Maclure v TPD Trading Pty Ltd
[2013] VCC 1272
•25 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06328
| ANDREW JAMES MACLURE | Plaintiff |
| v | |
| TPT TRADING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 September 2013 | |
DATE OF JUDGMENT: | 25 September 2013 | |
CASE MAY BE CITED AS: | Maclure v TPD Trading Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1272 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – discal injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to issue proceedings for pain and suffering damages and economic loss damages on account of the injury suffered in the course of employment with the defendant on 8 December 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater & Gordon |
| For the Defendant | Mr I S Gourlay | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff in this action seeks leave to commence common law proceedings against the defendant, his former employer known as TPD Trading Pty Ltd, pursuant to s134AB (16)(d) of the Accident Compensation Act 1985 (“the Act”) and is in respect of both pain and suffering and loss of earning capacity damages.
2 The application refers to an injury to the plaintiff’s lumbar spine which he sustained on or about 8 December 2008 whilst working as a labourer for the defendant at Kilpa Road in Moorabbin whilst manoeuvring a heavy garden pot.
3 At the hearing, it was not in dispute that the plaintiff suffered a compensable injury in the course of his employment with the defendant on the date alleged. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of this compensable injury. Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.
4 In his opening, Counsel for the defendant indicated that the main issue before the Court was whether the impairment subsisting at the time of hearing, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable and more than significant or marked”. See Humphries & Anor v Poljak.[1]
[1](1992) 2 VR 129 at paragraph [140]
5 This is colloquially known as a “range case”. It was also contended that a main defence of the plaintiff’s case would be centred on credit. This issue was enlarged during the hearing of the matter where surveillance films were tendered in evidence and cross-examination was conducted concerning a motoring trip to Queensland approximately two years ago and also the painting of three rooms of the plaintiff’s house in or about December of last year.
The injury
6 Counsel for the defendant submitted that the compensable injury was probably as described by either Mr Hooper or Professor McInnes on behalf of the defendant.[2]
[2]exhibits 6 and 3 respectively
7 Mr Hooper described the injury as follows:
“This man has discogenic low back pain. His symptoms were precipitated by an incident three years ago … the diagnosis is multi-level disc disease. His symptomatology has been precipitated by the incident of 2008.”[3]
[3]Defendant’s Court Book (“DCB”) 37
8 Professor McInnes, in his report, stated as follows:
“It is my opinion that this man has degenerative disc disease of his lumbosacral spine particularly involving L4-5 and L5-S1 intervertebral disc levels. There is disc bulge at L4-5 and in particular there is left-sided disc protrusion contacting and displacing the left descending S1 nerve root at L5-S1. … This man’s degenerative disease is probably of longstanding but has certainly been aggravated by the injury he so describes at work on 8 December 2008. … .”[4]
[4]DCB 17
9 Further, Professor McInnes considered that at the date of his assessment, being 17 March 2011, that the plaintiff continued to suffer from this “medical condition relative to the injury”. His prognosis at that stage was –
“… for continuation of chronic low back pain.”
10 The diagnoses thus proffered by the defendant’s practitioners were essentially corroborated by the plaintiff’s practitioners and particularly in the report of Professor Vernon Marshall dated 30 April 2013, who had been retained by the defendant, but whose report was tendered on behalf of the plaintiff.[5]
[5]exhibit L
Medical consequences
11 The plaintiff was first treated by general practitioner, Dr Greg Sendecki, who reported on 19 August 2009.[6] He recorded a history and a diagnosis consistent with that referred to above, but also included –
“… aggravation of facet joint arthropathy changes at L3-4 and L4-5 with posterior anterior fissuring and dissociation of the discs at these levels.”
[6]exhibit C
12 This diagnosis was confirmed by an MRI scan taken of the plaintiff's lumbar spine on 2 June 2009.[7] Dr Sendecki recorded that the injury significantly impacted on both the plaintiff’s ability to work, in his daily life, as well as the associated pain resulting from these injuries. The plaintiff had been prescribed analgesics and had been having intense physiotherapy and hydrotherapy.
