2005 and he was seen on 8 September 2005 for review. He last saw the plaintiff on 13 May 2009 at the request of the plaintiff’s solicitors.
124 On initial examination, Mr de la Harpe found restriction of lumbar movement and no other neurological abnormality. The plaintiff brought with him an x ray and a CT scan but not the MRI.
125 Mr de la Harpe noted, depending on the MRI, surgery involving some sort of fusion was an option for the plaintiff if he continued to be significantly disabled and not able to return to work.
126 Mr de la Harpe noted that the plaintiff was going to see Mr Miller the following day to see if surgery was an option. Mr de la Harpe commented that the plaintiff was understandably most concerned about having a fusion and would get back to him if it was something that he wanted to contemplate.
127 On re examination in May 2009, Mr de la Harpe noted the plaintiff’s situation had not really changed. There was limitation of lumbar movement and no neurological abnormality.
128 Mr de la Harpe diagnosed back pain most likely related to the instability at the lumbosacral level, that being bilateral pars defect at L5. In his view, that seemed to have been triggered or aggravated by a work related incident.
129 He thought the plaintiff had continued to suffer incapacitating back pain, such that he could not return to any form of gainful employment, but he would be happy for the plaintiff to consider an attempt at retraining into an alternative occupation that involved only sedentary duties.
130 He thought the prognosis was extremely poor as the plaintiff has shown very little improvement and it was unlikely he would return to work despite years of conservative management. He noted at some stage it may be necessary to consider a fusion.
131 The plaintiff was first seen by Associate Professor Varma, psychiatrist, on 5 September 2005 on referral from Dr Bronchinetti. He was last seen on 25 June 2007.
132 In Professor Varma’s view, the plaintiff suffered from anxiety and depression secondary to physical injury.
133 Dr Varma noted that he had the feeling the plaintiff came to see him mainly for the purpose of the court case which was in progress. Further, he noted the plaintiff was very irregular with treatment and follow up.
134 Dr Varma changed the plaintiff’s medication to Zoloft in June 2007, having started him on Avanza in November 2006. The plaintiff told him at that stage he was still not doing anything and was “mucking around in the house”.
135 As far as his prognosis was concerned, Dr Varma felt anxiety and depression would continue as long as the plaintiff’s back problems were not sorted out. He noted the plaintiff would need to deal with his back problem and, once it improved, his depression should improve.
136 The plaintiff was seen by Mr Klug, neurosurgeon, on 17 June 2009.
137 The plaintiff told him that low back pain spread to either side and was a little more marked on the right. He found bending, twisting, sitting and standing for long periods of time aggravated his pain. Intermittently, there was pain in both lower limbs.
138 On examination, there was a substantial restriction in movement of the thoraco lumbar spine. There was half the expected range of a person of the plaintiff’s age and physique. There was mild restriction of straight leg raising, largely due to back pain, but sciatic nerve stretch tests were negative. There was no evidence of radiculopathy and no objective evidence of impaired motor or sensory function.
139 Mr Klug believed the plaintiff was suffering from the effects of aggravation of spondylosis at the lumbosacral level. The aggravation was responsible for the plaintiff’s ongoing pain with some referral of pain into the lower limbs without, however, evidence of a radiculopathy or other neurological disturbance.
140 He considered the plaintiff could not return to his previous employment of a labouring nature and that he could probably do some light physical activities working at bench height where there was flexibility. However, taking into account the plaintiff’s background and training, he thought it would be difficult for the plaintiff to find suitable employment.
141 Mr Klug considered the plaintiff’s prognosis was guarded. He suspected the plaintiff would continue to have symptoms referable to his low back which would vary in severity. He had no reason to doubt the plaintiff’s ongoing back pain had been a cause of concern and considerable frustration to him.
142 Dr David Weissman, psychiatrist, examined the plaintiff on 1 June 2009. He diagnosed a Chronic Adjustment Disorder with depressed mood and anxious mood of moderate severity which he thought had stabilised.
143 The plaintiff told him that he could shower and dress independently, and that he tried to do everything he could, albeit with difficulty. He had a self propelled lawn mower which sometimes he could not use at all and sometimes he was able to sit on for 15 minutes, and at other times it exacerbated his pain for three to four days. He was able to do the grocery shopping and drive a car.
