Mantineo v Davmar Bricklaying and Building Pty Ltd
[2010] VCC 775
•9 July 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04631
| Joseph Mantineo | Plaintiff |
| v | |
| Davmar Bricklaying & Building Pty Ltd | First Defendant |
| and | |
| Victorian WorkCover Authority | Second Defendant |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 & 24 June 2010 |
| DATE OF JUDGMENT: | 9 July 2010 |
| CASE MAY BE CITED AS: | Mantineo v Davmar Bricklaying & Building Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0775 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – Permanent serious impairment or loss of a body function – injury to the lumbar spine – loss of earning capacity – pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr RW McGarvie SC | Maurice Blackburn |
| with Mr C Miles | ||
| For the Defendant | Mr RH Stanley | Lander & Rogers |
| HER HONOUR: |
1 The plaintiff applies under section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in relation to the injury to his lumbar spine suffered as of December 2006 during the course of his employment as a bricklayer with the first defendant.[1]
[1] The plaintiff did not specify at the hearing whether the case was put as one of aggravation or as one of frank injury, however paragraph 11 of the plaintiff’s first affidavit suggests that symptoms came on over a period.
2 The plaintiff is 26 years old and completed Year 12, albeit with a single-digit ENTER Score. After finishing school he completed a pre-apprenticeship course in bricklaying at TAFE and undertook a bricklaying apprenticeship between 2003 and 2006. After completing his apprenticeship, he obtained employment in 2006 with the first defendant.
3 His work involved heavy repetitive work laying bricks and carrying heavy cement bags. In December 2006 he experienced some back pain and right- leg pain and by early 2007 was unable to attend work. His symptoms persisted in spite of physiotherapy, acupuncture, osteopathy and medication, and he found it difficult to stand or sit for long periods. His sleep was interrupted. He was referred by his treating doctor for MRI and specialist assessment in 2007 (by Mr Ton).[2] His symptoms persisted and he was referred to a second orthopaedic surgeon, Mr Carey, in September 2009. Mr Carey organised an MRI dated 28 September 2009 which showed left L5 impingement by a disc protrusion at L4-5.[3] Mr Carey recommended surgery by way of a left L4-5 laminectomy/discectomy which was performed on 10 November 2009. Unfortunately, that procedure did not alleviate his symptoms. An epidural injection in February 2010 did not produce lasting relief of his leg pain. Mr Carey referred him to another surgeon (Mr Michael Johnson) for a second opinion in March 2010. Mr Johnson recommended continued conservative treatment.[4]
[2] Plaintiff’s Court Book (“PCB”) p. 33
[3] PCB p. 45
[4] PCB p. 52
4 The plaintiff continues to suffer back pain and left leg pain and attends physiotherapy twice weekly. He takes Nurofen for his pain which he purchases over the counter. Prior to his back surgery he was attending gym regularly in order to strengthen his back. Since his surgery, he has not resumed gym. He is upset that he will never be able to work again as a bricklayer. He socialises less than he used to. He no longer plays team soccer and rugby. He cannot sit, stand or drive for long periods.
5 At the commencement of the hearing, the defendant conceded the plaintiff’s application in relation to the pain and suffering consequences of his lumbar spine impairment. However, the defendant continued to resist the loss of earning capacity limb of the plaintiff’s application on the basis that employment placement consultants Robyn Willett and Janette Ash concluded in her their report dated 17 June 2010 that the plaintiff is physically able to undertake suitable alternative employment as a picker/packer, line supervisor, truck driver (short distance) and console operator.[5] It was submitted that if the plaintiff could undertake any of these positions he would be unable to establish a loss of earning capacity of 40% or more. It was submitted that the plaintiff had better literacy skills than he admitted and that no weight ought to be placed on the report of Ms Green because she recommended a formal literacy assessment which had not been undertaken.