[7]exhibit B
13 The plaintiff was then referred to neurosurgeon, Mr Chris Xenos, who saw the patient on a single occasion on 10 November 2009. At that particular time, the plaintiff was in the process of vocational re-training but he was still unclear as to what options he had with regard to future employment.
14 The history included the occurrence of the injury which was accompanied by a “pop in the back” as well as associated left hip pain. Thereafter, the plaintiff described constant lower back pain which was worse overnight and in particular, when he stayed in one position for too long a period of time.[8]
[8]exhibit E – Plaintiff’s Court Book (“PCB”) 25
15 At that time, his diagnosis was –
“Lumbar spondylosis with minor L4-5 and L5-S1 disc prolapse.”
16 The prognosis at that stage was somewhat guarded as the plaintiff had multi-level disc disease at a relatively young age. He considered that repetitive manual handling work would not be ideal from a future employment point of view.
17 In so describing the prognosis as guarded, Mr Xenos said:
“It’s likely he will continue to have issues with his back … but surgery will not be appropriate and he can continue to manage this spinal complaint conservatively.”
18 On the retirement of Dr Sendecki, the plaintiff sought the services of another general practitioner, Dr Abby Hechtman, who reported on 27 March 2012.[9] At that stage, the diagnosis was one of chronic fluctuating mechanical back pain following a work injury on 8 December 2008. The treatment had consisted of intermittent analgesics (Panadol Osteo and Tramadol), Diclofenac (an anti-inflammatory) and Endep at night.
[9]exhibit D
19 The plaintiff had also been treated with back exercises, physiotherapy, hydrotherapy, Pilates and had had radiofrequency denervation procedures. At that stage, he was currently awaiting admission to the Nepean Rehabilitation Hospital for a two-week period of intensive therapy.
20 At that stage, Dr Hechtman considered the plaintiff would eventually have to adjust to living with a degree of pain but he could not predict any future employment prospects with any certainty.
21 The plaintiff was earlier referred to Dr Murray Taverner, an interventional and interdisciplinary pain management specialist, from whom four reports were tendered in evidence.[10] He recorded that he first saw the plaintiff on 10 December 2009 on referral from Dr Sendecki. He gave a history that he had managed to return to work on modified duties for three months after the original incident but was dismissed when it became apparent he would not be able to return to his normal duties. Also, at that stage, he had not used medication in the preceding three months because of seizures while taking Tramadol and amitriptyline.
[10]exhibit F
22 At that time, the plaintiff was complaining of axial non-radiating back pain that disrupted sleep and was worse with extension-type physiotherapy exercises and bending backwards, eased by bending forwards and hydrotherapy. He said prolonged sitting, standing and walking were painful. His past history included asthma and medication-related seizures and, accordingly, was taking no medication, having experienced side-effects with the combination of Tramadol and amitriptyline.
23 Examination revealed lumbosacral paravertebral tenderness that was more prominent on the left side and was associated with muscle guarding and spasm. He had a good range of back movement although extension and quadrant loading were painful. His MRI scan had shown annular tears and disc bulges at L3-4, L4-5 and L5-S1.
24 Dr Taverner’s working diagnosis was that the presence of the pain in a man of the plaintiff’s age and occupation, and disc bulges demonstrated on MRI indicated the likely cause to be “discogenic”. However, in addition, clinical findings raised the possibility of a treatable facetogenic contribution to his pain, and he recommended performing diagnostic facet blocks to determine if the plaintiff would benefit from a radiofrequency treatment.
25 The plaintiff was reviewed on 5 February 2010 to organise the facet blocks and he was admitted to the Beleura Hospital on 23 February 2010 for diagnostic blocks. The procedure revealed palpable tenderness and pain with movement for about three weeks.