144 At that stage the plaintiff was taking 100 milligrams of Zoloft daily. He told Dr Weissman that he saw a psychiatrist, but it did not really help.
145 On mental status examination, the quality of the plaintiff’s affect was moderately flat, mildly depressed and anxious, and mildly tense or irritable. His thought stream was normal, and there was no formal thought disorder. The content of his thinking revealed (closer to) moderate mixed reactive depressive and anxiety symptoms, themes, and features, as well as grief regarding losses of work and independence. There were no formal abnormalities of perception such as illusions or hallucinations. The plaintiff’s higher cognitive functioning was not tested. It was noted his insight and judgment were characterised by resilience, determination, and stoicism.
146 In Dr Weissman’s view, the plaintiff should resume treatment with the psychiatrist of his choice and he should also remain on 100 milligrams of Zoloft per day.
147 He considered the plaintiff’s prognosis from a psychiatric point of view was fair. He noted the plaintiff had a number of ego strengths and positive prognostic factors. On the other hand, the plaintiff was very young, had not been able to work for more than six years and was not able to participate in many previously enjoyed activities.
148 In Dr Weissman’s view, the plaintiff was probably incapacitated for full time work on the basis of his depression, subjective cognitive problems and medication side effects. Despite his psychiatric condition, Dr Weissman thought the plaintiff still retained at least a partial capacity to perform suitable alternate or modified duties.
Investigations
149 A lumbosacral x-ray of 20 March 2003 showed anterior slipping of L5 on S1 associated with bilateral defects in the pars interarticularis of the fifth lumbar vertebrae. It was noted the discs were of normal width and there was no abnormality in the vertebral bodies. The facet joints and other pars interarticularis appeared intact and the sacroiliac joints appeared normal.
150 A regional bone scan was carried out on 9 May 2003, the results of which appeared to be normal.
151 A CT of the lumbar spine was carried out on 22 April 2003. It was concluded there was Grade 1 isthmic lumbosacral spondylolisthesis without evidence of disc herniation.
152 An MRI of the lumbar spine was carried out on 28 December 2004. It showed a subtle anterolisthesis of L5 on S1 secondary to bilateral L5 spondylosis.
153 A CT of the lumbar spine, taken on 1 November 2006, showed Grade 1 isthmic lumbosacral spondylolisthesis.
Vocational and Wage Evidence
154 A vocational assessment was carried out by Margaret Leitch of Evidex in June 2009.
155 The plaintiff told her that prior to his injury, he had planned to continue work as an order picker until he secured work nearer to his home as a security officer. He hoped to progress his career in the security industry and develop his own small business at a later date.
156 Ms Leitch concluded that as a result of the effects of his back injury, the plaintiff did not have a capacity to return to his pre injury employment as a packer. She concluded there was no commercially viable occupation in the open labour market for which the plaintiff was likely to meet the definition of suitable employment and that this situation or condition would continue indefinitely.
The Defendant’s Medical Evidence
157 The Medical Panel (“the Panel”), on 6 March 2006, considered the plaintiff was suffering from a soft tissue injury to the lumbar spine relevant to the claimed injury and he was also suffering from a minor spondylolisthesis condition not relevant to the injury. At that time, the Panel thought the plaintiff had a current work capacity. Further, in the Panel’s opinion, the plaintiff was also suffering from an Adjustment Disorder with depressed mood and anxiety relevant to the claimed injury.
158 The plaintiff has been examined on a number of occasions for medico-legal purposes by Mr John Bourke, orthopaedic surgeon. He saw the plaintiff initially on 4 June 2003, reassessed him on 14 January 2004 and last examined him on 10 August 2004.
159 On the most recent examination, there was limited lumbar movement. A slump test was negative bilaterally and, in particular, there was no evidence of sciatic nerve irritability. Knee jerks were present and equal, as were ankle jerks.
160 Mr Bourke noted that he had seen plain films and a CT of the lumbar spine which showed an L5-S1 spondylolisthesis.
161 The plaintiff stated his pain was worse, but in reality Mr Bourke noted the plaintiff’s movement was much better than on the previous occasion.
162 After earlier examinations, Mr Bourke considered the plaintiff was developing a chronic pain syndrome, the focus of which was his low back. He thought some pain management counselling would be helpful. He had suggested the plaintiff needed to increase his self management techniques, and noted he had done that and was actually exercising on a regular basis in the form of walking.