[5] Defendant’s Court Book (“DCB”) p. 142
6 In his affidavit material, the plaintiff stated his concern that his limited literacy and mathematical skills would limit his ability to be retrained into lighter work. He stated that he had attempted to undertake a personal training course in late 2008 but abandoned the course after five weeks because of his poor sitting tolerances and his poor reading and writing skills. He had been cooperating with all the efforts of rehabilitation experts Recovre to find him alternative suitable employment and had participated in a course to improve his literacy and mathematical skills.[6] He had been looking at sales jobs on the internet.
[6] PCB p. 20
7 At the hearing, the plaintiff said that he chooses to limit his intake of medication to over-the-counter medication in order to avoid becoming dependent. He said that he had surgery in order to avoid taking medication. He said he just passed his TAFE course. He said that when working as a bricklayer he just used his hands and did not use his brain. He did not learn how to use a laser measuring device, but did learn how to line up bricks using string. His boss told him each day which wall to build and how high it was to be and would also give instructions to the labourer assisting him. He said he did not know how to read a plan, and cannot read the newspaper or books. He agreed that he set up an Australian Business Number (“ABN”) when he was a bricklayer but said that his girlfriend did the paperwork for him. He said that if he were able to work as a bricklayer now he could be earning at least as much as the $56,864.00 earned by Shane Zander in the year to 30 June 2008.[7]
[7] Plaintiff’s court book page 71-73.
8 He said he can play PlayStation well, and can chat on Facebook and search for jobs on the internet, but that he cannot type well or spell well nor compose long pieces. He said that sometimes his girlfriend types his Facebook entries for him. He was shown a Facebook response he had written to a friend’s birthday invitation[8], but denied that this indicated he had greater literacy skills than he was admitting. He agreed that two type-written letters shown to him were sent by him but said his girlfriend helped him compose and write those letters.[9]
[8] Exhibit 1
[9] DCB p. 182 (added during the hearing)
9 He said that after his injury he was on the disability support pension but had changed to the Newstart allowance in order to find a job. Since his injury he had made inquiries in relation to about 300 jobs. He produced a large set of documents which represented all the jobs he had looked into. He said that he found the jobs on Seek, then printed off the relevant page. Of all the jobs he had scanned, he had made between 15 and 30 job applications since 2007. One of the jobs he inquired about involved sitting for four hours making phone calls. He said he had received a few replies, each of them rejecting him as unsuitable for the position.
10 The plaintiff agreed that he was attending gym in April 2009 but said he was doing arm and chest work and that Dr Mohtaji knew about this. He said he had not attended the gym since his surgery in November 2009 on medical advice.[10] He did not recall getting a job offer for a traffic management position but recalled doing a traffic management course in 2009. He did recall that his doctor and specialist told him not to do traffic control work. He said that he found the personal training course difficult because his literacy was very bad and that the WorkCover doctor told him he could not do personal training. He said he made a few applications for car sales positions and building supplies sales, but that given his sitting and standing tolerances (20 minutes only), he could not do these positions. He said that Recovre sent him to apply for traffic management jobs but that when he inquired he was told there were no jobs available. He said he had researched every possible job he felt he could go for but, once told what the job involves, he feels he cannot do them because of his restrictions, particularly that he cannot stand or sit for long periods without suffering afterwards. He said that he has never received a job offer.
[10] Transcript p. 27
11 He said that he was sent for literacy and numeracy training in November 2008 but felt the course did not help him and he was troubled by the behaviour of some of the other participants. He said he was pressured by Recovre to do the course and worried that if he did not do it his payments would stop, but he said that he has not read for 8 years and cannot read a newspaper. He said that he was not qualified to be a factory supervisor and that Recovre had not been able to find him a job in brick sales. He said that a person needs to be able to read and write to obtain a sales job.
Radiology
12 CT scan of the lumbosacral spine on 19 January 2007 was reported as showing degenerative changes at L4/5 and L5/S1.[11]
[11] PCB p. 51.
13 MRI of the lumbar spine on 14 May 2007 was reported as showing disc bulge at L4/5-S1 level contacting the exiting right L5 nerve root bilaterally and the transversing S1 nerve root bilaterally in the subarticular recesses.[12]
[12] PCB p. 58.