26 Thereafter, comparative facet blocks were performed at Frankston Private Day Surgery on 25 May 2010 and treatment was performed which innervated the left L4-5 and L5-S1 facet joints, with the result of completely relieving a component of his pain and giving an overall 50 per cent reduction in pain for about four weeks.
27 It was recommended that the plaintiff proceed with a radiofrequency neurotomy for long-term pain relief. Accordingly, the plaintiff was admitted to Beleura Hospital on 28 September 2010 for the radiofrequency neurotomies. The plaintiff recorded that treatment/management relieved 20 per cent of his pain. The pain-related interference with activities of daily living was recorded as 50/70 on the brief pain inventory.
28 Using fluoroscopic guidance, left L2-5 radiofrequency neurotomies were performed denervating the left L3-4, L4-5 and L5-S1 facet joints. In recovery, there was less tenderness and pain with movement, which was encouraged. The diagnosis thereafter was:
“Symptomatic left L3-4, L4-5 and L5-S1 facet joints, annual tears and disc bulges at L3-4, L4-5 and L5-S1. Adjustment reaction with elements of stress and depression.”
29 The prognosis was recorded as being “difficult to say”. By way of explanation, Dr Taverner said:
“Radiofrequency treatment is said to be palliative in nature, lasting on average nine to twelve months after a successful treatment with a range of three months to three years or more before pain may return. Further treatment may be required.”
30
The plaintiff was also referred to Dr B Shirazi, a consultant in rehabilitation medicine. He made an assessment on 14 December 2011 and thereafter inpatient rehabilitation was arranged for between 13 April 2012 and
27 April 2012.[11] Following discharge in 2012, an outpatient-based physical and occupational therapy program was undertaken. His diagnosis was one of a chronic mechanical low-back pain from a work-related injury in 2008 as reported.
[11]exhibit G – PCB 40
31 Dr Shirazi's opinion at that stage was he did not believe the plaintiff had a capacity for manual work. He thought broadly, that sedentary work with reduced hours and ability to be flexible with sitting and standing duties may allow for an attempt to gain employment with certain restrictions.[12]
[12]PCB 41
32 In the meantime, Dr Taverner had continued to treat the plaintiff with the neurotomy procedures, together with a TENS machine which had been prescribed on or about November 2010.
33 On 28 February 2011, the plaintiff attended Dr Taverner complaining of recurrent severe back pain following a cough two weeks earlier that had caused his back “to light up as if he had been hit by a truck”.[13]
[13]exhibit F – PCB 32
34 Imaging taken at that time showed:
“A focal left-sided disc protrusion at L5-S1 that displaced the descending left S1 nerve root without canal stenosis or significant right-side disc lesion.”
35 Dr Taverner at that stage considered the plaintiff may be able to return to work as a pathology courier with lifting restrictions and standing and sitting restrictions. He advised a frequent postural change and job tasks that avoid repetitive upper body activity or sustained postures.
36 On 30 May 2011, the plaintiff advised Dr Taverner that his buttock pain had settled but had been replaced by central back pain that was noticeable with every step whilst walking. He described it as a jarring sensation similar to that experienced with a misstep off a gutter. When seen on 10 October 2011, the plaintiff was still struggling with back pain and he was still experiencing severe nocturnal pain and awoke each morning feeling tired, and experienced pain with minimal activity.
37 However, he was reasonably active, walking regularly, stretching and doing Pilates exercises but still avoided physical work because he felt it aggravated his pain. It was Dr Taverner who then referred him to Dr Shirazi, as already indicated.
38 When Dr Taverner reviewed the plaintiff on 18 June 2012, he told him the radiofrequency treatment had worn off and he would like another such treatment. On 31 July 2012, he was admitted to Beleura Hospital complaining of low-back pain radiating to his left leg and foot. Dr Taverner performed left L2-L5 radiofrequency neurotomies which anaesthetised the left L3-4, L4-5 and L5-S1 facet joints. Paravertebral nerve blocks were performed at each of these levels for pain relief.