163 Mr Bourke considered the plaintiff was approaching the fitness that would enable him to do suitable employment, and consideration needed to be given in relation to assessing the plaintiff and retraining him if necessary.
164 Mr Bourke considered in the longer term the plaintiff was at risk of further episodes of low back related symptoms, given the presence of spondylolisthesis and the history of injury at work.
165 Mr Bourke confirmed that the plaintiff’s range of movement was approaching normal but his pain was getting worse, indicating that there were other factors influencing his presentation which needed to be addressed.
166 In a supplementary report, Mr Bourke noted that work as a car park attendant or sales attendant on a part time basis may eventually come within the plaintiff’s abilities, but security guard work would not. It was negative in the plaintiff’s return to work folio that he had not worked for almost two years at that stage, and taking into account his previous work experience.
167 By letter dated 11 March 2005, Mr Bourke advised that he assumed that if the plaintiff had persisted with the exercise program, and if the issues influencing his pain response had been addressed, the plaintiff should now have reached the stage where he was fit for suitable employment.
168 The plaintiff was examined by Mr Peter Scott, orthopaedic surgeon, on 24 November 2004 and he later provided a supplementary report, having been provided with a vocational assessment.
169 On examination, there were markedly reduced thoracolumbar spinal movements with pain at extremes. There was no evidence of any kyphos or kyphosis or scoliosis or kyphoscoliosis. Straight leg raising was to 45 degrees bilaterally, with no evidence of any sciatic nerve irritation. There was a full range of movement of all lower limbs, and no lower limb abnormality of motor power, tone sensation, reflex activity, or circulation.
170 Mr Scott had seen the x-rays of March 2003 and the CT scan of April 2003, which he considered showed evidence of an L5-S1 spondylolisthesis grade 1, without any evidence of any neural compromise.
171 In Mr Scott’s view, the plaintiff sustained an injury at work with aggravation of a spondylosis, with the production of a spondylolisthesis and symptoms gradually worsening.
172 Mr Scott considered the plaintiff had no capacity for fulltime activities which required repetitive bending or lifting in the future, in view of the presence of a spondylolisthesis and lumbosacral nerve root irritation. He thought the plaintiff was only fit for very light work which did not require prolonged standing, sitting, repetitive bending or heavy lifting.
173 He thought the plaintiff should be encouraged to maintain a self imposed course of back and abdominal wall strengthening exercise, and avoid all actions which he knew aggravated his symptoms.
174 Mr Scott noted the plaintiff had also developed an anxious or frustrated response which may be magnifying the overall presentation. He thought the plaintiff required ongoing medication and perhaps some counselling.
175 Mr Scott considered that if the plaintiff’s symptoms worsened, reconsideration of the management program and possibly even a spinal fusion may be required. He thought at that stage the plaintiff’s prognosis was uncertain.
176 Mr Scott was provided with the vocational report from Crawford dated 31 January 2005. He thought the plaintiff might be able to take up a job as a security guard, sales assistant or car park attendant in a part time capacity, provided he could avoid the usual aggravating factors. Mr Scott considered that the prognosis with regard to the plaintiff’s L5-S1 spondylolisthesis was uncertain.
177 The plaintiff was examined by Dr Douglas, psychiatrist, in July 2004 and re examined in February 2005. On his most recent examination, Dr Douglas noted that the plaintiff was a fit looking man who seemed to walk normally. He sat, but after a short time he stood and moved around which, in Dr Douglas’s view, was consistent with low back pain.
178 On mental status examination, the plaintiff’s mood appeared reactive and normal. His talk was fluent, coherent, and expressive. There were no disorders of perception, such as illusions or hallucination. His insight was good. The plaintiff recognised that he was worried about the future and that he felt down in the dumps at times. He was able to remember information and to attend to matters and change the focus of his attention fluently.
179 Dr Douglas noted that previously he felt the plaintiff did not have a psychiatric diagnosis. However, on re examination, he felt that perhaps the plaintiff’s symptoms of depression and anxiety were sufficient to make the diagnosis of adjustment disorder with depressed mood, though it was of a mild degree. He came to this view as he felt the prescription of anti depressant medication might be helpful for the plaintiff.