14 MRI on 12 September 2008 showed a small left posterolateral disc protrusion at L4/5 contacting and minimally displacing the left L5 nerve root posteriorly within the central canal. Small disc protrusion at L5/S1 which bulges slightly more to the left, contacting the transversing left S1 nerve root.
15 X-ray of the lumbar spine on 12 September 2008 revealed minor disc space narrowing at L5/S1.
Physical capacity for suitable employment
Medical reports
16 The plaintiff’s treating general practitioner, Dr Mohtaji, provided a number of medical reports detailing the persistence of the plaintiff’s symptoms in spite of physiotherapy, massage, acupuncture and medication and the referrals made to various specialists.[13]
17 At the hearing, Dr Mohtaji said that the plaintiff has the normal intelligence of a labourer but that he had not assessed his IQ or his literacy skills. He said that he certified the plaintiff fit for modified duties in May 2008 because no rehabilitation services could be provided if he continued to certify him as totally incapacitated. He said that he imposed a 5 kg lifting limit on all patients with disc prolapses. He said that recently the plaintiff reported his pain was a bit better than it was after surgery. He said that he knew the plaintiff was doing gym work in April 2009 but that bench pressing involved no pressure on the spine as the plaintiff was lying down and taking the weight on his shoulders. He said that the plaintiff was against taking medication and that he could not sit all day long. For this reason, he was unable to complete his gym trainer’s course. He felt that it would be hard for the plaintiff to find a job which fits his experience but that if such a job existed the plaintiff could try to see if he could manage it physically. He said that the plaintiff told him about an offer of a job in traffic management and asked his advice. Dr Mohtaji told the plaintiff it may not be suitable if it involved standing all day, but that the plaintiff could try it. He said that the plaintiff had been very motivated to try all possible therapies and to have surgery and to look for work. He agreed that the plaintiff could physically do semi-clerical jobs but also agreed that he needs to be literate for semi-clerical roles. He agreed that the plaintiff could try jobs in sales but felt there was a chance that he would have back pain and need to stop and rest. The plaintiff reported continued sitting and standing tolerances of 30 minutes. He felt that a position as an excavator operator would not be suitable because of the amount of sitting involved as well as the possible impact of the vibration. He said the plaintiff should not sit too long without walking around and must not bend repeatedly. He said this may affect his ability to be a line supervisor, where half the work involved sitting at a computer. He felt that the job of console operator involved quite a bit of lifting, particularly of 7 kg water buckets, and considerable standing behind the counter.
18 The defendant relied on the reports of orthopaedic surgeons Michael Shannon (8.09.08) and Peter Kudelka (15.04.09 and 6 May 2010)[14]. Mr Shannon noted the MRI finding of a disc bulge at L5-S1 contacting the exiting L5 nerve root and diagnosed two-level lumbar disc degeneration.15 He concluded that the plaintiff may need a fusion and would be permanently incapable of returning to his pre-injury duties. He felt that the plaintiff would need retraining. He felt that the plaintiff could not perform the function of an excavator operator due to the prolonged sitting involved, and could not be a fitness instructor because of his physical restrictions. He felt the plaintiff was physically capable of doing sales work or static work as a security guard. He noted that in any position the plaintiff needed to avoid repetitive bending or heavy lifting and needed to be able to vary his posture.
19 Mr Kudelka reported on 15 April 2009 that the plaintiff could not do his pre- injury work but could do alternative sedentary duties which avoided putting strains on his back.16 He noted that there were no signs of psychological overlay, exaggeration or psychological factors at play.17 He recommended further review by Mr Tom and noted that the plaintiff only received temporary benefit from spinal injections. He supported spinal surgery in the plaintiff’s case.