39 At that stage, Dr Taverner thought a large element of the pain was arising from the lumbar facet joints and it was also likely that other elements of his pain were arising from the lower three lumbar intervertebral discs with annular tears seen at L3-4 and L4-5 discs in the 2009 MRI. He may also have some radicular leg pain which would be investigated with a new MRI scan. At that point, the prognosis was that the condition was likely to fluctuate. The radiofrequency denervation was a palliative treatment lasting on average nine to twelve months.
40 When seen again on 27 September 2012,[14] the plaintiff recorded that the radiofrequency neurotomy performed in July 2012 had provided useful pain relief with complete abolition of a component of his pain. The leg pain had gone but he was still using a walking stick and had back pain of moderate to severe intensity that was probably discogenic, arising from the known L4-5 and L5-S1 annular tears. Once again, he considered the plaintiff had mixed facetogenic and discogenic elements of back pain which could now be considered to be a relatively stable back condition.
[14]PCB 35
41
Dr Taverner reported most recently on 22 September 2013. On 1 July 2013, he described a good initial result from lumbar radiofrequency treatment performed in July 2012 with recurrent pain developing around Christmas and returning to baseline in early March 2013. He described several falls in May and June of this year with his leg giving away and about six in total since his injury began. These have been less common since he started taking
Panadol Osteo and Voltaren.
42 The left L2-5 radiofrequency neurotomies performed in July 2012 relieved the hip and leg pain but did not touch his back pain. A review of his MRI showed annular tears at L3-4 and L4-5, explaining a discogenic contribution to his ongoing back pain.
43 As the radiofrequency treatment had worn off, approval was sought from the insurer to repeat the treatment, which was duly performed at Frankston Private Day Surgery on 30 July 2013. The plaintiff said he felt much better after the medial branch blocks and therefore Dr Taverner proceeded with a lumbar radiofrequency neuropathy to those nerves which anaesthetised and denervated the facet joints at the recorded three levels. The prognosis was as follows,
“The plaintiff is likely to experience relapsing and remitting episodes of back pain due to the combined effects of symptomatic facet joints and intervertebral discs.”
44 Future treatment was likely to include periodic radiofrequency treatments.
The Plaintiff’s evidence
45 The plaintiff has sworn two affidavits in the proceeding, on 18 August 2011 and 26 February 2013.[15] In the first affidavit, he records his employment with the defendant and that he was born in September 1975. He records that he was experiencing severe, unremitting low-back pain, which he struggled to tolerate.[16]
[15]exhibit A
[16]exhibit A at paragraph [12]
46 Further, he has remained off work since mid 2009 and has been unable to return to work. He swore he was unable to work because of persistent chronic back pain, the severity of which fluctuates.[17] He further states that he is never free of pain; there is always a level of pain, the severity of which can sometimes worsen for no readily apparent reason.[18]
[17]exhibit A at paragraph [19]
[18]exhibit A at paragraph [25]
47 The plaintiff asserted that he had left school after leaving Year 10 at Ballan Secondary College and later he completed Year 12 at Frankston TAFE in 1992. Since then he has performed a variety of unskilled factory-type work, including work as a machine operator, storeman and labourer.[19]
[19]exhibit A at paragraphs [27] and [28]
48 The plaintiff further swore that his recreational activities had been severely affected. In the past he enjoyed camping, motorbike riding and fishing, and frequently would take camping and fishing trips with his mates and friends, heading away for the weekend to various parts of Victoria. He swears that because of the persisting problems with his back, he is no longer capable of those activities. He was not challenged on this evidence.