180 In Dr Douglas’s view, the plaintiff’s psychiatric symptoms would not limit his capacity for work, and in fact those symptoms would probably improve if the plaintiff had remunerative work. The plaintiff discussed with him that he was prepared to try employment, including security guard, sales assistant, and car park attendant, if it were available.
181 The plaintiff was examined by Mr Brendan Dooley, orthopaedic surgeon, on 23 March 2009 and he also provided supplementary reports as to the plaintiff’s work capacity.
182 Mr Dooley noted on examination that the plaintiff walked slowly but without any evidence of a limp. Physical examination revealed minor loss of movement in the lumbosacral spine, without any evidence of muscle spasm. Straight leg raising was to 60 degrees bilaterally, but causing back pain. Knee and ankle reflexes were equal and active. There was no evidence of any muscle wasting or weakness in any of the muscle groups in either leg. There was no sensory loss.
183 In Mr Dooley’s opinion, as a result of the work he was doing, the plaintiff developed low back pain. He commented that the nature of the injury sustained was not known as there were no x-rays or imaging available, but in his view, the plaintiff probably developed a back strain due to aggravation of disc degenerative changes in the lumbosacral spine. He noted the plaintiff’s condition had become chronic. There was evident abnormal illness behaviour with the development of anxiety, panic attacks, and depression.
184 Mr Dooley considered the plaintiff’s physical condition had probably largely resolved, and the plaintiff appeared now to be suffering from abnormal illness behaviour with abnormal psychological reaction, with the development of anxiety, panic attacks, and depression which were now the major component of his overall problem.
185 Mr Dooley considered once the plaintiff overcame his psychological problems of anxiety, panic attacks, and depression, his physical condition would recover, and he would be able to resume at least suitable light work which would include helping run a restaurant.
186 As the plaintiff had not worked for six years, Mr Dooley thought it unlikely that any prospective employer would employ him and he would be best suited to returning to work part or fulltime in the family business.
187 Mr Dooley considered the plaintiff’s prognosis guarded but dependent largely upon his recovery from his psychological reaction to the physical injury. He concluded that no specific physical treatment or operative treatment was likely to help the plaintiff’s recovery.
188 Mr Dooley was subsequently provided with the CT scans of the plaintiff’s lumbosacral spine taken 22 January 2003 and 21 November 2006. He noted both scans showed no abnormality of any importance. Both revealed a Grade 1 isthmic lumbosacral spondylolisthesis without evidence of disc herniation. Having seen those investigations, Mr Dooley confirmed his initial opinion.
189 Mr Dooley was subsequently provided with the Crawford Health Care Management report dated 31 January 2005, reports from Dr Bronchinetti, and Mr de la Harpe’s most recent report of 22 May 2009.
190 Mr Dooley considered that the plaintiff was not fit to resume his previous work, which involved repetitive bending and lifting at a rapid rate, but from a physical point of view he was fit for light and sedentary type work.
191 Mr Dooley considered in the first instance the plaintiff should recommence work on a graduated program, starting with four hours a day, three days a week, and then quickly – within a month or two – increasing to four hours a day, five days a week. In time, possibly and even probably, he thought the plaintiff could return to fulltime work. However, a practical problem for the plaintiff was that he had not worked for over seven years, and it was highly unlikely that he would ever be employed by any prospective employer except through family or friends.
192 Mr Dooley did not consider the plaintiff’s back problem would be helped by a surgical fusion, and, even if surgery were carried out, he thought the plaintiff would still not be able to return to heavy manual work.
Video Evidence
193 On 17 July 2009, the plaintiff was shown driving to the restaurant and then travelling as a passenger in a car with his brother going into the city. He was then shown walking along the footpath but he did not know what he was doing that particular day. He and his brother then returned to Footscray and the plaintiff was shown going up the stairs at the rear of the restaurant.
194 The plaintiff was shown on the balcony patio from 1.38 pm, leaning with his back on the balcony. He said he was “always leaning on something to rest his legs or something”. It was part of the exercises from his physiotherapist. He had good and bad days, “it just depended how he went”.