20 In the first report of 6 May 2010, Mr Kudelka noted that the gym work undertaken by the plaintiff was unlikely to have caused his disc degeneration before surgery.18 He felt that the plaintiff’s residual back pain after surgery was not uncommon, was likely to persist, and should be treated conservatively. In his second report of 6 May 2010, Mr Kudelka noted that he had been provided with recent radiological investigations and that the findings were consistent with the symptoms and history reported by the plaintiff. He noted that his examination findings were the same as those made in 2009. He
solicitor. One report is at DCB 118, the other is at PCB 63. The one at PCB 63 responds to a letter from the defendant’s solicitor dated 28 April 2010, whereas the one at DCB 118 responds to a letter from the defendant’s solicitor dated 30 April 2010 which provided radiological investigations to Mr Kudelka.
[13] Plaintiff’s court book page 26,27,29,31.
[14] There are two reports of Mr Kudelka dated 6 May 2010. Both are addressed to the defendant’s See section 134AB(38)(b) of the Act
DCB p. 108.
DCB p. 113.
DCB p. 113.
Defendant’s court book page 118.
concluded that the plaintiff was permanently incapable of performing his pre- injury work but was keen to retrain and but could do sedentary or semi- sedentary work with lifting restrictions of 5-10 kgs. He felt that the plaintiff should continue with conservative treatment.
21 The plaintiff’s treating orthopaedic surgeon, Mr Roy Carey, reported on 7 October 2009 that the plaintiff had an L4/5 disc herniation consistent with his symptoms and that surgery was warranted. On 28 March 2010 Mr Carey reported that a left L4/5 laminectomy/discectomy was performed on 10 November 2009 but that the plaintiff reported no improvement after surgery and in early 2010 reported a marked increase in his leg pain. He was given an epidural injection in February which gave him little relief, and Mr Carey recommended a second opinion be obtained from Mr Michael Johnson. In April 2010, Mr Carey noted the persistence of left leg which was not helped by an epidural injection and concluded that the plaintiff was able to do alternative duties with retraining.
22 Mr Johnson reported on 17 May 2010 that the plaintiff had received no benefit from surgery, had persisting left calf pain and was unable to walk or sit for more than thirty minutes. He recommended that the plaintiff remain active and suggested that he return to work in “a form of employment consistent with his residual symptoms”. He felt that no further surgery was needed.
Vocational assessment reports
23 The defendant relied in particular on the report of Ms Janette Ash dated 17 June 2010 which identified the plaintiff’s transferable skills as English language and communication skills, knowledge of the bricklaying trade, and an ability to work alone or in a team to a schedule and to accept instructions. She identified four roles appropriate to his skills and suitable from a physical perspective: picker/packer of wellness products; line supervisor; truck driver (short distance) and console operator in a service station. The defendant provided expected salaries for the first three of these roles. The defendant submitted that if he could perform any of these roles the plaintiff could not prove a permanent financial loss of 40% or more arising out of his injury.
24 The plaintiff relied on the report of Ms Katrine Green dated 18 June 2010. Ms Green reported the plaintiff’s sitting and standing tolerances as 15 to 20 minutes, 30 minutes driving (although he had not driven since his surgery) and 3-4 kms walking daily. She noted his poor literacy skills, stating that he cannot read a book and can write a shopping list which is barely legible to others, can process emails and search for jobs on the internet but otherwise has no computer skills. She noted that during the interview he had some difficulties with conversation She said that given his educational level and poor literacy skills he relies on his physical capacity to obtain employment. She noted that he could not cope academically with the personal training course he attended, but that in any event this occupation was inappropriate in the light of his physical restrictions. She noted that he had demonstrated a lot of initiative in looking for work but had found none. She noted that a formal literacy assessment was needed from which goals and a plan can be established. She felt that he would need pre-vocational training in literacy and computer skills as well as vocational training.
25 Ms Green concluded that his physical restrictions prevent him from working as a building construction supervisor, bricklayer, delivery driver or in retail sales. She concluded that he did not have the core literacy and computer skills to work as a supply/logistics clerk, sales representative or real estate representative.