49 In his second affidavit, the plaintiff records that he now does back exercises on a daily basis. In cross-examination, he said this includes a 20-minute session in the mornings, including standing on his toes. He further states that his symptoms and restrictions remain as outlined in his previous affidavit and he is now taking Voltaren over-the-counter medication when required. He tries to avoid taking medication because of the side-effects he has had in the past.[20] He further says that his sleep is disturbed as a result of his back pain. He tosses and turns and wakes a few times each night. When he gets up in the morning he generally feels quite flat and fatigued. His back is stiff and sore.[21] He was not challenged on this evidence.
[20]exhibit A at paragraph [7]
[21]exhibit A at paragraph [9]
The injury: consequences
50 There can be no doubt that the injury suffered on 8 December 2008 was a significant contributing factor to the precipitation and/or aggravation and acceleration of pre-existing degenerative changes in the lumbar spine as already recorded, together with precipitation or aggravation of facet joint arthropathy at the levels already described.
51 It is common ground that, insofar as there were pre-existing degenerative changes at those levels, there is no evidence of any impairment with respect to same, prior to the subject injury, and in fact, the evidence is there was no pre-existing symptomatology. Accordingly, on a Petkovski v Galletti[22] analysis, it is conceded that the current level of disability is the level that is attributable to the aggravation injury if it is to be recorded as such.
[22][1994] 1 VR 436
52 The contest between the parties is whether the totality of the evidence is such that the plaintiff has proved that the pain and suffering consequences or the loss of earning capacity consequences, is or are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, is or are fairly described as being more than significant or marked and as being at least very considerable. See s134AB(38)(c) of the Act.
53 When assessing loss of earning capacity consequences, the Act requires the plaintiff to also prove that he has a loss of earning capacity of 40 per cent or more when comparing the worker’s gross income from personal exertion (expressed at an annual rate) which he is capable of earning in suitable employment at the date of the hearing and the gross income (expressed at an annual rate) that he was earning or was capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred. See s134AB(e) and (f) of the Act.
54 It was common ground between the parties that the plaintiff had a retained work capacity which included light factory work and/or courier duties. In essence, the dispute in this regard was the defendant’s contention that the plaintiff was capable of earning greater than 60 per cent of his pre-injury earnings in suitable employment or, alternatively, he had failed to discharge the onus of proof in regard thereto.
55 The defendant in particular points to a number of credit issues in alleging that the plaintiff has failed to discharge that onus of proof.
56 Before dealing with those credit issues, it is my opinion that the physical injury so described by the medico-legal examiners referred to above is capable of being one which could result in long-term permanent consequences as alleged by the plaintiff.[23]
[23]See Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
Credit
57
The defendant’s counsel points to the following matters with respect to credit. First, he submits that the “all-consuming nature of the pain” is such that it is unlikely to be accepted. With respect to this contention, I note two matters. One is the physical basis for the pain, being the facet joint arthropathy and the disc protrusions and desiccation as already described. In addition, the plaintiff has elected to consume a minimum of analgesic medication because of
side-effects already described.
58 On viewing the plaintiff in the witness box, it is my view that he gave a straightforward account of himself and answered the questions, doing the best he could to tell the truth. His inclination not to expand on many of the questions I do not put down to evasion but more to a pre-existing personality type.
59 The second point was put that the plaintiff was less than frank about his ability to drive, which would be relevant to an ability to perform work as a courier driver and/or truck driver and/or forklift driver. The plaintiff, at various times, has said to doctors that he had a capacity to drive for periods usually not exceeding 30 minutes.
60 In cross-examination, he agreed that he had obtained a truck drivers licence which had taken approximately 4 hours of instruction. His intention prior to obtaining that licence was that he thought he could perhaps get a job delivering chips for Smiths Chips in Dandenong where he would maybe drive for 20 minutes, get out, stretch and try and straighten up.[24]
[24]Transcript (“T”) 36, L 8-11
61 He further said, in embarking on that course, he wanted to return to work because he needed to do something and he thought he could do small deliveries such that he could get out and straighten up.[25]
[25]T36, L26-29
62 However, after obtaining the licence, he realised that he could never be driving a truck in the manner he had wished. He was asked:[26]
Q:“Is it the case then that having done the licence you then realised it was a waste of time?---
A:Correct.”