195 The plaintiff was shown on and off the balcony until 3.49 pm.
196 During that time the plaintiff was shown to stand continuously for only about six minutes between 2.11 and 2.17 pm when he sat down. He was last shown seated at 3.11 pm and was then shown talking to his father, brother and a man in a fluro jacket at 3.26 pm for one minute. At about 3.30 pm, another man was seen with the plaintiff on the balcony and the plaintiff was standing for about two minutes. There was no further film until the plaintiff was last seen at the premises at 3.49 pm.
197 When it was put to the plaintiff that he had been shown standing for 40 minutes, he said he did not know he was, but did not think so, and that it was obviously a good day if the video did show it. He had told his doctor he could sit or stand for 20 minutes on average, depending on the day.
198 The plaintiff did not disagree he seemed to be standing and turning and talking in an unrestricted manner, confirming he had good and bad days. If he pushed himself too far, he would get stuck in bed for three or four days “with the pain obviously a bit higher because he was on his feet so long”.
199 The plaintiff explained he was leaning in the witness box, having been standing for some time.
200 The plaintiff agreed that he went down the stairwell and came out from the apartment, and at one stage produced a wad of notes. The other people shown on the film were his father and brother. The plaintiff could not really recall what he was doing with the money but he could have been paying a bill. He did not know what the piece of paper was he was shown giving to his brother.
201 The plaintiff thought the men on the patio were arranging something to do with the restaurant but he did not really remember. He denied he was doing business with any of them.
202 On 21 July 2009, the plaintiff was shown driving from Caroline Springs to a BP service station in Ballarat Road and then getting into his car.
203 The plaintiff was then shown on video on 26 June 2009 driving to a Rockbank service station. He left the service station with items in his hand and reboarding the car, and was seen sitting in the car eating. He then went to Bacchus Marsh to a tattoo shop. He said that he went for a “touch up of the tattoo” which mostly covered his shoulder and which finished about three inches over his belt.
204 The plaintiff was then shown on 25 May 2009 in a shop with a friend called Angelo. They went from Caroline Springs to a service station at Taylor’s Lakes. The plaintiff was shown with Angelo at KFC sitting in the car.
205 They then drove to Thornbury where the plaintiff got out of the vehicle and went to a gun shop to “get some DVDs”. The plaintiff said he used to shoot on the family farm. He owns two rifles for hunting. He used to go for a lot of target shooting and used to shoot rabbits. Now the guns are “just antiques” and he does not go hunting anymore. The last time he went hunting was years ago and he cannot go now because it is a lot of walking up and down hills. He thought he would have shot a couple of times at the family farm.
206 The plaintiff was then shown going into Zingarra Café in High Street with his friend and then walking to a gun shop. He also went to the Thornbury Café. They then drove to Melton and attended another KFC. Next they went to the Coburn Shopping Centre in Melton and then drove to Bacchus Marsh to the tattoo shop where Angelo was having a tattoo done. The plaintiff then attended at the Ballan property. He placed a bag of dried dog food weighing about four kilograms on the ground and bent forward from the waist and rolled up his jeans. The plaintiff said he goes and feeds the dogs constantly, “on [his] good days of course”.
207 When it was put to the plaintiff that he seemed to have had a pretty busy day he said, “If you had constant tape you would see the difference on my good days and my bad days”.
Vocational Evidence
208 A 104-week vocational report was completed on 31 January 2005.
209 Having summarised the medical evidence, it was concluded that the plaintiff appeared to have at best a very limited work capacity. It was noted he may be able to return to some part time security work, ideally within a control room or as a gatehouse attendant where he was able to change posture as pain dictated. It was considered the plaintiff may also be able to undertake some part time customer service roles.
210 It was noted the plaintiff was experienced in cash handling and customer service, and that a role that did not require heavy lifting may be suitable for him. Further, the plaintiff’s experience in handling cash would enable him to undertake car park attendant type duties – a position that did not require any heavy lifting and would allow him to sit and stand as pain dictated.
211 It was noted the plaintiff appeared to have been able to secure employment through his own network on most occasions, and that he appeared to have a fairly stable work history prior to his injury. Further, it was noted that the plaintiff was not actively job seeking, as he did not believe he was fit to return to the workforce.
212 It was concluded at the time of that assessment that the plaintiff did not appear to have a physical capacity for these jobs.