Legal Principles
26 In order to make out a “serious injury” within paragraph (a) of the definition in section 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function whose consequences to him in terms of loss of earning capacity and pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function[19], fairly described as being more than significant or marked, and as being at least very considerable.[20]
[19]
[20] See section 134AB(38)(c) of the Act
27 Decisions as to whether an injury is serious involve elements of fact, degree and value judgement.[21] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[22] On the authorities[23], the proper analysis involves: establishing that the plaintiff suffered compensable injury after 20 October 1999; establishing what that injury was; determining the consequences which the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and determining whether those consequences meet the “very considerable level” in terms of pain and suffering and/or loss of earning capacity.
[21] Fleming v Hutchinson (1991) 66 ALJR 211
[22] See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].
[23] Ibid, [80]
28 The whole of the evidence before the court should be considered, not just the medical evidence.[24]
[24] Ibid, [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at [170].
29 Where the plaintiff relies on impairment comprising the aggravation of a pre- existing condition, the plaintiff must establish that the impairment constituted by the aggravation amounts to a “serious injury”.[25]
[25] Barwon Spinners Pty Ltd & Ors v Podolak [2002] VSCA 33; Petkovski v Galletti (1994) 1 VR 436
30 Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, as a result of the injury he has suffered a permanent loss of earning capacity of 40%. For a worker under the age of 26 at the date of injury, the loss of earning capacity is not measured by the formula set out in s.134AB(38)(f) of the Act (that is, by a comparison between his without injury earnings in the three year period before and after period as best reflects his earning capacity, and his earning capacity at the present time from suitable employment[26]). Rather, the Court is to have regard to the usual common law position, namely the “probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life”[27].
[26] See section 134AB(38)(e)(i) and (38)(f) of the Act.
[27] See Minister for WorkCover Bob Cameron’s Second Reading Speech for s.134AB of the Act, Victorian Parliamentary Hansard 13 April 2000 p. 1001; and the explanation given by the Victorian
31 In order to establish the requisite loss of earning capacity, a worker under the age of 26 years at the date of injury must establish that at the date of hearing he will “continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more”.[28]
[28] Parliamentary Scrutiny of Acts and Regulations Committee in Alert Digest No 5 for 2000.
32 Section 134AB(38)(g) of the Act requires the plaintiff to establish that he would not, after rehabilitation and retraining, have the capacity to earn more than 60% of his earnings, “as determined in accordance with paragraph (f) had the injury not occurred”. In the case of a worker under 26, of course, the calculation cannot be done under paragraph (f). It is not clear whether, in the case of a worker under the age of 26, section 134AB(38)(g) of the Act does not apply at all. I have assumed, for the purpose of this application, that the balance of the section does apply.
33 The worker’s loss of earning capacity is to be determined “having regard to employment that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker who is incapable of performing his normal work”.[29]
[29] See s.134AB(38)(e)(ii) of the Act
34 Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning capacity requirements of s.134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the Court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of his application.[30]
[30] See Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority [2009] VSCA 170 per Redlich JA and Beach AJA at [63]
Findings and reasons
35 I found the plaintiff to be a very straightforward witness, albeit one with substantial difficulties in expressing himself. He struggled to take the oath, struggled to understand some of the questions put to him, and gave answers in the simplest language. He did not speak clearly, mumbled quite a bit and was difficult to understand. I accept without reservation his evidence as to his difficulties with speaking, reading, writing, spelling and counting, which is consistent with what he told Ms Green, with his attending Special English classes in VCE, and with his ENTER score of 9.1. That evidence is supported by the observations made by Dr Mohtaji and Ms Green. On the other hand, it is clear from the plaintiff’s evidence and from that of Dr Mohtaji and others who have assessed him that that the plaintiff was highly motivated to get over his physical problems and to find work. According to Dr Mohtaji, the plaintiff took the initiative in trying every kind of therapy and intervention, including surgery, to cure his symptoms and enable him to return to work. When it became clear that surgery had failed to alleviate his symptoms and that his physical restrictions precluded a return to any heavy job, the only kind of work for which the plaintiff is truly suited, he threw himself into whatever rehabilitation options were suggested and into making inquiries into hundreds of jobs for which he might be considered. On the evidence before me, there can be no valid criticism of the plaintiff for not doing enough to get himself back into the workforce. He has tried to retrain to become a personal trainer but this occupation is not suitable for his physical limitations and in any event he could not manage the written work involved. He has undertaken a traffic management course but cannot stand all day or for hours on end. He has undertaken further literacy and numeracy training but found it of little help. He has considered hundreds of jobs and applied for up to thirty positions, without being offered a job.