[26]T37, L14
63 He was then asked, that being the case, would he be capable of doing very short trips or just deliveries. He replied:[27]
“Yeah, it just ruins me back. I can’t – I can’t – yeah, I can’t just – it’s just too rough.”
[27]T36, L21-22
64 He was then asked:
Q:“Did you come to that view or your realisation when you were taking your test and getting your licence?---
A:Yes.
Q:Have you tried to drive a truck since?---
A:I drove a bus a week ago for my brother around the corner and that’s too much.
Q:So sitting in a vehicle is just something that is too much for
you?---
A:Yeah, in a truck. I can sit in my car, I can drive my car.
Q:And you can drive your car for longer than you can drive the truck?---
A:About half an hour then that’s – the pain’s right up there and … .”
65 He was then asked:
Q:“So what’s the furtherest you could drive?---
A:Half an hour and then have a rest.
Q:Could you do that indefinitely having breaks?---
A:No.
Q:Why not?---
A:My back progressively goes down hill.”
66 It was then put to him:[28]
[28]T38, L1-31
Q:“If I’ve got you in a pathology vehicle, a small Corolla or something they use, a car, and you’re out there driving, you do a half hour trip and you come from a doctor's surgery to hospital or a pathology place and then you get out and then for a while you stretch and you get back in the car for somewhere else for half an hour, go out and stretch, could you do that all day?---
A:I could but the pain would increase to the point that it’s unbearable.
Q:So by the end of one day the pain would be unbearable?---
A:Yes.
Q:Could you front up the following day and to that?---
A:Probably not, no.
Q:So again to be an employee you’ve got to turn up the next day for work?---
A:Yes."
67 It was then put to him:[29]
[29]T39, L13-22
Q:“Have you actually been in the car for longer than that and specifically have you been in a car driving to Queensland?---
A:I did go to Queensland.
Q:When was that?---
A:Two years ago I think.
Q:Where did you go in Queensland?---
A:To my brother’s place.”
68 Further, he stated he did some of the driving, probably less than half. Otherwise he sat in the passenger seat for the rest of the time. He said on the trip that he probably drove up to an hour at a time before swapping over. Further, he said that the trip probably consisted of 10 hours a day – two days going up and two days coming back.[30]
[30]T39-41
69 The plaintiff was then questioned that, given he was able to do that amount of driving, he could attempt certain jobs part-time, specifically being a forklift driver or a hand packer for light products, and it was put:[31]
[31]T45, L8-14
Q:“That’s the sort of thing you could do for a number of hours if not full time per day?---
A:No.
Q:Why not?---
A:I am not reliable. I can’t – my back might be like in too much pain, I can’t – when they ring the bell and say ‘Be there then’ or I can’t give them my word that I’ll be there.”
70 Once again, in my view, the plaintiff’s answers to questions about the driving to Queensland on the one occasion he went to visit his brother approximately two years ago were answered in a forthright way and were non-evasive. He was given the opportunity – in fact it was suggested he did the driving over three days rather than two – and he did not seek to take the opportunity to reduce the number of hours driving and/or extend the number of days. Once again, I thought he was doing his best to tell the truth and I accept his explanation that he put himself through the rigors of that driving because he had not seen his brother in ten years.
71 The third credit issue is the fact that the plaintiff painted three bedrooms of his house in or around December 2012. It was necessary for him to so paint the rooms because the birth of his child was imminent and the walls were mouldy and required attention for the health of the baby. He stated he had painted the three bedrooms using a roller in the usual way in a standing position. Further, it was put to him that it took two weeks to complete the work and he said it was a bit longer. He used a box to stand on to reach up to the ceiling but did not paint the ceiling. He would paint for a while and then have a rest.