213 The plaintiff’s undated resume set out that he had a Certificate 2 in Security (Guarding) S1 and S2, a Certificate in First Aid Level 2, a Certificate in Baton and Handcuffs, a Security Guard/Crowd Controller licence, a driver’s licence, a forklift licence, and a Certificate 2 (Furnishings).
214 The plaintiff then detailed his employment background. He worked behind the counter and cleaning at the Roadhouse Pool Hall in Werribee between 1994 and 1995, waiting and cleaning at Bucovin, a restaurant in West Footscray, between 1995 and 1996, car detailing between 1997 and 1999 at Dynamic Detailing, working as a security guard at Superior Protective between 1999 and 2000, and at Enjay Security Services between 2001 and 2002.
215 The defendant tendered the Worker’s Claim Form and the Employer’s Claim Report. WorkCover Certificates dated 19 March 2003 and 28 January 2005 were also tendered.
216 The individual summary report set out hours worked by the plaintiff from commencement with the defendant on 26 August 2002 until the said date, and thereafter the amount of weekly payments received by him.
Property and Loan Evidence
217 The defendant tendered title search details which revealed the plaintiff was the registered proprietor of three properties.
218 The searches revealed that the plaintiff was the registered proprietor of a block of land at Ballan, Volume 03674 Folio 705, the address of which is 160 Inglis Street, over which there was a mortgage to the Westpac Bank.
219 The plaintiff also owned land Volume 10235 Folio 669, Lot 1 on Title Plan 003175K, in relation to which there was no encumbrance.
220 The plaintiff was also the registered proprietor of Volume 11014 Folio 651 – Lot 135 on Plan of Subdivision 41590Y. There was a mortgage to the Bank of Western Australia dated 27 June 2009 in relation to that property - the street address of which is 34 Caesia Way, Caroline Springs.
Overview
221 I accept in this case the plaintiff suffered a compensable injury in the course of his employment – namely an aggravation of a previously asymptomatic lumbar degenerative condition described as a spondylosis with the production of a spondylolisthesis without evidence of nerve root compromise.
222 Save for Mr Dooley, who considered the plaintiff now appeared to be suffering from abnormal illness behaviour, it is generally accepted that the plaintiff continues to suffer from an organically based condition.
223 The issue is whether any impairment resulting from that condition is serious.
224 Section 134AB(37) defines “serious injury” as a permanent serious impairment or loss of body function.
225 To satisfy the test under the Act, the impairment in relation to each of pain and suffering and loss of earning capacity must have consequences that, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
226 The statutory test requires a judgment based on an evaluation of all the evidence.
227 The term “serious” requires the impairment and its consequences to this particular plaintiff to be reviewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA at para 29.
228 Obviously the plaintiff’s own evidence as to his level of pain and disability is particularly relevant to this issue. Accordingly, matters of credit which have been raised by the defendant must be considered.
229 The plaintiff’s credit has been challenged in two different contexts, firstly in terms of the circumstances in which he obtained a loan application with Bankwest and secondly his activities shown on video.
230 Details of the plaintiff’s property dealings and in particular his loan application only became apparent in examination in chief - not having been referred to in the plaintiff’s affidavits. It is not the failure to mention this issue in his affidavit that is of as much concern as the false information the plaintiff gave in support of the loan application.
231 As the plaintiff admitted in order to obtain the loan, he misled Bankwest advising it that he was in receipt of PAYG income with the company of $142,000 as a manager when he in fact he was not working and he had been granted a disability pension three weeks earlier.
232 Whilst I do not accept that this is evidence of the plaintiff having earned money working with the company it shows the plaintiff’s willingness to lie to assist in obtaining a loan - a matter of credit not capacity for employment.
233 The second purported attack on the plaintiff’s credit was the video evidence of 17 and 21 July 2009.
234 Whilst the film on the earlier date covered about a three hour period when the plaintiff was seen at the family premises, he was not shown standing for longer than six minutes. Whilst he appeared to have been sitting from 2.17 pm until at least 3.01 pm, there was no film of this entire period.
235 There was nothing shown on this film that persuaded me the plaintiff was working in the family business. Nor were any of the plaintiff’s activities shown on 17 and 21 July 2009 travelling to and from various locations and attending shops and cafes inconsistent with his evidence as to his level of disability, save that he did not appear to have difficulty getting in and out of a car.