36 Having regard to his considerable but ultimately futile efforts thus far to improve his literacy and numeracy skills and to retrain, I do not consider that he is an appropriate candidate for further retraining nor that, after any further retraining he would in fact gain the skills he needs to obtain jobs in sales or other semi-clerical positions.
37 I note that an early vocational assessment report in February 2008 (prior to the plaintiff’s surgery) identified as suitable the occupations of traffic controller, excavator operator, security guard, fitness instructor and sales assistant. I consider in the light of the recent medical evidence and the evidence concerning his sitting and standing tolerances that none of these positions, apart from the last one, is suitable having regard to his physical restrictions. I note that the plaintiff does not have the oral communication skills needed for sales work nor the literacy and computer skills required to manage the administrative part of sales assistant duties.
38 I further note that the most recent employment analysis report relied on by the defendant, that of 17 June 2010, identified four different roles as the most suitable to the plaintiff’s skills and physical capabilities: picker/packer; line supervisor; truck-driver (short distance) and console operator.
39 In the light of the plaintiff’s physical and lifting restrictions (no repetitive bending or lifting and no lifting more than 5 kgs) and poor standing and sitting tolerances, I consider on the medical and other evidence before me that he would not be physically able to work full time as a picker/packer, truck driver or console operator. The picker/packer position requires standing all day in a picking line, with only fifteen minute morning and afternoon break and 30 minute lunch break. Even if he could work in this position, the most he could earn is an annual salary of $34,000, which is less than 60% of the $56,864.00 he could earn as a bricklayer in 2008 (60% of $56,864.00 is $34,118.00). The position of truck driver requires a truck driver or forklift driver’s licence. The plaintiff has neither and it is doubtful in my view that he has the academic ability to acquire them. In any event, the position involves sitting and standing for periods beyond his stated tolerances. The position of console operator involves a lot of lifting and bending to re-stock shelves, change water buckets weighing 7.5 kgs and gas cylinders weighing 17.5 kgs, and long periods of standing, which are inconsistent with the plaintiff’s physical restrictions. In addition, I consider that the sales, cash register and computer work required of him in this position are beyond his skill and capability level.
40 Having regard to the plaintiff’s educational background and experience, I consider on the evidence before me that the position of line supervisor is not realistic. At most, the plaintiff has worked with one co-worker, to whom instructions were provided by the employer on a daily basis. At the hearing, he said he was unfamiliar with occupational health and safety requirements on site in relation to the wearing of helmets. He said could not read a plan and had difficulty judging weights. He incorrectly read out a date in a document. The position of line supervisor involves administrative duties requiring order processing and computer work which are clearly beyond the intellectual capacity of the plaintiff.
41 On the evidence before me, I am satisfied that in light of the plaintiff’s level of education and literacy there is no realistic prospect of him obtaining suitably light work in the foreseeable future that is both within his physical capacity and the skill sets he has currently or could realistically acquire. I am satisfied that the plaintiff has made reasonable efforts to retrain and rehabilitate himself.
42 I am therefore satisfied that there is no employment for which the plaintiff is suited when regard is had to the definition of suitable employment in section 5 of the Act.
43 It follows that the plaintiff has established the requisite loss of earning capacity required by s.134AB(38) of the Act and that the loss of earning capacity consequences of the permanent impairment of the lumbar spine are, when judged by other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
Conclusion
44 Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the lumbar spine sustained during the course of his employment with the first defendant particularly from December 2006. I reserve the question of costs.
See Smorgon Steel Tube Mills Pty Ltd v Miliovj Majkic [2008] VSCA 230 per Buchanan JA at [10].
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