72 It was further put:
Q:“As you were rollering, I take it, by its very nature that involves some backwards and forwards movement of your spine?---
A:Yes.
Q:And the stretching perhaps like the stretching we saw in the film of you in the supermarket?---
A:Yeah, I try to keep straight but yes it was.
Q:How many coats did you do?---
A:Two.
Q:Did you do gloss painting on the architraves?---Yes.”
73 When asked why he had not told any of the doctors about painting the rooms or the trip to Queensland and he did not feel it was necessary to expand on the history, he stated that:[32]
“The trip to Queensland was a one-off. I haven’t seen my brother for ten years so I put myself in that situation and paid for it.”
[32]T58, L3-8
74 It was further put that he had not told any of the doctors about painting the rooms, and he replied:[33]
“That took about three weeks to a month … . I wasn’t a painter, I was just doing it half an hour or something like that then I’d stop and leave, then I’d come back to it.”
[33]T58, L11-15
75 Further, he was asked:[34]
Q:“Bit like a part-time job?---
A:Not even a part-time job … they would have sacked me if it was a part-time job.”
[34]T58, L16-17
76 Once again, the time taken to perform this task and the context in which the work was performed does not, in my view, amount to a credit issue against the plaintiff and I accept his explanation for the time taken.
77
The fourth matter in which credit is in issue is the film taken of the plaintiff on
8 and 9 June 2013. In my view, the film taken on 9 June 2013 does not amount to a credit issue against the plaintiff. When he gets out of his car at 12:58 he is slightly bent. At 13:00, he is pushing a trolley in a supermarket and I note at 13:07, he is leaning on the trolley in a chicken wing formation with his two arms, consistent with getting assistance from the trolley.
78 Further, at 13:11 to 13:13, when he is attending to items in the boot of his car, in my view, he does not bend his lumbar spine. At 13:19, the plaintiff and his partner’s little girl assist him with removing shopping from the boot. Once again, I do not note that there is any degree of flexion of the lumbar spine. In any event, most doctors find a range of flexion of the lumbar spine in excess of that shown on the film.
79 On another occasion, it is said he stands on his tiptoes to reach an item in an upper shelf. To my viewing, he does not extend his back but slightly flexes it in reaching forward. In any event, it is an exercise of standing on tiptoes which he performs every morning as part of his remedial actions. The film on 8 June 2013 lasts about two seconds and it is not probative of any issue.
Economic loss
80 The major issue between the parties appears to be me to be whether or not the plaintiff has discharged the onus of proof with respect to proving a loss of earning capacity of 40 per cent or more. At the time of the occurrence of his injury, the plaintiff has sworn that he was working 40 hours per week at $20 per hour, which is a total of $800 per week or $41,600 on an annualised basis pursuant to s134AB(f)(ii) of the Act.
81 Further, the plaintiff obtained his forklift drivers licence in 2001 and within the three years after the accident would have been capable of earning $26.16 an hour as a forklift driver, which translates to $994 per week, or $51,688 on an annualised basis.
82 The defendant concedes, properly in my view, that the latter figure is capable of being utilised on behalf of the plaintiff pursuant to the subsection of the Act but asserts, in any event, that the plaintiff is capable of working at least 20 hours per week, if not full time, doing suitable light duties, particularly that of a machine operator which is assessed at $25.50 per hour, or a forklift driver, which is $24.55 per hour.
83 Allowing a machine operator performing light work at $25.50 per hour, 20 hours per week would result in a weekly figure of $510, which is an annualised figure of $26,620. This figure is less than the 60 per cent of the figure that the plaintiff was capable of earning as a forklift driver at the relevant time, being $51,688. Sixty per cent therefore is in excess, obviously, of $30,000.
84 In any event, I am not so satisfied that the plaintiff is capable of working 20 hours per week in any of the duties outlined. Two occupational physicians have given opinions in this case, one being Dr David Middleton, for the plaintiff, and Dr David Barton, for the defendant.