236 Accordingly, I do not consider the plaintiff’s credit was affected to any significant degree by the film.
237 Whilst I have some concerns about the reliability of the plaintiff’s evidence, given his conduct when making the loan application, I must take into account all the evidence when considering his serious injury application.
238 Since the incident, now over six years ago, the plaintiff has complained of a significant level of variable constant pain in his back and lower legs, more on the right.
239 His treating surgeon, Mr de la Harpe, considered the prognosis was extremely poor as the plaintiff had shown very little improvement and it was unlikely the plaintiff would return to work despite years of conservative management. Dr Bronchinetti thought the plaintiff’s back pain would continue indefinitely.
240 The possibility of surgery in the form of a fusion has been recently mentioned by Mr de la Harpe and in earlier days by Mr Miller.
241 The plaintiff continues to require pain killing medication including Tramadol. His sleep is interrupted by pain and on frequent occasions he is left feeling tired and lethargic.
242 The plaintiff’s ability to sit and stand for prolonged periods has been seriously compromised by his back condition. Further, he is restricted in lifting heavy items and has to take care in any physical activity placing strain on his back.
243 As a result of the plaintiff’s back condition, he is unable to engage in a range of sporting activities he previously enjoyed including jogging, playing basketball, tennis and soccer socially. The plaintiff has had to sell his motor bike because riding it with his back condition caused him pain. He no longer goes hunting and his shooting is limited to occasional target shooting.
244 These restrictions and the impact the injury has had on the plaintiff’s social life were confirmed by his brother, Richard, and no significant challenge was made in relation to his evidence in that regard. Further, there was nothing shown on video inconsistent with the plaintiff’s evidence as to his reduced sporting and physical activity since the incident.
245 Further, the plaintiff’s inability to do unrestricted full time manual work, a view shared by all doctors and vocational assessors in this case, is clearly a serious consequence for an very young, uneducated man.
246 Dr Bronchinetti, who has treated the plaintiff for over six years, did not alter his view on cross examination that the plaintiff is totally unfit for all work on both physical and psychiatric grounds separately.
247 No medico legal examiner has considered the plaintiff could return to heavy unrestricted work, including Mr Dooley who thought the plaintiff was fit for light sedentary work but would have difficulty obtaining same because of the length of time he had been out of the workforce.
248 Taking into account this medical opinion as to the plaintiff’s incapacity for his pre injury manual duties, the effect of his back condition on his domestic and social activities and his level of pain and the need for medication, I accept that the impairment to the plaintiff’s lumbar spine, when judged against other impairments in the range of possible impairments, is more than significant or marked and is at least very considerable.
Loss of Earning Capacity
249 As the plaintiff worker was aged under twenty six at the time of injury, special statutory requirements apply.
250 Firstly, the plaintiff must establish a loss of earning capacity of 40 per cent at the time of hearing. He has done so, as at present the plaintiff’s gross earnings from personal exertion are nil.
251 Further, the plaintiff must establish that he has a loss of earning capacity of 40 per cent or more and that it is likely to continue permanently. Under subsection (38), the onus is squarely on the plaintiff to establish the loss of earnings and to the requisite threshold.
252 In the Legislative Assembly on 23 May 2000, The Honourable M M Gould, Minister assisting the Minister for WorkCover, in The Second Reading Speech on the Accident Compensation (Common and Benefits) Bill said:
“The three year pre and post injury period does not apply in the case of a worker referred to in Section 5A(7) of the Act or a worker under the age of twenty-six at the date of injury. The Government recognises that apprentices and workers undergoing training for the purposes of being qualified and in general terms workers under the age of twenty-six should not be subject to a six year period of inquiry of earnings or earning capacity. In the case of such workers the Court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common law position prevails.”
253 I accept that the rationale for the insertion of this section was not to disadvantage young workers in assessing an “after injury” earnings figure against their “without injury” earnings.
254 The plaintiff had not worked a full financial year for the defendant. In the financial year ending June 2003, he earned $21,763 gross. That figure included earnings for the 31 week period between 19 August 2002 to 17 March 2003 and WorkCover payments for the period 18 March 2003 to 30 June 2003.
255 The plaintiff’s pay records show that in that 31 weeks he earned $16,705.56. Therefore, the plaintiff’s average weekly gross earnings before the incident are $538.88. The equivalent annual gross earnings total $28,021.76.
256 I accept that $538 is an appropriate without injury earnings figure.
257 The issue is then whether, applying common law principles, the plaintiff can establish a permanent loss of earning capacity of 40 per cent or more. To succeed in this application, he must show that he could not earn in excess of 60 per cent of his without injury earnings of $538 per week – namely, $322 per week.
258 When considering loss of earning capacity, it is a matter of looking at the individual circumstances in each case. A young person on the threshold of a career may have other options not shared by an older worker. The onus is on the plaintiff to show what, but for back injury, he would have earned in the future in what type of employment.
259 The question then is whether I consider the plaintiff would have pursued manual employment but for the back condition or whether I accept he would have taken a different course running a security business or engaging in property development.
260 If it was accepted that the likelihood was that plaintiff intended to pursue a life of manual work, in my view, he has established the requisite loss as he does not have a capacity for suitable employment.
261 Following the incident, the plaintiff tried lighter work for a very short period at Westgate but could not cope. He attempted security work but did not last the day. He obtained a truck licence but had problems with driving around corners, also with the suspension, and has not been able to work in that field. Further, there is no evidence that he has done anything more than very limited work in the restaurant.
262 I do not accept, as was submitted on behalf of the defendant, that the plaintiff has a capacity to work fulltime as a security guard earning $750 a week, retail sale $550 a week, or car park attendant $600 a week, given the problems he has with pain standing and sitting for prolonged periods.
263 In terms of the likely course of the plaintiff’s working life but for injury, as submitted by his counsel, the plaintiff, who was aged twenty one at the time of the incident, has only done manual work. In addition to security and packer work, his resume, which was tendered by the defendant, sets out from the age of sixteen the plaintiff also worked as a waiter, a cleaner and a car detailer.
264 It was submitted that it was purely speculative that with this work history the plaintiff would have been likely to pursue a career of a non manual nature.
265 Counsel for the defendant submitted the job with the defendant, even on the plaintiff’s evidence, was not a career move. At the time of the incident, the plaintiff had given up his security job as there was not enough work and he had done some courses and was planning to start up his own security firm at some time, as he told Margaret Leitch at Evidex.
266 Counsel for the defendant also relied upon the fact that at some time, whether before or after the said date, the plaintiff became involved in a business of importing Japanese cars which, it was submitted, showed his business skills.
267 Further, the plaintiff’s involvement in property development, at both Caroline Springs and the block at Ballan, was said to be evidence of the plaintiff’s business and entrepreneurial skills and, as such, evidence of his potential earning capacity.
268 Potential earnings from such activities come within the definition of gross earnings from personal exertion which is defined in s 134AB (3)(9A) as having the same meaning as that expression in s 6(2) of the Transport Accident Act.
269 In a addition to wages and the proceeds of any business carried on by that person, the definition also includes under sub section (e) any profit arising from the sale by that person of any property acquired by the person for the purpose of profit making by sale or from the carrying on or carrying out of any profit making undertaking or scheme.
270 However, the plaintiff was unclear as to what steps had been taken in relation to planning permits or other applications in relation to the properties, the loan application having been made only recently. The plaintiff’s answers did not indicate any particular business acumen or knowledge. Further, he denied that on a daily regular basis he would be fit enough to drive, see tradesmen and attend appointments, tasks he would be required to undertake if property development was his career.
271 Taking into account the plaintiff’s work history and limited education, I accept that, but for his back injury, the likelihood was that the plaintiff would have been engaged in work involving manual duties. I am not satisfied in these circumstances that his career would have taken the direction suggested by counsel for the defendant.
272 I accept the evidence of the plaintiff’s treaters, Dr Bronchinetti and Mr de la Harpe, that the plaintiff has incapacitating back pain such that he could not return to any form of gainful employment.
273 Accordingly, the plaintiff has a loss of earning capacity of 40 per cent or more which I find to be permanent.
274 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
275 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am not satisfied that there is any retraining or rehabilitation that would alter the situation that the plaintiff has a loss of earning capacity of 40 per cent or more.
276 As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
277 Accordingly, I grant the plaintiff leave to bring damages for pain and suffering and loss of earning capacity.
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