85 Dr Barton has provided four reports, two of 8 February 2012, one of 6 February 2013 and one of 27 February 2013.[35] The essence of his diagnosis is contained in the report dated 6 February 2013.[36] His opinion thereat is as follows:
[35]exhibit 5
[36]DCB 27
“2His examination shows no clear evidence of any ongoing significant problem and nor do his investigations point towards a significant work-related injury.
…
5I do not believe there is any physical incapacity for work.
…
7I do not believe there is any physical loss of body function or impairment related to the claimed back injury.
8I do not believe there are any relevant pre-existing issues.”
86 In terms of the physical injury which has been accepted by defence Counsel in closing submission as being at the very least a discal injury probably at two levels, it is hard to reconcile Dr Barton’s diagnosis, first of all, with all the other practitioners whose opinions have been admitted into evidence, but particularly with respect to the investigations which had been forwarded to him on no fewer than two occasions, the contents of which he has not analysed for the purposes of his opinion. Those investigations revealed the physical basis for the complaint as already referred to but particularly referred to in Exhibit B. Further, there is no attempt to analyse the jobs or the occupations that have been referred to in the vocational reports forwarded to him.
87 By way of contra statement, Dr Middleton, in his reports dated 21 March 2012 and 22 February 2013,[37] analysed the NES vocational assessment report dated 22 October 2009[38] and the NES vocational assessment report dated 16 March 2011[39] respectively.
[37]exhibit J
[38]exhibit 7
[39]exhibit 9
88 Without going into chapter and verse of his analysis of those vocational assessments, I note that in his first report he sets out a basis for rejecting the suitability of a storeman, product assembler (light products only), hand packer, machine operator (light only), forklift driver, truck driver, respectively and analyses as to why each of those occupations is unsuitable.
89 He considered, after a detailed examination of all the tasks, that at best the plaintiff, given that his work attendance could not be relied upon, may be able to attend work between 2 and 3 hours in any one day, between two and four days in any one week, and it was advisable that he should not attend work on consecutive days or exceed a maximum number of hours per week of 12 hours. The analysis and the opinion was virtually repeated in his second report.
90
The plaintiff contends that for all intents and purposes, he is totally and permanently incapacitated as per the report of Mr John O’Brien dated
4 February 2013[40] and/or the effect of the report from Dr Vernon Marshall dated 30 April 2013.[41]
[40]exhibit H
[41]exhibit L
91 Without finally finding whether or not this is made out, I find that the opinion proffered by Dr Middleton is consistent with the physical injury, the presentation of the plaintiff in the witness box and the general thrust of the evidence from the medical practitioners, with the exception of Dr Barton, as I have already explained.
92 Accordingly, I find that the plaintiff’s capacity for suitable employment is approximately not in excess of 12 hours per week at a rate of $25 per hour which, on an annual rate, does not exceed the $26,620.
93 Accordingly, I find that the plaintiff has suffered a loss of earning capacity of 40 per cent or more on account of the injury pursuant to s134AB(38)(e)(i) of the Act.
94 There will be leave to proceed at common law in respect of pecuniary loss with respect to the injury.
95 Further, and in accordance with the principles set out in Advanced Wire & Cable Pty Ltd v Abdulle[42] (2009) VSCA 170, there will also be leave granted to proceed at common for non-pecuniary loss.
[42][2009] VSCA 170
Orders
96 Leave will be granted to the plaintiff to issue proceedings for pain and suffering damages and economic loss damages on account of the injury suffered in the course of employment on 8 December 2008.
97 The defendant is to pay the plaintiff's costs, including any reserved costs pursuant to the WorkCover (Litigated) Claims Legal Costs Order 2010 to be assessed in default of agreement by the Costs Court.
98 Then per Court, not consent, I certify Senior and Junior Counsels’ fee on brief of $4,200 per day for two days and I will certify two hours of special conferences at $420 per hour.
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